(1) This is a second appeal by the defendant in O. S. 329 of 1958 on the file of the Munsiff at Tarikere. The decree passed against him by Munsiff has been confirmed on appeal by the Civil Judge at Chikkmagalur.
(2) The facts leading to the filing of the still are no longer in dispute. A sister-in-law of the plaintiff respondent had conveyed an areca garden to the defendant appellant for a sum of Rs. 10,000. Simultaneously the defendant had entered into a karar or an agreement undertaking to reconvey the property if the said sum of Rs. 10,000 is paid to him any time before the expiry of five years after the sale to him. The right to obtain reconveyance under the said karar was assigned to the plaintiff by her sister-in-law. The defendant declined to execute reconveyance in plaintiff's favour on the plea among others that the right to obtain reconveyance was personal to the plaintiff's assignor and was not capable of being assigned to the plaintiff. Thereupon the plaintiff deposited the money in court and instituted a suit for specific performance which in due course resulted in a decree in plaintiff's favour.
(3) During the pendency of that suit, the plaintiff appears to have made attempts by way of interlocutor's applications to prevent the defendant from harvesting the areca crop which was ripe for plucking some days after the presentation of the plaint therein. Those attempts however failed and the defendant succeeded in harvesting the crop before the decree for specific performance came to be passed.
(4) The present suit out of which this second appeal a rises was instituted sometime thereafter by the decree the plaintiff in which he asked for a decree for Rs. 800 although according to him, the actual value of 50 maunds of areca taken by the defendant as aforesaid would be Rs.1500.
(5) That the defendant did harvest the crop during the pendency of the suit for specific performance has been found as a fact by both the courts below.
(6) The only question of law that has been argued in this second appeal is whether the plaintiff's present claim was not barred by the provisions of R. 2 of O. 2 of the C.P.C. Both the courts below have accepted the contention of the plaintiff that the said rule cannot be pleaded in bar for the reason that the cause of action for the present suit arose after the presentation of the plain in the specific performance suit because the areca in respect of which the present suit claim is made was harvested after the presentation of the paint in the specific performance suit. It is the correctness of this view of the courts below that is challenged in this second appeal.
(7) Prima facie the claim of the plaintiff read in the light of the averments made in the plaint appears to be or looks like a claim which may well bear the description of a claim for mesne profits. If such were the legal description of the claim made by the plaintiff there can be no doubt that the claim is unsustainable in law. Until a conveyance is actually executed pursuant to an agreement of sale, the promisee under the agreement is not entitled to any proprietary interest in the property at all. Even when a suit for specific performance is filed and decreed the title to the property does not pass until a conveyance is actually executed by the defendant in obedience to the decree. Until therefore, title actually passes to the plaintiff, the defendant will continue to be the owner of the property with the result that he cannot be said to be in unlawful possession and therefore liable for mesne profits.
(8) But because the plaintiff has made averments making it possible for the defendant to say that the claim is one for mesne profits I do not think that the plaintiff should immediately be non-suited. If the plaintiff counsel make out that the claim is in the nature of damages or compensation and that appears to be the view taken by the Munsiff in this case he may be granted a decree for damages if he is otherwise entitled thereto.
(9) It is in this regard that the objection under O. 2 R. 2 of the C.P.C. is raised. The relevant portion of the Rule runs as follows :
'Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.
(10) It is with a view to get out of the ambit of this rule that the plaintiff made an attempt before the courts below and successfully to make out that the cause of action for the present suit had not accrued to him at the time he had instituted his previous suit for specific performance. The answer to that contention on behalf of the appellant is based on the provisions of S. 19 of the Specific Relief Act. The relevant portion of which reads as follows :--
'Any person suing for specific performance of a contract may also ask for compensation for its breach either in addition to or in substitution for such performance.'
So far as the claim for damages in substitution for specific performance is concerned, such an alternative prayer is ordinarily or normally made by way of caution for the reason that the granting of specific performance is discretionary with the Court even in the event of the plaintiff proving that a breach of contract had arisen in circumstances entitled him to make a prayer for specific performance. The crucial question, however, is whether the provisions of S. 19 of the Specific Relief Act cited above which enable a plaintiff to ask for compensation for breach of contract in addition to a prayer for specific performance do not proceed upon the legal principle that the cause of action for such additional damages is the same as the cause of action of action for the prayer for specific performance viz., breach of the contract of sale.
(11) That the said cause of action is the same is the view taken by Viswanatha Sastri J. in S. Ramalingham Pillai v G.R. Jagadambal AIR 1957 Andh Pra 960. After pointing out that the claim for mesne profits in cases of this nature is wholly unsustainable, his Lordship proceeds to observe as follows:
'It was argued that the plaintiff's claim might be regarded as one for compensation or damages. The plaintiff would be entitled to sue for consideration for breach of the contract to convey in addition to suing for the execution of a conveyance. The measure of such compensation would ordinarily be the amount of profits which the plaintiff would have received from the property between the date of the breach of contract and the date when the conveyance was actually executed.................... The claim for compensation could and should have been put forward in the previous suit which the plaintiff filed for specific performance. S. 19 of the Specific Relief and the second illustration to that section would amply apply to the case. The right to compensation arose coincidentally with the right to specific performance of the contract of sale. Viewed as a suit for compensation in addition to specific performance for which a decree has already been obtained by the plaintiff the suit would be barred under O. 2, R. 2 C.P. Code.
With respect I agree with the statement of the principle by his Lordship in the above extract.
(12) The appellant has also relied on a decision of Mukherji J. In Pratap Chandra Koyal v. Kalicharan Acharya : AIR1963Cal468 . In that case, a distinction on principle was sought to be made between the damages or compensation relating to a period anterior to the institution of the suit for specific performance and compensation relating in a period anterior to the institution of the suit for specific performance and compensation relating to the period subsequent thereto. While discussing this distinction his Lordship made certain observations tending to show that the claim for compensation should be limited to the period anterior to the institution of the suit and that the loss occasion subsequently which is primarily or solely attributable to delays in litigation may not be claimable by a plaintiff. It appears to me, with great respect, that the loss need not on principle be held to be so inevitable connected with the delays in litigation as to disentitle a plaintiff from making a claim against a defendant in respect of that also, because the defendant who refuses unlawfully to perform a contract entered into by him making a claim against a defendant in respect of that also, because the defendant who refuses unlawfully to perform a contract entered into by him making it necessary for the plaintiff to go to Court cannot absolve himself of the responsibility for the consequences flowing from his breach of the contract. The only matter for consideration from the point of view of the plaintiff is the manner in which the plaintiff could pay court-fee in respect of damages which may accrue subsequent to the filing of the plaint. The simple answer thereto is that the plaintiff should make a reasonable estimate of the damages which he claims in the same way as a plaintiff in a suit for any other type of damages has to.
(13) Applying these principles it appears to me that the view taken by the courts below is erroneous in law.
(14) It has, however, been argued on behalf of the respondent that the legal position discussed above does not actually apply to the facts of this case. It is argued that the breach of contract by the defendant in this case cannot be said to have occurred any time before the plaintiff had instituted the previous suit for specific performance. To my question why the plaintiff went to Court in such an event asking for a decree for specific performance, the learned counsel replies that the principal reason was the doubt raised by the defendant as to whether the right of reconveyance is favour of the original vendor of the defendant was or was not personal to her and not assignable to the plaintiff. Even so, it appears to me, the doubt raised by the defendant is in essence a repudiation of the plaintiff's right to insist upon the performance of the contract. To say that the defendant raised only a doubt should in the circumstances be regarded as an euphemism for a total refusal to accept the plaintiff's right to performance and a repudiation of the defendant's liability or responsibility in favour of the plaintiff.
(15) An alternative suggestion made by the learned counsel for the respondent that the breach of contract in this case occurred only when the defendant filed his written-statement in the suit for specific performance is, in my opinion really destructive of the original argument. The written statement of the defendant in the previous suit was not to any extent different from the reply by him to the plaintiff before the institution of the suit. If, therefore, what is stated in the written-statement may be taken to amount to a breach of contract, the same statement made before the institution of the suit must also amount to or be treated as amounting to a breach of the contract.
Looked at from any point of view therefore, there can be no doubt that a breach of the contract had taken place before the institution of the suit for specific performance entitling the plaintiff to make not merely a claim for specific performance of the contract but also a claim in addition therein for such damages or compensation as he may be entitled to in the circumstances which as already pointed out in the case decided by Viswanatha Sastry J mentioned above, may be taken as loss occasioned or likely to be occasioned to the plaintiff by the delay on the part of defendant to perform the contract from the date on which he should have properly performed it till the date he actually performs it.
(16) In the result, this second appeal is allowed, the decrees of the Courts below are set aside and the plaintiff's suit dismissed. The defendant will have his costs in all the three costs.
(17) Appeal allowed.