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Chajju Lal and anr. Vs. Dr. Ram Pal Singh - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 842 of 1956
Judge
Reported inAIR1968All79
ActsContract Act, 1872 - Sections 23; Code of Civil Procedure (CPC) , 1908 - Sections 107 - Order 41, Rules 23 and 33
AppellantChajju Lal and anr.
RespondentDr. Ram Pal Singh
Appellant AdvocateG.P. Bhargava and ;V.K.S. Chowdhari, Advs.
Respondent AdvocateSatvendra Nath Varma, Adv.
DispositionAppeal allowed
Excerpt:
.....- section 23 of contract act, 1872 - partners taken a decision not to do certain thing - held, agreement is not without considerations. (ii) civil - appeal - section 107 and order 41, rules 23 and 33 of code of civil procedure, 1908 - decree passed against co sharer restraining him to construct door - co-sharer has already constructed door during pendency of suit - held, decree become infructuous - appeal allowed. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the..........it is not proper to go behind the agreement. however, since the defendant has already opened the door the plaintiffs' purpose can amply be served by directing the defendant to put bars in that door so that the door already opened may not be used for egress and ingress purposes to the prejudice of the right of the user of the plaintiffs so far as the land in front of his door is concerned. the learned counsel for the appellant has agreed to this kind of the decree on behalf of the appellant.14. accordingly this appeal is allowed and the judgment and the decree of the lower appellate court is set aside. the defendant is hereby directed to put bars in the already opened door of his at point df 1 and is directed not to use that door for egress and ingress purposes. the defendant is.....
Judgment:

S.N. Singh, J.

1. This is a plaintiffs' appeal in a suit for permanent injunction restraining the defendant from constructing a door at the place DF 1 shown in the sketch map attached to the plaint.

2. The case of the plaintiffs is that the plaintiffs and the defendant jointly purchased a triansulai piece of land shown as ABC in the map attached with the plaint. This piece of land was in between the houses of the parties It is alleged in the plaint that in order to keep their windows and jangals open the parties jointly purchased the triangular piece of land and thereafter they mutually agreed to partition the said land and keeping in view the convenience of the parties. It was specifically agreed between the parties that defendant could open a door 9' wide at the place shown in the sketch map and that the portion DF 1 will not be constructed upon and in no case a door will be opened between DF 1. The plaintiffs went on to allege that it was further agreed between the parties that the land shown in the sketch map attached with the plaint in front of the portion allotted to the parties would ultimately be taken by them from the M. E. Officer. The plaintiffs also averred that acting on the said agreement the parties applied to the Municipal Board to get their constructions made. It was said that now in clear disregard of the agreement the defendant was threatening to build a door at the point DF 1 and if he was allowed to construct the door it will prejudicially affect the business of the plaintiffs hence the suit with the prayer already mentioned above.

3. The suit of the plaintiffs was contested by the defendant who denied the alleged agreement and challenged the right of the plaintiffs to restrain the defendant from opening the door in his part of the building. It was further asserted that in any view of the matter the agreement was void under Section 23 of the Indian Contract Act and that the plaintiffs' real object was to snatch away the defendant's share of the triangular land.

4. The trial court framed relevant issues and on a consideration of the oral and documentary evidence came to the conclusion that the agreement alleged in paragraph 6 of the plaint had been proved and repelling the contention of the defendant that the agreement, if any, was unlwful and contrary to Section 23 of the Indian Contract Act decreed the suit as prayed,

5. The defendant preferred an appeal before the lower appellate court and the lower appellate court framed two points for determination in the appeal:

'1. Whether any agreement as alleged by the respondents ever took place between the parties

2. If so is the alleged agreement without consideration & legally enforceable in law?'

Having formulated the two points it decided the first point as follows:

'From the evidence of the plaintiffs and the defendant discussed above it is quite clear that it was agreed between the parties that the plaintiffs will take the land shown by letters FMNF 1 and the defendant the land shown by letters F 1 NOC from the M. E. S. and that the door of the defendant at DE will be closed and he will open his door towards its east in the land which he has to purchase from the MES. The point is decided accordingly.'

6. So far as point No. 2 is concerned the lower appellate court held that since through the agreement between the parties the parties wanted to usurp the land of M, E. S. the agreement was hit by Section 23 of the Contract Act for it involved an implied injury to the property of another and it was further held that the agreement to close the door and purchase the land must stand or fall together and since the agreement to purchase the land from M. E. S. has not been fulfilled as yet so the agreement to close the door at DF 1 also cannot be enforced. It was also held that the agreement was without consideration. In view of the above findings the appeal was allowed and the plaintiff's suit was directed to be dismissed with costs.

7. The plaintiffs have come up in appeal to this court and it has been contended by the learned counsel for the appellants that the lower appellate court having found as a fact that there was an agreement as alleged by the plaintiffs it erred in law in dismissing the suit on the ground that the agreement was hit by Section 23 of the Contract Act or that it was without consideration.

8. I have heard learned counsel for the parties on this point and I am of opinion that the decision of the lower appellate court so far as applicability of Section 23 of the Contract Act or consideration is concerned is erroneous in law and cannot be upheld.

9. Before proceeding to decide the point raised a further fact has to be mentioned. The plaintiffs having preferred this second appeal had obtained an order of injunction restraining the defendant from constructing any door at the disputed place. But it appears that this injunction order was subsequently vacated with the result that I am Informed that a door at the place DF 1 had actually been constructed by the defendant and it has been argued on behalf of the defendant that since he had already constructed a door at the disputed place the relief originally claimed by the plaintiffs cannot be granted and the appeal has become in-fructuous. It has further been contended by the learned counsel for the respondent that the lower appellate court has given a finding of fact as to what actually the agreement between the parties was which would show that the agreement whereby the defendant was not to construct a door at point DF 1 was subject to the condition that the plaintiffs acquired the land from M. E, S. as shown in the sketch map and since the plaintiffs had not acquired that land the defendant could not be restrained from constructing the door. He has supported the decision of the lower appellate court by arguing that the agreement has to stand or fall In its entirety.

10. I have given my anxious consideration to the contention of the parties and I am of opinion that in this case justice will be met if the present door which has already been constructed by the defendant be allowed to remain where it is but the defendant be directed to put bars in those doors in order to prevent him to use this door for gress and ingress purposes which will substantially conform with the agreement arrived at between the parties, the main purpose of which was that the land in front of that door be not used by the defendant and might be used by the plaintiffs for the purposes of their business.

11. The statement of facts given above and the two judgments of the courts below would show that the parties who were co-owners of the plot ABC entered into an agreement and mutually partitioned that portion. The trial court has accepted the agreement as alleged in the plaint and the lower appellate court has also accepted the agreement but has given the terms of the agreement a bit incoherently. There was no question of closing the door when the suit Was instituted. As a matter of fact the allegation in the plaint was that the defen-dent was threatening to open a door at place DE 1 against the agreement arrived at between the partly. It appears that though the lower appellate court accepted the agreement as alleged in the plaint but while expressing it in its judgment has made confused statement of fact. The lower appellate court having accepted the agreement has erred in holding that the agreement was without any consideration or was hit by Section 23 of the Contract Act. Two co-sharers can by mutual arrangement partition a property and in order to bring about amity between the parties and convenience can agree not to do a certain thing which may prejudice one or the other. There does not appear to be anything wrong in agreeing not to construct the door at a particular place, Amicable settlement between the parties and avoidance of future dispute is itself sufficient consideration for the agreement. I have not been able to appreciate the reasoning of the lower appellate court in holding that the agreement is without consideration. The allegation in the plaint, if accepted, clearly did show that the plaintiffs did some act to oblige the defendant. That obligation itself to my mind is sufficient consideration as alleged by the plaintiffs. Further there is no question of usurping the land of the M. E. S. There is nothing wrong in the two parties agreeing to obtain the land in front of their respective shares of the building for the purpose of using that particular portion of the land in front of their building. Such an agreement will not compel the owner thereof to part with the same but at the same time it cannot amount to usurpation of the land of another. In my opinion Section 23 of the Contract Act has wrongly been applied to the facts of this case.

12. Having arrived at the conclusion that there was an agreement between the parties as alleged in the plaint and the decision of the lower appellate court on the applicability of Section 23 of the Contract Act and its decision about consideration being wrong the next question that arises is as to what should be the nature of the decree to be passed in this case. The plaintiffs clearly wanted an injunction restraining the defendant from opening the door at the disputed place. At the date when the suit was instituted, that was the only proper relief which could have been claimed by the plaintiffs. During the pendency of the suit in this, court the defendant has already constructed the door at his own risk. It is always open to a court to mould its decree in the light of subsequent events in order to shorten litigation. Moreover, in every plaint we find that there is prayer for the general relief claimed and if in the circumstances of a particular case the relief which was originally claimed cannot be granted the court is not precluded from granting the plaintiff an appropriate relief even without formal amendment of the plaint, vide Jugal Singh alias Jugal Kishore v. Lochan Singh : AIR1945All10 head note (c) also see , Lachme-shwar Pd. Shukul v. Keshwar Lal Chau-dhari.

13. Now so far as the contention of the respondent as to the accepting or rejecting the agreement in its entirety is concerned, the agreement as accepted by the two courts below does not show that the agreement not to construct the door was dependent upon the taking of the land. The decision of the lower appellate in this respect is unwarranted by the terms of the agreement as found by it. In my opinion the defendant had agreed not to open the door at the disputed place in order to facilitate the business of the plaintiffs as alleged in the plaint. Once having agreed not to open door and use the land in front thereof it is not proper to go behind the agreement. However, since the defendant has already opened the door the plaintiffs' purpose can amply be served by directing the defendant to put bars in that door so that the door already opened may not be used for egress and ingress purposes to the prejudice of the right of the user of the plaintiffs so far as the land In front of his door is concerned. The learned counsel for the appellant has agreed to this kind of the decree on behalf of the appellant.

14. Accordingly this appeal is allowed and the judgment and the decree of the lower appellate court is set aside. The defendant is hereby directed to put bars in the already opened door of his at point DF 1 and is directed not to use that door for egress and ingress purposes. The defendant is directed to put bars as directed above within a period of three months from today failing which the plaintiffs will be entitled to get this done through court at the expense of the defendant. In case the defendant complies with this order within the time allowed by this judgment parties will bear their own costs throughout but In case of default and non-compliance of this order the plaintiffs will be entitled to their costs throughout.


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