1. The judgment of the learned Subordinate Judge, though lengthy, is a, creditable performance. He has rightly brushed aside questions as to the joinder and non-joinder of parties. It would have been better and shortened his judgment if he had not directed his mind to whether Government, the owner of the road, was a necessary party or not. In my opinion he has arrived at the truth of the matter that when Deo Narain entered into this agreement the conditions were such that he should not be tied down to specific performance of this contract. He has rightly quoted Section 22, (1), Specific Relief Act:
Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part, the Court may properly exercise a discretion not to decree specific performance.
2. The matter may be very shortly put There was communal trouble in the town of Jalalabad in the Shahjahanpur District in September 1924. The Sub-Divisional Officer, a Muhammadan, was at the spot. As usual, the Muhammadans found all trees held sacred by Hindus, too low for the passing of the tazias, and the Hindus were of opinion that they were quite high enough for tazias of a reasonable height. This was an excellent opportunity for the display of communal bias and for the breaking of heads in consequence. On 14th September the District Magistrate Mr. Wallace, a European, went to the spot and passed an order to which the Hindus and Muhammadans submitted, at least outwardly, because it was promulgated by a European. He directed that the branches of trees may be tied up high while the tazias passed and lowered after the passage of the tazias, There may not be much wisdom in this order as a mischief-maker may easily use the branches as catapults to be released exactly when the tazias were under the tree. All the same it is well said:
Waqt zarurat chu numanad guroz, dast begired sar shamsher tez.
3. To translate this phrase freely, it means that when a howling mob is round about, one would choose the best means possible to placate the members of the mob whether your order be consistent with wisdom or not. The same was done on 19th September by the Muhammadan gentleman to avert a communal riot. Being a Muhammadan his co-religionists expected too much from him and the Hindus suspected him of bias. This would happen with the most honest and high principled officer in this present unfortunate time. If the angel Gabriel came down on another lady-Day to make an announcement, the Hindus would distrust him if he came in the garb of a Muhammadan and the Muhammadans would distrust him if he came in the garb of a Hindu. On the night of 14th September the Muhammadan Sub-Divisional Officer believed that the Muhammadans would be satisfied if he obtained consent from the Hindus only to lop off the branches which obstructed the tazias.
4. Subsequently he discovered that this was not enough for the Muhammadans who evidently were in larger numbers and sufficient to overawe the Hindus, and, therefore, on 19th September he obtained the agreement under dispute, according to which, Deo Narain promised to cut the pipal tree, a tree venerated by all Hindus from the root. There was no consideration whatsoever for this promise. In the agreement was stated that for that day the Muhammadans would tilt the tazias and take them out, and the Muhammadans further promised that they would do certain religious acts within a certain time in future. The tilting of the tazias one day was no advantage to Deo Narain. On the other hand, if tazias could be tilted on one day it is obvious that they could be tilted on future occasions also without any religious detriment. As to promise of processions passing out at certain times, the performance thereof lay on the lap of the God. There is no evidence that the Muhammadans of position who signed the agreement could have been in a position to enforce it on the butchers and bakers who are the real persons in power at a time of communal trouble. There cannot be the slightest doubt that Deo Narain executed the agreement as he was overawed by the Muhammadan crowd and feared for the safety of his life. He wanted to tide over that particular evil day. Both because there was no consideration and for reason of the provisions of Section 22, Specific Relief Act, quoted above, the lower appellate Court was justified in refusing to grant specific performance of the agreement.
5. The appeal is dismissed with costs.