SALIM BEG Vs. KRISHNA BALLABH, GULAB CHAND
LAWS(MPH)-1954-1-3
HIGH COURT OF MADHYA PRADESH
Decided on January 13,1954

Salim Beg Appellant
VERSUS
Krishna Ballabh, Gulab Chand Respondents




JUDGEMENT

Dixit, J. - (1.)THIS second appeal arises out of the Plaintiffs -Respondents suit for specific performance of a contract of sale of Re. 0/5/4 share in certain Zamindari lands and its possession.
The Plaintiffs' suit was on the basis of an Ekramama executed on 11 -6 -1940 by the Defendant Appellant in their favour. By this Ekrarnama the Defendant in settlement of certain disputes which are then pending between him and the Plaintiffs is civil and revenue Courts, acknowledged a sum of Rs. 1199/ - as due from him, to the Plaintiffs (sic)agreed to sell Rs. (sic) share in Mouza Rati(sic) Zamimdari to the Plaintiffs for a considerartion of the amount which the Defendant had acknowledged as due from him.

The main defence of the Appellant to the suit was that the contract was not binding on him as he was induced to sign Ekrarnama as a result of fraud undue influence and coercion practised upon him by the Plaintiffs. The learned Civil Judge, First Class of Shivpuri dismissed the Plaintiffs' suit holding that the Plaintiffs had failed to perform their part of the contract.

The Plaintiffs then appealed to the Court of District Judge, Guna. In appeal the learned District Came to the conclusion that there was a concluded contract for the sale of the property in lieu of Rs. 1199/ - which the Defendant had acknowledged as due from him to the Plaintiffs and that the Plaintiffs had performed their part of the contract. He, however, held that specific performance ought not to be granted and it would proper to award to the Plaintiff's compensation the alternative.

As to the amount of compensation the learned District Judge arrived at the conclusion that the Plaintiffs were not entitled to recover the entire amount of Rs. 1199/ - because this amount in(sic) a sum of Rs. 503/3/6 in dispute in an appeal between the parties which the Plaintiffs (sic)undertaken to get dismissed after the execution of the Ekrarnama but which they prosecuted (sic) to the terms of the agreement and which (sic) decided against them and that, therefore, (sic) could recover from the Defendant only the decree of Rs. 1199/ -, namely Rs. 695/12/6. Accordingly the learned District Judge passed a de(sic) in favour of the Plaintiffs and against the Defendant Appellant for Rs. 695/12/6.

The Defendant has now appealed to this Court (sic) the decision of the learned District Judge. Plaintiffs have also filed cross -objections claim -(sic) that they are entitled to a decree for specific performance of the contract or to get in the alternative the full amount of the consideration of (sic.)1199.

(2.)MR . Bhagwandas Gupta counsel for the Appellant argued that the Plaintiffs were not entitled to any compensation as there was no agreement between the parties that in case of breach the contract the Defendant would pay to the Plaintiffs any amount and further in their plaint the Plaintiffs had not asked for damages in the alternative in the event of the Court deciding that specific performance of the contract ought not to be granted. Mr. Karkare learned Counsel appearing on behalf of the Respondents contended that the learned District Judge had not given any reason for refusing to the Plaintiffs the relief of specific performance and that in any event the Plaintiffs were entitled to get from the Defendant the entire amount which the Defendant had acknowledged as due from him and which formed the consideration for the contract.
I am unable to uphold the decision of the learned District Judge that the Plaintiffs can get from the Defendant only Rs. 695/12/6 as compensation as an alternative to specific performance. On the findings of the learned District Judge that there was a concluded contract for the sale of Zamindari property for the consideration of Rs. 1199/ - and that the Plaintiffs had Carried out their part of the contract and that it would be expedient in the case of award to the Plaintiffs compensation, the Plaintiffs clearly became entitled to recover from the Defendant Rs. 1199/ - at least, which the Defendant had acknowledged as due from him and which formed the consideration for the contract.

In coming to the conclusion that he did, the learned District Judge has failed to appreciate the pleadings of the parties and given inconsistent findings. If was not the case of either party that the consideration recited in the agreement was not the real consideration. The Defendant did not plead that he had acknowledged an amount higher or lower than Rs. 1199/ - as due from him. His plea was that the terms of the agreement and the consideration were not binding on him as the Plaintiffs practised coercion, undue influence and fraud upon him and thus persuaded him to enter into an agreement for the sale of the property for Rs. 1199/ -. The Defendant's objection was one which went to the root of the validity of the contract.

The Defendant -Appellant having failed to produce any evidence to support his plea of coercion, undue influence and fraud, and the learned District Judge having found that the contract was valid, the consideration for it was Rs. 1199/ - and the Plaintiffs had performed their part of the contract, it is inconsistent to say further, as the learned District Judge did, that contrary to the agreement the Plaintiffs prosecuted an appeal in which a sum of Rs. 503/3/6 was involved and lost it and that, therefore, the consideration for the agreement to sell was not Rs. 1199/ - but only Rs. 695/12/6. If the learned District Judge thought that the Plaintiffs by their failure to have the appeal dismissed, did not carry out their part of the contract, then he should have logically held that the Plaintiffs had disentitled themselves to the relief of specific performance by failing to carry out their part of the contract and that they could not, therefore, get even compensation in the alternative.

The Privy Council decision in 'Ardeshir v. Flora Sassoon', AIR 1928 P.C. 208 (A), makes it very clear that under the Specific Relief Act a Plaintiff in a suit for specific performance is not entitled to get damaged as an alternative to specific performance if he has debarred himself by his action from obtaining specific performance. I am, however, inclined to think that the learned District Judge was right when he first found that there was a valid concluded contract between the parties for the sale of the Zamindari property for the consideration of Rs. 1199/ - which the Defendant had acknowledged as due from him to the Plaintiffs and that the Plaintiffs had carried out their part of the contract. On the evidence on record this finding of the learned District Judge cannot be assailed, and indeed no attempt was made before me by the learned Counsel for the Appellant to challenge this finding.

It must also be noted that the effect of the dismissal of the Plaintiffs' appeal after a hearing was in no way different from that which would have ensued from the dismissal of the appeal on account, of the Plaintiffs' themselves moving the Court to dismiss the appeal as contemplated by the agreement. There could, therefore, be no justification for reducing the amount involved in the appeal from the amount of consideration, namely Rs. 1199/ - on the ground that the appeal was dismissed and decided against the Plaintiffs after a hearing. The learned District Judge was thus in error in holding that the Plaintiffs were entitled to get compensation only the amount of Rs. 695/12/6.

In my opinion the Plaintiffs are clearly entitled to get from the Defendant Rs. 1199/ - as compensation as an alternative to the relief of specific performance. The Plaintiffs are entitled to compensation under Explanation to Section 19, Specific Relief Act because under the Madhya Bharat Zamindari Abolition Act which came into force on 25 -6 -1951, that is, before the filing of this appeal, the Zamindari property has now vested in the State and the contract to sell the property has now become incapable of specific performance. It is no doubt true that the Plaintiffs in their plaint did not specifically ask for damages in the alternative. But it is now well -settled that in a suit for specific performance of an agreement, it is always possible for the Court, if it does not think fit to enforce the agreement specifically, or if the contract has become incapable of specific performance to award damages in lieu of enforcement even if not directly claimed in the plaint provided the Plaintiff has not debarred himself by any act on his part to the relief of specific performance. See 'AIR 1928 P.C. 208 (A); 'Sushilendra Pal v. Kailash Chand' : AIR 1945 All 395(B).

The damages which the Plaintiffs are entitled to get in the present case are not damages for breach of contract but are damages as an alternative to the relief of specific performance which cannot now be granted to the Plaintiffs as the Zamindari property has vested in the State. I am aware of decision of the Nagpur High Court in 'Mohammad Abdul Jabbar v. Lalmia' : AIR 1947 Nag 254 (C), where relying on certain observations of their Lordships of the Privy Council in 'AIR 1928 P.C. 208 (A), it seems to have been held that the Court has no power to grant damages as an alternative to specific performance where the relief of specific performance has become impossible. With all respect to the learned Judges of the Nagpur High Court, it seems to me that in taking the above view they have overlooked the Explanation to Section 19, Specific Relief Act.

The Explanation distinctly says that the circumstances that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by Section 19. The observations of the Privy Council to which a reference was made in the Nagpur case only explained the position of the law in England and did not contain a statement of the law as existing under the Explanation to Section 19, Specific Relief Act. In England no doubt the power to give damages as an alternative to specific performance, as observed by the Privy Council in 'AIR 1928 P.C. 208 (A), did not exist to a case in which the relief of specific performance had become impossible. But under Explanation to Section 19, Specific Relief Act, Courts in India are not precluded from giving alternative relief of damages where the relief specific performance has become impossible.

I am, therefore, of the opinion that the Plaintiff Respondents are entitled to get from the Defendant -Appellant Rs. 1199/ - which the Appellant had acknowledged as due from him and which formed the consideration for the contract of,(sic) of the Zamindari property.

(3.)I would, therefore, dismiss the Defendants appeal and accepting the Plaintiffs' cross -objections pass a decree in their favour and against the Appellant for Rs. 1199/ -. Having regarded the course the litigation has taken in all Courts, I would leave the parties to bear their costs in all the Courts.
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