K.C.Das Gupta, C.J. - (1.) The main question for decision in this appeal is whether the plaintiff, who is the appellant before us, should be allowed to raise an issue as regards relief under Section 65 of the Indian Contract Act though the suit as framed was for recovery of a sum of money on the basis of a contract and on an allegation of failure of consideration for the contract. It appears that the plaintiff being in need of a Lancashire Boiler registered its requirement with the Department of Government which had been helping parties in India to obtain such boilers from abroad. By a letter dated 31st of January 1946 addressed to the Assistant Coal Commissioner of the Department of Industries and Supplies. Government of India, the plaintiff requested allocation of 2 Lancashire Boilers including one "by John Thompson with a working pressure of 150 lbs. per sq. inch complete with fittings, mountings and firebars". On 19th February 1946 the Assistant Coal Commissioner wrote that one second-hand Lancashire Boiler had been allocated to the plaintiff for installation at the Churulia Colliery. It appears further that after the plaintiff had sent a cheque for Rs. 34,000/-on account of the price of the Boiler as intimated by the Assistant Coal Commissioner, the necessary documents including the railway receipt as regards the Boiler were sent to the plaintiff and the plaintiff took delivery of the Boiler in May 1946. The plaintiff's case as made in the plaint is that when received this Boiler was found to be in unserviceable condition and in spite of the repairs which were carried out in accordance with the suggestion of the Assistant Coal Commissioner, the Boiler was still unfit for the purpose for which it had been purchased and could attain only working pressure of 109 lbs. instead of the pressure of 150 lbs. as required. As early as February 1947 the plaintiff on finding that the Boiler was unserviceable asked the Assistant Coal Commissioner to take back the Boiler and to refund the price as also the freight and handling charges. This request was repeated in several letters and ultimately by a letter dated 5th July 1949 the plaintiff wrote rejecting the Boiler and again calling upon the Assistant Coal Commissioner to take back the Boiler and to refund the price together with the amount paid by the plaintiff on repairs of the same. As the defendant did not take back the Boiler or refund the price, the plaintiff brought the present suit for recovery of the sum of Rs. 35,509-12-0 consisting of Rs. 34,000/-paid on account of price, Rs. 364-11-0 for the railway freight, Rs. 325-1-0 for the handling and unloading charges and Rs. 820/- spent on account of repairs. The main defence raised in the written statement was that the contract was void inasmuch as it did not comply with the provisions of Section 175, Sub-section (3) of the Government of India Act. 1935, At the tried the. first issue raised was "whether the contract pleaded in paragraph 1 of the plaint was enforceable in view of the provisions of Section 175(3) of the Government of India Act". The learned Judge has held on the authorities of numerous decisions of this Court that the agreement was void. That conclusion is no longer disputed before us and in fact, Mr. Roy, the learned counsel for the appellant, formally submitted to us that his client abandoned the claim on the basis of the contract.
(2.) At the trial Mr. Roy asked the Court's permission to raise a second issue as to whether the plaintiff was entitled to recover the amount claimed in the plaint under the provisions of Section 65 of the Indian Contract Act, that is, for restitution of the sum of Rs. 64,000/- which was the advantage obtained by the defendant, the Union of India, under the agreement which has been discovered to be void. The learned Judge allowed some evidence to be adduced on the fact and the date of discovery that the agreement was void but ultimately came to the conclusion that the plaintiff cannot be allowed to raise this issue. He also held that even if the plaintiff be allowed to raise it, the suit would be bad for want of notice under Section 80 of the Code of Civil Procedure. It appears also to be his view that the suit would also fail on the ground of limitation as he was unable to accept the plaintiff's case that the agreement was discovered to be void at the time or in the manner alleged by the plaintiff's witness, Tara Das Bhattacharya.
(3.) The ordinary rule undoubtedly is that every suit his to be disposed of on the basis of the pleadings of the parties and no issue should be allowed to be raised unless the necessary averment of facts is in the pleadings. In this connection Mr. Kar, the learned counsel for the respondent, the Union of India, has drawn our attention to the observations of the Supreme Court in Trojan and Co. v. Nagappa Chettiar. That was a suit for compensation on the ground that certain shares had been purchased by a firm of stock-brokers in contravention of the instructions of the constituent, the plaintiff. No alternative claim was made in the plaint on the ground of failure of consideration. The case that the purchase was unauthorised was abandoned by the counsel and a new case not in the pleadings claiming relief on the ground of failure of consideration was allowed to be raised and a decree was made in favour of the plaintiff directing the defendants to pay to the plaintiff certain amounts in respect of a particular transaction. Dealing with this question Mahajan J. stated: "We are unable to uphold the view taken by the High Court on this point. It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. The allegations on which the plaintiff claimed relief in respect of these shares are clear and emphatic. There was no suggestion made in the plaint or even when its amendment was sought at one stage that the plaintiff in the alternative was entitled to this amount on the ground of failure of consideration. That being so, we see no valid grounds for entertaining the plaintiff's claim as based on failure of consideration on the case pleaded by him." The language used in these observations is certainly wide enough to support Mr. Kar's contention that unless and until the plaintiff has asked for and obtained an amendment of his plaint making an alternative claim on the basis of Section 65 of the Contract Act, the Court is not entitled to allow the plaintiff to raise such an issue. It is necessary to consider, however, whether by these observations the Supreme Court intended to lay down an absolute rule that in no case, not even a case where the facts on which the fresh claim is based are to be found in the defendant's own pleadings, can the Court give relief on grounds not mentioned in the plaint, it is helpful to consider in this connection another pronouncement of the Supreme Court in Srinivas Ramkumar Firm v Mahabir Prasad. That was a suit for specific performance of the contract to sell a house. The plaintiff's case was that the second party deiendants had agreed to sell a house for consideration of Rs. 34,000/- and out of this a sum of Rs. 30,000/- had been paid by the plaintiff firm on behalf of the vendors to a creditor of the latter. The second party defendants contended that they had never agreed to sell the house to the plaintiff and the story of a contract of sale as set up was entirely false. They admitted, however, that they had approached the plaintiff for a loan and the plaintiff advanced to them a sum of Rs. 30,000/-. The trial Court came to the conclusion that the story of a contract of sale as alleged by the plaintiff was not established, that the defendant's story Was true and that the plaintiff did advance a sum of Rs. 30,000/- by way of a loan to the second party defendants. In this view the trial Court dismissed the plaintiff's claim for specific performance and gave the plaintiff a money decree for a sum of Rs. 30,000/- with interest of 6 per cent. per annum from the date of the suit to the realisation against these second party defendants. On appeal the High Court at Patna agreed with the trial Judge that the plaintiff was not entitled to a decree for specific performance. As regards the money decree granted against the second party defendants the High Court, however, held that this was not warranted in law as no case of a loan was made by the plaintiff in the plaint and no relief was claimed on that basis. Accordingly the High Court dismissed the suit in its entirety and set aside the decree for recovery of money that had been made in favour of the plaintiff by the trial Court. The plaintiff appealed to the Supreme Court. The Supreme Court declined to intervene with the findings of facts by the Courts below. It was, however, of opinion that the trial Court was right in giving a decree for money against the second party defendants "and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge." It will be helpful for our present purpose to set out in full the observations of Mukherjea J. who delivered the judgment of the Court consisting of Sastri J., Mahajan J. and himself. "It is true" said the learned Judge "that it was no part of the plaintiff's case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defendants second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee in Mohan Manucha v. Manzoor Ahmad Khan, 70 Ind App 1: (AIR 1943 PC 20)." In the case of 70 Ind App 1: (AIR 1943 PC 29) which was being cited with approval by the Supreme Court, the plaintiff had brought a suit to enforce a registered mortgage granted by one Mansur Ahmad Khan, the defendant's father, in favour of Moti Lal Manucha, the plaintiff's father. The deed contained also a personal covenant to pay the interest half-yearly and to repay the principal at the end of three years. The plaint sought relief, both by sale of the mortgaged property and by enforcement of the covenant. The defendants maintained, inter alia, that the mortgage sued upon was void, having been made in circumstances which brought into operation paragraph 11 of the Third Schedule to the Code of Civil Procedure by reason of which, it was stated, the defendant's father was not competent to mortgage the property. The trial Judge sustained the defendants' contention and also refused the plaintiffs a money decree on the covenant on the ground that the cause of action had become barred by limitation. Accordingly he dismissed the suit. Before the Chief Court it was contended on behalf of the plaintiffs that they were at least entitled to relief under Section 65 of the Indian Contract Act. The Chief Court, however, refused to entertain that ground of claim because it had not been pleaded and was not taken in the memorandum oi appeal. Accordingly they left the plaintiffs to seek that remedy by a separate suit. In their appeal to His Majesty in Council the plaintiffs contested the findings of the Courts in India both as regards the invalidity of the mortgage and as to their claim on the personal covenant being statute-barred; but they also insisted on their right to relief under Section 65 of the Indian Contract Act. The appeal was heard ex parte. In spite of this, however, their Lordships of the Privy Council came to the conclusion that the appellants ought not to be refused restitution in the suit under Section 65 even though that had not been pleaded as a separate ground of claim in the plaint. Dealing with the question their Lordships observed: "With all due respect to the Chief Court, their Lordships think that their attitude towards the question of pleading was unduly rigid. A defendant who when sued for money lent pleads that the contract was void can hardly regard with surprise a demand that he restored what he received thereunder. What defence the respondents can have desired to make on this aspect of the case is not revealed by anything in the judgment of the Chief Court, apart from the question of limitation, with which their Lordships have already dealt, and from the condition that Section 65 cannot apply where there is a transfer of property and not a mere agreement. This last contention is a pure point of law and one which the Chief Court rightly regarded as without substance and contrary to authority. There is no reason to apprehend that by allowing the appellants to obtain relief under Section 65 any injustice to the respondents can result. On the contrary, prima facie it is hardly just that the rights of the parties in respect of the transaction of August 12, 1919, should be dealt with in part and in part postponed. Though it is a matter of discretion, a result so inconvenient needs to be justified by solid reason, and their Lordships see no sufficient reason to prevent restitution being ordered in this case." When it is remembered that this liberal view as regards granting relief even in special circumstances on the basis of a claim not raised in the pleading was approved by the Supreme Court itself in Sri-nivas Ram Kumar's case, I am unable to accept Mr. Kar's contention that in the latter case of, the Supreme Court intended to overrule the authority of the decision of Mohan Manucha, 70 Ind App 1: (AIR 1943 PC 29). In my judgment the view taken in Manucha's case, 70 Ind App 1: (AIR 1943 PC 29) is still good law and far from its authority being shaken by the pronouncement of the Supreme Court, the authority has been affirmed by the Supreme Court in Srinivas's case.;