Important Points
(1) Where the contract pleaded by the plaintiff in the original plaint was not proved and he sought to prove another contract on the basis of evidence led by the parties, the plaintiff cannot be permit­ted to do so as that would amount to abandoning the case made out in the original plaint and have a decree for specific performance of a con­tract which was not entered into by the parties according to the plain­tiff only.
(2) Other relief sought by a party under Order 7, Rule 7, CPC must be consistent with pleading and proof.

Judgment

M. Jagannadha Rao, J.-The appellant is the plaintiff. He filed the suit O.S. No. 50 of 1985 for specific performance of an agreement of sale of house property located at Shimoga, Karnataka State executed in his favour. He succeeded in the trial Court but on appeal by the Vendors-defendants, the Judgment of the trial Court was set aside by the High Court and the suit was dismissed. Against the said Judgment of the High Court, this appeal was preferred.

2. The case of the appellant in the suit filed on the file of the Civil Judge, Shimoga was as follows : The defendants 1 to 3 are three brothers and are joint owners of the house at Shimoga. The 1st defend­ant who was a Professor was working at Delhi (now retired); the 2nd defendant was at Madras and the third defendant was at Bangalore. The defendants No. 2 and 3 gave powers-of-attorney to the 1st defendant. There were consultations between plaintiff and the 1st defendant which started in 1983 by way telephone calls and letters and after the negotiations reached a final stage’ the 1st defendant wanted the plaintiff to come to Delhi “for finalising” the proposals. The plain­tiff took along with him, one Mr. R.K. Kalyankar (PW 2) to help him in the negotiations. They took two Bank drafts for Rs. 50,000/- and Rs. 10,000/- respectively and reached Delhi in January 1984. On 25.1.1984, at the residence of the 1st defendant, a draft agreement of sale was approved’ by the 1st defendant with small changes made in his own handwriting and the 1st defendant told the plaintiff `that he has approved the draft and “the contract was concluded”. (The photocopy of the agreement was filed and its original was marked as Ex. P3). The agreed consideration was Rs. 5 lakhs and the purchaser agreed to bear the stamps and registration charges. It was also agreed that the sale deed was to be executed on or before 30.6.1984 or within a reasonable time and that thereafter the plaintiff would be put in possession. The 1st defendant did not accept the Bank drafts but said he would accept the entire consideration in one lump sum at the time of registration. The plaintiff returned to Shimoga and the further correspondence only confirmed that the defendants would execute the sale deed’. The plain­tiff received a telegram (Ex. P 7 dated 4.4.84) addressed to PW 2 that the terms of the agreement were acceptable. Further, the 3rd defendant also “confirmed” the terms of the agreement by letter dated 11.4.84 (Ex. P 6). The plaintiff received another letter dated 18.4.1984 (Ex. P 4) which stated that 1st defendant would be coming over to Bangalore on 28.4.1984. They met at Bangalore and it was agreed that plaintiff was to be ready with the entire sale consideration by about 3rd week of June 1984. The plaintiff raised finances by selling some of his properties. The plaintiff was ready and willing to perform the con­tract. The 1st defendant came to Shimoga on or about 17.6.1984 but surprisingly he did not meet the plaintiff. On the other hand defend­ants gave a paper advertisement on 26.6.84 for sale of the house. Plaintiff then got a regd. notice dated 2.7.84 (Ex. P 12) issued and defendants 2 and 3 give a reply dated 31.7.84 (Ex. P 16). The suit was laid for specific performance of the agreement of sale said to be dated 25.1.84 entered into at Delhi and for possession and also for permanent injunction restraining alienation by defendants.

3. A written statement was filed by the 1st defendant contending mainly that there was correspondence between parties, the negotiations did not reach any ‘final’ stage and that there was ‘no concluded contract’. There were only proposals and counter proposals. Sale consideration was not Rs. 4 lakhs. The 1st defendant had an obligation to consult his brothers. They were not willing for a consideration of Rs. 5 lakhs. The 1st defendant did not state, as contended, in any telegram dated 4.4.84 nor any letter dated 11.4.84. PW 2 sent another draft agreement (Ex. D 11) alongwith hi