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SUPREME COURT OF INDIA
J.C.Shah : V.Ramaswami
Prem Raj
Versus
D.L.F.Housing And Construction Private Limited
Case No. : 37 of 1966
Date of Decision : 4/4/68
Advocates Appeared: Chagla M.C. : Dadachanji J.B. : Goswami M.V. : Krishan Daya : Misra B.C. : Narain Ravindra : Tavali S.C.
Specific Relief Act, 1877 - Section 37 and 35 - Civil Procedure Code, 1908 - Order 7, Rule 7, Section 115 and 115 (c) - Contract - Dissolution of Partnership - Cancellation of Agreement of Sale of Land - Relief of Specific Performance - Whether a plaintiff suing for a declaration that a certain contract against him is void and inoperative having been obtained by undue influence, can in same suit in alternative ask for relief of specific performance of same contract - Whether relief for specific performance was open to appellant in alternative – Held, In present case there is absence of an averment on part of plaintiff in plaint that he was ready to perform his part of contract - In absence of such an averment it must be held that plaintiff has no cause of action so far as relief for specific performance is concerned - High Court should have given appellant an option to elect either of two reliefs and ought not to have dismissed suit at a preliminary stage so far as relief for specific performance was concerned – Court do not think there is any substance in this argument - Question of election between two reliefs would have arisen only if appellant could have shown that in respect of specific performance he had a cause of action - As Court have already pointed out, appellant has not made out a cause of action so far as relief of specific performance is concerned and hence appellant is not entitled to be put to election with regard to two alternative reliefs - In Court opinion, there is no warrant for argument put forward on behalf of appellant - It is manifest that in holding that appellant was entitled in alternative to ask for relief of specific performance, trial court had committed an error of law and so had acted with material irregularity or illegality in exercise of its jurisdiction within meaning of Section 115 (c) of Civil Procedure Code - It was therefore competent to High Court to interfere, in revision with order of trial court on this point - To put it differently decision of trial court on this question was not a decision on a mere question of law but it was a decision on a question of law upon which jurisdiction of trial court to grant particular relief depended - Question was therefore one which involved jurisdiction of trial court: trial court could not, by an erroneous finding upon that question, confer upon itself a jurisdiction which it did not possess and its order was therefore liable to be set aside by High Court in revision - Appeal dismissed.
V.RAMASWAMI, J.
(1) THE sole question involved in this appeal is whether a plaintiff suing for a declaration that a certain contract against him is void and inoperative having been obtained by undue influence, can in the same suit in the alternative ask for the relief of specific performance of the same contract.
(2) ON October 26, 1956 Pt. Prem Raj, the appellant, entered into an agreement with Shri Moti Ram Bhalla, respondent No. 2 for the purchase of lands from Shri Lila Ram, father of the appellant at the price of Rs. 1,025.00 per bigha on the terms and conditions mentioned therein. On December 18, 1956, the appellant and respondent No. 2 entered into a partnership to carry on the business of buying and selling lands and developing the same under the name and style of "L.M.G. Colonisers and Traders". Subsequently, on January 2, 1957 the said firm "L.M.G. Colonisers and Traders entered into a deed of partnership with D.L.F. Housing and Construction (P) Ltd.. respondent No. 1 herein to carry on the business of purchasing and developing the lands into a residential colony and to sell the same in plots either by auction or by tenders or in any other manner as the company, respondent No. 1 may find expedient after getting the scheme for development approved by the competent authority. On the same day i.e., January 2, 1957 the newly formed partnership between the respondent No. 1 and L. M. G. Colonisers and Traders entered into an agreement for the purchase of the same land with Pt. Lila Ram on the terms and conditions set out therein On June 11, 1958 the parties cancelled the new partnership and agreement dated January 2, 1957 and entered into a fresh arrangement and executed the following four documents:
"(I) A deed of dissolution of the new partnership between L. M. G. Colonisers and Traders (consisting of the appellant and respondent Nos. 2 and 1) entered into on 2nd January, 1957 (Ex P. 1). (ii) A deed of cancellation of agreement of sale of land between Lila Ram and the said new partnership firm of L. M. G. Colonisers and respondent No. 1. (iii) A new agreement of sale of these same lands by Lila Ram in favour of respondent No. 1. (iv) An agreement to sell 22 plots out of the land agreed to be purchased from Lila Ram under the agreement stated in (iii) above by respondent No. 1 in favour of the appellant."
By virtue of these documents the new partnership dated January 2, 1957 between L. M. G. Colonisers and respondent No. 1 came to an end as also the agreement dated January 2, 1957 by which Lila Ram had agreed to sell his lands to the said new partnership firm and there was a fresh agreement by Lila Ram to sell the same lands to D. L. F. Housing and Construction (Private) Ltd., respondent No. 1 at a certain price and out of the land thus to be bought, respondent No. 1 agreed to sell 22 plots of land to the appellant After about 3 years, on or about Tune 8, 1961, the appellant gave notice to respondent No. 1 repudiating the arrangement dated June 11, 1958 as void and claimed that the documents were not binding upon him The appellant alleged that the deeds executed on June 11, 1958 were unlawful and void and inoperative against him as they were executed as a result of undue influence and coercion exercised upon him. In the alternative the appellant prayed for a decree for specific performance of the agreement dated Tune 11, 1958 to sell the aforesaid 22 plots of land and for damages in addition thereto A preliminary objection was raised by the contesting respondent No I, D. L. F Housing and Construction (P) Ltd. to the effect that the appellant having claimed that the agreement dated June 11 1958 was void and inoperative, cannot in the same suit pray for specific performance of the same agreement. The Subordinate Judge, First Class, Delhi rejected the preliminary objection by his order dated February 26, 1962. Respondent No. 1 filed a Civil Revision Application No. 228-D of 1962 in the Circuit
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