Judgement

Appeal from a decree of the High Court (July 9, 1901) affirming a decree of the Subordinate Judge of Pabna and Bogra (Jan. 31, 1899) dismissing the appellants suit.

The appellants sued under the circumstances stated in the judgment of their Lordships, praying that the respondent might be decreed to execute and register a lease in favour of the appellants (a permanent ijara lease) in terms of an agreement of May 20, 1861, and that the Court might award specific performance of the said agreement in any other shape or manner, or award any other relief to the appellants which the circumstances of the case might justify.

The respondent in his written statement submitted that the appellants were not entitled to the benefit of the said agree ment ; that there had been a total failure of consideration therefor by reason of Krishna Behari Roy (the appellants father) having, from the year 1862 to the year 1875, assailed the title of Banwari Lal Roy (the respondents father) instead of supporting and maintaining the same in accordance with the ekrar and solehnama mentioned in the judgment, and thereby put him to great loss and expense; and that under no circumstances should the said agreement be enforced without payment of the actual loss and damage so incurred.

The Subordinate Judge, after saying that the delay in suing amounted to an abandonment of the agreement in suit, held that the conduct of Krishna Behari Roy in setting up his own title as the heir of Gour Sundar Roy (the last zemindar), and in strenuously disputing the title of Banwari Lal Roy, was a violation of the essentials of the agreement he had entered into, and disentitled him to the relief he sought from the Court. Referring to the ekrar, the judge held as follows—

" The plaintiffs father by ekrar, dated the 10th Jeyt, 1268, solemnly covenanted never to deny the defendants fathers title. That promise is the sole consideration proceeding from the plaintiffs father, for which the defendants father, in return, confirmed the patni of Narsingpura and agreed to execute the lease in question. The plaintiffs father, unscrupulously and without any excuse whatever, broke that promise and kept the defendants father in anxious suspense of litigations for about fourteen years, involving his zemindari interest yielding an annual income of about 2 ½ lakhs of rupees. The plaintiffs father broke the most essential part of the contract. The contract, therefore, cannot be enforced (s. 28

(b) of the Specific Relief Act)."

The judge relied also on Fry on Specific Performance, p. 423, and also on a statement of Lord Cranworth in Blackett v. Bates (( 1865) L. R. 1 Ch. 126.), where it is said “It is true that the intermediate period was filled up by legal proceedings which the plaintiff says he could not expedite, but they were proceedings in which the plaintiff was endeavouring to set aside the award. It is a strong thing to say that after a party has denied the validity of an agreement and taken proceedings to set it aside, he can, when the result of these proceedings has proved adverse, turn round and insist on specific performance."

The High Court affirmed this judgment, saying " Virtually from the moment the compromise of the 8th Jeyt, of which the agreement now in suit according to the plaintiffs own case formed a component part, was concluded, Krishna Behari directed all his efforts to annulling its effect, and that upon allegations of fraud and unfair dealing on the part of Banwari Lal for which there would seem to have been not the slightest foundation; nor did he desist from these efforts until, in the year 1875, he was defeated in the Privy Council. Had he been successful, it is needless to say the agreement, which his heirs are now seeking to enforce, would have been waste paper. The whole of this long-protracted and, no doubt, costly litigation was in fraud of the compromise, and aimed, whether directly or otherwise does not seem to me under all circumstances to be materia