A suit for specific performance of an agreement for remodelling and repairing of a property, where the landlord has not become entitled to possession of the premises, is not barred by Section 28 of the Rent Restriction Act and is maintainable in the High Court.

CHAGLA, C.J. :- This is an appeal from a judgment of Mr. Justice Shah by which he held that this Court had no jurisdiction to try a suit for specific performance.

2. The suit came to be filed under the following circumstances. In June 1947 the plaintiffs purchased a certain property. The defendants were residing in different portions of the property as tenants, and on July 15, 1947, the plaintiffs gave a notice to quit to some of the defendants. They followed up the notice to quit by instituting ejectment proceedings in the Small Causes Court. Then an agreement was arrived at between the landlords and the tenants on October 23, 1947, and the agreement in substance was this that the tenants should give all reasonable facilities to the landlords for the purpose of remodelling and repairing the floors of the said property according to the plan sanctioned by the Municipality. It was also agreed that the landlords would not seek to eject any of the tenants on the ground that the premises were required for the purpose of remodelling and repairing. It was further agreed that after the floors had been remodelled, accommodation would be granted to the landlords and the tenants as fixed by the agreement, and the effect of the carrying out of the agreement would be that the tenants would have to give up the premises which they occupied and would be given other premises in substitution of those premises. Pursuant to this agreement, the landlords carried out the remodelling and repairing work and spent a fairly large amount. When the plaintiffs called upon the defendants to carry out the agreement and to hand over possession of the premises in their possession and to take in place of those premises others in substitution agreed upon, the defendants refused to carry out the agreement. Thereupon the plaintiffs filed the present suit, and the reliefs they claimed were that the defendants may be ordered and decreed specifically to perform the agreement dated October 23, 1947. They also asked for a mandatory injunction upon the defendants to vacate the premises in their respective occupation and to occupy the portions allotted to them under the terms of the agreement, and they further claimed in addition to or in substitution of the reliefs for the specific performance and injunction a decree by way of damages in the sum of Rs.1,25,000.

3. Now, the question that arises for determination is whether the suit, as far as prayers (a) and (b) are concerned, is maintainable in this Court. We agree with the view taken by the learned Judge that as far as the prayer for mandatory injunction is concerned, it is not well conceived. It is difficult to understand how there could be a mandatory injunction upon the defendants to accept the premises which they had agreed to take in substitution of their own premises. What the draftsman meant, as the learned Judge pointed out, is to aver that the plaintiffs were ready and willing to carry out their part of the agreement. Their part of the agreement was to give to the defendants premises in substitution of the premises occupied by them, and the plaintiffs could only maintain a suit for specific performance provided they showed their readiness and willingness to carry out their part of the agreement. Therefore, the draftsman instead of averring readiness and willingness has substituted in the plaint a mandatory injunction in the form to which reference has been made.

4. Now, the view taken by the learned Judge is that in substance it is not a suit for specific performance at All He takes the view that this is a suit for possession, and it is only by means of ingenious drafting that the real nature of the suit has been concealed and it has been given the appearance of a suit for specific performance. Therefore, the learned Judge has taken the view that the suit to the extent that it is a suit for possession is barred by S.28 of the Rent Restriction Act.

5. Now, turning to S.28, we have had an occasion to point