The conduct of the parties seeking specific performance can disentitle them to assistance from the Court, especially in cases where there is a variance between pleading and proof.

JUDGMENT

1. This is an appeal by the plaintiffs in a suit for specific performance of a contract of sale of a house. The plaintiffs came into Court on the allegation that a completed contract for sale was made on the 26th September, 1917, by a person, named Sidhi Gopal Misser, who acted for the first defendant and had authority to enter into a valid agreement on his behalf for the sale of the house and the land. The first defendant repudiated the allegations of the plaintiffs while the second and third defendants, claimed the protection accorded to bona fide purchasers for value without notice, in. the trial Court the plaintiffs produced a document which was marked Ex. I and purported to embody the agreement which the plaintiffs sought to enforce specifically. The Court held an elaborate investigation and came to the conclusion that this document which purported to be an agreement to sell and was alleged to have been written by Sidhi Gopal Misser on the 26th September, 1917, was not in existence at the date of the institution of the suit, and, further, that it had been manufactured collusively during the progress of the trial. On this finding, the Subordinate Judge declined to make a decree for specific performance. He further stated that, in any event, as the plaintiffs had not sought equitable relief with clean hands, he must decline to exercise in their favour the discretion vested in him by Section 22 of the Specific Belief Act. Upon appeal, the District Judge affirmed the findings of the Court of first instance as to the document mentioned and the authority of Sidhi Gopal Misser to complete the contract. The District Judge held that Sidhi Gopal was not authorised to complete the contract and that he did not do so in fact. On the invitation of the plaintiffs, however, the District Judge considered the antecedent correspondence between the parties and came to the conclusion that only negotiations had taken place which had not matured into a completed contract. In this view the District Judge affirmed the decree made by the trial Court.

2. On the present appeal, the finding of the Courts below as to Ex. I has not been questioned; but we have been invited to examine the correspondence which preceded the execution of that document and to hold that they disclose a completed contract between the parties. The respondents have taken exception to the adoption of this course. We are of opinion that we should not accept the invitation of the appellants to examine the correspondence with a view to determine whether they do or do not disclose a concluded agreement between the parties antecedent to the exhibit already mentioned.

3. The plaintiffs came into Court on the allegation that the negotiation culminated in a contract on the 26th September, 1917, and that such contract was made by Sidhi Gopal Misser on behalf of the first defendant. No doubt the document was not annexed to the plaint. But it was produced at the trial and was made the foundation of the case for the plaintiffs. That case has completely broken down. The plaintiffs cannot in such circumstances, be permitted to abandon the case they made in the plaint and to invite the Court to examine whether a completed agreement may or may not be spelt out of the antecedent correspondence. The Court would not in a case of this description permit the plaintiffs to depart from the case made in the plaint as the Court discourages, as a rule, variance between pleading and proof. The test applied in such cases is whether if the variance were permitted in favour of the plaintiffs, defendants would be taken by surprise and be prejudiced thereby. Jalim Singh v. Choonee Lal 1911 15 C.W.N. 882, Nabadwipendra Mookerjee v. Madhu Sudan Mandal 1912 18 C.W.N. 473, Sital Das v. Partap Chandar Sarma 1905 11 C.L.J. 2, Satish Kanta Roy v. Satis Chandra 1919 30 C.L.J. 475, Ishan Chandra Dupi v. Nishi Chandra Dubi 1917 29 C.L.J. 475, Hira Lal v. Gribala Debt 1916 23 C.L.J. 429, Haji Umar Abdul Rahiman v.