Chandrika Prasad and Others vs Hira Lal and Others

Das, J.—I think this application must succeed. The plaintiffs allege in their plaint that, on the 8th of August 1921, they entered into a contract with the defendants for the purchase of a property, fully described in the plaint, for the sum of Rs. 1,54,000 and that they actually paid Rs. 1,32,847-7-2 to the defendants towards the performance of the contract. They go on to assert that the defendants made material misrepresentations to them as to the value of the property, and they ask for a decree for the rescission of the agreement for sale, dated the 8bh August, 1921, and for an order upon the defendants to refund the sum of money paid by them to the defendants with interest thereon at 12 per cent, per annum. The plaint was filed on the 6th February, 1922, on the allegation that the cause of action arose on the 12th August, 1921, when the plaintiffs became aware of all the facts entitling them to the reliefs claimed.

On the 17th July, 1923, the plaintiffs applied for amendment of the plaint, and it is this application which has given rise to the present proceedings. The whole object of the application was to enable the Court to give the plaintiffs a decree for specific performance of the agreement of the 8th August, 1921, in the event of the Court finding it impossible to give them a decree for rescission of the contract. The learned Subordinate Judge, relying upon certain passages to be found in Ery on Specific Performance and Banerji on Specific Belief Act has refused the application. He also thought that the plaint, even if amended in the manner suggested by the plaintiffs, would not entitle the plaintiffs to a decree for specific performance.

It may be conceded that the opinion of the distinguished author of Fry on Specific Performance entirely supports the conclusion of the learned Subordinate Judge; and, but for the contrary opinion expressed in some of the cases of high authority do which I shall presently refer, it would be impossible for me to differ from the learned Subordinate Judge. The passage to which the learned Subordinate Judge refers is as follows: "But, for the reason already stated, a suit to set aside a transaction for fraud, or in the alternative, for specific performance of a compromise could not be sustained in the Court of Chancery." If the passage stopped here, it would not assist the defendants to any great extent, for the Court of Chancery in the passage means the Court which existed prior to the Judicature Act. Under the practice which prevailed in the Court of Chanoery before the Judicature Act a bill was demurrable on the ground that inconsistent and alternative reliefs were claimed. Rawlings v. Lambert 1 J. & H. 458, Cawley v. Poole 1 H.& M. 50; but, as is well known, the Judicature Acts and Orders swept away the old forms and practice of pleading, leaving it open to a plaintiff to claim inconsistent and alternative reliefs but at the same time giving a power to the Court to order to be struck out or amended any matter in the pleadings which may be scandalous, or which may tend to prejudice, embarrass, or delay, the fair trial of the action. That the Judicature Acts and the Orders have profoundly affected the practice in this respect is undoubted; and the only question under the present practice is whether the inconsistent and alternative reliefs claimed do not prejudice, embarrass or delay the fair trial of the action. That this is the true position is not denied by the learned author; but, in his view, "notwithstanding the provisions of the Rules of the Supreme Court as to alternative claims for relief, it seems probable that the same conclusion would still be arrived at, on the ground that the claims were inconsistent and embarrassing."

In my opinion, it is a question of fact in each case whether the alternative relief claimed prejudices, embarrasses, or delays the fair trial of the case and that; it cannot be laid down as a general principle applicable to all cases that an alternative claim necessarily prejudices, embarrasses, or delays the fair trial of the case. The case of Bagot v. Easton 47 L.J. Ch. 225, I think, materially affects the value of the opinion of the learned author of Fry on Specific Performance. The plaintiff, in that case, claimed to have an agreement for a partnership with the defendant in a land speculation cancelled on the ground that he had been induoed to enter into it by the misrepresentation of the defendant, and in ignorance of its real effect; or, in the alternative, that the partnership created by the agreement be dissolved and the accounts taken and the defendant restrained from interfering with the management of the works in violation of the agreement. The defendant moved for an order for the plaintiff to amend his statement of claim by confining it to one of the alternative claims. The Court of Appeal came to the conclusion that the plaintiff was entitled to claim alternative relief. In my opinion the case of Bagot v. Easton 47 L.J. Ch. 225 is directly in point. It was contended by Mr. Sultan Ahmad that a claim for dissolution of partnership is really a claim to put an end to the partnership and is in no way analogous to the alternative relief which the plaintiffs propose to claim in this suit, which is that the contract should be specifically enforced. I am unable to agree with this contention. A claim for dissolution of partnership is, in my opinion, a claim to enforce the rights of one of the partners under the partnership and constitutes an offer by the plaintiff to pay what may be due from him on the taking of partnership accounts. If it be open to a plaintiff to claim a rescission of an agreement for partnership on the ground of fraud, and, in the alternative, for dissolution of partnership and for partnership accounts, it is, in my opinion equally open to a plaintiff to claim a rescission of an agreement for purchase of a property and in the alternative for specific performance of the agreement. The whole object of the procedural law, both in England and India, is to prevent multiplicity of proceedings, and I can see no justification whatever for compelling the plaintiff to institute a second suit, if he can obtain the appropriate relief in the first suit without in any way embarrassing the defendant. This position is also supported by the case of Owen v. Morgan 55 L.J. Ch. 603. I have dealt with the position in England because great reliance was placed upon the passage from the well known work to which I have referred. But it is not difficult to show that the position in India is exactly the same as in England. Order 2, Rule 3 gives liberty to the plaintiff, "save as otherwise provided", to "unite in the-same suit several causes of action against the same defendant, or the same defendants jointly". Rules 4 and 5 restrict the power of the plaintiff as to joinder of causes of action in certain specified cases, and1 they do not in any way touch the present question. Rule 6 gives power to the Court to order separate trials if in the opinion of the Court the causes of action joined in one suit cannot be conveniently tried. Order 6, Rule 16 gives power to the Court at any stage of the proceedings to order "to be struck out or amended any matter in the pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the suit". The result of all these different provisions in the Code is to allow the plaintiff to unite in the same suit several causes of action against the same defendent or the same defendants jointly, subject to the provisions of Order 2, Rules 4 and 5, and subject to the supervision given to the Court in Order 2, Rule 6 and Order 6, Rule 16. In my opinion, the causes of action may be conveniently tried or disposed of together, if we allow the application for amendment of the plaint, and the alternative relief now claimed will not prejudice, embarrass or delay the fait trial of the case.

The other point is wholly without substance. If the amendment be allowed, there would be sufficient allegations to enable the plaintiffs to claim a decree for specific performance. They allege, that it was agreed that the conveyance would be-executed within seven days from the date> of agreement, and that the defendants failed to carry out the agreement. They give the date of the cause of action on the footing that the suit is a suit for specific performance of the contract, and they aver their readiness and willingness to pay into Court the balance of the consideration money.

I would allow the application, set aside the order of the Court below, and direct that the plaint be amended in terms of the plaintiff''s application of the 17th July, 1923, Costs both of the Court below and of this Court will be costs in the suit. Hearing fee in this Court, fire gold mohurs.

Macpherson, J.

I agree to the order proposed.