P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑This Letters Patent Appeal against the judgment of Faruqui, J. in Suit No. 34 of 1958 dated the l7th of November 1960 dismissing the appellants' suit for specific performance of the contract in respect of plot No. 7‑B, measuring about two acres situated in the Sind Industrial Trading Estates area, Manghopir Road, Karachi, arises in the following circumstances: Messrs Sind Industrial Trading Estates Limited, the respon dents, offered the above‑mentioned plot of land along with 16 other clots on premium of lease for 99 years on an annual rent of Rs. 756 per acre by an advertisement in the Karachi newspapers dated the 24th of October 1957 by public auction. The auction was held on the 26th of October 1957. The terms on which the auction was held were announced not only in the advertisement in the newspapers but were also communicated to the participants on the 26th of October 1957 when the auction was held by the officers of the respondents. The appellants participated in the public auction held on the 26th of October 1957 and their last bid of Rs. 33,600 in respect of the plot in dispute was provision ally accepted by the respondents. The appellants thereupon deposited a sum of Rs. 8,400, 1/4th of the auction money with the respondents under the auction terms. The respondents' Board of Directors finally accepted the bid of the appellants on or about the 10th of December 1957. This fact is alleged to have been com municated to the appellants by letter dated the 13th December 1957 issued by the respondents. It appears that the appellants under the terms of the auction did not deposit the balance of the auction money within a fortnight. On the 31st of December 1957, therefore, the respondents cancelled the contract and for feited the amount paid by the appellants as earnest money in respect of the contract entered into by them. The appellants' case is that the acceptance of their bid by the respondents was never communicated to them and they have always been ready and willing to perform their part of the contract. They had even in anticipation of the performance of the contract called upon the respondents by two letters of their counsel dated the 18th of December 1957 and the 30th of December 1957 to furnish certain information for making out a valid title in order to finalise and complete the transaction, but the respondents failed to do so. According to the appellants, when they came to know about the cancellation of the contract, they approached the respondents and offered to pay the balance of the amount but the respondents refused to do so as the contract had already been cancelled and no further steps could be taken in that connection. It is further alleged by the appellants that the respondents were not competent to auction the lease of the plot in dispute on premium and were bound to lease out the property in dispute on their usual terms. But they had, in spite of repeated efforts, failed to fulfil their part of the contract ; as a result of this they had to file the above‑mentioned suit for the specific per formance of the contract. The suit was resisted by the respondents. Their case is that the acceptance of the final bid of the appellants was communica ted by them to the appellants by a letter dated the 13th of December 1957. They maintain that this letter was duly com municated to the appellants and the appellants have committed breach of the contract. The respondents have further alleged that the question of investigation of the title of the respondents in respect of the property in dispute could not arise because under the terms of the auction the appellants were not entitled to make any inquiry in that respect. It is further alleged on behalf of the respondents that the letters dated the 18th of December 1957 and 30th December 1957 addressed by the appellants were not meant for the investigation of the title but with a view to delay and prolong the performance of the contract. According to them the appellants acted in the matter in a mala fide manner and they were making an attempt to obtain the property in dispute on leased on their own terms by advancing the plea that the respondents were not competent under the grant in their favour to auction the premium of the lease of the plot in dispute. On these pleadings the following issues were struck on the Original Side of the Court :‑ (1) Whether the defendants demanded from the plaintiffs any premium or pugree ? If so was it without authority? (2) Whether the plaintiffs were entitled to demand from the defendants as a condition precedent for completing the transaction that documents of the title of the defendants be supplied to them ? If so, what is its effect ? (3) Whether the defendants had to give a notice to the plaintiffs before cancelling the contract and forfeiting the amount of Rs. 8,400 paid by them ? If so, whether no notice was given and what is its effect ? (4) Whether the defendants have arbitrarily cancelled the contract and forfeited the amount of Rs. 8,400 ? (5) Whether the plaintiffs have suffered any damages as alleged in para. 9 of the plaint ? If so, can they recover them from the defendants ? (6) Whether the plaintiffs or the defendants have committed breach of the contract ? (7) Whether plaintiffs are entitled to specific performance of the contract ? If so, on what terms ? (8) Relief. Faruqui, J's finding on the main dispute between the parties is against the appellants. The learned Judge on the Original Side found that the appellants were not entitled to demand the documents of title of the land in dispute from the respondents. The respondents were entitled to receive the premium from the appellants which they had agreed to pay and that the demand for the inspection of documents of title was not bona fide and was put forward to delay and evade the payment of the permium. The learned Judge further found that the respondents had given notice of the accept ance of the final bid of the appellants under letter (Exh. D/28) dated the 13th of December 1957. Accordingly he held that the appellants had committed breach of the contract and were not entitled to the specific performance of the contract in question. The appellants seek to challenge this finding in this Letters Patent Appeal before us. Before considering the question raised in this appeal, it would be useful to state that the appellants did not institute the suit only for the specific performance of the contract entered into by them on the 26th of October 1957, but they also prayed for a declaration that the respondents had no right to realise premium on the lease‑hold rights in respect of the plot in dispute held by them under the Government grant. They further prayed for a mandatory injunction ordering the respondents to execute a lease deed for 99 years in their favour and putting them in possession on the usual terms and conditions without any condition of payment of premium etc. and for the refund of the amount of Rs. 8,400 already realised from them illegally. In the alternative the appellants prayed that should this Court hold that the appel lants are entitled and authorised under the grant in their favour to realise the premium and dispose of the plot subject to such conditions as they deem fit, the respondents be ordered to specifically perform their part of the contract by executing a 99 gears' lease in their favour in terms of the concluded contract between the parties, and also to put them in possession of the plot as evidenced by the decision of the respondents in their meeting held on the 10th of December 1957, and also accept the balance of the auction money which the appellants are ready and willing to pay to the respondents. Besides the above‑mentioned reliefs, the appellants also claimed damages in the sum of Rs. 1,000 and Rs. 100 per day for causing loss and harassment to them. Thus, most of the dispute in this case had arisen on account of the appellants' claim that the respondents are not competent to auction the premium of the lease of the property in dispute under their grant. Mr. Ibadat Yar Khan, the learned counsel for the appellants, had to admit before us that the documents produced on the record proved beyond doubt that the respondents under the grant were not forbidden to auction the premium of the land in dispute. Exh. D/21 is Resolution of the Government of Sind dated the 2nd of June 1948 under which the land In dispute along with other lands was transferred to the Sind Industrial Trading Estates Limited by the then Government of Sind. There is nothing in this Resolution which suggests that the respondents were forbidden to auction the premium of the lease of the plots of land under them to Industrialists. The appellants have led no evidence on this point. In view of this Resolution, the appellants' claim that the respondents were not entitled to auction the premium of the lease is not substantiated. We are also satisfied that the finding of the learned Judge on the Original Side that the respondents communicated the acceptance of the bid of the appellants under their letter dated the 13th of December 1957 (Exh. D/28) is fully borne out by the evidence on the record. The respondents proved this fact through the evidence of D. W. 1 Mahbub Hussain (Exh. D/26) and D. W. 2 Fakir Muhammad (Exh. D/32). D. W. 1 Mahbub Hussain, a Senior clerk employed with the respondents, stated on oath that the bid of the appellants was accepted by the Board of Directors and this acceptance was communicated to them on the 13th of December 1957 as per Exh. D/14 (Exh. D/28). He further stated that this letter was sent to the appellants through D. W. 2 Fakir Muhammad under an acknowledgement slip. According to him Fakir Muhammad delivered this letter to the appellants under acknowledgement receipt (Exh. D/27). D. W. 2 Fakir Muhammad bad supported the evidence of this witness. He stated on oath that he delivered the letter in question in the office of the appel lants and the same was acknowledged by Exh. D/27. He deposed that the signature on Exh. D/27 was of a clerk in the appellants' office, and at the time when he delivered the letter the son of the appellant Riaz Hussain was present. The evidence of these witnesses was not shaken in cross‑examination. On the other hand, the evidence of D. W. Fakir Muhammad shows that he had been visiting the office of the appellants prior to the delivery of the above‑mentioned letter. In cross‑examination the appellants put to this witness Exh. D/8‑A, an acknowledgement in respect of another letter delivered by this witness in the office of the appel lants. There is no question, therefore, of mis-delivery of the letter In this case. The evidence of D. W. Fakir Muhammad that he delivered the letter in dispute to the appellants is also supported by two documents produced by the appellants. It will be noticed that under the terms of the auction the rights of the appellants to enforce the contract in dispute could only arise after their bid had been accepted by the respondents. As long as this was not done the appellants had no right to claim the plot in dispute from the respondents. The letter dated the 18th of December 1957 addressed by the appellants' counsel to the respondents, if read In this light, makes it quite clear that the appellants before that had come to know that then bid had been accepted by the respondents. The contents of the above‑mentioned letter (Exh. D/15) in so far as it calls upon the respondents to supply certain details to them so that the counsel may, after examining the same, advise his clients to complete and finalise the transac tion in question throw abundant light in this respect. Even in the letter of 30th December 1957, Exh. D/17, the appellants' counsel mentioned that his clients had learnt with satisfaction that the auction bids of the 26th October 1957 had been approved by the Board and like others his clients have also secured rights as lessees in the plots, namely plot No. 7‑B, but he called upon the respondents to convey formally and officially this fact. He further called upon the respondents to furnish information as required under letter dated the 18th of December 1957 referred to above. It is, therefore, quite obvious to us that when the appellant's counsel wrote letters dated the 18th December 1957 and 30th December 1957, the appellants were aware that their bid had been accepted. Moreover, there is nothing on the record to suggest that D. W. 2 Fakir Muhammad was in any way on inimical terms with the appellants. In these circumstances the learned Judge on the Original Side was fully justified in accepting the statement of this witness. In view of this, we see no reason to differ from the finding of Faruqui, J. in this respect. But the finding that the appellants were communicated the fact of the acceptance of their bid and they failed to pay the balance of the amount for the completion of the transaction would not have been fatal to the suit because we accept the appellants counsel's contention that the time stipulated for the payment of the balance of the amount was not of the essence of the contract. Had the appellants filed the suit simply for the enforcement of the contract entered into on the 26th of October 1957, this default would not have come in the way of their success. We have also not attached much importance to the fact that the appellants by their letters dated the 18th December 1957 and 30th December 1957 had called upon the respondents to furnish them with certain details in order to finalise the transaction, though we agree with the finding of Faruqui, J. that the appellants were not justified in making the demand for investigation of the title. Mr. Ibadat Yar Khan contended that the requisition made under the above‑mentioned letter was with a view to find out whether the respondents were competent to auction the premium of the lease of the plot in dispute. This requisition cannot be taken to be unjustified if the object of the appellants was to avoid the contract on this ground. But on the other hand if the appellants' object was to substitute the original contract by Insisting that the plots in dispute should be leased out to them without premium, it is open to serious objections. This is what has exactly happened in this case. The appellants from 18th December 1957 right upto the trial of the suit had been insisting that the property in dispute should be leased out to them without charging any premium. The letters referred to above clearly indicate this fact. The plaint of the original suit also makes this intention perfectly clear. The prayer clause makes it abundantly clear that the appellants in the first instance asked the Court to give a declaration that the respondents were not entitled to charge premium and they should specifically perform the contract without charging it. It was in the alternative, that is to say after the Court had come to the conclusion that the respondents were entitled to charge premium, that they expressed their willingness to enforce the original contract. The learned Judge on the Original Side has reproached the appellants' conduct in this respect. Mr. Ibadat Yar Khan, the learned counsel for the appellants, has urged before us that Faruqui, J's views on this point are not warranted by law. The learned counsel contended that a party under the law of pleadings in this country is entitled to base his claim on inconsistent or alternative pleas. In this connection the learned counsel referred us to the Commentary of Chitaley under O. VI, r. 2, C. P. C. It is stated by the learned author in this connection that the view that Inconsistent facts cannot be pleaded is not correct and is opposed to the general trend of judicial decision. It cannot be denied that the object of permitting alternative reliefs to be claimed in one litigation is to obviate the necessity of another litigation, so that the controversies in respect of the same subject‑matter relating to the same relief may be disposed of once and for all. But it appears to us that though the Code of Civil Procedure does not prohibit inconsistent plead ings, and that there is nothing to prevent either party from setting up two or more inconsistent sets of material facts and claiming relief thereunder in the alternative, but it does not mean that a party in adopting this procedure is not incurring a big risk. If the alternative case set up by him in a case of specific perform ance of a contract is of such a nature that it leads to the conclusion that he was not ready and willing to perform his part of the contract at: all material times, such inconsistent and alternative pleas generally prove fatal to the case of the plaintiff. In our opinion, if a party had agreed to purchase a property on certain terms and had set out in the pleadings that he was entitled to purchase this property on some other terms on the basis of some inconsistent allegations, this conduct clearly tantamounts to the conduct of an unwilling party. In this case also the position taken up by the appellants in the plaint clearly manifests that in the first instance they were anxious to get the property in dispute without premium. This establishes the fact that they were not adhering to the original contract entered into with the other side. In these circumstances the contention of the appellants' counsel that the setting up of alternative claims bad not prejudiced the appellants' case has not impressed us at all. The real question for consideration in this appeal 1s whether the appellants were ready and willing at all material times to fulfil their part of the contract. The evidence produced on the record by the appellants fails to establish this fact. As already observed, the appellants from the very beginning have been trying to wriggle out of the terms of the original contract. Their letter dated the 18th December 1957 clearly shows that they were of the view that the respondents were not entitled to auction the premium of the lease of the plots in dispute: They wanted to verify this fact from the grant of the Government in favour of the respondents. It was, for this reason that they called upon the respondents to furnish theta with the documents pertaining to the grant of the land in dispute to them. This request was repeated in their second letter dated the 30th of December 1957. We are not in clined to accept the statement of P. W. 1 Riaz Hussain that he was willing to pay the balance of the auction money after he had come to know that the respondents had cancelled their contract. This statement does not fit in with the circumstances of the case. Had this been the attitude of the appellants, they could have easily intimated this fact to the respondents in writing. This statement is further contradicted by the fact that the appellants in the suit filed by them in February 195$ repeated their allegation that the respondents were not entitled to auction the premium of the plot in dispute and that the plot In dispute should be ordered to be given to them without any charge in that respect. On the contrary the above‑mentioned conduct of the appellants leads to the con clusion that they were not prepared to accept the property in dispute without attaching any conditions to the terms of the contract. In these circumstances we have no hesitation in holding that the appellants have failed to make out their allegation that they were ready and willing to perform their part of the contract at all material times. As a last resort Mr. Ibadat Yar Khan, the learned counsel for the appellants, urged before us that since the appellants had expressed their willingness during the trial of the case to accept the property in dispute without attaching any conditions to the terms of the original contract, the learned Judge on the Original Side should have granted them the relief of specific performance of the contract. In this connection the learned counsel referred us to a decision of the Calcutta High Court in Arun Prokash Beral v. Tulsa Charan Bose (A I R 1949 Cal. 510). In that case plaintiff agreed to purchase certain immovable property on the condition that the vendor will deliver its vacant possession and paid Rs. 501 as earnest money towards the sale price. The contract was to be performed within six months but the vendor failed to fulfil his part of the contract. His defence was that the time fixed was six months under the agreement and as it could not be performed by giving vacant possession, the agreement came to an end and he had cancelled it. The purchaser filed a suit for specific performance of the contract and in the suit further claimed the investigation of the title of the vendor. It was contended before Mukharji, J. that in a suit for specific performance of contract a purchaser was not entitled to call upon the Court to investigate the title of the vendor and ask for the performance of the contract in case the title is found to be without any defect. This contention was repelled and Mukharji, J. observed as under :‑‑ "The vendor in a suit for specific performance may be called upon by the purchaser defendant to have an enquiry directed as to the title of the vendor. This right is derived from the extra ordinary nature of the jurisdiction which the vendor seeks to put In action In consideration of which the purchaser has right not only to have such a title as the vendor offers upon the abstract but the highest assurance upon the nature of his title by the production of deeds, the directing of enquiries, and what is said to be the shifting of the vendor's conscience. The purchaser is also entitled to a reference as to title where he is the plaintiff in an action for specific performance as in the present case before me. But inasmuch as in the purchaser's suit he and not the vendor is calling on the Court to act he does so at his own risk." The learned Judge further observed: "If this was not the law then the purchaser would be without the remedy for specific performance when the defendant refused to satisfy the purchaser on the question of title and relied on his own default and failure as debarring the plaintiff from bringing in a suit for specific performance ; in my judgment the purchaser in a suit for specific performance is entitled to call for an enquiry and reference with regard to title even before the stage of his acceptance of the title. It is common justice to allow a purchaser every opportunity to be satisfied on a question of title." In the above‑mentioned Calcutta case the plaintiff expressed his willingness to accept the property with the tenant and to accept the title as it was without further investigation. This plea was accepted by Mukharji, J. In that connection he observed as under :‑ "This is a suit by the purchaser and in my opinion he is entitled to make his election. Mr. Meyer appearing for the plaintiff has elected to take the properties in suit with the tenant and with the title already shown by the defendant and which he accepts now. In such a case the option is with the purchaser and the plaintiff purchaser while at liberty to ask to be released from the agreement for the simple reason that he could not be asked to take a defective or a bad title yet he might at his election take what he gets and claim compensation: This principle was recognised by the Master of Rolls in Bessant v. Richards (1830) 48 E R 203." Mr. Ibadat Yar Khan, the learned counsel for the appellants, has pressed this view before us. The learned counsel has referred to the statement of P. W. 1 Riaz Hussain, the proprietor of the appellants, to show that he had expressed his willingness to accept the property in dispute without attaching any condition to the terms of the original contract. It is quite true that the appellants during the course of the trial had given up their claim to get the property in dispute without the payment of premium, but the principles enunciated in the above‑mentioned case cannot be applied to the facts of the present case. In the instant case the appellants did not ask for the investi gation of the title of the respondents in respect of the land in dispute. On the other hand their case was that the respondents were not entitled to auction the premium of the lease of the plot in dispute, which, according to them, was in the nature of pugree. It is quite obvious to us that the appellants by setting up such a case were introducing new terms to the contract in dispute. They were setting up entirely a new case. The position, therefore, in this case is entirely different. Neither the appellants asked for investigation of the title of the respondents nor had they given up their rights to the investigation of the title in order to exercise their option to accept the plot in dispute with defective title. On the other hand, they asked the Court to release them from the responsibility of paying the premium in respect of which they gave their bid in the auction held on the 26th of October 1957. It therefore appears to us that in a case where a purchaser wishes to get rid of the terms of the original contract and comes to enforce the contract in his own terms, it is not open to him to gave up that position and ask the Court to enforce the contract which was not (sic) agreed upon by the parties. If any such right is recognised, it will not only endanger the sanctity of the contract but will result in encouraging to take Tip dishonest pleas for delaying the performance of the contract, besides other absurdities too. In our judgment, even if the appellants had been right in their plea that the respondents were not entitled to charge premium, the only option they had was to ask for their release from the agreement and to claim damages for the loss caused to them. In these circumstances, we hold that the appellants were not entitled to the specific performance of the contract in dispute on the ground that they were prepared to get the property in dispute without attaching any condition. In this appeal the question of the validity of the forfeiture of the amount paid in advance is not involved. We may point out that during the course of the hearing of the appeal we were willing to allow the appellants to amend the plaint in order to examine the question whether the respondents were justified in forfeiting the whole of the earnest money, but they had not availed of this opportunity. In conclusion, we will hold that the appellants were not willing and ready to perform their part of the contract that their plea that the respondents were not entitled to auction the premium of the lease of the plot in dispute was wholly unjustified and their claim that they were entitled to get it without premium was not only against the terms of the contract but was also in the nature of a new case. In these circumstances the learned Judge on the Original Side was fully justified in declining to grant the dis cretionary relief of the specific performance of the contract in the case before him. In the result we find no force in the appeal and dismissed it with costs. K. B. A.