LexGANESH SHET versus DR. C.S.G.K. SETTY AND ORS.
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GANESH SHET A ~ v. - DR. C.S.G.K. SETTY AND ORS. MAY 15, 1998 [S.B. MAJMUDAR AND M. JAGANNADHA RAO. JJ.] B Specific Relief Act-1963-Section 20---Relief in a suit for specific Performance-Discretionary---To be based on the pleadings and the proof adduced-Special principles govern the grant of specified relief-When there c is a variation between the agreement alleged and that which is proved, and there is conflict in the proof creating uncertainty, then relief not to be granted-Court may grant relief in exceptional cases where possession is taken or where there is part performance I uncertainty about the terms of the contract or the variation between the pleading and the proof is either immaterial or insignificant-Relief of Specific Performance cannot be claimed D only on the basis of evidence without pleadings in support thereof Civil Procedure Code-Order 7 Rule 7-Specific Performance I Grant of relief-The principle that even if evidence has been led on a point, though not pleaded, relief can be granted on the strength of that evidence does not apply to suits for specific performance.- E The appellant filed a suit for specific performance alleging that an agreement was entered into by him with the defendants, for the sale of a property in Shimoga on 25-1-84, at Delhi and the defendants went back on it and did not execute the sale. It was also stated that, that the defendant had F ........ come to Bangalore on 28-4-84 and there was further meeting of the parties wherein the defendant asked the appellant to be ready with the money. While the defendants agreed that there was some negotiation for the sale of the said property with the appellant, no sale price was fixed and there was no final agreement of sale. The trial court held in favour of the appellant based on its finding that there was a concluded agreement at Delhi on 25-1-84 for sale G which was not materially altered subsequently and that the appellant was .di. ready and willing to perform his part of the contract. On appeal, the High Court however, reversed the decision having come to the finding, after examining the evidence and the pleadings, that there was no concluded contract between the parties on 25-1-84 at Delhi; that the defendant had H 479 ' 480 SUPREME COURT REPORTS [1998)3 S.C.R. A written to the appellant and waited for his confirmation which did not come; that the price of Rs. 5 lakhs was not agreed to at any time; that the appellant did not meet the defendant when he visited Bangalore, and that the appellant did not come to the court with clean hands. The High Court however gave the appellant an opportunity to amend the plaint by changing the date of the B agreement for sale to 28-4-84 instead of25-1-84 which the appellant refused and had approached this Court. Dismissing the Appeal, this Court HELD : 1. It cannot be said that the discretion exercised by the High Court in the instant case in refusing specific performance is contrary to C established principles. It cannot also be said that discretion has been exercised in a perverse manner. Finally this is not a fit case for exercisiJig jurisdiction under Article 136 of the Constitution of India. [496-DJ Ganesh Ram v Ganpat Rai, AIR (1924) Cal 461 and Md Ziaul Haque · D v. Calcutta Vyapar Pratishtan-AIR (1966) Cal 605, relied on. Hals bury 's Laws of England, Fry on Specific Performance, Corpus Juris Secundum, referred to. 2. Even assuming that a contract dated 28.4.1984 concluded at E Bangalore is proved, which however is not proved-this case does not fit into the exceptions inasmuch as this is not a case where there has been part performance by delivery of possession. Nor can it be said that the variation between pleading and proof is immaterial or insignificant. Plaintiff has also refused to amend the plaint to seek relief on the basis of an agreement dated F 28.4.84, keeping the plaint as it is. Nor can this case be brought with the principles applicable to "general relier' because the plaint specifically says that there is a concluded contract on 25.1.1984 at Delhi which is belied by the oral and documentary evidence. However liberally the plaint is construed, all that it says is that the defendant came to Bangalore and asked the plaintiff to be ready. It does not speak of any fresh agreement entered into at Bangalore G on 28.4.1984. This Court is unable to spell out any such agreement concluded on 28.4.1984. The grant
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