JAGDISH SINGH versus NATTHU SINGH

Citation: [1991] SUPP. 2 S.C.R. 567 · Decided: 25-11-1991 · Supreme Court of India · Bench: M.N. VENKATACHALIAH · Disposal: Modified

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Judgment (excerpt)

JAGDISH SINGH 
v. 
NATTHU SINGH 
NOVEMBER 25, 1991 
[M.N.VENKATACHALIAH AND S.C.AGRAWAL, JJ.] 
B 
Specific Relief Act, 1963: Section 21 (2), (4) & (5)-Proviso. 
Suit for specific performance-Acquisition of suit properties during 
the pendency of second appeal-Effect of-Nature of relief available to 
plaintiff-Power of Court to grant compensation-Held where the con-
C 
tract becomes impossible of performance for no fault of plaintiff--Court 
can award compensation in lieu and substitution of specific performance-
Measure of compensation is by the standards of Section 7 3 of the Contract 
Act--Scope of the Proviso explained-Distinction between Indian Law 
and English law discussed. 
Code of Civil Procedure, 1908: Section JOO . 
Second Appeal-High Court-Power to reappreciate evidence and 
disturb concurrent findings of fact-Held findings of fact vitiated by non-
consideration of relevant evidence can be reversed. 
General Clauses Act, 1897: Section 2 7. 
D 
E 
Suit for specific performance-Notice issued by plaintiff-Refusal to 
accept by defendant-Notice returned unserved-Held notice must be pre-
sumed to have been served-Averments in the Notices could be treated as 
i 
part to the plaint. 
' F : 
By an agreement dated 3.7.1973 the respondent sold two plots 
to the appellant for a co.,sideration of Rs.15,000. By another agree-
ment, entered into between the parties oit the same day, the appel-
lant agreed to reconvey the said properties to the respondent against 
payment of Rs.15,000 within two years. Within the stipulated period 
the respondent (PlaintifO instituted a suit for specific performance 
alleging that despite offer of performance and tendering the price, 
the Appellant (Defendant) refused reconveyance of the properties. 
The Trial Court dismissed the suit by holding that the Re-
spondent was not ready and willing to perform the contract, and. H 
567 
568 
SUPREME COURT REPORTS 
(1991] SUPP. 2 s.c;.R. 
A 
that the time was essence of the reconveyance agreement. The first 
Appellate Court dismissed the respondent's appeal. 
The respondent preferred second appeal before the High Court. 
Relying upon the two notices issued by the Respondent to the appel-
lant before filing of the suit which contained the averments that he 
B 
was willing and ready to perform the contract, the High Court re-
versed the findings of the two courts below and allowed the appeal 
and held that Respondent-Plaintiff was willing to perform the con-
tract and that the Appellant was the party in breach. Accordingly it 
passed a decree of specific performance of an agreement for sale of 
land. 
c 
D 
During the pendency of the Second Appeal, suit properties 
were acquired by the State for public purposes and the High Court 
rejected the plea that after the land has been acquired by the ·state 
corpus of the Land had ceased to exist and no decree for specific 
performance can be granted. 
In defendant's appeal to this Court it was contended on his 
behalf (1) that the High Court erred in reappreciating the evidence 
in second appeal and in disturbing the concurrent findings of fact 
that Respondent was not willing and ready to perform the contract; 
(2) that in view of the acquisition of the suit-properties the contract 
E 
itself became incapable of specific performance and to such a case 
the power to give compensation as an alternative to specific per-
formance did not extend. 
Modifying the decree of the High Court, this Court, 
F 
HELD:t. Where the findings by the Court of facts are vitiated 
G 
H 
by non-consideration of relevant evidence or by an essentially erro-
neous approach to the matter, the High Court is not precluded from 
recording proper findings. (572-H] 
l.1 The notices issued by the respondent to the appellant con~ , · 
taioing the averments that he was ready and willing to perform the 
contra~t whic'1 were not actually served on the appellant because of 
his refusal tg accept them must be presumed to have been served as 
contemplated by Sect.i~n 27 of the General Clauses Act. Therefore 
the High Court was righ~ in relying upon the averments in the 
notices which could be treated as part to the plaint. Accordingly the 
finding of the High Court tf•a~ Respondent was willing and ready to 
/·· 
' 
,;--
JAGDISH SINGH v. NATIHU SINGH 
569 
perform the contract and that it was the Appellant who was in 
A 
breach is accordingly confirmed. [572 F-G, 578 H, 579-A] 
2. Section 21~ofthe Specific Relief Act, 1963 enables the Plaintif

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