PREM RAJ versus D.L.F. HOUSING & CONSTRUCTION PVT. LTD. & ANR.

Citation: [1968] 3 S.C.R. 648 · Decided: 04-04-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

I 
648 
PREM RAJ 
v. 
D.L.F. HOUSING & CONSTRUCTION PVT. LTD. & ANR. 
April 4, 1968 
[J. C. SHAH AND V. RAMASWAMI, JJ.] 
Practice and Procedure-Suit for setting aside contract and prayer, in 
the alternative, for a decree for specific perforinance thereunder-Whe-
ther maintainable. 
Specific R~lief Act (I of 1877), ss. 35 and 31-Scope of. 
Code of Civil Procedure (S of 1908), s. llS(c) Revisional jurisdiction 
of High Court. 
The appellant filed a suit for a declaration that a certain contract 
against him was void and inoperative. having been obtained by undue in· 
fl.uence, and in the alternative prayed 1for a decree for specific perform. 
ance of certain terms in the same contract. The first respondent objected 
that the appellant having claimed the agreement to be void and inopera· 
tive could not in the same suit ,PraY for specific performance of the same 
agreement. 
The trial court reiected the preliminary objection, but the 
High C.ourt, in revision, held that the appellant could not in the alterna-
tive be permitted to sue for specific performance of the agreemen~ and 
therefore the suit must .fail so far as the relief for specific performance 
was concerned. 
Dismissing the appeal, this Court : 
HELD : Under 0. 7, r. 7, Civil Procedure C.ode it i• open to a plain-
tiff to pray for inconsistent reliefs. But it must be shown by the plain-
tiff that each of such pleas is maintainable. So far as the relief of specific 
performance is concerned, the matter mwt be examined in the light Of 
the provisions of the Specific Relief Act. Section 37 of the Act provides 
that a plaintiff suing for specific performance of the contract can alter· 
natively sue for the rescission Of the contract but the converse is not pro· 
vided. Section 35 of the Act statea the principles upon which the rescis-
sion of a contract may be adjudged. 
But there is no provision in this 
•ection or any othec_ section of the Act that a plaintiff suing for rescission· 
of the agreement may sue in the .alternative for specific performance. The 
omission is deliberate and the intention di the Act is that no such alter• 
native prayer is open to the plaintiff. It was therefore not open to the 
appellant to sue for rescission of the agreement and in the alternative sue 
for specific performance. [651 C--0) 
Cawley v. Poole, 11 E.R. 23, applied. 
Further, in a suit for specific performance, the plaintiff should allege 
that he is ready and willing to perform his part of the contract. In the 
present ca~ no such averment is made. in the plaint. On the other hand, 
the appellant has alleged that the agreement was a result of fraud and 
undue influence and not binding upon him. [652 0-E] 
Ardeshir Mama· v. Flora Sassoon, SS I.A. 360, referred to. 
A 
B 
c 
D 
E 
F 
G 
The appellant had not made ·out a cause of action so far as the relief 
H 
of specific performance was concerned and hence the appellant was not 
entitled to be put to election with regard to the two alternative 
reliefs. 
(653 HJ 
A 
B 
PREM RAJ v. D.L.F. LTD. (Ramaswami, J.) 
649 
In ho1ding that the appellant was entitled in the alternative to ask for 
the relief of specific performance, the trial court had committed an error 
of law and so had acted with material irregularity or illegality in the 
exercise of its jurisdiction within the meaning of s. 115(c) of the CDde 
of Civil Procedure. It was therefore competent to the High Court tu in-
terfere, in revision, with the order of the trial court on this p.:;int. 
1654 B-D] 
CIVIL APPELLATE JURISDICTION: 
Civil Appeal No. 37 of 
1966. 
Appeal by special leave from the judgt:nent and order dated 
February 14, 1964 of the Punjab High Court, Circuit Bench at 
Delhi in Civil Revision No. 228-D of 1962. 
C 
B. C. Misra and M. V. Goswami, for the appellant. 
D 
E 
F 
G 
H 
M. C. Chagla, Daya Krishan, S. C. Javali and Ravinder 
Narain, for respondent No. 1. 
The Judgment of the Court was delivered by 
Ramaswami, J.-The sole question involved in this appeal is 
whether a plaintiff suing for a declaration that a certain contract 
against him is void and inoperative having been obtained by undue 
intluence, can in the same suit in the alternative ask for the relief 
of specific performance of the same contract. 
On October 26, 1956 Pt. Prem Raj, the appellant entered 
into an agreement with Shri Moti Ram Bhalla, respondent no. 2 
for the purchase of lands from Shri Lila Ram, father of the appel-
lant at the price of Rs. 1025 /- per bigha on the t

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