LexSRINIVAS RAM KUMAR versus MAHABIR PRASAD AND OTHERS
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S.C.R. SUPREME COURT REPORTS SRINIV AS RAM KUMAR "· MAHABIR PRASAD AND OTHERS. [PATANJALI SASTRI, MEHR CHAND MAHAJAN and MuKHERJEA JJ.] Pleadings-Inconsistent pleas-Plaintiff suing for specific performance alleging that money was paid as price-Defendant pleading th.at money was received as loan-Plaintiff's case not proved-Jl/fhether decree can be given for recovery of money as /oflt* on defendant's plea. Though the court would not grant relief to the plaintiff on a call¢ for which there was no foundation in the pleadings and which the other side was not called upon or had no opportunity to meet, yet, when the alternative· case which the plaintiff could have made was not only admitt~ by the defendant in his written statement but was expressly put forward as an answer to the claim ·which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. In such circumstances, when no injusti'ce can possibly result to the defendant, it may not be proper to . drive the plaintiff to a separate suit. The plaintiff brought a suit for specific performance of an agreement to sell a house alleging that he had paid Rs. 30,000 towards the price and ha,d been put in possession in part perfor- mance of the contract, but the defendant pleaded that the amount of Rs. 30,000 was received as a loan and the plaintiff was put in possession only to facilitate payment of interest, and the court found that the defendant's plea was true : Held, that a decree could be passed in favour of the plaintiff for recovery of the sum of Rs. 30,000 and interest remaining due under the agreement of loan pleaded by the defendant, even though the plaintiff had not: set up such a case and it was even inconsistent with the allega· tions in the plaint. Babu Raja Mohan Manucha v. Babu Manzoor (70 I.A. 1) referred to. C1v1L APPELLATE JuRismcnoN : Appeal from a judgment and decree of the High Court of Judicature at Patna dated '29th August, 1947, in First Appeal No. 13 of 1945, modifying a decree · of the Subordinate Omrt of Gaya in O.S. No. 59 of 1943 : Civil Appeal No. 82 of 1949. 1%1 Fcb.9 1951 SritainaJ Ramkumar v. Mahabir. Prasad 11na Othtrs. Mukherj1:r1. J- 278 SUPREME COURT REPORTS [19511 S. P. Sinha (C. R. Pattabhi Raman and B. K. Saran with him) for the appellant. Udai Bhan Chaudhry for respondents Nos. 1 and 2. Haris Chandra (N. C. Sen, with him) for respon- dents Nos. 3 to 7. 1951. February 9. The judgment of the Court was delivered by MuKHERJEA J.-This appeal is on behalf of the plain- tiff and it arises out oV a suit for specific performance of a contract to sell a house in the town of Gaya, be- longing to the defendants second party who, it is alleg- ed, agreed tc sell the house to the plaintiff but subse- quently resiled from the agreement and sold the same to the defendants first party who purchased it with notice of the contract. The plaintiff's case, in substance, is that in Septem- ber, 1941, the defendants second party, who owned a house at Gaya, entered into a negotiations for sale of the same, with one J adu Ram, and the title deeds of the property were actually handed over to the latter. These negotiations failed and the second party defendants thereupon approached the plaintiff firm and a contract was entered into by and between them sometime te>- wards the end of October, 1945, under which the former agreed to sell to the latter their house at Gaya for a consideration of Rs. 34,000. Out of this consideration, a sum of Rs. 30,000 was paid by ~he plaintiff firm on behalf of the vendors to a creditor of the latter on 28th October, 1941. The vendors ~n their turn put the plaintiff in possession of the house agreed to be sold in part performance of the contract and promised to exe- cute a conveyance as soon as the title deeds were re- turned to them by Jadu Ram and the balance of con- sideration money amounting to Rs. 4,000 was paid by the plaintiff. The second party defendants, however, went back on their promise and did not execute the conveyance in favour of the plaintiff even after they got back their title deeds from Jadu Ram; and on the other hand, they sold the house to the defendants fint S.C.R. SUPREME COURT REPORTS 279 party on August 13, 1943. The plaintiff was thus obliged . to bring this suit, Claiming specific performance o
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