JOHN Vs. MAMMOOTTY

JUDGEMENT

(1.) This revision filed by the 1st defendant in O.S. No. 170 of 1977 against an order passed in execution dismissing E.A. No. 108 of 1983 in E.P. No. 267 of 1979 raises an important question whether a decree for damages passed, in a suit where the plaintiff has abandoned the relief for specific performance of contract without making the necessary averment in the plaint initially or by amendment subsequently including the relief for damages, is null and void or non est.

(2.) A few facts necessary for the disposal of this revision may now be stated. The suit was instituted by the respondent herein against defendants, five in number, including the revision petitioner as the 1st defendant for specific performance of a contract for sale and in the alternative for recovery of a sum of Rs. 1,15,000/- from the defendants jointly and severally as damages for breach of contract. The respondent and the revision petitioner will hereinafter be referred to respectively as plaintiff and the 1st defendant. The 1st defendant did not appear in the suit and he was declared ex parte. The suit was contested by the other defendants. When the suit came up for trial, the plaintiff pressed only the relief against the first defendant for damages on account of breach of contract and did not press the other relief, namely the specific performance of contract. The trial court passed a decree on 19-7-1978 against the 1st defendant for recovery of a sum of Rs. 1,15,000/- as damages. The plaintiff-decree-holder filed an execution petition before the Sub Court, Calicut, and the same was transferred for execution to the Sub Court, Kottayam which issued notice in execution proceedings E.P. No. 267 of 1979 and notice was served on the 1st defendant. Thereafter, in 1979 the 1st defendant filed application for setting aside the ex parte decree passed against him. More than one application appears to have been filed in this regard by the 1st defendant and those applications were dismissed. C.M.A. No. 165 of 1980 filed before the Division Bench was also dismissed as withdrawn. It was thereafter I.A. 2371 of 1982 was filed by the 1st defendant in the court below for condoning the delay in filing the application for setting aside the ex parte decree. These applications also were dismissed and a C.M.A. filed against these orders is said to be pending before this Court.

(3.) Although several grounds have been raised in the memorandum of revision petition, the point urged by the learned advocate for the 1st defendant in support of the revision is that the decree in question is a nullity, as there was inherent lack of jurisdiction in respect of the subject matter of the suit. It is contended that the suit in question is essentially one for specific performance of contract and not for damages on account of breach of contract, that there is no averment in the plaint claiming damages on account of breach of contract, that the plaintiff having abandoned the relief of specific performance of contract there was nothing further to be done except to dismiss the suit, and that damages in addition to or in lieu of specific performance of contract and be granted only when the plaintiff succeeds in making out a case for granting a decree for specific performance. The argument addressed in this regard is that a decree must be supported by a judgment containing reasons, and that the court has no jurisdiction to pass a decree for damages as there was no cause of action surviving after the plaintiff abandoned his relief for specific performance. The learned advocate appearing for the 1st defendant in support of his contention placed main reliance on a Division Bench ruling of the Calcutta High Court in Gh Court in Gopi Chand, AIR 1979 Cal 203 and also on the following decisions in A. H. Mama v. Flora Sassoon, AIR 1928 PC 208, Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838, Bhavan Vaja v. Solanki Hanuji, AIR 1972 SC 1371, Hira Lal v. Kali Nath, AIR 1962, SC 199, Sunder Dass v. Ram Parkash AIR 1977 SC 1201 and Lakshmi v. Bharathi 1968 Ker LT 447.