S. VENKATESWARA RAO Vs. M. SUBBAYYA AND ANOTHER

JUDGEMENT

(1.) The plaintiff is the appellant. He filed a suit for specific performance of two contracts dated 5-2-1945 and 18-3-1945 for sale of distinct parcels of land in his favour. The defence was that the second contract was not at all true. As regards first contract, it was contended that it was executed benami on behalf of the 2nd defendant, the nephew of the 1st defendant. While the Trial Court dismissed the suit, the Subordinate Judge, of Gudivada took a different view and held that the first contract was not benami for the 2nd defendant. He only granted a decree for Rs. 750/- as damapes on the around that the plaintiff came to Court "with unclean hands setting up a second contract which is untrue and alleging that from out of the sum of Rs. 550/- paid on 18-3-1945. Rs. 150/- was by way of advance under that contract which was never entered into." The plaintiff has consequently preferred the second anneal contending that there are no sufficient grounds to refuse specific performance.

(2.) The only question that falls to be considered in the second appeal is whether by reason of the plaintiff putting forward false contract to purchase in regard to a distinct piece of land, he is debarred from obtaining specific performance of a separate contract which has been found to be true by the Lower Appellate Court. It is no doubt true that under Section 22 of the Specific Relief Act. the jurisdiction to decree specific performance is discretionary and that the Court is bound to grant such relief merely because it is lawful to do so. But as specifically pointed out in the section, the discretion of the Court is arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal The section points out when the Court may properly exercise the discretion to decree specific performance. The present case does fall either under Clause 1 or Clause (2). The mere fact that the plaintiff's case in regard to the truth of the second contract has been accepted is, in my opinion, a sufficient ground to refuse specific performance with regard to the first contract which has been found to be true, valid and binding. It is found from the accounts of the 1st defendant that the entire sum of Rs. 750/- due under the first contract was paid. Merely because the plaintiff spoke falsehood in regard to the sum of Rs. 550/- and wanted the court to believe that Rs. 400/- represented the consideration due under the first contract and Rs. 150/- represented the consideration for the second contract, the Court should have refused specific performance. I am inclined to take the view that specific performance ought to have been granted in favour of the appellant.

(3.) In Halsbury's Laws of England, Second Edition, (Hailsham edition)), Volume 31, at page 391 it is pointed out that