PANNALAL Vs. MAHACHANDI SAWALDAS

JUDGEMENT

(1.) This revision is directed against an order passed by the Small Cause Judge, Gwalior, whereby he has overruled preliminary objections of the defendant. A compromise decree was passed in an earlier suit arising out of a dispute relating to a wall between the respective properties of the parties. One of the terms of the compromise was that the defendant would construct a wall from the road to the patio, mentioned therein, at his own expense. The present suit instituted by Mahachandi was based on the allegation that the defendant constructed the wall only 9" wide instead of 1'-6" wide and the plaintiff had to complete it by spending Rs. 190/- which he claimed to recover from Pannalal defendant.

(2.) Shri Gupta's contention is that the suit was barred by Section 47 of the C. P. C.; the only remedy open to the plaintiff was to execute the compromise decree. Reliance is placed on Zakarali v. Israr Hussain, AIR 1947 Nag 53. In my opinion, this contention is untenable. I have perused the compromise decree. It is not mentioned there what the consequence would be if Pannalal did not construct the wall wholly or partly. It is true that Mahachandi could have put the decree into execution with a prayer to compel the defendant to complete the wall at his expense. But that is an entirely different question. This suit is not for specific performance. The plaintiff has already completed the construction and 'he claims the amount spent by him. For this relief he could not put the decree into execution. The Nagpur case is not in point. It only lays down when a preliminary condition stated in a consent decree is fulfilled the decree becomes as fully executable as any executable decree and the compromise between the parties becomes a rule of the Court as soon as it is embodied in the decree.

(3.) It was no term of the compromise that the plaintiff would do the construction work, should the defendant fail to do it, nor is it on record that the plaintiff did the work at the defendant's request. The question is whether the plaintiff was entitled to bring a suit for recovery of the expenses incurred by him on the construction. In my opinion section 70 of the Contract Act is attracted. The relation under section 70 is created by the fact that one person lawfully does something for another and the other person enjoys the benefit thereof provided the act is not intended to be gratuitous. This section is clearly intended to operate as compensation for benefits enjoyed by a person against whom liability is endeavoured to be enforced. A person must be said to have enjoyed the benefit of an act within the meaning of section 70 when he in fact enjoyed the benefit by accepting or adopting it, without objecting to it Section 70 of our Contract Act is wider in scope than the doctrine of quantum meruit. (8 Halsbury (Salmond) 226). The principle enunciated by this section recognises what may be said to be a rule of conscience. It does more than reproduce the English Law. As aptly observed in Gajapathi v. Srinivasa Charlu, ILR 38 Mad 235: (AIR 1915 Mad 95), our courts must be guided more by justice, equity and good conscience than by English precedents and not cut down the beneficient provisions of this section. In that case, Sadasiva Aiyar J. observed: "The Roman law is admittedly wider than the English law in this matter, and Section 70 was suggested rather "by the notes to Lampleigh v. Braithwaite, (1616) 1 Sm. L. C. 141 and perhaps, indirectly by the Roman law" than by the strict rules laid down in English cases." Whether the defendant did not construct as much as he was bound to, whether the plaintiff actually constructed the wall and how much he spent on it are questions which the Small Cause Court has yet to try.