HARIPRASAD Vs. BENI BAI

JUDGEMENT

(1.) THIS is an appeal by the defendants directed against a decree of the Vth Additional District Judge, Jabalpur, reversing that of the 1st Civil Judge, Class II, Jabalpur.

(2.) THE dispute is over a flour mill. THE parties are rival flour mill owners. THE flour mill of one was situated opposite the floor mill of other. THE plaintiff purchased the flour mill of the defendants on condition that they would not run any hour mill from their premises or let out the premises for running that kind of business. THE sale with these conditions was for a price of Rs. 1,001. In terms of the sale, the defendants applied for disconnection of the power-metre and power-line fitted to their premises and also handed over a key of the room where the flour mill was installed. THE plaintiff alleges, that where she was awaiting the disconnection to remove the flour mill, the defendants effected a forcible entry into room and wrongfully started running the mill. THE defendants have admittedly received the entire consideration. On these facts, the plaintiff claimed possession of the flour mill and damages, or in the alternative, refund of the price together with interest thereon. THE defendants deny the claim. THEy say that the transaction was one of exchange. THE first Court upheld the defence. THE appeal Court held that there was a sale. THE plaintiff, accordingly, was given a decree for possession and for damages.

(3.) THE objection that the question cannot be raised, cannot be countenanced. THE question depends on a construction of the terms of the deed. THE parties are in accord as to the terms. No further investigation into facts is necessary. When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice that the question should be allowed to be taken [see, M. E. Moolla Sons, Ltd. v. Burjorjee ( AIR 1932 P.C. 118(1932) 59 Indian Appeals l6l) This would particularly be so, when the contract sought to be enforced, is said to be illegal in the strict sense of the term. I can do no better than refer to a passage from Cheshire's Law of Contract, 3rd Edition, p. 323, which reads: