SRI POOSAPATHI RAMACHANDRA RAJU GARU Vs. SRI RAJAH VACHAVAYI VENKATASUBBAYAMMA JAGAPATHI BAHADUR GARU

JUDGEMENT

(1.) This is a petition filed by the 2nd defendant to revise the order of the Subordinate Judge of Vizagapatam in Original Suit No. 10 of 1913, wherein he held that the plaintiff was entitled to claim an alternative relief not claimed in the plaint as filed and directed the defendants, after the case was closed and arguments almost over, to file an additional written statement without requiring an amendment of the plaint. Original Suit No, 10 of 1913 was filed by the widow of the Hajah of Tuni against the defendants to enforce the terms of an agreement entered into with her husband (who financed the litigation in connection with the Vizianagaram Instate), whereby the plaintiff s husband was entitled to a certain share in the decree that may be passed in the Vizianagaram suit either after contest or on compromise. The whole plaint proceeded upon the footing that there was a subsisting, valid and enforceable contract between the parties, under the terms of which the plaintiff was entitled to the relief claimed. Paragraph 35 of the plaint sets out that out of the properties secured by the compromise decree between some of the. defendants and the Hawaii of Vizianagaram the plaintiff was entitled to Rs. 1,68,629 and also to certain shares in the annuity and the house given to defendants Nos. 2, 5 and 6, Paragraph 37 of the plaint sets out the derails. There is not a word in the plaint as to the contract having become void or impossible of performance, as to the plaintiff being entitled to any relief under Section 65 of the Contract Act. Upon this plaint, written statements were filed and various defences were raised. For the purpose of this petition it is sufficient to refer to two of them. The first defence was that the plaintiff s husband committed a breach of contract and wrongly refused to finance the suit and that consequently he was not entitled, to any share in the decree amount as provided for by the agreement. In paragraph 25 of the written statement the defendants also stated that the plaintiff vas not even entitled to a refund, of the money actually advanced, as her husband wrongly discontinued to make payments which he was bound to make under the agreement. It is also contended that the contract being indivisible and not being in the nature of a loan intended to be re-paid, a mere part performance by the plaintiff s husband would not entitle her to any relief whatever even in respect of the part performed by her husband. It is clear from the pleadings that the case, that the contract had become void or become impossible of performance and that consequently plaintiff was entitled to a return of the money actually advanced under the provisions of Section 65 of the Contract Act, was never raised or was in the contemplation of the parties. Upon these pleadings issues were settled and one of the issues, was whether the suit agreement provided for the contingency that actually happened; if not, what is the plaintiffs remedy. I find it difficult to see how, having regard to the pleadings and the issues which were presumably settled with reference to the allegations therein, this issue can be said to cover the question as to whether the contract had become void or impossible of performance and whether by reason thereof the plaintiff was entitled under Section 65 of the Contract Act to the recovery of the amount actually advanced.

(2.) Mr. T.R. Ramachandra Iyer, who appeared for the defendants in the lower Court, states that till he commenced his arguments after plaintiff s Vakil closed his and after all the evidence was taken, neither the Judge nor the parties had the remotest idea that a claim was being made on the footing that the contract had become void or impossible of performance and that the 7th issue above referred to was intended to cover such a claim. Though the practice has been discountenanced by the High Court, the Subordinate Judge asked the parties to file written arguments and written arguments were presented by the plaintiff and defendants. In the written arguments of the plaintiff the contention that the contract had become void or impossible of performance was never raised by her Vakil. When the defendants Vakil began his reply, he argued that the plaintiff was entitled to no relief under the contract because the compromise was not one effected in pursuance of the terms of the contract, since both the persons whose consent was necessary before the compromise could be legally effected, namely, plaintiff s husband and the late Hon ble Mr. V. Kriahaswami Iyer, were dead at the date of the compromise. After Mr. T.R. Ramachandra Aiyar closed his arguments, plaintiff s Vakil in reply suggested that, even if the contract was void, the plaintiff would be entitled under Section 65 of the Contract Act to a return of the money actually advanced. The Subordinate Judge at this stage of the proceedings was of opinion that the contention put forward in reply by the plaintiff s Vakil was one which was raised in the pleadings and that the plaintiff was entitled to a relief on this ground. He gave the defendants leave to file an additional written statement and allow both parties to adduce evidence on the question;

(3.) It seems to me that the procedure adopted by the Subordinate Judge is, to say the least of it, opposed to all rules of practice and procedure. The plaintiff came to Court with an allegation that the contract was a subsisting and enforceable contract and that she was entitled to a certain share in the amount decreed by the compromise decree in the Vizianagaram suit.