KR SHUSHILENDRA PAL SINGH Vs. BKAILASH CHAND BHARGAVA

JUDGEMENT

(1.) This is a defendant's appeal against an order of remand passed by the learned District Judge. The relevant facts necessary for the purposes of this appeal are these: B. Kailash Chand Bhargava is the proprietor of "Kailash Electric Mart" at Aligarh. Defendant l, Pt. Tula Ram, started a cinema of the name of Pearl Talkies. This cinema was housed in a building owned by B. Kailash Chand, defendant 3. The plaintiff and Pt. Tula Ram, defendant l, entered into a contract on 25th December 1939 whereunder the plaintiff was to put up electric installations in the cinema hall and it was provided that Pt. Tula Ram would pay Rs. 100 at once and Rs. 100 on the day that the cinema started and that thereafter the Balance of the total amount of Rs. 1600, the costs of the installation, would be paid off by him at the rate of Rs. 100 per month. In case of even one default in payment, it was provided, that the plaintiff will have the right to remove his electric installations. It appears that Rs. 100 were paid at the time of the agreement; Rs. 100 were further paid on the day that the cinema started but thereafter no payment was made by Pt. Tula Ram. Subsequently it appears that Kr. Sushilendrapal Singh defendant 2, either took over the cinema business from Pt. Tula Ram or entered into a partnership with him.

(2.) On these facts the plaintiff filed the suit, out of which this appeal has arisen, on 7 January 1941, and he prayed for a perpetual injunction restraining the defendants from using the electric installations in the cinema house and also restraining them from obstructing the plaintiff in removing the electric fittings. He prayed for no specific relief with regard to damages but said that he would file another suit later on if he considered it necessary (vide para. 6 of the plaint). The suit was contested by all the three defendants on various grounds. It is not necessary to go into the details of all the pleas set up in defence. The Court of first instance decided only one issue, namely issue 10 : "Whether the suit is barred by Section 42, Specific Relief Act." It found that the plaintiff's suit as framed was not maintainable. It also found in effect that the contract dated 25 December 1939 between the parties could not be specifically enforced and therefore no injunction could be granted in view of the provisions of Secs.21 (a) and 56 (f), Specific Relief Act. In view of these findings the suit was dismissed by the Court of first instance. On appeal the learned District Judge concurred in the findings of the Court of first instance and held that the prayer for an injunction could not be granted. He, however, held, in view of the rulings cited before him and the provisions of Section 19, Specific Relief Act, that although the plaintiff was. not entitled to the relief specifically claimed, namely, an injunction, he was nevertheless entitled to compensation. He accordingly set aside the decree of the Court of first instance and remanded the case to the Court of first instance for an inquiry, (1) whether there was a contract between the parties which had been broken by any of the defendants and (2) whether the plaintiff was entitled to compensation for that breach. He directed the Court of first instance to award compensation to the plaintiff, if the Court found that he was entitled to compensation for the breach of the contract in question.

(3.) In this second appeal before us it has been strongly contended by the learned Counsel for the appellant that the lower appellate Court has acted illegally in remanding the suit and that it had no jurisdiction to order retrial and to convert the suit into one for damages simpliciter. The learned Counsel for the respondents has, however, cited before us various rulings which fully support the view of the law taken by the lower appellate Court. In Callianji Harjivan Trioum ( 95) 19 Bom. 764 it has been held by a Bench of two learned Judges, in circumstances very similar to those of the case before us, that when the Court holds in its discretion that neither specific performance of the agreement nor an injunction against the defendant would be a proper remedy on the ground that pecuniary compensation is an adequate remedy it ought not to dismiss the suit but should either itself award damages or order an inquiry with regard to the same. The plaintiff being held to be entitled to a remedy, the proper remedy should be awarded. Again in Arya Pradishak Pritinidhi Sabha V/s. Labori Mal ( 24) 11 A.I.R. 1924 Lab. 713 it has been held by a Bench of two learned Judges of the Lahore High Court with reference to Section 19, Specific Relief Act, that the object of the rule embodied in the section is clearly to prevent a multiplicity of suits and to do complete justice between the parties. It has been held, following the case reported in 19 Bom. 7641 above mentioned and the case in Kallian Dass V/s. Tulai Dass ( 99) 23 Bom. 786 that the plaintiff is not obliged in a suit for specific performance to pray specifically for damages and the Court has always a discretionary power to award damages in a suit for specific performance and ought to exercise that discretion when it is of the opinion that damages should be given. Their Lordships further referred to Order 7, Rule 7, Civil P.C. which provides that it is not necessary to ask in the plaint for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. Again it has been hold in K. H. Skinner V/s. Rosy Skinner ( 25) 12 A.I.R. 1925 Lah. 132 that in a suit for specific performance the plaintiff is not bound to pray specifically for damages either in addition or in substitution. He has a choice of remedies open to him to apply for and the Court has discretion to allow damages if it is of the opinion that damages are the appropriate remedy. Again in Ookerjee Cowasjee V/s. Sabhapathy Mudaliar ( 19) 6 A.I.R. 1919 Mad. 560 it has been held that in a case where the claim falls under Section 21 (a), Specific Relief Act, and cannot be specifically enforced the plaintiff is entitled to claim compensation in the alternative under Section 19 and under the explanation to that section the Court is not precluded from granting it by the circumstances that the contract has become incapable of specific performance and that there is no prayer for such relief in the plaint. In Krishna Aiyer V/s. Shamanna ( 12) 23 M.L.J. 610 it was held that the Court can in such a case award damages in the alternative though not asked for in the plaint. To the same effect are the decisions of the Rangoon High Court in U Aung Din v. B. K. Haider ( 35) 157 I.C. 26 (Rang.) and of two learned Judges of the Patna High Court in Satyataran Chaudhury V/s. Jyoti Prasad ( 23) 10 A.I.R. 1923 Pat. 386.