ISRAR HASAN KHAN Vs. DEO NARAIN

JUDGEMENT

(1.) The judgment of the learned Subordinate Judge, though lengthy, is a, creditable performance. He has rightly brushed aside questions as to the joinder and non-joinder of parties. It would have been better and shortened his judgment if he had not directed his mind to whether Government, the owner of the road, was a necessary party or not. In my opinion he has arrived at the truth of the matter that when Deo Narain entered into this agreement the conditions were such that he should not be tied down to specific performance of this contract. He has rightly quoted Section 22, (1), Specific Relief Act: Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiff's part, the Court may properly exercise a discretion not to decree specific performance.

(2.) The matter may be very shortly put There was communal trouble in the town of Jalalabad in the Shahjahanpur District in September 1924. The Sub-Divisional Officer, a Muhammadan, was at the spot. As usual, the Muhammadans found all trees held sacred by Hindus, too low for the passing of the tazias, and the Hindus were of opinion that they were quite high enough for tazias of a reasonable height. This was an excellent opportunity for the display of communal bias and for the breaking of heads in consequence. On 14 September the District Magistrate Mr. Wallace, a European, went to the spot and passed an order to which the Hindus and Muhammadans submitted, at least outwardly, because it was promulgated by a European. He directed that the branches of trees may be tied up high while the tazias passed and lowered after the passage of the tazias, There may not be much wisdom in this order as a mischief-maker may easily use the branches as catapults to be released exactly when the tazias were under the tree. All the same it is well said: Waqt zarurat chu numanad guroz, dast begired sar shamsher tez.

(3.) To translate this phrase freely, it means that when a howling mob is round about, one would choose the best means possible to placate the members of the mob whether your order be consistent with wisdom or not. The same was done on 19 September by the Muhammadan gentleman to avert a communal riot. Being a Muhammadan his co-religionists expected too much from him and the Hindus suspected him of bias. This would happen with the most honest and high principled officer in this present unfortunate time. If the angel Gabriel came down on another lady-Day to make an announcement, the Hindus would distrust him if he came in the garb of a Muhammadan and the Muhammadans would distrust him if he came in the garb of a Hindu. On the night of 14 September the Muhammadan Sub-Divisional Officer believed that the Muhammadans would be satisfied if he obtained consent from the Hindus only to lop off the branches which obstructed the tazias.