Judgement
The plaintiff is the appellant. He filed a suit for specific performance of two contracts dated 5-2-1945 and 18-3-1945 for sale of distinct parcels of land in his favour. The defence was that the second contract was not at all true. As regards first contract, it was contended that it was executed benami on behalf of the 2nd defendant, the nephew of the 1st defendant.
While the Trial Court dismissed the suit, the Subordinate Judge, of Gudivada took a different view and held that the first contract was not benami for the 2nd defendant. He only granted a decree for Rs. 750/- as damapes on the around that the plaintiff came to Court
"with unclean hands setting up a second contract which is untrue and alleging that from out of the sum of Rs. 550/- paid on 18-3-1945. Rs. 150/- was by way of advance under that contract which was never entered into."
The plaintiff has consequently preferred the second anneal contending that there are no sufficient grounds to refuse specific performance.
2. The only question that falls to be considered in the second appeal is whether by reason of the plaintiff putting forward false contract to purchase in regard to a distinct piece of land, he is debarred from obtaining specific performance of a separate contract which has been found to be true by the Lower Appellate Court.
It is no doubt true that under S. 22 of the Specific Relief Act. the jurisdiction to decree specific performance is discretionary and that the Court is not bound to grant such relief merely because it is lawful to do so. But as specifically pointed out in the section, the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal The section points out when the Court may properly exercise the discretion not to decree specific performance.
The present case does not fall either under Cl. 1 or Cl. (2). The mere fact that the plaintiffs case in regard to the truth of the second contract has not been accepted is, in my opinion, not a sufficient ground to refuse specific performance with regard to the first contract which has been found to be true, valid and binding. It is found from the accounts of the 1st defendant that the entire sum of Rs. 750/- due under the first contract was paid.
Merely because the plaintiff spoke falsehood in regard to the sum of Rs. 550/- and wanted the court to believe that Rs. 400/- represented the consideration due under the first contract and Rs. 150/- represented the consideration for the second contract, the Court should not have refused specific performance. I am inclined to take the view that specific performance ought to have been granted in favour of the appellant.
3. In Halsburys Laws of England, Second Edition, (Hailsham edition)), Volume 31, at page 391 it is pointed out that
"Where the plaintiffs non-performance is of a separate and collateral contract, although relating to the same subject-matter and entered into simultaneously with the agreement which it is sought to enforce, it does not constitute a defence."
Similarly, it is stated that
"there may be independent covenants in the same contract or deed, nonperformance of one of which does not prevent enforcement of performance of the other."
Applying the same principle, I hold that the putting forward of a false case in regard to the second contract does not entitle the Court to refuse specific performance of the first contract which is true, valid and binding. To dismiss the suit for specific performance on the ground that the plaintiff had come with unclean hands is not justified.
4.Sri B. V. Ramanarasu, the learned Advocate for 1st defendant, sought to contend that the contract had been abandoned and that the suit was filed more than 2 years after the contract was entered into. As regards the question of abandonment, the Lower Appellate Court did not accept his case, and it is a question of fact with which I cannot interfere.
There is also not much substance in the plea based on delay. In the result, I set aside the judgment and decree of the Lower Appellate Court and award specific performance in respect of the contract dated 5-2-1945.
5. The appeal is therefore allowed with costs in regard to the first contract. So far as the second contract is concerned, the suit fails and is dismissed with costs throughout. No leave.
6. There is no substance in the memorandum of cross-objections. It is dismissed, but without costs.
7. This case having been set down this day for being mentioned the Court made the following order :
Time for specific performance is fixed at two months from the date of the re-opening of the Lower Court.
Order accordingly.