MANU/WB/0132/1884

Equivalent/Neutral Citation: (1884)ILR 10C al1061

IN THE HIGH COURT OF CALCUTTA

Decided On: 02.09.1884
Chotay Lall Vs. Mokund Lall and Ors.
Hon'ble Judges/Coram:
Mitter and James Quain Pigot, JJ.
Case Note:
Specific performance - Delay in bringing the suit--Joinder of causes of action--
Act XIV of 1882, Section 44--Joinder of a person not a party to the contract of
which specific performance is sought.
JUDGMENT
Mitter, J.
1. This appeal arises in a suit for specific performance of a contract which was alleged
to have been entered into on the 1st March 1878. The suit was brought on the 28th
February 1881. The first defendant, according to the plaint, was the party who was in
possession of the property in dispute, and who was entitled to it on the date when the
alleged contract was entered into. The plaintiff further alleges that it was the said
defendant who herself entered into the contract The second defendant, who is the son
of the first defendant, is alleged to have received Rs. 100 as part of the consideration
money which was fixed, according to the plaintiff, at Rs. 3,700; and the plaintiff stated
in the plaint that the second defendant received the Rs. 100 in accordance with the
directions given by the first defendant for the payment of that amount to her son. There
is another person who was made defendant, viz., Mokund Lall. It was alleged in the
plaint that the defendants Nos. 1 and 2, that is to say, the mother and her son, were
dissuaded by this defendant from fulfilling the contract entered into by the defendant
No. 1 with the plaintiff. It was further alleged that, after the receipt for Rs. 100, which
was granted by the defendant No. 2 to the plaintiff, was registered (which registration
took place after a proceeding in the registration office taken between the plaintiff and
the defendants Nos. 1 and 2), the defendant No. 1 caused a petition to be filed through
her benamidar and dependent, the defendant No. 3, Mokund Lall, in the Municipal office
of the Municipality within which the disputed house lies, and caused the name of the
defendant No. 3, Mokund Lall, to be registered in the Municipal office in respect of the
house in suit. It was further alleged in the plaint that a kobala, dated 26th March 1873,
which was executed by the defendant No. 1 in favour of the defendant No. 3 in respect
of this house, was a benamee transaction, resorted to for certain reasons which are
stated in the plaint, and not material to be mentioned here. Upon these allegations the
plaintiff claimed specific performance of the contract, and asked also for a declaration
against the defendant No. 3, that he was simply a benamidar for the defendant No. 1.
The suit was defended both by Mokund Lall, the defendant No. 3, and by the defendant
No. 1, and various objections were taken to the claim of the plaintiff. It will be
sufficient here to notice the objection in the 9th paragraph of the written statement of
Mokund Lall. That paragraph is to the following effect: "The plaintiff has in law no right
to sue to have a deed of sale executed in respect of the disputed house in fulfilment of
the contract, to recover possession, to register his name in the Municipal tax register,

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and to render this defendant's purchase null and void, as against this defendant, the
prior purchaser. The form in which the plaintiff has brought this suit is illegal." Four
issues were framed by the Munsif. These were:
1st.--"Whether or no Mussamat Nanki has entered into a contract with the
plaintiff, and whether or no she was competent to make such a contract?"
(Mussamat Nanki is the first defendant.)
2nd.--"Whether the deed of sale of 26th March 1873 is genuine, and whether,
under and by virtue of it, Mokund Lall is in possession of the disputed property,
or the deed of sale is a nominal transaction, and Mussamat Nanki is in
possession?"
3rd.--"Whether the stamp of the receipt is inadequate, and whether it was
registered after the prescribed time or not;" and
4th.--"Whether or no, out of Rs. 3,700, the defendant has received Rs. 100 in
cash, and Rs. 40 for purchase of stamp?
2. The Subordinate Judge dismissed the plaintiff's suit. He came to the conclusion that
the alleged contract was not established; but, with reference to the question, whether
Mokund Lall, the defendant No. 3, was benamidar or not, the Subordinate Judge came
to the conclusion in favour of the plaintiff, that Mokund Lall was a mere benamidar. On
appeal to the District Judge, the judgment of the Subordinate Judge was reversed. The
District Judge substantially found that the plaintiff's evidence with reference to the
contract was trustworthy, and upon that ground he came to the conclusion that there
was a valid contract of sale entered into by the defendant No. 1 with the plaintiff. He
was further of opinion, in concurrence with the Subordinate Judge, that Mokund Lall,
the defendant No. 3, was merely a benamidar. The District Judge gave a decree in
favour of the plaintiff. Against this decree this second appeal was preferred by both
Mussamat Nanki Bibee, the defendant No. 1, and Mokund Lall, the defendant No. 3, but
subsequently an application was made by a vakeel, other than those who filed the
second appeal, asking the Court's permission on behalf of Mussamat Nanki Bibee to
withdraw from the appeal. The order passed was, that it should be considered at the
time when the appeal would be heard. Now, we are satisfied, upon the materials on the
record, that Mussamat Nanki Bibee has made a substantive application through a
properly authorized vakeel to withdraw from the appeal, and it does not seem to me
that there is anything in the Procedure Code that would disentitle her to withdraw from
it. Therefore, we must try this appeal as if it was preferred by the defendant No. 3 only.
That being so, it was contended on behalf of the respondent that any objection which
upon the findings of the Court below Mussamat Nanki Bibee alone could take against
the decision of the lower Appellate Court could not be urged by Mokund Lall in this
case. With reference to that point we felt some doubt as to whether this contention is
valid. The doubt arose in this way, that as between Mussamat Nanki Bibee and Mokund
Lall, the finding of the lower Appellate Court, that Mokund Lall was a mere benamidar,
is not conclusive. It may be binding as between the plaintiff on the one hand and
Mokund Lall on the other hand, but as the plaintiff, respondent, before us is relying
upon some act of Mussamat Nanki Bibee in support of this contention, a doubt arose,
whether the decision of the lower Court not being conclusive between Nanki Bibee and
Mokund Lall, the plaintiff could shut out Mokund Lall from urging those points which he
could have urged if his co-appellant had not withdrawn from the appeal. Entertaining
this doubt, we have heard the case upon all the points urged in the petition of appeal,
and after hearing the learned Counsel and vakeel who appeared for Mokund Lall, we

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called upon the learned vakeel for the respondent to answer the appeal upon the
following three points: First, whether having regard to the delay in bringing the suit,
and it being discretionary under the Specific Belief Act to award a decree or not, as the
Court thinks fit, whether this suit should not have been dismissed by the lower Court,
and it not having been dismissed, whether or not this Court on second appeal should
make that order. The second point was, that Mokund Lall, the defendant No. 3, being a
stranger to the contract, whether in this suit the plaintiff could claim any relief against
him, and if he could not, whether the suit as against Mokund Lall should not have been
dismissed. The third objection with reference to which we called upon the learned
vakeel for the respondent to answer the appeal, was that, supposing Mokund Lall was
properly made a party, whether the causes of action upon which this suit was brought
could be properly joined together under the provisions of Section 44 of the Civil
Procedure Code. As regards the first objection, it seems to me that we cannot lay down
as a hard and fast rule of law, that a suit brought after the delay which has occurred in
the present suit should be dismissed. There is no doubt that, under the Specific Relief
Act, the Courts are vested with a certain amount of discretion in the matter of awarding
a decree for specific performance; but I am not prepared to lay down as a proposition
of law, that all suits brought after the lapse of time after which the present suit was
brought are all liable to be dismissed. There may be circumstances under which a Court,
exercising the discretion with which it is vested under the Specific Relief Act, may think
it right to dismiss a suit brought nearly three years after the contract was entered into,
and there may be also circumstances which may justify a Court in awarding a decree,
even when the suit is brought after such a delay; each case must depend upon its own
circumstances. In this case, I do not find that this objection was taken in the lower
Courts, and, therefore, I am not in a position to say that there is any ground made out
upon the materials on the record which would warrant this Court, in second appeal, in
directing the dismissal of the suit. I am, therefore, of opinion that this ground must fail.
As regards the other two objections, which I think may be token together conveniently,
it seems to me that even if they were well founded, we should be precluded by Section
578 of the Civil Procedure Code from reversing the decree of the lower Appellate Court,
as it is clear from the facts found in this case that the error complained of, if it was an
error at all, could not possibly affect the merits of the decision. But putting aside that
matter, upon the merits of the objections themselves, I am of opinion that the special
appeal should not succeed. In support of the objection that the suit against the
defendant, appellant, should have been dismissed, two cases have been cited De
Houghton v. Money and Luckumsey Ooherda v. Fazulla Cassumbhoy It seems to me that
what is laid down in these cases is this, that if, on the face of the plaint, or of the
plaintiff's case, it appears that a third party, who was not a party to the contract upon
which the suit was brought, had a distinct interest, but which interest is sought to be
declared null and void upon some equitable ground, such a claim against the said third
party could not be made a part of the suit. In the case of De Houghton v. Money it was
admitted by the plaintiff that there was a conveyance in favour of Money, but it was said
that that conveyance was executed under such circumstances as would make it a
voidable one; and in the case of Luckumsey Ookerda v. Fazulla Cassumbhoy it was
distinctly admitted by the plaintiff that the third party, who was not a party to the
contract, had a distinct interest. That is not the case here. Referring to the plaint, I find
that the plaintiff is really suing upon one cause of action. He charged the defendant No.
1 with having resorted to certain devices, in concert with the defendant No. 3, to defeat
his rights arising out of the contract under which he was suing; he called the defendant
No. 3 a mere benamidar, and there is no admission on the face of the plaint or in the
plaintiff's case that the defendant No. 3 had a separate or distinct interest from that of
the defendant No. 1. That being so, it seems to me that both the objections taken by the

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learned Counsel for the appellant must fail, as there was only one cause of action upon
which the suit was brought. It was found necessary to make the defendant No. 3 a party
to the suit, because he was made use of as benamidar by the defendant No. 1 in setting
up certain devices in order to defeat the right of the plaintiff. That is the distinction
between this case and the cases cited. I am, therefore, of opinion that this second
appeal must fail. It will therefore be dismissed with costs.
James Quain Pigot, J.
3. I am of the same opinion. As to the question arising under the two points which my
learned brother dealt with together, the case of De Houghton v. Money and the point
under Section 44, I must say that I should find a difficulty in considering that this Court
was precluded under Section 578 from dealing with a case in which the principle acted
upon in De Houghton v. Money was violated. I should hesitate to say that a violation of
that principle would not, in itself, affect the merits (within the meaning of this section)
of any case that was entered upon in disregard of that rule, but in the present case I
confess, after hearing with much attention the argument of the learned Counsel, that it
does appear to me that the point at which the rule in De Houghton v. Money would be
applicable would not be reached in this case. The question is: Are not the first and third
defendants identical, and that question in itself, if answered in the affirmative, as it has
been, precludes the application of these cases. I may add a word as to the first
question, viz. the delay. It does seem to me that that question, if properly raised, would
be, as the learned Counsel argued, proper matter of appeal, and might perhaps be, if
properly raised, a proper matter for consideration even in second appeal; but if raised
at all in this case in the Courts below it was very slightly raised, and it appears to me
that we have no right to presume that the ordinary rule, applicable to suits of this
nature, was neglected by the learned Judge in the Court below, or to hold, upon the
presumption arising from the length of the delay condoned by him, that it was unduly
disregarded. On reference to Lord Justice FRY'S book on Specific Performance, Sections
1070 to 1079, where this subject is referred to, it will be noticed that the Lord Justice
mentions several oases in which very considerable delay was held in England to be
fatal, but in others not so. In Section 1078, a delay of fourteen months was held not to
be such a bar. In another case, three and half years was considered fatal, and in more
recent cases, a delay of one and half years, and a somewhat lesser delay, was held to
be fatal. In this case, the time which was allowed to elapse was so long, that under
ordinary circumstances specific performance would not be granted by the Court; but it
is impossible for us to say in the form in which this case comes before us in second
appeal, that there may not have been circumstances in the present case that would
justify the grant of a decree even after the period which has elapsed. As the point has
been raised before us, I have thought it desirable to refer to one of the authorities in
which the subject is dealt with, because the principle is an important one, and under the
new Specific Belief Act it is a principle which ought to be considered by the Court in the
exercise of its judicial discretion under Section 22 of that Act.
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