Full Judgment Text
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CASE NO.:
Appeal (civil) 5662 of 1998
PETITIONER:
Manjunath Anandappa urf. Shivappa Hanasi
RESPONDENT:
Tammanasa & Ors.
DATE OF JUDGMENT: 13/03/2003
BENCH:
Brijesh Kumar & S. B. Sinha.
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Defendant No. 3 is the appellant herein. Defendant No. 1 is admittedly
the owner of the property in suit. Defendant No. 2 is the constituted attorney
of Defendant No. 1, who, on or about 1.10.1978 is said to have entered into
an agreement for sale with the Plaintiff in respect of the suit property bearing
No. C.T.S. No. 1921/A of Gadag Betageri City Municipal area for a total
consideration of Rs. 30,000/- out of which a sum of Rs. 20,000/- was
allegedly paid as advance. In terms of the said agreement, the plaintiff
allegedly was put in possession of the suit property.
The Deed of sale, pursuant to the said agreement was to be executed
within 3 years from the date thereof on payment of the balance sum of Rs.
10,000/-. Defendant No. 3, the appellant herein, purchased the suit property
by reason of a registered deed of sale dated 15.5.1984 for valuable
consideration of Rs. 50,000/-. The plaintiff on or about 15.5.1984 admittedly
made an enquiry in the C.T.S. Office to obtain the C.T.S. extract of the suit
property, when he came to learn that the defendant already executed a
registered sale deed in respect of the suit property in favour of the appellant
whereupon he served a notice dated 8.8.1984 upon Defendant Nos. 1 and 2
demanding specific performance of the said agreement of sale dated
1.10.1978. As regards cause of action, in the Plaint it was stated:
"The cause of action to this suit arose on 8.8.1984 when
the plaintiff got served the notice to the defendants
demanding specific performance of agreement of sale
dated 1.10.1978 and when the defendants failed to
execute the sale deed in favour of the plaintiff."
It is not in dispute that the plaintiff in his plaint did not make any
averment as regard his readiness and willingness to perform his part of the
contract as is mandatorily required in terms of Section 16(c) of the Specific
Relief Act, 1963. He merely alleged:
"After the said agreement of sale, the Plaintiff
demanded the Defendant No. 2 to bring the
Defendant No. 1 and to execute a registered sale
deed both together after receiving the balance of
sale consideration. But Defendant No. 2 went on
postponing the same by one or the other reasons.
At last this Plaintiff demanded Defendant Nos.1
and 2 by giving notice. Even though the
Defendant No. 2 has received the notice, he has
not replied anything. The notice sent to the
Defendant No. 1 returned unclaimed. Inspite of
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the notice, Defendant No. 1 and 2 failed to execute
the registered sale deed in respect of the suit
property in favour of the Plaintiff."
No notice admittedly was served on Defendant No. 1, the owner of the
property.
The learned trial judge dismissed the suit holding inter alia that the
plaintiff having not averred his readiness and willingness to perform his part
of contract in the plaint, he is not entitled to a decree for specific
performance of contract. The learned trial judge further, having regard to
the conduct of the plaintiff, refused to grant the discretionary relief in
favour of the plaintiff. The First Appellate on an appeal from the said
judgment agreed with the said findings.
In the second appeal filed by the plaintiff, the High Court, however,
reversed the said findings. Therein, the only substantial question of law
which was framed was as regards the readiness and willingness on the part
of the plaintiff to perform his part of contract. The High Court answered the
said question merely stating: "The question of law that was framed was
regarding the willingness and readiness on the part of the plaintiff to perform
his part of the contract. But that question does not arise for consideration for
simple reason that Defendants 1 & 2 did not contest the case. It, however,
entered into the question as to whether the appellant herein was a bonafide
purchaser for value. The said question was answered in the negative solely
on the ground that the appellant did not examine himself in the suit."
Mr. Mahale, the learned counsel appearing on behalf of the appellant
has raised a short question in support of this appeal. The learned counsel
would contend that in view of the fact that the plaintiff failed and/or
neglected to aver in the plaint his readiness and willingness to perform his
part of contract, the High Court must be held to have erred in passing the
impugned judgment solely on the ground that defendant No. 1 did not
contest the suit. The learned counsel would submit that an averment in
terms of Section 16(c) of the Specific Relief Act, 1963 is mandatory.
Strong reliance in this regard was placed on Syed Dastagir vs. T.R.
Gopalakrishna Setty reported in (1999) 6 SCC 337.
The learned counsel would next contend that, in any event, having
regard to the fact that the trial court as also the first appellant court did not
exercise their discretionary jurisdiction in terms of Section 20 of the said
Act, the high court should not have interfered therewith.
Mr. Mohale, urged that although time was not the essence of contract,
but it was obligatory on the part of the plaintiff to file a suit within a
reasonable time. Reliance in this connection has been placed on K.S.
Vidyanadam & Ors. vs. Vairavan reported in (1997) 3 SCC 1.
Mr. Amarendra Sharan, the learned senior counsel appearing on
behalf of the respondents, on the other hand, would submit that having
regard to the statements by the Plaintiff made in Paragraph 6 of the plaint, as
referred to hereinbefore, as also in his deposition wherein he stated that even
on that day he was ready to pay the balance amount of consideration to the
Defendants, it must be held that there has been a substantial compliance of
the requirements of Section 16(c) of the Specific Relief Act, 1963. The
learned counsel in support of the said contention would place strong reliance
in Motilal Jain vs. Ramdasi Devi & Ors. (2000) 6 SCC 420.
The learned counsel would further urge that the pleading should not
be strictly construed. Reliance in this connection was placed on Kidar Lall
Seal & Anr. vs. Hari Lall Seal (1952) SCR 179.
The basic fact of the matter is not in dispute. The agreement was
entered into on or about 1.10.1978. Apart from the vague statements made
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in Paragraph 6 of the plaint as noticed hereinbefore, the plaintiff has not
placed any material on record to show that at any point of time and far less
within a period of 3 years from the date of the said agreement, he ever asked
Defendant No. 1 to execute a deed of sale in his favour or tendered the
balance amount of consideration to her. The plaintiff admittedly served a
notice dated 8.8.1984 upon the Defendant No. 2 alone, that is much after the
expiry of the said period of 3 years. He, only upon having come to learn that
Defendant No. 1 had transferred the property in suit in favour of the
appellant herein, filed the suit. Admittedly the Defendant No. 1 did not
receive any notice.
Section 16(c) of the Specific Relief Act reads thus:
"Specific performance of a Contract cannot be enforced
in favour of a person
.
who fails to aver and prove that he has performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than terms of the performance of which has been
prevented or waived by the defendant."
In terms of the aforementioned provision, it is incumbent upon the
plaintiff both to aver and prove that he had all along been ready and willing
to perform the essential terms of contract which were required to be
performed by him.
Forms 47 and 48 of the Appendix A of the Code of Civil Procedure
prescribe the manner in which such averments are required to be made by
the plaintiff. Indisputably, the plaintiff has not made any averment to that
effect. He, as noticed hereinbefore, merely contended that he called upon
defendant No. 2 to bring defendant No. 1 to execute a registered sale deed.
Apart from the fact that the date of the purported demand has not been
disclosed, admittedly no such demand was made upon defendant No. 1. We
may notice, at this juncture, that the plaintiff in his evidence admitted that
defendant No. 1 had revoked the power of attorney granted in favour of
defendant No. 2. In his deposition, he merely stated that such revocation
took place after the agreement for sale was executed. If he was aware of the
fact that the power of attorney executed in favour of defendant No. 2 was
revoked, the question of any demand by him upon the defendant No. 2 to
bring the defendant No. 1 for execution of the agreement for sale would not
arise at all. Furthermore, indisputably the said power of attorney was not a
registered one. Defendant No. 2, therefore, could not execute a registered
deed of sale in his favour. The demand, if any, for execution of the deed of
sale in terms of the agreement of sale could have been, thus, made only upon
the Defendant No. 1, the owner of the property. The balance consideration
of Rs.10,000/- also could have tendered only to Defendant No. 1. As
indicated hereinbefore, the purported notice was issued only on 8.8.1984,
that is, much after the expiry of period of three years, within which the
agreement of sale was required to be acted upon.
Even in his deposition, he merely said: "As per the agreement the
defendant No. 2 did not execute the sale deed. I issued a notice calling upon
the defendant Nos. 1 and 2 to execute the sale deed after receiving the
balance consideration. However they did not come forward to execute the
sale deed despite the receipt of the notice. Even today I am ready to pay the
balance consideration of Rs.10,000/-." These statements do not satisfy the
requirements of Section 16(c) of the Specific Relief Act.
The requirement to comply with the mandatory provisions of Section
16(c) of the Specific Relief Act came up for consideration of this Court in
Ouseph Varghese vs. Joseph Aley & Ors. (1969) 2 SCC 539 wherein it
was held:
"The plaintiff did not plead either in the plaint or at
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any subsequent stage that he was ready and willing to
perform the agreement pleaded in the written statement
of defendant. A suit for specific performance has to
conform to the requirements prescribed in Forms 47 and
48 of the 1st Schedule in the Civil Procedure Code. In a
suit for specific performance it is incumbent on the
plaintiff not only to set out agreement on the basis of
which he sues in all its details, he must go further and
plead that he has applied to the defendant specifically to
perform the agreement pleaded by him but the defendant
has not done so. He must further plead that he has been
and is still ready and willing to specifically perform his
part of the agreement. Neither in the plaint nor at any
subsequent stage of the suit the plaintiff has taken those
pleas. As observed by this Court in Pt. Prem Raj vs.
D.L.F. Housing and Construction (Private) (Ltd.) and
Another, (Civil Appeal No. 37/66, decided on 4-4-1968)
[reported in 1968 (3) SCR 648] that it is well settled that
in a suit for specific performance the plaintiff should
allege that he is ready and willing to perform his part of
the contract and in the absence of such an allegation the
suit is not maintainable."
Without noticing the said decision, however, another two Judges
bench in R.C. Chandiok and Anr. vs. Chuni Lal Sabharwal and Ors.
reported in (1970) 3 SCC 140 stated:
"6.Readiness and willingness cannot be treated
as a straight jacket formula. These have to be
determined from the entirety of facts and
circumstances relevant to the intention and conduct
of the party concerned. In our judgment there was
nothing to indicate that the appellants at any stage
were not ready and willing to perform their part of
the contract."
In Abdul Khader Rowther vs. P.K. Sara Bai and Ors. reported in AIR
1990 SC 682 this Court followed Ouseph Varghese (supra) holding:
"His plaint does not contain the requisite pleadings
necessary to obtain a decree for specific performance.
This equitable remedy recognized by the Specific Relief
Act cannot be had on the basis of such pleadings and
evidence."
The question again came up for consideration before a three Judge
bench of this Court in Syed Dastagir vs. T.R. Gopalakrishna Setty reported
in (1999) 6 SCC 337.
Therein also the earlier decisions of this Court in Abdul Khader
Rowther (supra) and Ouseph Varghese (supra) were not referred to.
However, inter alia noticing R.C. Chandiok (supra), this Court observed:
"13. It was held in the case of R.C. Chandiok v. Chuni
Lal Sabharwal (1970) 3 SCC 140 that readiness and
willingness cannot be treated as a strait-jacket formula.
This has to be determined from the entirety of the facts
and circumstances relevant to the intention and conduct
of the party concerned. Finally, we have no hesitation to
hold that the pleading as made by the plaintiff not only
shows his readiness and willingness to perform his part
of the obligation under the contract but by tendering the
total amount shows he has performed his part of the
obligation. We also construe such a plea to be a plea of
"readiness and willingness" as required under Section
16(c). In view of the aforesaid findings we hold that the
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High Court committed an error by defeating the claim of
the plaintiff on the basis of a wrong interpretation of his
plea in terms of the said section."
In that case the requisite averments of the plaintiff in the Plaint was to
the following effect:
"6.The defendant has entered into an agreement with
the plaintiff on 1-8-1960 ... for a consideration of Rs.
9500.00 ... the plaintiff has agreed to that on adjustment
of the mortgage amount of Rs. 5000.00 and Rs. 500.00
paid towards advance payment of the sale price, that on
payment of the obtaining sum of Rs. 4000.00 and off, he
would execute a proper sale deed conveying the suit
schedule properties. ... the defendant has accordingly
received a sum of Rs. 3680.00 ... from the plaintiff and
has endorsed the same on the agreement on 21-12-1965.
He has further received Rs. 100.00 on 21-3-1966 and Rs.
100.00 on 4-5-1966 and in all Rs. 3880.00. These
payments are also duly written up in the account-book of
the defendant. The plaintiff approached the defendant to
receive the balance amount of Rs. 120.00 towards the
sale price and execute the proper sale and he agreed. He
evaded and hence a legal notice was issued on 23-2-1967
calling upon him to perform his part of the contract. ...
He (plaintiff) has today deposited in court Rs. 120.00
under RO No. being the balance due to the defendant."
The said averments were held to be in spirit and substance although
may not be in letter and form of "readiness and willingness" on the part of
the Plaintiff stating:
"10. ..It is true that in the pleading the specific words
"ready and willing to perform" in this nomenclature are
not there but from the aforesaid plea, could it be read that
the plaintiff was not ready and willing to perform his part
of that obligation ? In other words, can it be said that he
has not pleaded that he is "ready and willing" to perform
his part ? Courts cannot draw any inference in the
abstract or to give such hypertechnical interpretation to
defeat a claim of specific performance which defeats the
very objective for which the said Act was enacted. The
section makes it obligatory to a plaintiff seeking
enforcement of specific performance that he must not
only come with clean hands but there should be a plea
that he has performed or has been and is ready and
willing to perform his part of the obligation. Unless this
is there, Section 16(c) creates a bar to the grant of this
discretionary relief. As we have said, for this it is not
necessary to plea by any specific words, if through any
words it reveals the readiness and willingness of the
plaintiff to perform his part of the obligation then it
cannot be said there is non-compliance of the said
section."
(Emphasis supplied)
This Court further noticed that despite Explanation appended to
Section 16(c), the plaintiff can always tender the amount to the defendant to
deposit in the court for performance towards the contract under the
obligation of the contract with a view to exhibit to perform his part of
obligation.
The aforementioned decision was referred to again by a two Judge
bench of this Court in Motilal Jain vs. Ramdasi Devi and Ors. reported in
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(2000) 6 SCC 420. In that case also this Court took into consideration the
averments made by the plaintiff in Paragraphs 6 to 11 of the plaint and
opined:
"9.It is thus clear that an averment of readiness and
willingness in the plaint is not a mathematical formula
which should only be in specific words. If the averments
in the plaint as a whole do clearly indicate the readiness
and willingness of the plaintiff to fulfil his part of the
obligations under the contract which is the subject-matter
of the suit, the fact that they are differently worded will
not militate against the readiness and willingness of the
plaintiff in a suit for specific performance of contract for
sale.
In the instant case a perusal of paras 6 to 11 of the plaint
does clearly indicate the readiness and willingness of the
plaintiff. The only obligation which he had to comply
with was payment of balance of consideration. It was
stated that he demanded the defendant to receive the
balance of consideration of Rs. 8000 and execute the sale
deed. The defendant was in Patna (Bihar) at the time of
notices and when he came back to his place the plaintiff
filed the suit against him. In support of his case, he
adduced the evidence of PW 1 and PW 2. The plaintiff
had parted with two-thirds of the consideration at the
time of execution of Ext. 2. There is no reason why he
would not pay the balance of one-third consideration of
Rs. 8000 to have the property conveyed in his favour."
In Pushparani S. Sundaram and Ors. vs. Pauline Manomani James
and Ors. reported in (2002) 9 SCC 582 it is stated:
"5So far there being a plea that they were ready and
willing to perform their part of the contract is there in the
pleading, we have no hesitation to conclude, that this by
itself is not sufficient to hold that the appellants were
ready and willing in terms of Section 16(c) of the
Specific Relief Act. This requires not only such plea but
also proof of the same. Now examining the first of the
two circumstances, how could mere filing of this suit,
after exemption was granted be a circumstance about
willingness or readiness of the plaintiff. This at the most
could be the desire of the plaintiff to have this property.
It may be for such a desire this suit was filed raising
such a plea. But Section 16(c) of the said Act makes it
clear that mere plea is not sufficient, it has to be proved.
6. Next and the only other circumstance relied upon is
about the tendering of Rs. 5000, which was made on
2.3.1982 which was even prior to the grant of the
exemption. Such small feeder to the vendor is quite often
made to keep a vendor in good spirit. In this case the
only other payment made by the plaintiff was Rs.5000 at
the time of execution of the agreement of sale. Thus, the
total amount paid was insignificantly short of the balance
amount for the execution of the sale deed. Thus in our
considered opinion the said two circumstances taken
together, is too weak a filament to stand even to build an
image of readiness and willingness. Section 16(c) of the
Specific Relief Act requires that not only there be a plea
of readiness and willingness but it has to be proved so. It
is not in dispute that except for a plea there is no other
evidence on record to prove the same except the two
circumstances. It is true that mere absence of a plaintiff
coming in the witness box by itself may not be a factor to
conclude that he was not ready and willing in a given
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case as erroneously concluded by the High Court."
(emphasis supplied)
The decisions of this Court, therefore, leave no manner of doubt that a
Plaintiff in a suit for specific performance of contract not only must raise a
plea that he had all along been and even on the date of filing of suit was
ready and willing to perform his part of contract, but also prove the same.
Only in certain exceptional situation where although in letter and spirit, the
exact words had not been used but readiness and willingness can be culled
out from reading all the averments made in the Plaintiff as a whole coupled
with the materials brought on record at the trial of the suit, to the said effect,
the statutory requirement of Section 16(c) of the Specific Relief Act may be
held to have been complied with.
Having regard to the facts and circumstances of the case and keeping
in view the decisions of this Court, as referred to hereinbefore, we are of the
opinion that the plaintiff cannot be said to have even substantially complied
with the requirements of law.
Kidar Lall Seal & Anr. vs. Hari Lall Seal (1952) SCR 179,
whereupon reliance has been placed by Mr. Amarendra Saran, has no
application in the instant case. Therein, this Court was concerned with the
’inartistical wordings’ of the relief claimed by the plaintiff, having regard to
Order XXXIV of the Civil Procedure Code. It was held:
"But reading the two reliefs together, I am of
opinion that though the claim is inartistically worded the
plaintiff has in substance asked for a mortgage decree up
to a limit of Rs. 40,253-11-10 with interest against each
defendant. No other kind of decree could be given under
Order XXXIV. Therefore, though he has not used the
word ’subrogation’ he has asked in substance for the
relief to which a subrogee would be entitled under the
Transfer of Property Act."
There is another aspect of the matter which cannot be lost sight of.
The plaintiff filed the suit almost after six years from the date of entering
into the agreement to sell. He did not bring any material on records to show
that he had ever asked defendant No. 1, the owner of the property, to execute
a deed of sale. He filed a suit only after he came to know that the suit land
had already been sold by her in favour of the appellant herein. Furthermore,
it was obligatory on the part of the plaintiff for obtaining a discretionary
relief having regard to Section 20 of the Act to approach the court within a
reasonable time. Having regard to his conduct, the plaintiff was not entitled
to a discretionary relief.
In Veerayee Ammal vs. Seeni Ammal reported in (2002) 1 SCC 134
the law is stated in the following terms:
"11. When, concededly, the time was not of the essence
of the contract, the appellant-plaintiff was required to
approach the court of law within a reasonable time. A
Constitution Bench of this Hon’ble Court in Chand Rani
v. Kamal Rani (1993) 1 SCC 519 held that in case of sale
of immovable property there is no presumption as to time
being of the essence of the contract. Even if it is not of
the essence of contract, the court may infer that it is to be
performed in a reasonable time if the conditions are (i)
from the express terms of the contract; (ii) from the
nature of the property; and (iii) from the surrounding
circumstances, for example, the object of making the
contract. For the purposes of granting relief, the
reasonable time has to be ascertained from all the facts
and circumstances of the case.
12. In K. S. Vidyanadam v. Vairavan (1997) 3 SCC 1
this Court held : (SCC p. 11, para 14)
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"Even where time is not of the essence of
the contract, the plaintiff must perform his
part of the contract within a reasonable time
and reasonable time should be determined
by looking at all the surrounding
circumstances including the express terms of
the contract and the nature of the property."
13. The word "reasonable" has in law prima facie
meaning of reasonable in regard to those circumstances
of which the person concerned is called upon to act
reasonably knows or ought to know as to what was
reasonable. It may be unreasonable to give an exact
definition of the word "reasonable". The reason varies in
its conclusion according to idiosyncrasy of the individual
and the time and circumstances in which he thinks. The
dictionary meaning of the "reasonable time" is to be so
much time as is necessary, under the circumstances, to do
conveniently what the contract or duty requires should be
done in a particular case. In other words it means, as soon
as circumstances permit. In P. Ramanatha Aiyar’s The
Law Lexicon it is defined to mean :
"A reasonable time, looking at all the
circumstances of the case; a reasonable time
under ordinary circumstances; as soon as
circumstances will permit; so much time as
is necessary under the circumstances,
conveniently to do what the contract
requires should be done; some more
protracted space than ’directly’; such length
of time as may fairly, and properly, and
reasonably be allowed or required, having
regard to the nature of the act or duty and to
the attending circumstances; all these
convey more or less the same idea"."
In Lourdu Mari David and Ors. vs. Louis Chinnaya Arogiaswamy
and Ors. reported in (1996) 5 SCC 589 this Court observed:
"2. It is settled law that the party who seeks to avail of
the equitable jurisdiction of a court and specific
performance being equitable relief, must come to the
court with clean hands. In other words the party who
makes false allegations does not come with clean hands
and is not entitled to the equitable relief."
Yet again, both the trial court and the first appellate court refused to
exercise their discretionary jurisdictions in favour of the plaintiff. The High
Court, in our opinion, should not have interfered therewith without
arriving at a finding that the discretion has been exercised by the Courts
below on wrong legal principle.
In Lalit Kumar Jain and Anr. vs. Jaipur Traders Corporation Pvt.
Ltd. reported in (2002) 5 SCC 383 this Court observed:
"9. We are of the view that the High Court failed to
address itself to certain crucial factors which disentitles
the plaintiff to equitable relief. The High Court reversed
a well-considered judgment of the trial court without
adverting to the reasoning of the trial court except in a
cursory manner. In the view we are taking, it is not
necessary for us to dilate on various legal issues debated
before us. We shall proceed on the basis that in law the
plaintiff could annul the contract of sale before the act of
registration got completed and title passed to the
appellants. We shall further assume that the plaintiff in
fact rescinded the contract with effect from the date of
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expiry of the time stipulated in the fourth and final notice
dated 3-7-1973. If such rescission or termination of
contract is not justifiable on facts or having regard to the
conduct of the plaintiff, the equitable relief under Section
27 or 31 of the Specific Relief Act has to be denied to the
plaintiff, no further question arises for consideration. In
such a case, the appellants’ plea has to be accepted and
the suit is liable to be dismissed."
Yet again in Nirmala Anand vs. Advent Corporation (P) Ltd. and
Ors. reported in (2002) 8 SCC 146 this Court observed:
"6. It is true that grant of decree of specific performance
lies in the discretion of the court and it is also well settled
that it is not always necessary to grant specific
performance simply for the reason that it is legal to do so.
It is further well settled that the court in its discretion can
impose any reasonable condition including payment of an
additional amount by one party to the other while
granting or refusing decree of specific performance."
[See also M.V. Shankar Bhat & Anr. Vs. Claude Pinto
Since (Deceased) By L.Rs and Ors. 2003 (2) SCALE
124]
It is now also well settled that a court of appeal should not ordinarily
interfere with the discretion exercised by the courts below.
In Uttar Pradesh Co-operative Federation Ltd. vs. Sunder Bros.
reported in AIR 1967 SC 249 the law is stated in the following terms:
"8. It is well-established that where the discretion
vested in the Court under s. 34 of the Indian Arbitration
Act has been exercised by the lower court the appellate
court should be slow to interfere with the exercise of that
discretion. In dealing with the matter raised before it at
the appellate stage the appellate court would normally
not be justified in interfering with the exercise of the
discretion under appeal solely on the ground that if it had
considered the matter at the trial stage it may have come
to a contrary conclusion. If the discretion has been
exercised by the trial court reasonably and in a judicial
manner the fact that the appellate court would have taken
a different view may not justify interference with the trial
court’s exercise of discretion. As is often said, it is
ordinarily not open to the appellate court to substitute its
own exercise of discretion for that of the trial Judge; but
if it appears to the appellate court that in exercising its
discretion the trial court has acted unreasonably or
capriciously or has ignored relevant facts then it would
certainly be open to the appellate court to interfere with
the trial court’s exercise of discretion. This principle is
well-established; but, as has been observed by Viscount
Simon, L.C., in Charles Osenton & Co. v. Johnston 1942
AC 130 at p. 138:
"The law as to the reversal by a court of
appeal of an order made by a Judge below in
the exercise of his discretion is well-
established, and any difficulty that arises is
due only to the application of well-settled
principles in an individual case"."
Yet again in Gujarat Steel Tubes Ltd., etc. vs. Gujarat Steel Tubes
Mazdoor, Sabha and others (AIR 1980 SC 1896) the law is stated in the
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following terms:
"73. While the remedy under Article 226 is extraordinary
and is of Anglo-Saxon vintage, it is not a carbon copy of
English processes. Article 226 is a sparing surgery but
the lancet operates where injustice suppurates. While
traditional restraints like availability of alternative
remedy hold back the court, and judicial power should
not ordinarily rush in where the other two branches fear
to tread, judicial daring is not daunted where glaring
injustice demands even affirmative action. The wide
words of Article 226 are designed for service of the
lowly numbers in their grievances if the subject belongs
to the court’s province and the remedy is appropriate to
the judicial process. There is a native hue about Article
226, without being anglophilic or anglophobic in attitude.
Viewed from this jurisprudential perspective, we have to
be cautious both in not overstepping as if Article 226
were as large as an appeal and not failing to intervence
where a grave error has crept in. Moreover, we sit here in
appeal over the High Court’s judgment. And an appellate
power interferes not when the order appealed is not right
but only when it is clearly wrong. The difference is real,
though fine."
For the foregoing reasons, we are of the opinion that the impugned
judgment cannot be sustained. It is set aside accordingly.
This appeal is allowed with costs. Counsel’s fee assessed at
Rs.5,000/-
+
5 2631 2003