Authored By : Mitter, James Quain Pigot

Mitter, J.

1. This appeal arises in a suit for specific performance ofa contract which was alleged to have been entered into on the 1st March 1878. Thesuit was brought on the 28th February 1881. The first defendant, according tothe plaint, was the party who was in possession of the property in dispute, andwho 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 herselfentered into the contract The second defendant, who is the son of the firstdefendant, is alleged to have received Rs. 100 as part of the considerationmoney which was fixed, according to the plaintiff, at Rs. 3,700; and theplaintiff stated in the plaint that the second defendant received the Rs. 100in accordance with the directions given by the first defendant for the paymentof 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 and2, that is to say, the mother and her son, were dissuaded by this defendantfrom fulfilling the contract entered into by the defendant No. 1 with theplaintiff. It was further alleged that, after the receipt for Rs. 100, whichwas granted by the defendant No. 2 to the plaintiff, was registered (whichregistration took place after a proceeding in the registration office takenbetween the plaintiff and the defendants Nos. 1 and 2), the defendant No. 1caused a petition to be filed through her benamidar and dependent, thedefendant No. 3, Mokund Lall, in the Municipal office of the Municipalitywithin 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 thehouse in suit. It was further alleged in the plaint that a kobala, dated 26thMarch 1873, which was executed by the defendant No. 1 in favour of thedefendant No. 3 in respect of this house, was a benamee transaction, resortedto for certain reasons which are stated in the plaint, and not material to bementioned here. Upon these allegations the plaintiff claimed specificperformance of the contract, and asked also for a declaration against thedefendant No. 3, that he was simply a benamidar for the defendant No. 1. Thesuit was defended both by Mokund Lall, the defendant No. 3, and by thedefendant No. 1, and various objections were taken to the claim of theplaintiff. It will be sufficient here to notice the objection in the 9thparagraph of the written statement of Mokund Lall. That paragraph is to thefollowing effect: "The plaintiff has in law no right to sue to have a deedof sale executed in respect of the disputed house in fulfilment of thecontract, to recover possession, to register his name in the Municipal taxregister, and to render this defendants purchase null and void, as againstthis defendant, the prior purchaser. The form in which the plaintiff hasbrought this suit is illegal." Four issues were framed by the Munsif.These were:

1st.--"Whether or no Mussamat Nanki has entered into acontract with the plaintiff, and whether or no she was competent to make such acontract" (Mussamat Nanki is the first defendant.)

2nd.--"Whether the deed of sale of 26th March 1873 isgenuine, and whether, under and by virtue of it, Mokund Lall is in possessionof the disputed property, or the deed of sale is a nominal transaction, andMussamat 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 defendanthas received Rs. 100 in cash, and Rs. 40 for purchase of stamp

2. The Subordinate Judge dismissed the plaintiffs suit. Hecame to the conclusion that the alleged contract was not established; but, withreference to the question, whether Mokund Lall, the defendant No. 3, wasbenamidar or not, the Subordinate Judge came to the conclusion in favour of theplaintiff, that Mokund Lall was a mere benamidar. On appeal to the DistrictJudge, the judgment of the Subordinate Judge was reversed. The District Judgesubstantially found that the plaintiffs evidence with reference to thecontract was trustworthy, and upon that ground he came to the conclusion thatthere was a valid contract of sale entered into by the defendant No. 1 with theplaintiff. He was further of opinion, in concurrence with the SubordinateJudge, that Mokund Lall, the defendant No. 3, was merely a benamidar. TheDistrict Judge gave a decree in favour of the plaintiff. Against this decreethis second appeal was preferred by both Mussamat Nanki Bibee, the defendantNo. 1, and Mokund Lall, the defendant No. 3, but subsequently an application wasmade by a vakeel, other than those who filed the second appeal, asking theCourts permission on behalf of Mussamat Nanki Bibee to withdraw from theappeal. The order passed was, that it should be considered at the time when theappeal would be heard. Now, we are satisfied, upon the materials on the record,that Mussamat Nanki Bibee has made a substantive application through a properlyauthorized vakeel to withdraw from the appeal, and it does not seem to me thatthere is anything in the Procedure Code that would disentitle her to withdrawfrom it. Therefore, we must try this appeal as if it was preferred by thedefendant No. 3 only. That being so, it was contended on behalf of therespondent that any objection which upon the findings of the Court below MussamatNanki Bibee alone could take against the decision of the lower Appellate Courtcould not be urged by Mokund Lall in this case. With reference to that point wefelt some doubt as to whether this contention is valid. The doubt arose in thisway, that as between Mussamat Nanki Bibee and Mokund Lall, the finding of thelower Appellate Court, that Mokund Lall was a mere benamidar, is notconclusive. It may be binding as between the plaintiff on the one hand andMokund Lall on the other hand, but as the plaintiff, respondent, before us isrelying upon some act of Mussamat Nanki Bibee in support of this contention, adoubt arose, whether the decision of the lower Court not being conclusivebetween Nanki Bibee and Mokund Lall, the plaintiff could shut out Mokund Lallfrom urging those points which he could have urged if his co-appellant had notwithdrawn from the appeal. Entertaining this doubt, we have heard the case uponall the points urged in the petition of appeal, and after hearing the learnedCounsel and vakeel who appeared for Mokund Lall, we called upon the learnedvakeel 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 beingdiscretionary under the Specific Belief Act to award a decree or not, as theCourt thinks fit, whether this suit should not have been dismissed by the lowerCourt, and it not having been dismissed, whether or not this Court on secondappeal should make that order. The second point was, that Mokund Lall, thedefendant No. 3, being a stranger to the contract, whether in this suit theplaintiff could claim any relief against him, and if he could not, whether thesuit as against Mokund Lall should not have been dismissed. The third objectionwith reference to which we called upon the learned vakeel for the respondent toanswer 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 properlyjoined 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 ahard and fast rule of law, that a suit brought after the delay which hasoccurred in the present suit should be dismissed. There is no doubt that, underthe Specific Relief Act, the Courts are vested with a certain amount ofdiscretion in the matter of awarding a decree for specific performance; but Iam not prepared to lay down as a proposition of law, that all suits broughtafter the lapse of time after which the present suit was brought are all liableto be dismissed. There may be circumstances under which a Court, exercising thediscretion with which it is vested under the Specific Relief Act, may think itright to dismiss a suit brought nearly three years after the contract wasentered into, and there may be also circumstances which may justify a Court inawarding a decree, even when the suit is brought after such a delay; each casemust depend upon its own circumstances. In this case, I do not find that thisobjection was taken in the lower Courts, and, therefore, I am not in a positionto say that there is any ground made out upon the materials on the record whichwould warrant this Court, in second appeal, in directing the dismissal of thesuit. I am, therefore, of opinion that this ground must fail. As regards theother two objections, which I think may be token together conveniently, itseems to me that even if they were well founded, we should be precluded bySection 578 of the Civil Procedure Code from reversing the decree of the lowerAppellate Court, as it is clear from the facts found in this case that theerror complained of, if it was an error at all, could not possibly affect themerits of the decision. But putting aside that matter, upon the merits of theobjections themselves, I am of opinion that the special appeal should notsucceed. 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 islaid down in these cases is this, that if, on the face of the plaint, or of theplaintiffs case, it appears that a third party, who was not a party to the contractupon which the suit was brought, had a distinct interest, but which interest issought to be declared null and void upon some equitable ground, such a claimagainst the said third party could not be made a part of the suit. In the caseof De Houghton v. Money it was admitted by the plaintiff that there was aconveyance in favour of Money, but it was said that that conveyance wasexecuted under such circumstances as would make it a voidable one; and in thecase of Luckumsey Ookerda v. Fazulla Cassumbhoy it was distinctly admitted bythe plaintiff that the third party, who was not a party to the contract, had adistinct interest. That is not the case here. Referring to the plaint, I findthat the plaintiff is really suing upon one cause of action. He charged thedefendant No. 1 with having resorted to certain devices, in concert with thedefendant No. 3, to defeat his rights arising out of the contract under whichhe was suing; he called the defendant No. 3 a mere benamidar, and there is noadmission on the face of the plaint or in the plaintiffs case that thedefendant No. 3 had a separate or distinct interest from that of the defendantNo. 1. That being so, it seems to me that both the objections taken by thelearned Counsel for the appellant must fail, as there was only one cause ofaction upon which the suit was brought. It was found necessary to make thedefendant No. 3 a party to the suit, because he was made use of as benamidar bythe defendant No. 1 in setting up certain devices in order to defeat the rightof the plaintiff. That is the distinction between this case and the casescited. I am, therefore, of opinion that this second appeal must fail. It willtherefore be dismissed with costs.

James Quain Pigot, J.

3. I am of the same opinion. As to the question arisingunder the two points which my learned brother dealt with together, the case ofDe Houghton v. Money and the point under Section 44, I must say that I shouldfind a difficulty in considering that this Court was precluded under Section 578from 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 principlewould not, in itself, affect the merits (within the meaning of this section) ofany case that was entered upon in disregard of that rule, but in the presentcase I confess, after hearing with much attention the argument of the learnedCounsel, that it does appear to me that the point at which the rule in DeHoughton v. Money would be applicable would not be reached in this case. Thequestion is: Are not the first and third defendants identical, and thatquestion in itself, if answered in the affirmative, as it has been, precludesthe 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 slightlyraised, and it appears to me that we have no right to presume that the ordinaryrule, applicable to suits of this nature, was neglected by the learned Judge inthe Court below, or to hold, upon the presumption arising from the length ofthe delay condoned by him, that it was unduly disregarded. On reference to LordJustice FRYS book on Specific Performance, Sections 1070 to 1079, where thissubject is referred to, it will be noticed that the Lord Justice mentionsseveral 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 notto be such a bar. In another case, three and half years was considered fatal, andin more recent cases, a delay of one and half years, and a somewhat lesserdelay, was held to be fatal. In this case, the time which was allowed to elapsewas so long, that under ordinary circumstances specific performance would notbe granted by the Court; but it is impossible for us to say in the form inwhich this case comes before us in second appeal, that there may not have beencircumstances in the present case that would justify the grant of a decree evenafter the period which has elapsed. As the point has been raised before us, Ihave thought it desirable to refer to one of the authorities in which thesubject is dealt with, because the principle is an important one, and under thenew Specific Belief Act it is a principle which ought to be considered by theCourt in the exercise of its judicial discretion under Section 22 of that Act.

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Chotay Lall vs.Mokund Lall and Ors. (02.09.1884 -CALHC)