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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

the notice, Defendant No. 1 and 2 failed to execute

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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

in Paragraph 6 of the plaint as noticed hereinbefore, the plaintiff has not

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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

any subsequent stage that he was ready and willing to

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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

High Court committed an error by defeating the claim of

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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

(2000) 6 SCC 420. In that case also this Court took into consideration the

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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

case as erroneously concluded by the High Court."

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(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)

"Even where time is not of the essence of

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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

expiry of the time stipulated in the fourth and final notice

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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

following terms:

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"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/-