# MADAMSETIY SATYANARAYANA v. G. YELLOGI RAO AND TWO OTHERS

- **Citation:** [1965] 2 S.C.R. 221
- **Court:** Supreme Court of India
- **Decided:** 1963-10-11
- **Case number:** Civil Appeal No. 669 of 1964
- **Bench:** K. Subba Rao, Raghubar Dayal, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/madamsetiy-satyanarayana-v-g-yellogi-rao-and-two-others-3322
- **Pages:** 12

## Headnote

Specific Relief Act (1 of 1877), s. 22-Decree for specific performance
--- Wlum can be refused.
The plaintiff was the highest bidder at the public auction for the sale
of the plots of the !st defendant, but the !st defendant repudiated the
cootract. So the plaintiff issued a notice to him asking him to take the
011111cst money within 24 hours and the balance within a week thereafter.
and to execute a sale deed.
The plaintiff however did not take •ny
further effective steps to enforce the contract for 7 months, as he was
mentally worried on account of the illness of his wife and the demolition
of one of hi• houses by the Municipal Corporation. Then one day, while
puaing the suit-site he saw foundations being dug therein ant.1 \\'ithin a few
aaya thereafter filed the suit for specific performance of the concracr, that
is, about 7! months after the date of the auction. This !st defendant contended that there was no contract at all because, there was no final bid
.00 the plaintiff's bid was never accepted. The trial court held that there
vtas a contract but that it was not a fit case for decreeing specific performallCC.
On appeal, the High Court gave the plaintiff a decree for specific
performance. Tho 1st defendant appealed to the Supreme Court and contended that the delay disentitled the plaintiff to the discretionary relief.
HELD : Except for some delay, there were no circumstances which
ihould induce a court to refuse, in its discretion, to give the relief of
specific performance.
[231 H-232 Al
While mere Clelay is not sufficient to empower a Court to refuse the
relief of specific performance, proof of abandonment or waiver of a riRbt
i• not necessary to disentitle the plaintiff to the relief.
There may be
other circumstances, whi_ch it is not pc.,ssible or desirable to lay down,
under which a court can exercise its discretion against the μJ3intiff.
They
must however be such that the representation by, on the conduct or
neglect of, the olaintiff is directly responsible in inducing the defendant to
change his position to his prejudice or such as to bring about a situation,
when it would be inequitable to give him such a relief. [230 A, C-D]
Case law considered.

## Text

A
B
c
D
E
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MADAMSETIY SATYANARAYANA
v.
G. YELLOGI RAO AND TWO OTHERS
Navember 24, 1964
[K. SUBBA RAO, RAGHUBAR DAYAL AND N. RAJAGOPALA
AYYANGAR, JJ.)
Specific Relief Act (1 of 1877), s. 22-Decree for specific performance
--- Wlum can be refused.
The plaintiff was the highest bidder at the public auction for the sale
of the plots of the !st defendant, but the !st defendant repudiated the
cootract. So the plaintiff issued a notice to him asking him to take the
011111cst money within 24 hours and the balance within a week thereafter.
and to execute a sale deed.
The plaintiff however did not take •ny
further effective steps to enforce the contract for 7 months, as he was
mentally worried on account of the illness of his wife and the demolition
of one of hi• houses by the Municipal Corporation. Then one day, while
puaing the suit-site he saw foundations being dug therein ant.1 \\'ithin a few
aaya thereafter filed the suit for specific performance of the concracr, that
is, about 7! months after the date of the auction. This !st defendant contended that there was no contract at all because, there was no final bid
.00 the plaintiff's bid was never accepted. The trial court held that there
vtas a contract but that it was not a fit case for decreeing specific performallCC.
On appeal, the High Court gave the plaintiff a decree for specific
performance. Tho 1st defendant appealed to the Supreme Court and contended that the delay disentitled the plaintiff to the discretionary relief.
HELD : Except for some delay, there were no circumstances which
ihould induce a court to refuse, in its discretion, to give the relief of
specific performance.
[231 H-232 Al
While mere Clelay is not sufficient to empower a Court to refuse the
relief of specific performance, proof of abandonment or waiver of a riRbt
i• not necessary to disentitle the plaintiff to the relief.
There may be
other circumstances, whi_ch it is not pc.,ssible or desirable to lay down,
under which a court can exercise its discretion against the μJ3intiff.
They
must however be such that the representation by, on the conduct or
neglect of, the olaintiff is directly responsible in inducing the defendant to
change his position to his prejudice or such as to bring about a situation,
when it would be inequitable to give him such a relief. [230 A, C-D]
Case law considered.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 669 of
1964.
Appeal from the judgment and decree dated October 11,
1963, of the Andhra Pradesh High Court in C.C.C. Appeal No.
12 of 1959.
T. Lashmayya, P. Shiv Shankar, 0. C. Mathur, I. 8. DadaH chanji and Ravinder Narain, for the appellant.
A. V. Viswanatha Sastri, C. Narasimhachar and Harbans
Sinth .for the respondent No. 1.
222
SUPREME COURT REPORTS
[1965) 2 S.C.R.
The Judgment of the Court was delivered by
Sobba Rao, J.
This appeal by certificate raises the question
whether the High Court went wrong, in the circumstances of the
case, to give a decree for specific performance of an agreement to
sell in favour of the plaintiff.
A
The facts may be briefly stated : On August 23, 1954, at
B
10 a.m. defendants 1 and 2, through their Auction Agent, defendant 3, advertised and put their plots Nos. 1 to 4 situated in.
Narayanguda opposite to Deepak Mahal Theatre to public auction.
In regard to plots Nos. 2 and 3 the plaintiff offered the
highest bid of Rs. 12,000/-. He wanted to purchase the plots
for the purpose of starting his business.
When the plaintiff tenC
dered one-fourth of the sale price as earnest money in accordance
with the terms of the auction, the defendants unlawfully refused
to accept it. On August 30, 1954, the plaintiff gave notice to the
3rd defendant and sent copies thereof to the other defendanlll
calling upon them to obtain from hin1 the one-fourth amount of
the sale price as earnest money within 24 hours and pass a receipt
D
therefor and accept the balance of the auction price within a
period of one week thereafter in accordance with the conditions
of the auction sale and to execute a sale deed duly registered in
his favour.
Defendants 1 and 2 did not give any reply to the
said notice. . The plaintiff filed the suit in the Court of the 4th
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Additional Judge, City Civil Court, Hyderabad, on April 18,
1955, for directing the defendants, inter alia, to execute the sal•
deed in his favour. Defendants 2 and 3 in their written-statement
admitted that there was an auction sale and that plaintiff was the
highest bidder; but the 1st defendant, on the other hand, denied
that there was any final bid or that it was accepted. He further
F
stated that he gave up the idea of selling the plots and that after
obtaining the necessary permission from the Municipality he began
to build shops' on the said plots. The City Civil Judge held that
the suit plots were knocked down at the auction in favour of the
plaintiff and that the 1st defendant refused to take the earnest
money.
He further held that though the plaintiff gave notice as
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early as August 30, 1954, to the defendants, he did not take any
steps to enforce his contract and that though he knew of the
con,struction a couple of months before he filed the suit, he kept
quiet and allowed the I st defendant to complete his construction
and, therefore, it was not a fit case where he could, in exercise of
his discretion, give a decree for specific performance; instead he H
awarded to the plaintiff a sum of Rs. 500/- towards damages. On
appeal, a Division Bench of the Andhra Pradesh High Court, on
SATYANARAYANA v. YELLOGI RAO (Subba Rao, J.)
223
A a consideration of the evidence, came to the conclusion that the
delay in filing the suit was due to the illness of the plaintiff's wife
and also on account of the demolition of one of his houses by the
Municipal Corporation, that he came to know for the first time
on April 13, 19 5 5, that the 1st defendant was raising a structure
on the suit plots and that without any loss of time within a few
B days thereafter he filed the suit. The High Court also found that
the 1st defendant did not act bona fide inasmuch as he chose to
rush headlong in raising the structure evidently to defeat the claims
of the plaintiff. On those findings, the High Court held that the
Trial Court went wrong on principle in exercising its discretion in
C favour of the defendants and in refusing to grant a decree for
specific performance in favour of the plaintiff. In the result, the
IL
High Court set aside the decree of the Trial Court and gave a
decree for specific performance in favour of the plaintiff on his
depositing a sum of Rs. 12,000/- together with stamp papers and
registration charges within a month from the date of the decree.
D It may also be mentioned that the learned counsel for the plaintiff
made an offer that his client was willing to pay a sum of
Rs. 14,750/- towards the cost of the building put up by defendants
1 and 2 on the suit plots and the Court recorded the same. But,
the High Court left it to the said defendants either to give vacant
possession of the plots or with the structure thereon accepting
E money for it, as they chose. The 1st defendant has preferred
this appeal by certificate to this Court making the plaintiff the 1st
respondent, and defendants 2 and 3, respondents 2 and 3.
Mr. Lakshmaiah, learned counsel for the appellant, argued :
( 1) The appellant repudiated the contract on the next day of the
F auction itself by refusing to take money from the 1st respondent;
the 1st respondent did not accept the repudiation, but elected to
keep the contract alive by asking the appellant to receive from him
one-fourth of the amount as earnest money at any time within 24
hours thereof and to obtain from him the entire balance within
one week thereafter; by so doing, he not only unilaterally varied
G the terms of the contract but committed a breach thereof in. not
paying the amount; having himself committed a breach of the contract, he could not specif.cal!y enforce it. (2) Time is the essence of
the co;; tract, as the object of purchase by the 1st respondent was
to start a business; therefore, the !st respondent should have pursued his remedy wi!h promptitude and diligence.
It was
not
I enough to assert his rir,ht by issuing a notice, but he should have
taken steps to enforce it; his inaction and indifference for 71
months without making any attempt to enforce his right would
224
SUPREME COURT REPORTS
[I 96S] 2 S.C.R.
disentitle him to the discretionazy relief of specific performance.
A
(3) The reasons for the delay, namely, that the 1st respondent's
wife was ill or that one of his houses was demolished by the
Municipal Corporation, were obviously untenable excuses, for both
the reasons existed even before the auction was held.
Mr. A. Viswanatha Sastri, learned counsel for the 1st respon· ... B
dent, on the other hand, contended as follows : (1 ) Mere delay
in filing a suit for specific performance could not possibly be a
ground for exercising a discretion against a plaintiff, as the Limitation Act prescribed a period of 3 years for filing such a suit. ( 2)
Under the Indian Jaw relief of specific performance could be
refused only if the plaintiff abandons or waives his right under the C
contract; and in the present case the appellant had not established
either abandonment or waiver by the 1st respondent of his right
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under the contract, for indeed as soon as he saw that the appellant
had laid foundations for putting up structures on the plots, be
rushed without any delay to the court and filed the suit.
( 3) In
the circumstances of the instant case there is no scope for holding
D
that the appellant could have had any reasonable belief that the
1st respondent had waived or abandoned his right, for it was the
positive case of the appeJ!ant that there was no concluded sale at
all.
We cannot allow the learned counsel for the appellant to raise
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before us the first question, namely, that the 1st respondent did
not accept the repudiaf:Jn but kept the contract alive and committed a breach thereof, with the result that he disqualified himself
to file the suit for specific relief, for the said plea was not raised
in the pleadings, no issue was raised in respect thereof and no
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arguments were
addressed either in the Trial Court or in the
High Court. As the question is a mixed question of fact and Jaw,
we cannot permit the appellant to raise it for the first time
before us.
At the outset we shall construe the relevant sections of the
Specific Relief Act and the
Limitation Act
unhampered by
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judicial decisions.
Specific Relief Act : Section 22. The jurisdiction to decree
specific performance is discretionary, and the Court is not
bound to grant such relief merely because it is lawful to do
so; but the discretion of the Court is not arbitrary but sound
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and reasonable guided by judicial principles and capable of
correction by a Court of appeal.
..
SATYANARAYANA v. YELLOGI RAO (Subba Rao, /.)
225·
A
The following are cases in which the Court may properly
exercise a discretion not to decree specific performance:-
1. Where the circumstances under which the contract ii
made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no
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fraud or mis-representa~ion on tho plaintiff's part.
lllustrations
•
•
•
•
II. Where the performance of the contract would involve
some hardship on the defendant which he did not
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foresee, whereas its non-performance would involve no
such hardship on the plaintiff.
Illustrations
•
•
•
•
The following is a case in which the Court may properly
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exercise a discretion to decree specific performance :-
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Ill. Where the plaintiff has done substantial acts or suffered
losses in consequence of a contract capable of specific
performance.
lllustrations
•
•
•
The First Schedule to the Limitation Act
DCSCJiption of suit
Art. 113. For specific
preformance
of a contract.
Period of
Limitation
Three years
•
Time from which
period beaina
to run
The date fix.d for the
performani:e, or, if
no such date is fixed,
when the
plaintiff
has noticed that performance is refused.
G Under s. 22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary: discretion must be exercised
in accordance with sound and reasonable judicial principles. The
cue.\ providing for a guide to courts to exercise discretion one
way or other are only illustrative; they are not intended to be
exhaustive. As Art. 113 of the Limitation Act prescribes a period
H of 3 years from the date fixed thereunder for specific performance
of a contract, it followw that mere delay without more extending
up to the said period cannot possibly be a reason for a court to
226
SUPREME COURT REPORTS
(1965] 2 S.C.R.
exercise its discretion against giving a relief of sp%ific perfonnA
ance.
Nor can the scope of the discretion, after excluding the
cases mentioned in s. 22 of the Specific Relief Act, be confined
to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises, for either
there will be no subsisting right or there will be a bar against its
assertion. So, there must be some discretionary field unoccupied
B
by the three cases, otherwise the substantive section
becomes
otiose. It is really difficult to define that field. Di verse situations
may arise which may induce a court not to exercise the discretion
in favour of the plaintiff. It may better be left undefined except
to state what the section says, namely, discretion of the court is not c
arbitrary, but sound and reasonable guided by judicial principles
and capable of correction by a court of appeal.
. Mr. Lakshmaiah cited a Jong catena of English <lecisions to
defbe the scope of a court's discretion. Before referring to them,
it is necessary to know the fundamental difference between the twosystcms-English and Indian-qua the relief of specific performD
ance. In England the relief of specific performance pertains to the
domain of equity; in India, to that of statutory law. In England
th~re is no period of limitation for instituting a suit for tho said
relief and, therefore, mere delay-the time lag depending upon
circumstances-may itself be sufficient to refuse the relief; but, in,
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India mere delay cannot be a ground for refusing the said relief,
for the statute prescribes the period of limitation. If the lluit is
in time, delay is sanctioned by law; if it is beyond time, the
suit will be dismissed as barred by time : in either case,. no question
of equity arises.
With this background let us look at the English textbooks F
and decisions relied upon by the learned counsel for the appellant.
In l-Ialsb11ry's Laws of England, Vol. 36, at p. 324, it i3 stated :
'"Where time is not origbally of the essence of the
contract, and has not been made so by due notice, delay
by a party in performing his part of the contract, or in
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commencing or prosecuting the enforcement of his rights,
may constitute such !aches or acquiescence as will debar
him from o~taining specific perfonnance. The extent of
delay which has this effect varies \Vith circumstances, but
as a rule must be capable of being construed as amounting to an abandonment of the contract. A much shorter
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period of delay, however, suffices if it is delay in declaring an option or exercisfog any other unilateral right:
! l
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SATYANARAYANA v. YELLOGI RAO (Subba Rao, /.)
227
and if the other party has already given notice that he
does not intend to perform the contract, the party
aggrieved must take proceedings promptly if he desires
to obtain specific performance."
In "Fry on Specific Performance", 6th Edn., at p. 517, it is said :
"Where one party to the contract has given notice
to the other that he will not perform it, acquiescence in
this by the other party, by a comparatively brief delay
in enforcing his right, will be a bar: so that in one case
two years' delay in filing a bill after such notice, in
another c;ase one year's delay, and in a third (where the
contract was for a lease of collieries) five months' delay
was held to exclude the intervention of the Court."
Learned Counsel cited many English decisions in support of bis
argument that there shall be promptitude and diligence in enforcing a claim for specific performance after a repudiation of the
D contract by the other party and that mere continual claim without
uy active steps will not keep alive the right which would otherwi!e be defeated by Jach!:!: see Clegg v. Edmondson('). Eath v.
Williams('), Lahmann v. McArthur('), Watson v. Reid('), and
Emile Erlanger v. The New Sombrero Phosphate Company(').
But as stated earlier, the English principles based upon mere
E delay can have no application in India where the statute pre11cribe&
the time for enforcing the claim for specific performance. But
uother class of cases which dealt with the doctrine of !aches have
some bearing in the Indian context. In The Lindsay Petroleum
Company v. Prosper Armstrong Hurd, Abram Farewell, and
F
H
John Kemp(') Sir Barnes Peacock defined the doctrine thus :
"Where it would be practically unjust to give
a
remedy, either because the party has, by his conduct,
done that which might fairly be regarded as equivalent
to a waiver of it, or where by his conduct and neglect
he bas, though perh,ps not waiving that reme"y, yet
put the other party in a situation in which it would not
be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of
time and delay are most material."
'l'bi5 passage indicates that either waiver or conduct equivalent to
w &iver along with delay may be a ground for refusing to give a
--. ---------·-
(I) (18'7) 114 R.R. 336.
(3) (1868] L.R. 3 Ch. A.C. 49,,
(S) (1878] L.R. 3 A.C. 1218.
(2) (1854] 43 E.R. Chan. 671.
(4) [183J) 39 E.R.. Chan. 91.
(6) [1874] L.R. S P.C.A. 221, 239-240
228
SUPllBMB COURT llBPOllTS
1965) 2 S.C.R.
tlecree for specific performance. In C<UlfJf Lamore v.. Thomas
A
Dixon('), Lord Chelmsford said:
''The conduct of the party applying for relief is
always an important element for consideration."
The House of Lords in Emile Erlanger v. The New Sombrero B
PhoJphate Company(') approved the passage in The Lindsay
Petroleum Company v. Prosper Armstrong Hurd, Abram Faiewell, and John Kemp( 8 ) which we have extracted earlier.
It is clear from these decisions that the conduct of a party c
which puts the other party in a disadvantageous position, though
it does not amount to waiver, may in certain circumstances preclude him from obtaining a decree for specific performance.
Now we shall consider some of the Indian decisions cited at
the Bar. A Division Bench of the Allahabad High Court held in D
Nawab Begum v. A. H. Creel(') that great delay on the part of
the plaintiff in applying to the Court for specific performance of a
contract of which he claimed the benefit was of itself a sufficient
reason for the Court in the exercise of its discretion to refuse relief.
But it will be seen from the facts of that case that, apart from tho
delay the conduct of the plaintiff was such that it induced the I:
other party to change his position to his detriment. A Division
Bench of the Patna High Court in Rameshwar Prasad Sahi v.
M. Anandi Devi(') held on the facts of that case that the delay
in bringing the suit for specific performance wa5 always fatal to a
suit, and that it amounted to an abandonment of the contract and F ·
waiver of his rights to sue for specific performance. If the learned
Judges meant to Jay down that mere delay would amount to
abandonment of a right, we find it difficult to agree with them.
The decision of the Calcutta High Court in Gostho Behari v.
Omiyo Prasad(') recognized that mere delay was sufficient
to deny the relief of specific performance, but pointed out that G
though it was not necessary to establish that the plaintiff bad
abandoned his right, the Court may, in view of the conduct of the
plaintiff cou;iled with his delay that had prejudiced the defendant,
refuse to give the equitable relief. In Chamarti Suryaprakasa--
---------
(I) [1873J 6 H.L.C. 414, 423.
(3) (1874] L.R. S P.C.A. 221,
(S) (196}) lL.R. 39 Pat. 79.
(2) (18781 L.R. 3 A.C. 1211.
(4) [1905] l.L.R. 27 AU. 678.
(6l A.l.R •. 1969 Cal. 361.
H
' I
I
I
'
SATYANARAYANA v. YELLOGI RAO (Subba Rao, /.)
229
A rayudu v. Arardhi Lakshminarasimha('). a Division Bench of
the Madras High Court rightly pointed out that delay by itle~
was not a ground for refusing to give a decree in a suit for specific performance. Sadasiva Aiyar, J., observed :
"I think that it is an error of law to hold that mere
I
delay amounts to a waiver or abandonment apart from
other facts or circumstances or conduct of the plaintilf
indicating that the delay was due to a waiver or abandonment of the contract on the plaintiff's part."
c
D
Seshagiri Aiyar, J., said much to the same effect, thus :
"There is nothing in the Specific Relief Act which
says that !aches in bringing a suit will by itself be a
ground for refusing specific performance.
. .......••
. . . . . . . . . . . . Having regard to the fact that a special
period of limitation has been fixed for bringing a suit
for specific performance, I think the legislature has not
intended that mere !aches should be one of the grounds
for refusing specific performance."
We do not think, though the observations of Sadasiva Aiyar, J.,
are rather wide, that the learned I udges intended to lay down
that unless there is a waiver or abandonment by the plaintiff of
E his rights to sue for specific performance, he should be non1uited, for if that was the law, as we have pointed out earlier, the
substantive part of s. 22 0f the Specific Relief Act would become
nugatory.
A Division Bench of the Calcutta High Court in
Jadu Nath Gupta v. Chandra Bhushan(2 ) again emphasized the
fact that the English doctrine of delay and !aches showing negF ligence in seeking relief in a Court of equity cannot be imported
into the Indian law in view of Art. 113 of the Limitation Act.
13ut it pointed out that where the conduct of the plaintilf was sucl:
that it did not amount to abandonment but showed waiver or
acquiescence especially when inaction on his part induced the
G defendant to change his position, the plaintiff ought not to be
allowed any relief. This case brings out not only the distinction
between English and Indian law but also that waiver or abandonment of a right is not a pre-condition for refusing relief of specific
performance.
Th~ result of the aforesaid discussion of the case law may be
H briefly stated thus : While in England mere delay or !aches may
be a ground for refusing to give a relief of specific performance,
(I) [1914! 26 M.LJ. 518, 521, 523.
(2) A.I.IL 1932 Cal. 4H.
230
SUPREME COURT REPORTS
[196S] 2 S.C.R.
in India mere delay without such conduct on the part of the
A
plaintiff as would cause prejudice to the defendant does not empower a court to refuse such a relief. But as in England so in
India, proof of abandonment or waiver of a right is not a precondition necessary to disentitle the plaintiff to the said relief,
for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the
B
expre~sion "waiver" in its legally a_ccepted
sense,
namely,
"waiver is contractual, and may constitute a cause of action: it
i~ an agreement to release or not to assert a right": see Dawson's
Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha('). It is not
possible or desirable to lay down the c'rcumstances under which
C
a Court can exercise its discretion against the plaintiff. But they
must be such that the representation by or the conduct or neglect
of the plaintiff is directly responsible in inducing the defendant
to change his position to his prejudice or such as to bring about
a situation when it would be inequitable to give him such a relief.
Bearing these principles in mind let us now look at the facts
D
of the case.
Both the lower Courts found that the
appellant
repudiated the contract even on the next day of the auction, i.e.,
August 24, 1954.
The 1st respondent issued a notice to
the
appellant on August 30, 1954, asking him to obtain from him
one-fourth of the auction pri~e as earnest money at any
time E
within 24 hours and the Qalance within a period of one week
thereafter and execute a sale deed in his favour. The appellant
did not reply to this notice. The 1st respondent in his evidence
says that he could not take effective steps to enforce the contract
for a period of 7 months as his wife was ill and as the Hyderabad Municipal Corporation had demolished one of his houses.
F
The High Court accepted the explanation given by the I st respondent for the delay in his· taking steps in enforcing the contract.
In the affidavit filed by the 1st respondent in the Trial
Court on October 18, 1955, he stated that his house had been
demolished by the Municipal Corporation before a year and a
half and his wife was also seriously ill for the "last two years"
G
' and that, therefore, he was worried. From this statement it is
argued that both the circumstances which are said to have been
the reasons for the delay were in existence even before the auction and, therefore, the High Court went wrong in accepting the
explanation of the 1st respondent for the delay. It is true that H
the 1st respondent's wife was ill even before the auction, but she
(l} [193S) LR. 621.A. too, 108.
SATYANARAYANA v. YELLOGI RAO (Subba Rao, J.)
231
A continued to be ill even after the auction and there is clear evidence that she was being treated in a hospital.
This continual
illness of the 1st respondent's wife must have unnerved him and
when the High Court accepted his evidence we cannot say that it
went wrong. It is also true that the notice by the Municipal ,
Corporation to demolish the house was given two months prior
B to the auction, but there is nothing on the record to show when
the house was actually demolished. Some time must have elapsed between the notice and the actual demolition.
The
only
evidence in regard to the demolition of the house is that of the
1st respondent; and it is not suggested in the cross-examination
C that the demolition of the house was before the auction. On the
uncontradicted evidence of the 1st respondent, we must hold,
agreeing with the High Court, that the 1st respondent was in a
worried state of mind because of the said two circumstances which
might have been responsible, to some extent, for his not taking
immediate active and effective steps to enforce his right.
The
D most important circumstance in the case is, when did the
1st
respondent come to know of the commencement of the building
operations by the appellant on the suit site ? The 1st respondent
says in his evidence that 7 or 8 months after the auction he
passed by the suit site and saw foundations had been dug therein
and a few days thereafter he filed the suit.
The appellant, on
E the other hand, says in his evidence that he started the construction after the disputed auction and that it was completed in 5 or
6 months.
Though he says in the cross-examination that
he
applied to the Municipality for permission to build, he did not
produce either a copy of that application or the sanction issued
to him by the Municipality. He is not even prepared to deny
F
that he got the sanction only in March 1955. The Trial Court
surmised without any evidence that at the time the 1st respondent saw the foundations the stage of the construction indicated
that the building operations must have commenced two months
earlier. The High Court rightly pointed out that it was a pure
G surmise and accepted the evidence of the 1st respondent that a
few days after he saw the foundations being dug in the suit site
he filed the suit. But all these are beside the point, for it is not
the case of the appellant that because of the 1st respondent's
conduct he was induci:d to put up the building at a heavy cost:
his case throughout was that there was no contract at all. If so,
H there was no question of his being induced to act to his detriment
because of the conduct of the 1st respondent. Therefore, except
for some delay, there are no circumstances within the meaning of.
232
SUPllBMB COUllT RBPOllTS
(1965) 2 S.C.ll.
the aforesaid decisions which should induce a Court to rdUle A
in its discretion to give a relief of specific performance. 1be
· High Court rightly held that it was a fit case where the plaintHf
. should have been given a relief of specific performance. -
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.
'