G. JA YASHREE & Ors. v. BHAGWANDAS S. PATEL & Ors.

A the suit, he keeping in view the interest he had in the matter, should have opposed recording of the said compromise. He without any further delay shoµld have also filed a suit for specific performance of contract. He even did not file a suit for specific performance immediately thereafter. He first filed a suit for mandatory injunction. The fact that he did not choose to file a suit for specific performance of contract at the first instance speaks volumes about his conduct. It may be true that in terms of the agreement, draft layout was to be obtained in respect of Plot No. 36 but the very fact that the parties C proceeded on the basis that all the lands would be developed together and steps having been taken in this behalf; it was too late for vendee 'G' to raise a fresh demand. [Paras 24 and 30)(1468-F-G; 1472~G-H; 1473-A] Nirma/a Anand v. Advent Corporation (P) Ltd. and Ors. D (2002) 8 SCC 146, distinguished. K.S. Vidyanadam and Ors. v. Vairavan (1997) 3 SCC 1 and Mademsetty Satyanarayana v. G. Yellogi Rao (1965) 2 SCR 221, referred to.

1.3. The civil courts, in the matter of enforcement of E an agreement to sell, exercise a discretionary jurisdiction. Discretionary jurisdiction albeit must be exercised judiciously and not arbitrarily or capriciously. A plaintiff is expected to approach the court with clean hands. His conduct plays an important role in the matter of exercise F of discretionary jurisdiction by a court of law. [Para 30] [1473-0-E] . Mohammadia Cooperative Building Society Limited v. Lakshmi Srinivasa Cooperative Building Society Limited and Ors. (2008) 7 SCC 310, relied on. G Rame Gowda (dead) by LRs. v. M. Varadappa Naidu (dead) by LRs. and Anr. (2004) 1 SCC 769, held inapplicable. Sanjana M. Wig (Ms.) v. Hindustan Petroleum Corpn. Ltd. (2005) a sec 242, referred to.

1.4. Trial judge applied the principle of novation of H contract having regard to the subsequent conduct of the ·r G. JAYASHREE & ORS. v. BHAGWANDAS S. PATEL & 1457 ORS. B in view parties. The said principle, is applicable as against the A vendee 'G'. The agreement in question is not an agreement for sale simplicitor. The parties thereto were aware that only for the purpose of development of the said plot the agreement had been entered into. If that be . so, the vendors were right in enforcing the terms of the said agreement/contract keeping aforementioned purpose in mind. The joint promisee might not have rescinded the contract prior to the filing of the suit for damages against the defendants 1 to 3 (vendors) but when he filed the suit claiming refund of the amount of advance which he had paid by way of his C share as also the damages, the contract stood rescinded so far as he was concerned. His claim might have been based on the purported breach of the terms of the contract on part of defendants No. 1 to 3, but they had arrived at a compromise. True it is that vendee 'G' filed a D written statement in the suit filed by the joint vendee. He expressed his intention to pay the amount of consideration for the entire land but evidently the suit did not go to trial. He did not insist therefor. When an application for settlement arrived at between the joint E vendee and the defendant Nos.1 to 3 was filed, he did not object thereto. As he had appeared even before the High Court through counsel, it was obligatory on his part to oppose the said compromise between the vendors and his co-vendee. [Para 25] (1468-G-H; 1469-A-E]