INDERCHAND JAIN (D) THROUGH L.RS v. MOTILAL (D) THROUGH L.RS

specific performance of contract. For the purpose of A obtaining a decree for specific performance of contract, the court must arrive at a conclusion that the plaintiff not only pleaded but also established his readiness and willingness to perform his part of contract throughout. Exercising the discretionary jurisdiction one way or the B other having regard to Section 20(2)(b) would depend thereupon arriving at a finding of such fact. Balancing of interest would be necessary provided a suit is to be decreed and not when the suit is to be dismissed. [Para 20] [269-8-H] c

1.4. The sequence of events clearly show that the appellate court were all along aware of the main i~sues touching the merit of the matter. They were also aware as to the effect or otherwise of the withdrawal of the amount by the appellant unconditionally as also by his D creditor. Keeping in view t.he entirety of the facts and circumstances of the case, the appellate court arrived at tWo crucial findings: the plaintiff had not been all along ready an~ willing to deposit the balance sum of Rs. 9S,OOO/- ~nd the unconditional withdrawal on the part of E the defendant was involuntary. The events which had taken place subsequently, viz., registration of the said deed of sale, purported taking over of possession of the suit premises by the plaintiff and alleged expenditure incurred by him for renovation of the building, were F within the knowledge of the parties and the court. Therefore, it was not a discovery of a new fact which despite due diligence the plaintiff could not bring to the . notice of the court. [Para 21] [270-A-F]

1.5. Order 41, Rule 1 stipulates that filing Qf an appeal would. not amount to automatic stay of the execution of the decree. The law acknowledges that during pendency of the appeal it is possible for the decree holder to get the decree executed. The execution of the decree during G H • ~ ... ., -i ' ~ .. ' --t f 256 SUPREME COURT REPORTS [2009] 11 S.C.R. A pendency of the appeal would, thus, be subject to the restitution of the property in the event the appeal is allowed and the decree is set aside. The court only at the time of passing a judgment and decree reversing that of the appellate court should take into consideration the B subsequent events, but, by no stretch of imagination, can refuse to do so despite arriving at the findings that the plaintiff would not be entitled to grant of a decree. Discretionary jurisdiction can be exercised provided there is any room for the court to do same and not otherwise. c The court while exercising its jurisdiction would not' act arbitrarily or beyond the contours of law. The contention of the. plaintiff that he had also prayed for grant of a decree_·in the alternative, viz., in the event the court came to the conclusion that there had been no novation of contract, he was ready and willing to deposit the entire amount. No conditional offer was permissible in a suit for specific performance of contract. [Para 22] [270-G-H; 271- A .. C] D

1.6. The submission that the defendant having E accepted novation of contract but only the quantum of the amount being different, the court could have asked . the plaintiff-respondent to deposit a further sum of Rs. 24,000/- cannot be accepted for more than one reason. Apart -from the fact that such a contention had never F been raised before the appellate court, keeping in view the finding of fact arrived at that there had in fact been no novation of contract, such a course of action was not open. In any view of the matter, the same would amount to. re-appreciation of evidence which was beyond the G review juris~iction of the High Court. [Paras 23 and 24] [271-D-F] · -1.7. On the facts of the case, the High Court wrongly applied the principles of law as regard the review jurisdiction of the court. The impugned judgment cannot H -.,,- ... . .l. \ • ~ ... :::i. ' -- .. _J, ' r _.. ._.. INDERCHAND JAIN (D) THROUGH L.RS. v. MOTILAL 257 (D) THROUGH L.RS. be sustained and is set aside. [Paras 25, 26 and 27] [271- A G-H; 272-F; 274-E-F]