Bombay Garage Ahmedabad Limited & Ors v. J P Iscon Private Ltd. & Anr
Proof cannot be offered without pleadings, especially where an oral contract is attempted to be established.
No. Trite is the principle that there can be no proof offered without pleadings, and small discrepancies in pleadings assume massive proportions in a civil suit when an oral contract is attempted to be established. A witness introduced without any pleading of his presence at the meetings cannot make up for the lack of pleadings, and the status of a witness has no relevance insofar as oral testimony is concerned.
Headnote
Code of Civil Procedure, 1908 — Order II Rule 2 — Suit for specific performance — Oral agreement — Concluded contract — Pleadings —
Code of Civil Procedure, 1908 — Order II Rule 2 — Fresh suit for specific performance — Leave at first suit —
Held: A fresh suit for specific performance is barred by Order II Rule 2 where the relief was available when the first suit for injunction was instituted and no leave was then taken; a fresh suit permitted after withdrawal covers only the injunction. (¶11, 23, 27)
Code of Civil Procedure, 1908 — Order II Rule 2(3) — Cause of action — Earlier plaint —
Held further: The bar in Order II Rule 2(3) is a technical plea that must be established satisfactorily and cannot be presumed by inferential reasoning; identity of the cause of action with the earlier suit must be shown from the earlier plaint. (¶8, 9, 10)
Code of Civil Procedure, 1908 — Oral agreement — Specific performance — Strict proof —
Held further: A suit for specific performance can rest on an oral agreement, but a concluded contract must be proved strictly. Inconsistent pleadings and interested testimony are not sufficient proof, and evasive defence witnesses cannot lead to an inference of a concluded contract. (¶3, 34, 36)
Code of Civil Procedure, 1908 — Order II Rule 2 — Concluded oral contract not proved — Appeal allowed —
On facts, held: No concluded oral contract was proved and the second suit was barred. Appeal allowed; orders of the Trial Court and the High Court set aside and the suit dismissed. (¶27, 39, 40)
In the Court's own words
Paragraph 32We will not resort merely to nit picking to discredit the story set up; but it is these small discrepancies in pleadings that assume massive proportions in a civil suit especially when it is an oral contract that is attempted to be established. Trite is the principle that there can be no proof offered without pleadings. In the first suit, while the three meetings were asserted, in the second suit, initially only two meetings were pleaded. While by an amendment, three meetings were spoken of which was again digressed from in paragraph 3(b1) of the second suit. While the evidence is to the effect that the first meeting was held at the official residence of PW2, such a pleading is not seen anywhere in the two plaints filed at different points of time.
Paragraph 34Again, the oral contract is attempted to be proved through three witnesses. PW1 who represents the plaintiff company, PW2, one Vajubhai Vala and PW3, Jatin Madanlal Gupta, a Director of the 1st plaintiff company. The oral testimony of PW1, is an interested testimony and without corroboration, there cannot be found sufficient proof. PW2 is projected as a man of considerable repute having been the Minister of the State and later, a Governor in one of the States, in whose presence and at whose residence, the first meeting is said to have taken place. It is pertinent that there is no pleading to that effect and the witness has been introduced without any pleadings. Further, it is the case of the plaintiff that there was no argument reduced to writing since the contract was entered into in the presence of a man of PW2’s stature. Immediately, we have to observe that in the first plaint the clear averment was that the 2nd meeting in the presence of a solicitor was ‘to prepare the title and sale deed’; despite the presence of PW2 was asserted in the first meeting. The written deed or argument was never prepared even according to the plaintiff.
Paragraph 35Further, PW2’s evidence is to the effect that the contract was concluded in his presence by the 6th defendant who has no authority insofar as the 1st defendant company’s assets are concerned. His evidence is also to the effect that the 6th defendant talked to the 9th defendant in his presence who concurred and accepted the contract, over telephone. The said assertion of PW2 is a mere hearsay, since there is nothing to indicate as to how PW2 knew for sure that the person on the other side of the telephone was the 9th defendant. There is also an argument addressed about the ‘evidentiary significance’(sic) of PW2, asserted by the respondents on the ground of his status as the Finance Minister at the time of the first meeting and then at the time of the deposition, as the Governor of the State of Karnataka. The status of the witness has no relevance insofar the oral testimony is concerned, since there is no presumption that a person having some political status would only speak truth before Court. PW2, though stated to be an independent witness, the plaintiff does not plead his presence at the meetings, nor does the pleadings indicate as to why the presence of such a high functionary was required in a land deal. The argument raised by the respondents that no formal agreement was entered into since the contract was entered into in the presence of PW2, is only to be rejected for lack of pleadings and absence of any legal sanctity.
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