JUDGMENT - H.L. GOKHALE, J.:---This Chamber Summons has been taken out by defendant Nos. 1 to 4 in this suit seeking striking out of a part of the plaint and also seeking a direction to the plaintiffs to elect between some of the prayers made in the plaint. 2.Mr. Anil Divan, learned Senior Counsel with Mr. Shyam Divan, have appeared for defendant Nos. 1 to 4 in support of this Chamber Summons whereas Mr. Dwarkadas, learned Senior Counsel with Mr. Samdani have appeared for the plaintiffs to show cause as to why this Chamber Summons should not be granted. 3.Before I deal with the prayers in the Chamber Summons, it is necessary to refer to the factual aspect of the controversy between the parties leading to this Chamber Summons. This suit has been filed by one Smt. Krishnabai C. Kadam (plaintiff No. 1) who is the widow of one Chandrarao Kadam, who died in Mumbai on 23rd August 1995 at the age of about 91 years. The other plaintiffs to the suit are the heirs of Chandrarao Kadam. Defendant No. 1 is a partnership concern dealing in development of properties. Defendant Nos. 2 to 4 are its partners. Defendant Nos. 5 and 6 are other heirs of the Late Chandrarao Kadam who are proforma defendants. 4.The case of the plaintiffs in the suit is that the deceased was the owner of large immovable property admeasuring about 42669.40 sq. mtrs. situated at Chandivali within the areas of Mumbai Municipal Corporation. It is their further case that the Late Chandrarao Kadam was persuaded through some intermediaries to enter into a Memorandum of Understanding (for short "MOU") with defendants Nos. 2 to 4 on 7th October 1992. The salient features of that MOU in nutshell were that this Chandrarao Kadam was to bring this entire property into a partnership with defendant Nos. 2 to 4 on the terms contained therein. Defendant Nos. 2 to 4 were permitted to exploit the FSI of the entire property subject to the conditions of that MOU. It was agreed amongst them that defendant Nos. 2 to 4 will be permitted to develop and construct on a part of that property as shown in the map annexed to the MOU in brown coloured boundary (and described in second Schedule thereto) while Shri Kadam retaining other part thereof shaded in green colour admeasuring to 25,000 sq. yard approximately. It was agreed amongst them that defendant Nos. 2 to 4 will be permitted to develop and construct on a part of that property as shown in the map annexed to the MOU in brown coloured boundary (and described in second Schedule thereto) while Shri Kadam retaining other part thereof shaded in green colour admeasuring to 25,000 sq. yard approximately. Defendant Nos. 2 to 4 were not to disturb the use of the retained land and structures thereon as also reserved FSI to the extent of 37,865 sq.feet (including the FSI consumed by existing structures). On formation of the partnership, the capital account of Shri Kadam was to be credited by the commercial value of the property brought in by him valued at Rs. 2.40 crores and his share in the profit and assets of the firm was to be 85%. It was further agreed that defendant Nos. 2 to 4 will bring an amount of Rs. 2.40 crores from time to time as provided in the MOU and Late Shri Chandrarao Kadam will be permitted to withdraw that amount and on withdrawal of the aforesaid amount of Rs. 2.40 crores, Shri Kadam will retire from the partnership. On such retirement, defendant Nos. 2 to 4 were to become absolute owner of the entire property subject to the exclusive right of Shri Kadam to use the retained land and FSI of 37,865 sq. feet. 5.The deed of partnership was signed on 9-10-1992 and Shri Kadam received the amount of Rs. 2.3 crores from time to time. It is however contended in the plaint that though late Shri Kadam received the amount of Rs. 2.30 crores, he did not encash the last instalment of Rs. 10 Lacs since by that time he had realised that under the MOU and partnership, he had been deceived and whereas the fair price of the land would be in the vicinity of Rs. 11.59 crores on the basis of the FSI prevailing in 1992, all that the deceased was to get was only an amount of Rs. 2.40 crores. The last cheque of Rs. 10 lacs was, therefore, not encashed and a correspondence ensued between the parties subsequently leading to this suit. 11.59 crores on the basis of the FSI prevailing in 1992, all that the deceased was to get was only an amount of Rs. 2.40 crores. The last cheque of Rs. 10 lacs was, therefore, not encashed and a correspondence ensued between the parties subsequently leading to this suit. 6.It is the contention of the plaintiffs that it was a case of unconscionable bargaining, that a fraud had been played on the deceased and that the entire arrangement was effected with a view to avoid and defeat the provisions of Chapter XX-C of the Income Tax Act, 1961. It is, therefore, their first submission that the MOU as well as the subsequent agreement of partnership are vitiated being against the public policy and hence, in prayer (a), they seek a declaration that the MOU dated 7th October 1992 and the partnership dated 9th October 1992 are void, illegal and inoperative. Prayers (a) to (d) of the plaint seek possession of the land handed over and the mesne profits. 7.Alternately, the plaintiffs have pleaded that assuming that the MOU and the partnership are in any manner enforceable, the agreement ought to be specifically performed and that is how prayer (e)(iv) prays for a decree of specific performance relating to the covenants/conditions of the MOU and the deed of partnership dated 9th October 1992 and certain consequential prayers. Prayers (e)(i), (ii), (iii) and (v) to (vii) of the plaint are prayers which are other prayers which are in alternative to prayers (a) to (d). These prayers seek that the partnership be dissolved and accounts be made and damages be provided as also indemnity for losses etc. 8.After this suit was filed, the plaintiffs took out a Notice of Motion bearing No. 385 of 2000 seeking appointment of a Receiver and various other interim prayers. Prayer (c)(ii) of that Notice of Motion was particularly concerning the green coloured portion which is to be retained by the plaintiffs and sought an injunction against the defendants from encroaching over those lands. Prayer (c)(ii) of that Notice of Motion reads as follows:- "(c) that pending the hearing and final disposal of the suit the defendants Nos. Prayer (c)(ii) of that Notice of Motion was particularly concerning the green coloured portion which is to be retained by the plaintiffs and sought an injunction against the defendants from encroaching over those lands. Prayer (c)(ii) of that Notice of Motion reads as follows:- "(c) that pending the hearing and final disposal of the suit the defendants Nos. 1 to 4 by themselves, their servants and agents be restrained by an order and injunction of this Hon'ble Court from:- (ii) entering upon or encroaching into or over the said retained land described in Exhibit B2 to the plaint and surrounded by black colour boundary line with green colour hatched lines shown in the plan annexed as Exhibit B to the plaint." 9.This Notice of Motion was moved before my brother D.K. Deshmukh, J. and after hearing the learned Counsel on both sides, the learned Judge was pleased to grant an ad-interim injunction in terms of prayer Clause (c)(ii). The order passed by the learned Judge reads as follows:- "Heard the learned Counsel for both sides. Perused the plaint and the documents accompanying the plaint. It appears that the transaction has taken place in 1992. The deceased, with whom the transaction was entered into, expired in 1995. There is some element of delay in approaching the Court. In the meantime the construction of the defendants has made considerable progress. It also appears that the plaintiff No. 1 has not disclosed to the Court that she has signed the main document as witness and that she has also signed one of the receipts. However, considering that the plaintiff is also seeking enforcement of the M.O.U. entered into between the parties and I find that some of the terms of the agreements are conflicting, in my opinion, interest of justice would be sub-served by granting ad-interim order in terms of prayer Clause (c)(ii). Ad-interim order in terms of prayer Clause (c)(ii) of the Notice of Motion to operate." 10.This order was carried in appeal, and after the matter was heard for sometime, the appeal was not pressed and was allowed to be withdrawn. The order passed by the Appeal Court on 17th February 2000 reads as follows:- "Heard the learned Counsel for the parties. The learned Counsel for the respondents Mr. The order passed by the Appeal Court on 17th February 2000 reads as follows:- "Heard the learned Counsel for the parties. The learned Counsel for the respondents Mr. Dwarakadas states that if hearing of Notice of Motion is expedited the respondents would not take any steps to publish the public notice and/or advertisement in view of their letter dated 14-2-2000. In view of the above statement of the learned Counsel for the respondents we expedite the hearing of the motion and request the learned Single Judge to dispose of the Notice of Motion as early as possible at any rate, within four weeks from today. In view of the above, Mr. Chagla, learned Counsel for the appellants states that he has instruction not to pursue this appeal and prays for withdrawal of the appeal. Appeal is accordingly allowed to be withdrawn and disposed of. Notice of Motion to be placed for hearing peremptorily on 2nd March 2000. Mr. Chagla, learned Counsel for the appellants states that they will file affidavit in reply to the motion on or before 28th February 2000. Rejoinder, if any, to be filed on or before 1st March 2000. Both the parties to exchange the same on or before the above-mentioned date." 11.Thus, as can be seen, the ad-interim order in terms of prayer Clause (c)(ii) has been running in favour of the plaintiffs and has been left undisturbed by the Appeal Court in view of the withdrawal of the appeal and the Notice of Motion is expected to be heard and decided expeditiously as directed in the order dated 17th February 2000. 12.It is after the above order was passed in the appeal that this Chamber Summons has been taken out on 22nd March 2000. Prayers (a) and (b) thereof are as follows :--- "(a) that the plaintiffs be directed to strike out the part of the plaint relating to the plea of specific performance as also the consequential prayers as set out in the schedule hereto annexed; (b) that the plaintiffs be directed to elect between the reliefs set out in prayers (a) to (d) of the plaint and prayers (e)(i), (ii), (iii), (v) and (vii) of the plaint, and upon election be directed to carry out consequential amendments to the plaint." 13.Defendant No. 4 has filed his affidavit in support of this Chamber Summons. Thereafter Kaushal Kadam, plaintiff No. 7, has filed his reply and defendant No. 1 has filed his rejoinder. 14.Mr. Anil Divan, learned Senior Counsel appearing for defendant Nos. 1 to 4 in support of this Chamber Summons, principally submitted that the plaintiffs cannot be permitted to raise contradictory pleas in their plaint. They cannot say that the MOU and the partnership deed are bad and void and at the same time also seek a specific performance of those very documents. His submission is that a party cannot be allowed to approbate and reprobate at the same time. Mr. Divan further submitted that if the agreement is void, consequences will follow accordingly and it is open for the plaintiffs to contend that the agreement is void for whatever are their reasons. However, having taken this position, they cannot be permitted to state in the same proceeding that the very agreement be enforced. Such an alternative plea was not maintainable and hence, prayer (a) of the Chamber Summons that the plea of specific performance as also the consequential prayers ought to be struck off. Similar is the other limb of the prayers in Chamber Summons viz. prayer (b) that the plaintiffs ought to be directed to elect between the other group of prayers, namely, either they seek a declaration as they are seeking in prayers (a) to (d) that the MOU and the partnership are void, illegal and inoperative etc. or the directions sought in prayer Clauses (e)(i), (ii), (iii) and (v) and (vii) that the partnership be dissolved and accounts be rendered etc. The submission is that either the partnership exists or it does not and hence, if the plaintiffs want a declaration that the MOU and the partnership deed are bad, then in the same breath they cannot be permitted to contend that the same be dissolved and the accounts be made etc. 15.Mr. Divan drew my attention to section 29 of the Specific Relief Act, 1963, in this behalf and submitted that a plaintiff who institutes a suit for specific performance may in the alternative contend if the contract cannot be specifically enforced that the same may be rescinded, but the converse is not permissible. It is not permissible for a litigant to contend that the contract is void and yet seek alternative direction that the very contract be specifically performed. Mr. It is not permissible for a litigant to contend that the contract is void and yet seek alternative direction that the very contract be specifically performed. Mr. Divan in this behalf referred me to a judgment of the Apex Court in the case of (Prem Raj v. The D.L.F. Housing and Construction (Private) Ltd. another)1, reported in A.I.R. 1968 S.C. 1355. In that matter also, the appellant (original plaintiff) had alleged that the deeds executed between the parties were unlawful, void and inoperative against the appellant since they were executed as a result of undue influence. In the alternative, however, the appellant had prayed for a decree of specific performance of the very agreement to sell the concerned plots of lands and damages in addition thereto. As can be noted from paragraph 2(iv) of that judgment, a preliminary objection was raised by the contesting respondent No. 1 to the effect that the appellant having claimed that the agreement was void and inoperative, he could not in the same suit pray for specific performance of the very agreement. That plea was upheld by the Apex Court. Mr. Divan, in this behalf, drew my attention of different passages of that judgment and the statements therein. He submitted that as observed by the Apex Court in para 4 of that judgment, it is open for a plaintiff to pray for inconsistent reliefs under Order VII, Rule 7 of the Code of Civil Procedure, 1908, but as stated by the Apex Court "it must be shown by the plaintiff that each of such plea is maintainable." 16.Again, as observed by the Apex Court, as far as specific performance is concerned, the matter must be examined in the light of Specific Relief Act. The Apex Court had referred to section 37 of the Act of 1877 (corresponding to section 29 of the 1963 Act). The Apex Court had referred to section 37 of the Act of 1877 (corresponding to section 29 of the 1963 Act). It reads as follows :--- "A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the Court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly." Thereafter the Apex Court has observed that : "It is expressly provided by this section that a plaintiff suing for specific performance of the contract can alternatively sue for the rescission of the contract but the converse is not provided. It is therefore not open to a plaintiff to sue for rescission of the agreement and in the alternative sue for specific performance." 17.Mr. Divan then submitted that there has to be a specific averment in the plaint that the plaintiffs are ready and willing to perform their part of the contract. It was the submission of Mr. Divan that such a submission was lacking and that being the position, on that ground also there was no question of granting a decree of specific performance. In this behalf, Mr. Divan laid emphasise on the quotation from (Ardeshir Mama v. Flora Sassoon)2, reported in A.I.R. 1928 P.C. 208 and from a subsequent judgment of this Court in the case of (Karsandas v. Chhotalal)3, reported in 25 Bom.L.R. 1037 which are quoted in the case of Prem Raj (supra). 18.Mr. Divan also drew my attention to another judgment of the Apex Court between the same parties. When in another round the matter was carried to the Supreme Court in (D.L.F. United Private Ltd. v. Pt. Prem Raj others)4, reported in A.I.R. 1981 S.C. 805 wherein the Apex Court has reiterated the position as it was declared in the case of Prem Raj (supra). With respect to the requirement that the plaintiffs have to be ready and willing to perform their part of the contract, Mr. Diwan referred to a judgment of a Division of the Madras High Court in the case of (K.S. Sundaramayyar v. K. Jagadeesan another)5, reported in A.I.R. 1965 Madras 85. 19.Lastly, Mr. With respect to the requirement that the plaintiffs have to be ready and willing to perform their part of the contract, Mr. Diwan referred to a judgment of a Division of the Madras High Court in the case of (K.S. Sundaramayyar v. K. Jagadeesan another)5, reported in A.I.R. 1965 Madras 85. 19.Lastly, Mr. Divan submitted that in a situation as in the present case the plaintiff has to be directed to choose one out of the two conflicting pleas that he has raised. In this Chamber Summons, a direction is sought to strike out a part of the pleading and prayers on the basis of Order 6, Rule 16, C.P.C. which reads as follows :--- "The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading--- (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass, or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court." He referred to a passage in Mulla's Commentary on Code of Civil Procedure (15th Edition) on Order VI Rule 16 where relevant passage on page 1179 reads as follows :--- "A pleading is embarrassing if it is so drawn that it is not clear what case the opposite party has to meet at the trial (r). But a pleading is not embarrassing merely because it is prolix (s). Nor is a pleading embarrassing, merely because it contains allegations that are inconsistent or stated in the alternative (t). But if there is no reasonable excuse for the inconsistent reliefs, the Court may put the plaintiff to his election to choose one or other relief (u)." Mr. Divan submitted that as far as the defendants are concerned, they had already paid an amount of Rs. 2.30 Crores to the late Shri Kadam and had also offered the last installment of Rs. 10 Lacs and not much was required to be done from their side. It is at this stage that to extort more amount from defendant Nos. 1 to 4 that this suit has been filed and hence, it is just and necessary that the plaintiffs ought to be directed to elect. 10 Lacs and not much was required to be done from their side. It is at this stage that to extort more amount from defendant Nos. 1 to 4 that this suit has been filed and hence, it is just and necessary that the plaintiffs ought to be directed to elect. They cannot be permitted to take inconsistent pleas which are not maintainable and hence, if they are seeking a declaration that the agreement was void, the prayer with respect to specific performance ought to be struck off and with respect to the other prayers, they ought to be directed to elect. 20.Mr. Dwarkadas, learned Senior Counsel appearing for the plaintiffs, on the other hand, submitted to begin with that if equitable principles were to be looked into, it is the defendant Nos. 1 to 4 who had not approached the Court with clean hands while moving this Chamber Summons. He submitted that late Shri Kadam had been deceived to enter into an agreement at a far lesser consideration and which agreement was nothing but a device to defeat the provisions of Chapter XX-C of the Income Tax Act, 1961. Mr. Dwarkadas drew my attention to the conduct of defendant Nos. 1 to 4, who were not giving inspection of the documents which was sought by the plaintiffs and hence the plaintiffs were required to take out a Chamber Summons in this behalf which is pending. He drew my attention to the supplemental deed of partnership entered between the deceased and defendant Nos. 2 to 4 on 5th January 1993, whereby some further benefits were obtained by defendant Nos. 1 to 4. Mr. Dwarkadas submitted that this document is on a Stamp Paper purchased on 13th October 1992. The Stamp Paper is not purchased in the name of either of the parties nor is it utilised within six months from the date of the purchase as required by law. That apart, if one looks to this supplemental deed there is a signature of late Shri Chandrarao Kadam at the bottom of pages Nos. 1 and 5 and then on page No. 6. The date of the agreement is filled in ink and at that place and at other places of corrections, there are initials on behalf of the defendants but, not by late Shri Kadam. 21.That apart, Mr. 1 and 5 and then on page No. 6. The date of the agreement is filled in ink and at that place and at other places of corrections, there are initials on behalf of the defendants but, not by late Shri Kadam. 21.That apart, Mr. Dwarkadas submitted that an ad-interim order had been passed in favour of the plaintiffs and it had been left undisturbed in appeal while directing that the Notice of Motion be heard peremptorily. Yet, instead of proceeding with the Notice of Motion, with a view to non-suit the plaintiffs this device of the Chamber Summons was being utilised. He laid great emphasis on the observations of the Apex Court in para 47 of judgment in the case of (Gujarat Bottling Co. Ltd. others v. Coca Cola Co. others)6, reported in 1995(5) S.C.C. 545 wherein the Apex Court has observed that the Court should always look into the conduct of the parties invoking jurisdiction of the Court and may refuse to interfere unless his conduct was free from blame. The said paragraph reads as follows :--- "In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39, Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad- interim or temporary injunction order already granted in the pending suit or proceedings." 22.Mr. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39, Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad- interim or temporary injunction order already granted in the pending suit or proceedings." 22.Mr. Dwarkadas then submitted that as far as the judgment of the Apex Court in the case of Prem Raj (supra) is concerned, what is material to note is that the defendants in that matter had objected to the plea of specific performance being raised at the outside by raising a preliminary objection as can be seen from para 2(iv) of the judgment of the Apex Court. The defendant in that matter had never made any contradictory submissions. In the present case, Mr. Dwarkadas pointed out that when the Notice of Motion was moved for ad-interim orders, a reply had been filed to the Motion by the defendants and in that reply affirmed on 7th February 2000, defendant Nos. 1 to 4 had expressed their willingness to complete the remaining formalities with respect to specific performance of the MOU and the partnership as can be seen from para 6 of that reply. The defendants have in terms said therein that they were prepared to pay the remaining amount of Rs. 10 Lacs and are now willing to pay the same and complete the other formalities like execution of a formal document of lease. At this stage Mr. Shyam Divan pointed out that the statement in the reply was a qualified one and it was stated in that very paragrpah that the defendants are ready to complete other aspects "provided the disputes are resolved". Mr. Dwarkadas in this context referred to the further reply affirmed on 28th February 2000 by defendant No. 4 and drew my attention to paragraphs 9, 10 and particularly para 33 thereof, In para 10, defendant No. 4 has stated as follows :--- "I say that the Defendant Nos. 1 to 4 has at all material times expressed willingness to perform their outstanding obligations and are even now willing to perform." In para 33, defendant No. 4 has stated--- "In the circumstances I say that Defendant Nos. 1 to 4 has at all material times expressed willingness to perform their outstanding obligations and are even now willing to perform." In para 33, defendant No. 4 has stated--- "In the circumstances I say that Defendant Nos. 1 to 4 are ready and willing to specifically perform the covenant contained in the said MOU and the said deed of partnership by executing a lease in favour of the plaintiffs and Defendant Nos. 5 and 6 in respect of the said retained land in accordance with the terms and conditions of the said documents and not doing any act, matter or putting up any construction contrary to or inconsistent with the provisions of the said MOU and the said Deed of partnership upon the said retained land." Mr. Dwarkadas pointed out that, same submission had been again made in para 3 and grounds 4(d) and (k) of the Appeal Memo of the defendants against the ad-interim order. These submissions in his view were almost in the nature of a counter claim. Mr. Dwarkadas, therefore, submitted that in view of these assertions of the defendants, the provision of section 16(c) of the Specific Relief Act, 1963 would get attracted and when the defendants themselves are saying that they are ready and willing to perform and complete the transaction, there is no need for the plaintiffs to aver and state once again that they have been ready and willing to perform their part of the contract. Section 16(c) of the Specific Relief Act reads as follows :--- "16 Specific performance of a contract cannot be enforced in favour of a person--- (c) 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 the performance of which has been prevented or waived by the defendant. " (emphasis supplied). 23.Mr. Dwarkadas, in this behalf, relied upon a judgment of the Apex Court in the case of (Firm Sriniwas Ram Kumar v. Mahabir Prasad others)7, reported in A.I.R. 1951 S.C. 177. In that matter the plaintiff having paid substantial part of the consideration, had filed a suit for specific performance against defendant No. 2 who had sold the suit house to defendant No. 1 in the meanwhile. In that matter the plaintiff having paid substantial part of the consideration, had filed a suit for specific performance against defendant No. 2 who had sold the suit house to defendant No. 1 in the meanwhile. The second defendant accepted having received the amount but it was contended that it was received by way of a loan and not in part performance of any contract of sale. The Trial Court held that the contract of sale was not established, but a money decree was passed for returning the amount received. In appeal, the High Court dismissed the appeal of plaintiff and also allowed the cross objections of defendant No. 2. The High Court held that the money decree was not warranted as no case of a loan was made out by the plaintiff in the plaint. Therefore it dismissed the suit in entirety. In appeal the Supreme Court noted that in the plaint the case of loan had not been made out. Yet it held that it was open to the plaintiff to make an alternative prayer for a decree for money even if the allegations of money being paid in pursuance of contract of sale could not be established by evidence. Then it observed : "The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively there is nothing in the Civil P.C. to prevent a party from making two or more inconsistent sets of allegations claiming relief thereunder in the alternative." 24.Thereafter the Court went ahead to consider the question as to whether it was open to the Court to give relief in the absence of any alternative case. The Court noted that normally the Court would not grant such a relief since there was no foundation in the pleading and other side had no opportunity to meet it. In that matter however the plea which the plaintiff could have taken was admitted by the defendant in his written statement and was expressly put forward as answer to the plaint. In that matter however the plea which the plaintiff could have taken was admitted by the defendant in his written statement and was expressly put forward as answer to the plaint. The Apex Court observed as follows :--- "But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff, made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant, himself makes. A demand of the plaintiff, based on the defendant's own plea cannot possible be regarded with surprise by the latter no question of adducing evidence on these facts would arise when they were expressly admitted by the deft in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff, to a separate suit. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee in (Mohan Manucha v. Manzoor Ahmad)8, 70 I.A. 1. This appeal arose out of a suit commenced by the plaintiff, appellants to enforce a mtge., security. The plea of the deft was that the mtge. was void. This plea was given effect to by both the lower Court as well as by the P.C. But the P.C. held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether claim a relief outside it in the form of restitution under section 65, Contract Act. Although no such alternative claim was made in the plaint, the P.C. allowed it to be advanced gave a decree on the ground that the respondent could not be prejudiced by such a claim at all the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the appellants. Even though the appeal was heard ex-parte in the absence of the respondent." Mr. Dwarkadas therefore submitted that where an alternative plea was possible in the facts of a case and though it was not raised by the party concerned, the Privy Council had permitted it to be raised and had decreed it. Even though the appeal was heard ex-parte in the absence of the respondent." Mr. Dwarkadas therefore submitted that where an alternative plea was possible in the facts of a case and though it was not raised by the party concerned, the Privy Council had permitted it to be raised and had decreed it. In the matter before the Supreme Court, a prayer inconsistent with the principle prayer was granted by looking into the admissions in the written statement. He therefore submitted that what is important to be noted is the conduct of the party and if a defendant himself makes a submission stating that he is prepared and agreeable for specific performance of the agreement, knowing fully that the plaintiff has initially contended that the agreement is void or inoperative, the Court will be within its powers to entertain the plea for specific performance. 25.Mr. Shyam Divan, in rejoinder to this submission of Mr. Dwarkadas, drew my attention to the last paragraph of the judgment in the case of Prem Raj (supra). He submitted that the submission made in the present matter were to be examined on the basis of the plaint as it stood and the defendants were proceeding on the basis of demurer. In his submission the plea raised by defendant Nos. 1 to 4 was with respect to the maintainability of the relief and was a matter of jurisdiction. In this behalf, he relied upon a decision of the Apex Court in the case of (Abdulla Bin Ali others v. Galappa others)9, reported in A.I.R. 1985 S.C. 577 and of a Division Bench of this Court in (Krishna v. Narsinghrao)10, reported in A.I.R. 1973 Bombay 358 to contend that for deciding the jurisdiction of the Court, the allegations in the plaint are only relevant and then relied upon decision in the case of (Kiran Singh others v. Chaman Paswan others)11, reported in A.I.R. 1954 S.C. 340 that even by consent, jurisdiction cannot be conferred if the Court did not have it. 26.Mr. Dwarkadas submitted that totality of the factors have got to be looked into. In the present case an agreement had been entered into between an old man on the one hand and the developers of the property on the other. 26.Mr. Dwarkadas submitted that totality of the factors have got to be looked into. In the present case an agreement had been entered into between an old man on the one hand and the developers of the property on the other. It is the submission of the plaintiffs that late Shri Kadam had been deceived to accept a consideration which was far lesser than what he ought to have received by entering into the agreement which agreement was created to defeat the provisions of the Income Tax Act, 1961. The plaintiffs were, therefore, contending that the agreement was void but in the event the agreement was held to be enforceable, let it be enforced completely. If the defendants have themselves stated in so many words that they are ready and willing to have the transaction completed, it was not permissible for them now to turn back and say that whatever may be their pleadings, only the plaint be looked into and the alternative plea taken by the plaintiffs be struck off as being inconsistent and not maintainable. Here we are not concerned with the question of jurisdiction but a plea raised by a defendant that a particular prayer be deleted which plea was being raised after initially conceding that they were agreeable for such a relief. 27.I have considered carefully the submissions made by the rival Counsel. As far as the propositions laid down by the Apex Court in the case of Prem Raj (supra) are concerned, there is no question of taking a different view. The proposition laid down in that judgment very much stands that a plaintiff cannot be permitted to take such inconsistent pleas where each of them is not maintainable. At the same time it cannot be lost sight of that in that matter the objection to the grant of the alternate relief was raised at the outset. In a case where the defendant himself agrees specifically in clear terms to the alternative plea taken by the plaintiff, the facts will stand on a different footing. In that matter also the Apex Court accepted, as is recorded in para 4 of the judgment, that under Order 7, Rule 7 of the Code of Civil Procedure, it was open to pray for inconsistent reliefs. Thereafter however it added that it must be shown by the plaintiff that each of such pleas is maintainable. In that matter also the Apex Court accepted, as is recorded in para 4 of the judgment, that under Order 7, Rule 7 of the Code of Civil Procedure, it was open to pray for inconsistent reliefs. Thereafter however it added that it must be shown by the plaintiff that each of such pleas is maintainable. Then it stated in the context of specific performance that so far as the relief of specific performance was concerned, the matter must be examine in the light of provision of the Specific Relief Act. Since the preliminary objection had been raised to the grant of specific performance as an alterative relief, the Court looked into the provision of section 37 of the Specific Relief Act, 1877 and then noted that the section provides that the plaintiff suing for specific performance of the contract can sue for recession of the contract but the converse was not provided. It therefore held that it was not open to a plaintiff to sue for recession of the agreement and in the alternative sue for specific performance. Ours is a case wherein the defendants themselves are saying that they are ready and willing for specific performance knowing fully well that the relief of specific performance is sought as an alternative relief after initially contending in the plaint that the agreement was bad in law and void. It is in this context that the reliance on section 16(c) of the Specific Relief Act by Mr. Dwarkadas becomes relevant. That section provides that where a defendant waives the performance of the terms of the contract which are to be performed by the plaintiff it is not necessary for the plaintiff to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. In the case of Prem Raj (supra), the High Court had held that the suit must fail so far as the relief for specific performance was considered. In that matter there was absence of any averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract and a preliminary objection had been raised by the defendant to grant such a relief. In that matter there was absence of any averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract and a preliminary objection had been raised by the defendant to grant such a relief. It was contended before the Apex Court that the appellant ought to have been given the option to elect either of the two reliefs and the Court ought not to have dismissed the suit at the preliminary stage so far as the relief of specific performance was concerned. It was in this context that the Apex Court observed in para 6 as follows :--- "As we have already pointed out, the appellant has not made out a cause of action so far as the relief of specific performance is concerned and hence the appellant is not entitled to be put to election with regard to the two alternative reliefs." In this context, the Apex Court held in para 7 of the judgment that the trial Court did not have the jurisdiction to grant a particular relief and by an erroneous finding could not confer itself a jurisdiction which it did not possess. 28.The two authorities cited by Mr. Shyam Divan in the case of Abdulla Bin Ali v. Galappa and Krishna v. Narsinghrao (supra) are in the context of ouster of jurisdiction of the Civil Court and the forum wherein the matter ought to be proceeded. We are not examining the issue of jurisdiction in the sense of ouster where certainly the plaint alone will be the relevant document. Here, we are concerned with maintainability of a particular relief which is sought by the plaintiffs. There is no question of conferring jurisdiction on the Court by consent. This Court very much has the jurisdiction and no plea of ouster of jurisdiction has been raised by the defendants. As far as the maintainability of a particular relief is concerned, certainly the pleadings of the parties become relevant. It does become relevant for the Court to look into the manner in which the defence is raised by the defendants. This is a case where the defendants are themselves saying that they are ready and willing for specific performance. As far as the maintainability of a particular relief is concerned, certainly the pleadings of the parties become relevant. It does become relevant for the Court to look into the manner in which the defence is raised by the defendants. This is a case where the defendants are themselves saying that they are ready and willing for specific performance. Having stated so at a number of places in their replies and appeal memo they are turning back and asking the Court not to look into the statements which they have made in their affidavits in reply and appeal memo but to look only to the plaint and hold that the alternative plea is not maintainable. As held by the Privy Council in the case of Mohan Manucha (quoted with approval in the case of Firm Srinivas Ram Kumar (supra)) even when the alternative relief was otherwise available to the plaintiff, it could be granted by the Court even in the absence of pleadings by the plaintiff. This is because as held by the Apex Court "In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit." The Apex Court did look into the written statement in the case of Firm Srinivas Ram Kumar (supra) to decide whether a particular inconsistent relief could be granted. Surely in the present case the replies of the defendants will have to be looked into for that purpose. 29.Mr. Dwarkadas pointed out that the judgment in the case of Firm Srinivas Ram Kumar (supra) was a judgment of three Judges whereas the judgment in the case of Prem Raj (supra) was a judgment of two Judges. It is not necessary for me to go into this aspect because, in my view, both the judgments hold the field. As observed earlier, the proposition in the case of Prem Raj (supra) is a well established proposition and there is no question of departing therefrom. At the same time, what is laid down by the Apex Court in the case of Firm Srinivas Ram Kumar (supra) is also good law. The Court cannot shut its eyes to the specific averments of the defendants. This is apart from the question of improper conduct on the part of the defendants as contended by Mr. Dwarkadas which should disentitle them to the equitable reliefs. The Court cannot shut its eyes to the specific averments of the defendants. This is apart from the question of improper conduct on the part of the defendants as contended by Mr. Dwarkadas which should disentitle them to the equitable reliefs. 30.For the reasons stated above, it is not possible to entertain this Chamber Summons and the same is hereby dismissed. 31.Costs will be costs in the suit. 32.An ordinary copy of this order authenticated by the Personal Secretary be made available to the parties. Chamber Summons dismissed. -----