Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 644 (PNJ)

Som Parkash v. Karam Dass Through His L. Rs.

2008-03-05

KANWALJIT SINGH AHLUWALIA, VIJENDER JAIN

body2008
Judgment Vijender Jain, J. 1. Present Letters Patent Appeal has been filed by the appellant aggrieved against judgment dated 3.5.1985 of learned Single Judge passed in Regular First Appeal No. 1123 of 1976. 2. One Ganesha Dass had two sons Maya Dass and Devi Dass. Maya Dass renounced the world and became chela of one Narain Dass. However, he was owner of his ancestral land about 77 kanals in village Banga, 44 kanals 6 marlas of land in village Kajla and was muafidar of land measuring 42 kanals & 2 marlas at village Balla. Maya Dasss brother Devi Dass had five children, namely Charan Dass, Karam Dass, Biram Dass, Som Parkash and Gurbachan Dass. Maya Dass was issueless and during fag end of his life, it is stated that he adopted his brothers son Som Parkash as his chela. 3. The present dispute is between brothers who are nephews of Maya Dass regarding his estate. 4. It is stated in the suit that when Maya Dass intended to take Som Parkash as his disciple, this was disputed by other brothers of Som Parkash. In order to pacify, Maya Dass agreed to gift 60 kanals of land in village Banga in equal share to Karam Dass, Biram Dass, and Gurbachan Dass, brothers of Som Parkash and 40 kanals of land at village Kajla and Balla to Biram Dass and Gurbachan Dass and 12 kanals of land to Karam Dass, out of the land situated in villages Kajla and Balla. This was done by Maya Dass to avoid litigation. It was orally agreed that a gift deed to this effect would be executed on 13th day after Lohari in the year 1957. Since at the time of agreement as respondents were not possessed of sufficient money to defray expenses of the stamps and the registration of the gift deed, therefore, it was decided that the deed would be executed later on the 13th day of Lohari in the year, 1957. 5. Meanwhile, Maya Dass died before the gift deed could be executed. After his death, appellant being his Chela succeeded to the estate and Dera left by Maya Dass. Appellant also agreed to execute the gift deed as promised by his Guru Maya Dass and in this behalf executed a formal agreement dated 1.12.1957, Ex.P1. 5. Meanwhile, Maya Dass died before the gift deed could be executed. After his death, appellant being his Chela succeeded to the estate and Dera left by Maya Dass. Appellant also agreed to execute the gift deed as promised by his Guru Maya Dass and in this behalf executed a formal agreement dated 1.12.1957, Ex.P1. It was stipulated therein that the gift deed would be executed after the consolidation proceedings in village Banga were over and the mutation of inheritance in respect of the land in village Balla had been sanctioned. After the change of inheritance in the mutation records, appellant became reluctant to execute the gift deed. Respondents sent notice to the appellant in this behalf. The appellant sent a telegram in reply saying that he would execute the gift deed on 2.2.1963. It is the case of the respondents that the/reached the office of Sub Registrar on that day but the appellant did not turn up. In these circumstances, the respondents filed a suit stating that they were ready and willing to perform their part of the agreement and prayed for a decree for execution of gift deed by way of specific performance of the agreement dated 1.12.1957, Ex.P1 and in the alternative, for a declaration to the effect that the respondents were the owners of the land and also a decree for possession. 6. The suit was contested. Som Parkash appellant inter alia took the plea that after execution of the agreement dated 1.12.1957, Ex.P1, a fresh agreement dated 2.8.1962, Ex.D1 was executed and by virtue of that agreement, the earlier agreement stood rescinded and cancelled. 7. The sum and substance of the plea which was taken by the appellant in the written statement was that the suit which was instituted on the basis of Ex.P1, was not competent. A plea was also taken that agreement, Ex.P1 was without consideration and the respondents had obtained the appellants signatures under threat and undue influence. After the filing of the written statement, the respondents moved an application dated 29.8.1963 under Order VI, Rule 17, Code of Civil Procedure, for amendment of the plaint so as to claim the relief on the basis of agreement Ex.D1 which was pleaded by the appellant in his written statement. Ultimately, the trial Court allowed the amendment vide order dated 22.10.1963 on payment of costs which were duly paid. Ultimately, the trial Court allowed the amendment vide order dated 22.10.1963 on payment of costs which were duly paid. Amended plaint filed along with the application for amendment was treated to be the plaint in the suit. Written statement to the amended plaint was filed on 3.12.1963. 8. Lateron, the trial Court framed two preliminary issues as to whether the suit was bad for multifariousness and whether the suit was not properly valued for court fee. The trial Court came to the conclusion on 23.1.1964 that the suit was bad for multifarious-ness and accordingly gave the respondents an option to remove the defects. On 28.1.1964 amended suit was filed. It was prayed in the suit that as per agreement dated 1.12.1957, appellant should execute gift deed in favour of the defendants. Written statement to the plaint was filed on 1.2.1964. On the pleadings of the parties, the following issues were framed by the trial Court:- . 1) Whether there was any agreement dated 2.8.62 between plaintiffs and defendant and Charan Dass; if so, to what effect? 2) Whether the plaintiffs are entitled to the possession of the suit land on the basis of the agreement dated 1.12.57? 3) Whether the plaintiffs are entitled to get the gift deed executed and registered in their favour? 4) Whether the plaintiffs are entitled to declaration and injunction prayed for? 5) Whether the agreement dated 1.12.57 was got executed under undue influence; if so, to what effect? 6) Relief. 7) Whether the agreement dated 1.12.57 is without consideration; if so, to what effect? 9. The suit was dismissed by the trial Court vide judgment dated 30.4.1964. Aggrieved by the judgment and decree, the respondents filed Regular First Appeal No. 176 of 1964. The said appeal was disposed of by a short order dated 29.4.1976 whereby the decree of the trial Court was set aside and the suit was remanded to the trial Court. After remand, two additional issues were framed which are to the following effect: 8. Whether Maya Dass was owner of the property in dispute or the property belonged to Bhekh? 9. If issue No. 8 is not proved and it is found out that the property belonged to Bhekh, could it be alienated by the Manager of the Bhekh? 10. After remand, two additional issues were framed which are to the following effect: 8. Whether Maya Dass was owner of the property in dispute or the property belonged to Bhekh? 9. If issue No. 8 is not proved and it is found out that the property belonged to Bhekh, could it be alienated by the Manager of the Bhekh? 10. Again, the trial Court dismissed the respondents suit on the ground that the agreement dated 1.12.1957, Ex.P1 on the basis of which the respondents had claimed the relief, had been substituted by agreement dated 2.8.1962, Ex.D1 and, therefore, the earlier agreement was no longer valid and the respondents suit on that score could not succeed. Aggrieved by the said dismissal of the suit, Regular First Appeal No. 1123 of 1976 was filed, the decision of which has been impugned before us in this Letters Patent Appeal. 11. Mrs. Manisha Gandhi, learned Counsel for the appellant has contended that since the suit was based on agreement dated 1.12.1957, Ex.P1 and that agreement was cancelled or rescinded by the subsequent agreement dated 2.8.1962, Ex.D1, then respondents were not entitled to any relief and the learned Single Judge erred in setting aside the findings of the trial Court which had rightly dismissed the suit. It was vehemently contended by the learned Counsel that the respondents were given an option to remove the defects on the basis of agreement dated 2.8.1962, Ex.D1 and having made an election by the respondents in favour of agreement Ex.P1, no relief could have been granted on the basis of Ex.D1. It was further contended by the learned Counsel that the respondents abandoned/waived of their claim and did not file any appeal against the waiver of their claim on the basis of Ex.D1 and once a claim has been waived by a party, no relief could have been granted by the learned Single Judge. 12. Another point which was urged before us by learned Counsel for the appellant was that in a gift deed if the same is not accompanied by delivery of possession as is the case in hand, that gift deed is incapable of being acted upon. It was also contended before us that a Court cannot grant relief which has not been prayed for in the suit. In this behalf, she placed reliance on Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakur 1997(1) R.C.R. (Civil) 556. 13. It was also contended before us that a Court cannot grant relief which has not been prayed for in the suit. In this behalf, she placed reliance on Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakur 1997(1) R.C.R. (Civil) 556. 13. Another limb of the argument of learned Counsel for the appellant was that no relief in equity superseding the law can be granted. In support of her submission, learned Counsel relied upon Ganesh Shet v. Dr. C.S.G.K. Setty and Ors., in which it has been held: 21. The above principles are, it is clear, special principles applicable to suits for specific performance. The case before us does not fall within the exceptions namely part performance or immaterial variations. Nor is it a case where the plaintiff has agreed to amend his plaint. On the other hand, as already stated, the plaintiff spurned the opportunity given to him by the High Court for amendment of plaint. The case is in no way dissimilar to the cases in Gonesh Ram v. Ganpat Rai, and to Mohd. Ziaul Jaque, referred to above. (b) Yet another aspect of the matter is whether in a suit for specific performance the plaintiff can be given relief under the general prayer such other relief as this Honble Court may deem fit to grant in the circumstances of the case, in the light of Order 7, Rule 7, C.P.C. Order 7, Rule 7, C.P.C. Reads as follows: Relief to be specifically stated: Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. Mulla (CPC) Vol.2 (15th Ed. p. 1224) says that such relief may always be given to the same extent as if it had been asked for, provided it is not inconsistent with that specifically claimed, and with the case raised in the pleading. (See Cargil v. Bower (1978)10 Ch.D. 502, 508; Kidar ball Seal v. Hart Lall Seal. Having laid much stress upon Ganesh Shets case (supra), Mrs. (See Cargil v. Bower (1978)10 Ch.D. 502, 508; Kidar ball Seal v. Hart Lall Seal. Having laid much stress upon Ganesh Shets case (supra), Mrs. Gandhi urged that once despite dismissal of the suit being bad for multifariousness an option having been given to the respondents to rely either upon agreement Ex.P1 dated 1.12.1957 or agreement Ex.D1 dated 2.8.1962, Learned Single Judge committed a grave error in making out a case on basis of equity in favour of the respondents based on subsequent agreement Ex.D1 dated 2.8.1962, as in the suit instituted on 28.1.1964, respondents had chosen to rely upon agreement Ex.P1 dated 1.12.1957. To fortify her submission, she placed reliance upon Sheriff Iqbal Hussain Ahmad v. Kota Venkata Subbamma and Ors., in which it has been held that equity follows law but not vice versa and relevant para is as under: 14. Equity is not available where effective and appropriate remedy is available. Equity cannot be invoked to offset the appropriate and specific remedy available through the common, general or express law of the land. Equity always follows the law, but is not vice versa. Even where equities are equal, law prevails. But, in the instant case, the question of invocation of equity in favour of the defendants does not and cannot arise at all. Equity is basically a gloss or appendage to the common law and not a rival or competing system. Equity does not destroy the law nor create it, but assists it. Even if the court feels that by enforcing the express law of the land, hardship is caused to the defendant there cannot be any equitable intervention. If a person is deprived of his property or any right or interest therein, he should more as a rule than by way of exception, be entitled to get the very property or to have and enjoy the very right or interest which is his and of which he is being deprived rather than pecuniary satisfaction in form of damages. Right to recover property vested under law is different from right to acquire property vested in equity. The obligation or duty in the former arises under the general and common law and is an incident of ownership or possession while under the latter arises through the voluntary acts of the parties and is an incident of contract. Right to recover property vested under law is different from right to acquire property vested in equity. The obligation or duty in the former arises under the general and common law and is an incident of ownership or possession while under the latter arises through the voluntary acts of the parties and is an incident of contract. In the former, specific relief should be granted while in the latter equitable jurisdiction can be invoked in favour of either of the parties depending upon the relevant factors." 15. It was contended before us by Mrs. Gandhi that since the respondents have sought relief on basis of agreement dated 1.12.1957 Ex.P1, therefore, they could not be granted relief on the basis of subsequent agreement dated 2.8.1962 and to fortify this, she placed reliance upon Om Parkash and Ors. v. Ram Kumar and Ors., wherein the Supreme Court has held that a party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute. To the similar effect, learned Counsel for the appellant also cited Katragadda Ramayya and Anr. v. Kolli Nageswararao and Ors., and Mayawanti v. Kaushafya Devi, wherein it has been held: In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the. ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them, Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation. 16. It is, therefore, necessary first to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation. 16. Learned Counsel for the appellant has further argued that on the findings of fact that Ex.P1 was substituted by Ex.D1, the learned Single Judge should not have set aside the findings of the trial Court and, therefore, the respondents were not entitled to decree of specific performance. In support of her submission, learned Counsel has relied upon A.C. Arulappan v. Smt. Ahalya Naik, Controverting the arguments of the appellant, Shri Vikas Bahl, learned Counsel for the respondents contended that the appellant was the brother of the respondents. Maya Dass in his life time had agreed to gift 60 Kanals of land to the respondents in equal shares out of his land situated at Banga and further agreed to give 40 Kanals of land to Biram Dass and Gurbachan Dass respondents out of his land situated at Villages Kajla and Bala and 12 Kanals of land to another brother Karam Dass situated in these two villages. 17. It was further vehemently contended by Shri Vikas Bahl, learned Counsel for the respondents that the order of the trial Court dated 23.1.1964 whereby the respondents were given option to remove the defects in the plaint was wrong and illegal. It was argued that having allowed amendment of the plaint vide order dated 22.10.1963, there was no occasion for the trial Court to come to a different finding. In this regard, learned Counsel contended that those findings were improper, illegal and against the principle of res judicata. In support of his contention, he relied upon Arjun Singh v. Mohindra Kumar and Ors., in which it has been held: The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or on a question of law has been decided between two parties in one suit or proceedings and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.... The principle of resjudicata applies also as between the two stages in the same litigation to this extent that a court, whether the trial Court or a higher Court having at an earlier stage decided a matter in one may not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings." XXX XXXX XXXX XXXX XXX 11. We agree that generally speaking these propositions are not open to objection. If the court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lay would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Similarly, as stated already, though Section 11 of the Civil Procedure Code clearly contemplates the existence of two suits and the findings in the first being res judicata in the later suit, it is well established that the principle underlying it is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. But where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. XXX XXXX XXXX XXX 18. Mr. XXX XXXX XXXX XXX 18. Mr. Vikas Bahl, Advocate, learned Counsel for the respondents urged that once appellants had stated in the written statement that first agreement Ex.P1 dated 1.12.1957 stood rescinded and a fresh agreement Ex.D1 dated 2.8.1962 was executed to bind the parties and accordingly the suit was amended and subsequently after same was dismissed for multifariousness it is too late in the day to bar the respondents from seeking relief which will flow to them out of subsequent agreement Ex.D1 dated 2.8.1962 on the ground that in the suit filed on 28.1.1964 merely because the respondents had relied upon Ex.P1. He has stated that the respondents being plaintiffs could rely upon Ex.D1 subsequent agreement admitted by the defendant vest in them rights alternatively and in support of this submission. Learned Counsel for the respondents relied upon Firm Sriniwas Ram Kumar v. Mahabir Prasad and Ors., wherein it has been held: ...A pltf. may rely upon different rights alternatively and there is nothing in the Civil P.C. To prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. On a case for which there was no foundation in the pleading and which the other wise was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. In his written statement but was expressly put forward as an answer to the claim which the pltf. Made in the suit, there would be nothing improper in giving the pltf. A decree upon the case which the deft. himself makes. A demand of the pltf. Based on the defts own plea cannot possibly be regarded with surprise by the latter and 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 defts., it may not be proper to drive, the pltf. to file a separate suit.... 19. Learned Counsel also relied upon Vishram Arjun v. Irkulla Shankariah and Anr. In his pleadings. In such circumstances when no injustice can possibly result to the defts., it may not be proper to drive, the pltf. to file a separate suit.... 19. Learned Counsel also relied upon Vishram Arjun v. Irkulla Shankariah and Anr. A.I.R. 1957 Andhra Pradesh 784 wherein it has been held: Though the plaintiff might not have expressly claimed on the basis of agreement dated 3.4.1951 which reduced the monetary obligation under Ex.P-6, when the defendants themselves in defence had set up the said agreement and the issues were raised and the case was tried on that basis, both on principles and authority, relief cannot be denied to the plaintiff as warranted by the merits of the case. (13) It is alleged on behalf of the defendants that since the plaintiff has failed to produce the document (another counter-part of Ex.D-7) along with the plaint or at any time during the trial, no relief can be granted on the simple ground that the document which should form the basis of the suit is not before the court. This objection fails to take into consideration that the defendants who have set up their claim, have filed the counter-part (Ex.D-7) and to see that the other counter part is brought on record, they, after due notice to the plaintiff have filed the copy thereof because both counter-parts evidence one complete contract which should form the basis of their claim. This copy is not denied. As a matter of fact both Ex.D-7 and the said copy have been admitted in toto with the result that neither the production of the original nor even the proof of the same having regard to the provisions of Section 58 of the Evidence Act is necessary. (14) Stress had been laid on the fact that there has been a breach of mandatory provisions of Order 7 Rule 14, C.P.C., for the original is not produced along with the plaint. The object of this rule seems to be only that such documents as regards the genuineness of which suspicions might arise on account of subsequent production may be excluded. 20. That is the reason why the only penalty imposed for such breach under Order 7 Rule 18, C.P.C., is that such document shall not, without the leave of the court, be received in evidence on behalf of the party at the hearing of the suit. 20. That is the reason why the only penalty imposed for such breach under Order 7 Rule 18, C.P.C., is that such document shall not, without the leave of the court, be received in evidence on behalf of the party at the hearing of the suit. Evidently, the document in question is not Bone of the kind for both its execution and its contents are undisputed. It is further argued that the documents filed by the defendants can legally be made the basis only for the counter claim or defence against the claim for the plaintiff but cannot in law be used for purposes of granting any relief to the plaintiff. There seems to be no warrant for this proposition. 21. We cannot agree with the contention that a document produced by a party and admitted in evidence cannot be used for all purposes or the admissions of the parties in a suit will fall to have their full legal effect in so far as the rights and obligations of the parties to the suit are concerned. Learned Counsel further relied upon Sardari Lal v. Kartar Singh and Ors. (1998-2)119 P.L.R. 485 wherein it has been held: 21. Now the point which survives for determination is whether we should grant a decree for specific performance as prayed for by the plaintiff or grant an alternative relief emerging from the facts of the case. The case of the plaintiff appellant is that he parted with a sum of Rs. 24,700/- as he wanted to get a usufructuary mortgage by virtue of document (exhibit PA) dated August 8, 1971. He could not become the owner. The mortgagor has always the right to redeem the property within limitation. In these circumstances, we would not like to give directions to the respondents to execute a usufructuary mortgage in favour of the plaintiff and that too after a lapse of more than 25 years. It is established on the record that the plaintiff parted with a sum of Rs. 24,700/- to defendants Nos. 1 and 2. The other defendants are either the legal representatives or the assignees of defendants Nos. 1 and 2. they have derived the benefit either under the decree or by way of succession. All the defendants are bound to return the benefits which they had received under the contracts dated August 15, 1968 (Exhibit PB) and August 8, 1971 (Exhibit PA)1. The other defendants are either the legal representatives or the assignees of defendants Nos. 1 and 2. they have derived the benefit either under the decree or by way of succession. All the defendants are bound to return the benefits which they had received under the contracts dated August 15, 1968 (Exhibit PB) and August 8, 1971 (Exhibit PA)1. Under Order 7 Rule 7, Code of Civil Procedure, Civil Court can always grant relief, though not prayed for, after it emerges out from the facts and circumstances of the case.... Controverting the arguments of learned Counsel for the appellant that having not challenged the order of the trial Court when the respondents were non-suited on the ground of muitifariousness of the prayer and mis-joinder of the parties, no plea can be entertained at this stage. Learned Counsel contended that a party is not bound to file appeal against every interlocutory order which is set in procedure and leads to final decree and appeal can be maintained after final decree has been passed by the Court, taking the ground of interlocutory order which has merged in final decree. In support of his contention, learned Counsel cited Achal Misra v. Rama Shanker Singh and Ors. 22. It was also contended by learned Counsel for the respondents that the argument of the appellant regarding delivery of possession on the basis of gift deed has never been taken in appeal. In any event of the matter, it has been contended before us that the gift deed was a mode of transfer. It was not the agreement. The agreement is Ex.D1. As a matter of fact it was Ex.D1 which was the basis of plea of the appellant in the written statement. Therefore, the appellant cannot turn around to say that as the possession of land has not been given, he is not bound to execute any gift deed. Repelling the contention of the appellant that the learned Single Judge ought not to have given relief on the basis of Ex.D1, although the same was pleaded by the appellant himself, reliance was placed on Sona Bala Bora and Ors. v. Jytirindra Bhatacharjee, in which it has been held: 28. In any event and assuming Bhogirath was compos mentis, what the Division Bench overlooked was that the appellants sought enforcement of the compromise which has never been challenged either by Bhogirath or the respondent. v. Jytirindra Bhatacharjee, in which it has been held: 28. In any event and assuming Bhogirath was compos mentis, what the Division Bench overlooked was that the appellants sought enforcement of the compromise which has never been challenged either by Bhogirath or the respondent. In other words they sought specific performance of the agreement whereby Bhogirath had bound himself to transfer one of the bungalows to the first appellant. This being so the Appellate Court should have at least applied its mind to this aspect of the matter. 23. The main thrust of the argument of learned Counsel for the respondents was that in the written statement filed in the suit, the plea of Ex.D1 having been executed was taken subsequently by the appellant, as the land which was to be given pursuant to the agreement Ex.P1 was more than the land, to be given pursuant to Ex.D1. As per Ex.D1, land to the extent of 75 Kanals was to be given to the respondents, whereas in Ex.P1 it was 163 Kanals which was to be given to the respondents. Having taken a plea as a defence in the written statement that the appellant was not to give X land but Y land and the learned Single Judge having granted that relief, the same cannot be faulted by the appellant. 24. We have heard learned Counsel for the parties and gone through the record. We would like to deal with the argument taking the totality of the pleadings of the parties on the issue of substitution of Ex.P1 by Ex.D1. After the suit was dismissed on ground of muitifariousness giving an option to respondents, they instituted amended suit on 28.1.1964 to which written statement was filed on 1.2.1964, which is in Gurmukhi. (We have perused the same as Brother Kanwaljit Singh, J. is conversant with Gurmukhi and has read it over). We got the same translated from the Official Translator. In paragraph 3 of the written statement, on merits, the appellant has stated: 3. Absolutely wrong. On 8.4.46, Shri Maya Dass had appointed the defendant as his Chela in the presence of Bhekh Mandal Udasis, District Jalandhar by virtue of a writing duly registered and during his life time, defendant kept on rendering his services to Guru Maya Dass as his Chela. Absolutely wrong. On 8.4.46, Shri Maya Dass had appointed the defendant as his Chela in the presence of Bhekh Mandal Udasis, District Jalandhar by virtue of a writing duly registered and during his life time, defendant kept on rendering his services to Guru Maya Dass as his Chela. It is absolutely wrong that during the life time of Guruji, the plaintiffs wanted to challenge that I (defendant) was his Chela. Moreover, the plaintiffs had no right to do so. It is also incorrect that Guru Maya Dass had promised to gift 60 Kanals of land at Banga, 40 Kanals and 12 Kanals of land at Kajla and Bala respectively to the plaintiffs. On 1.12.57, the plaintiffs had obtained the signatures of the defendant on a writing dated 1.12.57 forcibly without telling any reason, when the defendant was mourning the death of his Guruji. This writing cannot be termed as an agreement and the same is without consideration. The said writing was got prepared by putting undue influence. Even if the court declares the said writing dated 1.12.57 to be an agreement, the plaintiffs have no right to file the present suit, because the plaintiffs alongwith Charan Dass on one side and the defendant on the other side have got executed an agreement dated 2.8.62. This agreement was executed between the plaintiffs, their brother Charan Dass and the defendant in respect of land situated at village Bala and Kajla and the same was executed while setting aside the agreement dated 1.12.57. Moreover, the agreement, dated 2.8.62 is Novation of contract. The agreement dated 2.8.62 was executed between Som Parkash, defendant as first party and Charan Dass, Karam Dass, Biram Dass, Gurbachan Dass sons of Mahant Devi Dass as the second party. In the said agreement, it was mentioned that the previous agreement was executed between the defendant and the plaintiffs except Charan Dass, in respect of land situated at Banga, Bala and Kajla and that instead of this land, the first party (defendant) would get registered a gift deed in favour of second party (plaintiffs and Charan Dass) in respect of land situated at village Kajla, the detail of which is given in agreement dated 2.8.62 and the land measuring 55 Kanals 14 Marlas situated at Village Bala, the detail of which is given in said agreement dated 2.8.62 in accordance with the conditions laid down in the agreement dated 2.8.62. By virtue of this present agreement, the plaintiffs and the defendant had cancelled to get the gift deed executed in respect of land mentioned in the agreement dated 1.12.57 and as such the present suit is not maintainable. Thus, the contents of this para are absolutely wrong. It is also incorrect that the land in dispute is mentioned in the alleged agreement dated 1.12.57 presented by the plaintiffs. 25. A perusal of aforesaid paragraph 3 of the written statement filed by the appellant in the suit shows that a plea was taken that Ex.P1 was the result of undue influence. A specific issue on that score was framed by the trial Court i.e. issue No. 5. From the perusal of discussion on issue No. 5, the trial Court held that in view of oral evidence of Dharam Pal PW1 who scribed the agreement Ex.P1 and that of Darshan Dass PW2 who attested it and the fact that Som Parkash appellant having admitted execution and registration of the document, it could not be held that Ex.P1 was the result of fraud and undue influence and, therefore, issue was decided against the appellant. Moreover, pursuant to Ex.P1 a larger chunk of land was to be given to the respondents, whereas by virtue of Ex.D1 which was put in defence by the appellant in the amended written statement, instead of land which was to be given pursuant to Ex.P1, the liability of the appellant was to give land limited to Ex.D1, to the respondents (which is less area of land than the one given in agreement dated 1.12.1957) 26. As a matter of fact, when the suit was remanded back additional issues Nos. 8 and 9 were framed in the suit which have been reproduced above. The trial Court on issue No. 8 held that Maya Dass was owner of the property in dispute and there was no evidence on record to show that the property belonged to the Bhekh, though a specific stand was taken by the appellant that the property was inherited by him as Chela of Maya Dass and it should be held that it belonged to Bhekh. However, that suit was dismissed holding that the same was filed on the basis of agreement Ex.P1. 27. However, that suit was dismissed holding that the same was filed on the basis of agreement Ex.P1. 27. So far as the arguments of both the sides on the question of trial Court allowing the amendment of plaint and later on in spite of amendment dismissing the suit on the basis of Ex.P1, the fact remains to be seen that none of the parties challenged the order allowing the amendment by the trial Court. Therefore, having allowed the amendment permitting the respondents to make a prayer based on Ex.D1, the findings of the trial Court that the suit was not maintainable, were totally contrary to law and had rightly been set aside by the learned Single Judge and granting a lesser relief than what was claimed originally in the suit by the respondents. In our opinion, appellant on the one pretext or the other in order to deny relief to the plaintiffs has been blowing hot and cold in the same breath. The respondents when filed a suit to claim relief on the basis of agreement Ex.P1 dated 1.12.1957, appellant took a plea in his written statement that there is a novation of agreement and the respondents were not entitled to relief as the suit is bad as they have not claimed relief on the basis of subsequent agreement Ex.D1 dated 2.8.1962. When respondents amended the suit and claimed alternative relief, their suit was dismissed for multifariousness. Ex.P1 dated 1.12.1957 if executed would have vested larger chunk of land in favour of the respondents. Ex.D1 was executed to restrict claim of the respondents for lesser land. Now when the learned Single Judge has granted relief to the respondents on basis of Ex.D1, which appellant wanted that on basis of the same suit should have been filed, it cannot be urged before us that learned Single Judge ought not have granted relief on the basis of Ex.D1 and by doing so he has committed a grave error as respondents were claiming relief on basis of agreement dated 1.12.1957 Ex.Pl. We are of the considered view that learned Single Judge while deciding the appeal, has rightly observed as under: I have heard the learned Counsel for the parties and have also gone through the relevant evidence on record. It is unfortunate that this dispute has been pending since the year 1963. We are of the considered view that learned Single Judge while deciding the appeal, has rightly observed as under: I have heard the learned Counsel for the parties and have also gone through the relevant evidence on record. It is unfortunate that this dispute has been pending since the year 1963. No doubt, as a general rule no plaintiff is entitled to a relief for which there is no foundation in the plaint but when on the pleadings and the issues and the evidence adduced the relief is clear, this general rule does not apply because it is the duty of the Court to grant relief as the circumstances of the case would warrant even though it may not be asked for. Reference in this respect be made to Vishram Arjuns case (supra). It has also been observed therein that the primary duty of Courts, after all, is to do justice. Rules of procedure are intended only to advance the cause of justice rather than to impede the same. All that the Court is to guard against is that no prejudice has been done or no surprise has been sprung to the other party. It is the case of the defendant Som Parkash himself that the earlier agreement Ex.P1 was superseded by another agreement Ex.D1, dated 2nd August, 1962. As a matter of fact, the plaintiffs were allowed to amend their plaint when this plea was taken in the written statement and amended plaint dated 29th August, 1963 was also accordingly filed. Charan Dass, one of the brothers of the parties, who was not a party to the original suit was also impleaded therein as the defendant. It is quite surprising that later on the said order of amendment of the plaint dated 22nd October, 1963 was set at naught by another order dated 23rd January, 1964. If that amended plaint dated 29th August, 1963 was there, then it could not be successfully argued on behalf of the defendant that the plaintiffs were not entitled to the relief under the agreement Ex.D1 assuming that the earlier agreement Ex.Pl was superseded by the subsequent one. Since on all the material issues, the finding has been given in favour of the plaintiffs I do not find any justification for sending the case back again for re-trial on the basis of amended plaint dated 29th August, 1963. Since on all the material issues, the finding has been given in favour of the plaintiffs I do not find any justification for sending the case back again for re-trial on the basis of amended plaint dated 29th August, 1963. All the relevant facts are on the record. Ex.D1 has been duly proved and is admitted by the defendant himself. Thus, on the facts and circumstances of the case, the plaintiffs are entitled to the relief on the basis of the amended plaint dated 29th August, 1963 in accordance with the terms of the agreement Ex.D1. 28. Learned Single Judge has further laid much stress on the fact that Ex.D1 is not disputed rather admitted by the parties to the suit especially by appellant. Therefore, once the execution of Ex.D1 was admitted by the appellant himself, relief cannot be denied to respondents on the basis of hyper-technicalities. We cannot subscribe to the submission of learned Counsel for the appellant that the respondents were given an option either to sue on the basis of agreement dated 1.12.1957 or on basis of agreement dated 2.8.1962 Ex.D1, because once they made an election to contest the suit on basis of agreement Ex.P1 dated 1.12.1957, they cannot be granted relief on the basis of agreement dated 2.8.1962 whose execution is admitted by the appellant himself. 29. The judgement cited by learned Counsel for the appellant in Ganesh Shets case (supra) cannot be relied upon because in that case the first contract was not found to be concluded contract and the second contract was not proved to be a fresh or independent contract, whereas in the present case both the documents have been found conclusive though by mutual understanding Ex.P1 dated 1.12.1957 was superseded by Ex.D1 dated 2.8.1962 for getting lesser relief. 30. On similar grounds, judgement rendered in Sheriff Iqbal Hussain Ahmads case (supra) cannot be relied as relief has not been given to the respondents on the basis of equity but on the case pleaded by the appellant himself. The judgements rendered in Om Parkashs case (supra) and Katragadda Ramayyas case (supra) also will not be of any help to the appellant as the appellant having built the entire edifice around agreement dated Ex.D1 dated 2.8.1962 cannot claim prejudice. 31. The judgements rendered in Om Parkashs case (supra) and Katragadda Ramayyas case (supra) also will not be of any help to the appellant as the appellant having built the entire edifice around agreement dated Ex.D1 dated 2.8.1962 cannot claim prejudice. 31. Neither we can subscribe to the view that respondents who were agitating since filing of the suit on 21.3.1963 had abandoned or waived off their claim. They had filed the initial suit on the basis of agreement Ex.P1 dated 1.12.1957. They had sought amendment and during entire litigation, Courts were seized off the issue whether agreement Ex.P1 dated 1.12.1957 stands substituted by Ex.D1 agreement dated 2.8.1962 or not. Moreover, the stand taken by the Ld. Counsel for the appellant that in pursuance of order dated 23.1.1964, whereby an option was given to the plaintiffs to remove the defect and amend the plaint on the basis of agreement dated 2.8.1962 (Ex.D1), the respondents having made an election in favour of Ex.P1 dated 1.12.1957 and waived of their claim qua Ex.D1 dated 2.8.1962 without challenging the said order, cannot be granted any relief on the basis of Ex.D1 in appeal, is not tenable. It is well established law that interlocutory orders can always be challenged in appeal when filed against the final order. In the present case, the respondents when filed an appeal against dismissal of the suit on 30.4.1964 took specific grounds challenging the order dated 23.1.1964, which are reproduced below: 7. That at any rate the agreement Exhibit D.1 had not effect of superseding and cancelling the original agreement dated 1st December, 1957. The conditions mentioned in Exhibit D.1 and nonperformance thereof had the effect of reviving the rights and obligations under the old agreement. xxxx xxxx xxxx xxxx xxxx 8. That the defendant-respondent has failed to prove novation of the original contract. In any case the plaintiffs were entitled to a decree even in terms of agreement dated 2nd August, 1962. 32. Our this view find support from the law laid down by Honble Apex Court in Achal Misras case (supra) wherein it has been held as under: 13. This principle is recognised by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order 43 Rule 1-A of the Code. 32. Our this view find support from the law laid down by Honble Apex Court in Achal Misras case (supra) wherein it has been held as under: 13. This principle is recognised by Section 105(1) of the Code of Civil Procedure and reaffirmed by Order 43 Rule 1-A of the Code. The two exceptions to this rule are found in Section 97 of the Code of Civil Procedure, 1908, which provides that a preliminary decree passed in a suit could not be challenged in an appeal against the final decree based on that preliminary decree and Section 105(2) of the Code of Civil Procedure, 1908, which precludes a challenge to an order of remand at a subsequent stage while filing an appeal against the decree passed subsequent to the order of remand. All these aspects came to be considered by this Court in Satyadhyan Ghosal v. Deorajin Debi wherein, after referring to the decisions of the Privy Council, it was held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from a final decree or order. It was further held that a special provision was made in Section 105(2) of the Code of Civil Procedure as regards orders of remand where the order of remand itself was made appealable. Since Section 105(2) did not apply to the Privy Council and can have no applicable to appeals to the Supreme Court, the Privy Council and the Supreme Court could examine even the correctness of an original order of remand while considering the correctness of the decree passed subsequent to the order of remand. The same principle was reiterated in Amar Chand Butail v. Union of India and in other subsequent decisions. 33. Another argument of the appellant that in case of gift deed if same is not accompanied by delivery of possession, becomes inoperable is a ground which has neither been taken in the appeal nor such a plea was taken in the written statement filed in the, suit. 34. 33. Another argument of the appellant that in case of gift deed if same is not accompanied by delivery of possession, becomes inoperable is a ground which has neither been taken in the appeal nor such a plea was taken in the written statement filed in the, suit. 34. Furthermore in the present case, in order to avoid litigation, Maya Dass had agreed to give land to the brothers of the appellant and to have smooth succession to the seat of Dera of Maya Dass, Som Parkash, his nephew, firstly executed agreement dated 1.12.1957 Ex.P1 and subsequently an agreement dated 2.8.19692 Ex.D1 and later to say that the same was not accompanied by delivery of possession and the agreements be held negatory is to have a cake and eat it too, which is not acceptable. 35. Hence, we affirm the findings of learned Appellate Court below and find no merit in the present appeal and the same is dismissed. The parties are left to bear their own costs.