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Second Appeal No. 40 of 1968, decided on 15th May 1968. . ,

S. 96‑Rellef‑Decree for bigger amount than claimed‑Could be passed where such relief followed directly from view held by Court and to avoid multiplicity of litigation‑Appeal on technical ground not accepted by high Court.

Rasool Bux Memon for Appellant.

Maroof Ali Khan for Respondents.

Date of hearing : 15th May 1968.

.‑This second appeal is directed against,., the judgment of an Additional District Judge, Sukkur dated the 4th of December 1967, by which he dismissed the First Appeal of the present appellant as well as the cross objections filed by the present respondents. The appellant has now come in Second Appeal to this Court.

2. The facts which form the background, according to counsel for the parties are, that House No. D‑2131 situated in Sukkur was transferred to the present appellant on the 30th of December 1959, by the Settlement and Rehabilitation Department. On the 27th of April 1961, the present appellant entered into two agreements with the respondents to sell it to them for a total consideration of Rs. 6,048.

3. In the meantime, the transfer made in favour of the appellant was questioned by some occupants of the house which was a double‑storeyed building and consisted of 14 tenements. Six of the tenements, according to counsel, were on the first floor and eight on the ground floor. The disputes were ultimately settled in a proceeding which took place before the Settlement Commissioner. The compromise, according to counsel for the parties, was made on the 7th of March 1963. By virtue of it, the present appellant agreed to give up his claim to all the tenements of the house excepting for one on the first floor ‑and one on the ground floor, but in consideration of this relinquishment of his claim, he was granted a small house which was situated behind the house that was in dispute.

4. As a result of the above compromise, the appellant lost his right to sell the whole house to the respondents; therefore, the respondents brought a suit being Suit No. 182 of 1964 for specific performance of that part of the agreement which related to the two tenements which remained with the appellant, for refund of the price of the tenements which went out .of his entitlement and for damages. He valued the suit at Rs. 7,684 and paid Court‑fee on it. The trial Court dismissed their claim for specific performance on the ground that the defendant‑appellant was not in a position to sell the tenements which remained with him because he was holding a P. T. O. only and not a Final Transfer Order. In consequence of this finding, the Court also dismissed the suit for damages but decreed the suit not only for Rs. 6,048. The present appellant went in appeal and contended that the amount decreed was in excess of the amount which was claimed in the plaint. That appeal, as mentioned above, was dismissed; therefore, the defendant. appellant has come in Second Appeal to this Court.

5. Counsel for the appellant has argued that the respondents had prayed for the refund of R.s. 5,184 and interest on that amount only; therefore, the trial Court and the Appellate Court had no jurisdiction to decree the suit for the refund of Rs.6,048. The decree according to counsel is outside the pleadings and beyond the prayer made by the respondents.

6. Counsel for the respondents has on the contrary con tended that as a result of the refusal of the lower Courts to grant the relief of specific performance, it became clear that the defendant‑appellant was not in a position to sell the property at all. The plaintiffs‑respondents had originally taken the stand that the defendant‑appellant could sell the property which bad been transferred to him, but this stand was not upheld by the lower Courts. The consequence therefore, was that instead of the refund of Rs. 5,184 the plaintiffs‑respondents were found to be entitled to the refund of Rs. 6,048. It is true that the relief claimed by the plaintiffs‑respondents, consistently with their claim for specific performance, could be and was for the refund of Rs. 5,184 only; but the lower Courts could decree the suit for a bigger amount because this relief followed directly from the view held by them and because the bigger amount avoided multiplicity of litigation. In support of this contention counsel for the respondents has relied on Raghu Nath Sahay and others v. Chandra Protap Singh (15 I C 268) and M. J. McGrath v. Mrs. M. K. McGrath (P L D 1952 Lah. 533). In both of these cases bigger reliefs than claimed were granted on the ground that multiplicity, of litigation was to be avoided and justice was to be done in accordance with the findings of the Courts.

7. In this case if the appeal of the present appellant was accepted on the technical ground that it is in excess of the relief which was claimed in the plaint. The decree would be reduced by Rs. 864 only. But such a highly technical view does not appear to be consistent with either the policy of law that multiplicity of litigation should be avoided, or with the obvious duty of the Courts that justice should be done by them according to their findings if by doing so no rights are violated and no burdens are increased beyond their due weight. We are, therefore, not inclined to interfere with the view taken by the lower Courts and dismiss the appeal with no order as to costs.

A. E. Appeal dismissed.

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