Raj Singh vs Shri Harpal and Others

V.K. Shukla, J.—Present second appeal has been preferred against the judgment and decree dated 17.01.2004 passed by District Judge, Court No. 1, Muzaffarnagar in Civil Appeal No. 211 of 1998, Raj Singh and Ors. v. Harpal Singh, partly dismissing partly allowing the appellant''s appeal and partly confirming the order of trial court, Civil Judge (Senior Division), Muzaffarnagar passed in original suit No. 305 of 1995.

Brief background of the case is that original suit No. 305 of 1995 was filed with the case that the defendant No. 1 of the said suit had agreed to sell his property for a sum of Rs. 98,500/- to late Om Prakash, brother of the plaintiff and defendant Nos. 2 and 3, Jeth of respondent No. 4 and uncle of respondent Nos. 5 to 7, vide registered agreement to sell dated 04.10.1993, and as per the same the defendant No. 1 had received Rs. 50,000/- by way of advance, Rs. 41,000/- before the Sub-Registrar and Rs. 7,500/- was left to be paid. As per the plaint case Om Prakash was ready and willing to pay Rs. 7500/- and gave registered notice on 15.04.1994 asking defendant No. 1 to remain present on 03.10.1994 or 04.10.1994 at the office of sub-Registrar for the purposes of executing sale deed. Om Prakash remained present at the office of sub-Registrar but defendant No. 1 did not turn up. Om Prakash died on 25.12.1994. Thereafter, request was made by the plaintiff and the proforma defendants for execution of sale deed and in this behalf notice was given on 07.03.1995, but the defendant No. 1 did not turn up, and gave reply that there was relationship of loaner and loanee, and after 11 months, the said amount of loan (Rs. 41,000/-) was repaid to late Om Prakash with interest and further payment of Rs. 50,000/- was disputed. The prayer made in the plaint was that as per terms and conditions of the agreement to sell, direction be issued to defendant No. 1 for execution of sale deed. Alternative relief was also prayed for. Said suit was contested by the defendant No. 1 by contending that the plaintiff and the proforma defendants were not real heirs of late Om Prakash and execution of document was also disputed; the price of the property was described as Rs. 3,00,000/-, and as such there was no occasion to sell the property, and further theory of loan had been set up. It was further contended that before the sub-Registrar agreement was not read over to him and the same was an outcome of fraud and manipulation and further the amount in question had been returned back and that he is old tenure holder and has no source of livelihood. On the basis of pleadings, in all, seven issues were framed. From the side of the plaintiff, Harpal Singh, Ashok Kumar Singh and Niranjan Singh appeared as P.W.-1, P.W.-2 and P.W. -3, respectively. From the side of the defendant, Raj Singh and Prakash were examined as D.W.-1 and D.W.-2. The appellate court on 15.04.1998 decreed the suit for specific performance by directing to get the sale deed executed after accepting the balance amount of Rs. ,7500/-, failing which the plaintiff would be entitled to get the sale deed executed through court, and further decree was also passed for damages. Aggrieved against the said judgment and decree civil appeal was filed. Said appeal has been partly allowed; and the amount which had been awarded as damages had been set aside. At the said juncture present second appeal was filed.

Sri Nalin Kumar Sharma, learned Counsel for the appellant, contended with vehemence that in the present case suit could not have been decreed, as the court below has not at all considered as to whether it was a case for exercise of discretion by the court to decree the suit for specific performance in terms of Section 20 of the Specific Relief Act, the decree being inequitable, the judgment and decree passed by the courts below is liable to be set aside.

Countering the said submission, Sri Ramendra Asthana, Advocate, appearing for the respondents, on the other hand, contended that in the present case both the courts below have recorded concurrent finding of fact that the plaintiffs were ready and willing to perform their part of contract and the defendant has taken totally false plea that there was loan transaction of an amount of Rs. 41,000/- and even the said amount had been returned back, and in this background both the courts below have rightly decreed the suit, taking into account over all facts and circumstances of the case.

After respective arguments have been advanced, the factual position which emerges in the present case is that both the courts below have recorded categorical finding of fact that inter se parties at no point of time there had been any loan transaction, and further as claimed, at no point of time the said amount had ever been returned back, rather to the contrary, there was an agreement dated 04.10.1993 and before the Sub-Registrar, the defendant had admitted receipt of Rs. 50,000/- in the past and Rs. 41,000/- had been paid at the point of time when document in question was got registered and only Rs. 7500/- were left to be paid, which the plaintiffs were ready and willing to pay, and in this regard written notice had been given to the defendant for presenting himself before the sub-Registrar on two occasions, but the defendant did not choose to appear. The finding of fact recorded on the question of validity of agreement as well as on the question of readiness and willingness of the plaintiffs, in the facts of the case, cannot be disputed.

Much emphasis has been laid on the fact that in the present case, suit in question ought not to have been decreed, as decreeing of suit for specific performance was not automatic in terms of Section 20 of the Specific Relief Act, and equities ought to have been adjusted in favour of the defendant.

Hon''ble Apex Court in the case of Kanshi Ram Vs. Om Prakash Jawal and others, has taken the view that decreeing of civil suit for specific performance is not automatic. Discretion is to be exercised on principle of justice equity and good conscience.

Hon''ble Apex Court in the case of Malapali Munaswamy Naidu v. P. Sumathi 2004 (13) SCC 364, has taken the view that while decreeing the suit for specific performance matter should be tested on parameters of Section 20 of the Specific Relief Act as to whether it was a fit case for exercise of discretion to decree the suit for specific performance or not.

Hon''ble Apex Court in the case of Rajeshwari Vs. Puran Indoria, has laid down the test for determining whether a question of law raised is substantial one or not and has further mentioned that normally a suit for specific performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract. The question should be considered as to whether court can pass decree for specific performance in terms of Section 20 of the Specific Relief Act.

Hon''ble Apex Court in the case of Banshilal Soni (Dead) through L.Rs. Vs. Kastoor Chand Begani (Dead) by L.Rs. and Others, , has taken the view that in the facts of the case noticing the inconsistencies and variance in the stand of the defendant vendors and unwarranted conclusions drawn by High Court in the impugned order, in the facts of the case awarded compensation instead of specific performance, even though the case for specific performance more or less was made out.

Hon''ble Apex Court in the case of Bal Krishna and Anr. v. Bhagwan Das (dead) by L.Rs. and Ors. 2008 (2) ARC 893, has taken the view that as per Section 20 of the Specific Relief Act, the relief lies in the discretion of the Court. Court is not bound to grant such relief merely because it is lawful to do so.

On the parameters as laid down in the aforesaid cases, in the present case, record in question reflects that such an issue was raised before the trial court and the trial court considered the matter in the light of the provisions as contained u/s 20 of the Specific Relief Act, and therein had chosen to exercise discretion in favour of the plaintiffs by contending that out of total amount of Rs. 98,500/- Rs. 91,000/- had already been accepted and in this background there was no occasion of any comparative hardship, when with open eyes agreement had been executed and in the facts of the case, claim of the defendant cannot be accepted, specially when he had set up false plea of loan amount. Before the lower appellate court said plea had not at all been raised, and the pleas which were raised had been dealt with and turned down by the Appellate Court. This Court has perused the record and found that there was an agreement to sell and substantial amount of Rs. 91,000/- had already been taken and only a meagre amount of Rs. 7500/- was to be paid, and there was readiness and willingness on the part of the plaintiffs to get the sale deed in question decreed. The trial court has rightly considered the matter on the parameters of Section 20 of the Specific Relief Act. Hon''ble Apex Court in the case of Balasaheb Dayaandeo Naik v. Appasaheb Dattaraya Pawar 2008 (70) ALR 815, has taken the view that where claim of specific performance is clearly established by cogent evidence, therein Hon''ble Apex Court instead of going for alternative relief of refund, has directed for decree of specific performance, wherein substantial amount had already been paid. No substantial question of law is involved; the appeal deserves to be dismissed.

Consequently, present second appeal is dismissed.

No order as to costs.