Smt. Reshamwati vs Naubat Rama
2015 Latest Caselaw 4704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 19
 
                                                                                                     AFR
 
Case :- 	SECOND APPEAL No. - 954 of 2015
 

 
Appellant :- 		Smt. Reshamwati
 
Respondent :- 	Naubat Rama
 
Counsel for Appellant :- 		Ramendra Asthana
 
Counsel for Respondent :- 	Vishwa Pratap Singh
 

 
Hon'ble Pramod Kumar Srivastava,J.

1. Original Suit No. 342/2002, Naubat Ram Vs. Smt. Reshwamwati was filed for the relief of specific performance of contract of sale of property of defendant in favour of plaintiff. This suit was decreed by the judgment dated 10.04.2014 of Addl. Civil Judge (S.D.), Badaun. Against this judgment of trial court, Civil Appeal no. 10/2014, Smt. Reshamwati Vs. Naubat Ram was preferred which was dismissed on merits by the judgment dated 16.09.2015 of the Additional District Judge, Court No. 9, Budaun, who had confirmed the findings of the trial court for specific performance of contract. Aggrieved by the judgment of the two courts below, present second appeal has been preferred by the defendant of the original suit.

2. It is pertinent to mention that execution of registered deed of agreement to sell was admitted by the parties. The defendant-appellant had taken a few factual points which were not proved, and the trial court as well as first appellate court had given concurrent findings of facts that parties had executed registered agreement to sell dated 20.9.1999 by which the defendant-appellant had taken advance consideration and agreed to execute registered sale-deed of disputed property after receiving remaining consideration. Thereafter plaintiff had been ready and willing party his part of contract but it was the defendant who had not executed sale-deed in spite of reminders and notice. With this findings both the courts below have confirmed the decree of specific performance of aforesaid agreement to sell.

3. So far factual aspect is concern, it was not challenged by the appellant. A perusal of the record reveals that there has been consistent and concurrent finding of fact on above mentioned point. Therefore, execution of registered agreement to sell has been proved and it is also proved that plaintiff-respondent has been ready and willing to perform his part of the contract, but it could not be executed due to fault of defendant-appellant.

4. Learned counsel for the appellant in second appeal contended that the two courts below had not properly considered the provision of section 20 of the Specific Relief Act in the light of facts and circumstances available before them. He contended that although powers under section 20 of the Specific Performance Act is discretionary but court should have applied it in this specific case, and should have ordered for the return of advance consideration to plaintiff-respondent instead of directing specific performance of contract through execution of sale-deed of property which would, in fact, ruin the appellant's family.

5. Counsel for the appellant has cited single bench Rule of this Court report in the case of Om Prakash Vs. Ram Kishan Gupta, 2007 (666) ALR 885 in which this court has held as under:

"Section 20(2) of the Specific Relief Act provides that the Court has discretion to decree the suit for specific performance. It is not bound to grant specific relief merely because it is lawful to do so. The discretion, however, is not to be exercised arbitrarily, but on sound and reasonable ground guided by judicial principles. The guidelines for exercise of such discretion provided in sub section (2) EW:-

(a) Where the term of the contract or the conduct of the parties at the time of entering into contract or the other circumstances under which contract was entered into are such that the contract, though not available, gives the plaintiff an unfair advantage over the defendant, or

(b) Where the performance of the contract would involve some hardship on the defendant which he did not forsee, whereas its non performance would not involve no such hardship to the plaintiff, or

(c) Where the defendant entered into the contract under circumstances which though not render the contract avoidable, makes it inequitable to enforce specific performance".

6. Learned counsel for the appellant had also cited Dada Rao and another Vs. Ram Rao and others (1999) 8 SCC 416 and Ganesh Shet Vs. Dr. C.S.G.K. Setty and others (1998) 5 SCC 381 in which the Hon'ble Apex Court had held that in suit for specific performance of contract when there is discrepancy on part of proposed purchasers, then court should not exercise its discretion to grant decree for specific performance; but as a general rule plaintiff can be granted such relief of specific performance when his case is consistent with pleading as well as with proof. This rulings are acceptable. The courts had held the acceptable proposition of law that the discretion lies with court in the suits filed in specific performance of contract when plaint case is proved, but these rulings are not helpful for the appellant side. A perusal of the two judgments prove that after meticulous appreciation of evidence the trial court as well as first appellate court had reached to the conclusion that plaintiff-respondent had been ready and willing to perform his part of contract but it was the defendant-appellant acting with mala fide and was not ready to perform his part of contract, in spite of accepting the advance consideration, and had not even tried to return the same.

7. In the case of Rathnavathi and another Vs. Kavita Ganashamdas 2015(1) Civil Court Cases 164 (SC), the Apex Court had held as under:

"In our considered opinion, the High Court being the last Court of appeal on facts/law while hearing first appeal under section 96 of CPC as well within its powers to appreciate the evidence and came to its own conclusion independent to that of the trial court's decision. One cannot dispute the legal proposition that the grant/refusal of specific performance is a discretionary relief, and, therefore, once it is granted by the appellate court on appreciation of evidence, keeping in view the legal principle applicable for the grant then further appellate court should be slow to interfere in such finding, unless the finding is found to be either against the settled principle of law, or is arbitrary or perverse."

8. In the case of Satya Jain (D) through LR and others Vs. Anis Ahmed Rushdie (D) through Lrs and others 2013 (31) LCD 558, the Hon'ble Apex Colurt has held as under:

"The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of prince of property by itself. Cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy Vs. M.K. Bhagyalakshmi, (2007) 10 SCC 231 and more recently in Narinderjit Singh s. North Star Estate Promoters Ltd (2012) 5 SCC 712 may be usefully recapitulated."

9. In present matter promptness, readiness and willingness on the part of plaintiff-appellant for the specific performance of contract in question has been proved by the evidence, as held by the trial court and affirmed by the first appellate court. Simultaneously, the mala fide on the part of appellant after accepting the advance consideration is also proved by evidence, and concurrent findings of the two courts below, which are acceptable. Therefore findings of lower courts are neither infirm nor arbitrary or perverse. In such case it appears fair and reasonable that plaintiff-respondent should not suffer due to overt and acts of the defendant-appellant who had been presenting incorrect defence and harassing the respondents. Other points relating to appellant being allegedly 'pardanasheen' lady or alleged fraud being committed with her are unacceptable in presence of evidence and concurrent finding of facts against appellant on this point. The counsel for appellant had also pointed that it is the duty of the court to consider suo moto for consideration of applicability of section 20 of the Specific Relief Act in favour of appellant-defendant. I am not in agreement with this contention. There has been guidelines laid down by the Apex Court which should be followed for reaching the decision as to whether in suit for specific performance benefit of Section-20 of the Specific Relief Act should be granted to the defendant or not; but the defendant cannot claim this discretion as a matter of his right. In the light of law discussed above there appears no propriety for this court to exercise its power to interfere in the judgments of the two courts below for granting any relief to the appellant.

10. In the present matter the only dispute between the parties has been as to whether parties had willingly executed registered agreement to sell dated 20.10.1999 for sale of disputed property of defendant-appellant in favour of plaintiff-respondent. It is a matter of fact which can be decided only on basis of evidences. In absence of any question of law, much less of the substantial question of law, this appeal cannot be admitted under section 100 CPC. No plea of section-20 of Specific Relief Act has been taken during in written-statement or in first appeal.

11. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate Court are well reasoned and are based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law, was involved in this case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained.

12. In view of the above, this Court finds that no substantial question of law arises in this appeal. Therefore the second appeal is dismissed.

13. Let a copy of this order be sent to the court concerned.

Order Date :- 27.11.2015

SKS