Mahesh Chandra vs Avinash Kumar
2021 Latest Caselaw 5016 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED 
 
At Residence							       A.F.R.
 

 
Case :- SECOND APPEAL No. - 1873 of 1985
 
Appellant :- Mahesh Chandra
 
Respondent :- Avinash Kumar
 
Counsel for Appellant :- N.C. Rajvanshi,M.K. Rajvanshi
 
Counsel for Respondent :- N.L. Agarwal,Mahtab Alam,N.L. Ganguly,Pradyumna Kumar Yadav,Rakesh Pratap Singh
 
With
 
Case :- SECOND APPEAL No. - 2315 of 1985
 
Appellant :- Avinash Kumar
 
Respondent :- Mahesh Chandra
 
Counsel for Appellant :- Mahtab Alam
 
Counsel for Respondent :- M.K. Rajvanshi,Manoj Kumar Rajvanshi,N.C. Rajvanshi,N.K. Rajvanshi
 

 
Hon'ble J.J. Munir,J.

1. These two second appeals have arisen from a suit for specific performance of contract. Second Appeal No. 1873 of 1985 has been preferred by the plaintiff, whereas Second Appeal No. 2315 of 1985 has been brought by the defendant. Both appeals have been heard together. Second Appeal No. 1873 of 1985 shall be treated to be the leading case.

2. The facts giving rise to the two appeals are these :

Original Suit No. 144 of 1982 for specific performance of contract was instituted by Mahesh Chand against one Rampal Singh, seeking specific performance of a registered agreement to sell dated 02.05.1980, executed in favour of Mahesh Chand by Rampal Singh. Mahesh Chand is hereinafter referred to as the 'plaintiff', which includes reference to his legal heirs and representatives, since substituted in his stead. Rampal Singh, who died pending appeal before the lower Appellate Court and was substituted there by his sole heir and legal representative, Avinash Kumar, is hereinafter referred to as the 'defendant.'

3. The plaintiff's case is that a registered agreement to sell dated 02.05.1980 was executed between him and the defendant, where the defendant covenanted to sell, for an agreed sale consideration of Rs. 15,000/-, his 1/5th share in the agricultural land of Khata no. 254, plot no. 545, admeasuring 24 bigha 10 biswa 11 biswansi, situate at Village Azimabad Machhua, Pargana and Tehsil Koil, District Aligarh. The said land is hereinafter referred to as the ''suit property'. The registered agreement to sell dated 02.05.1980 shall be called the 'suit agreement'.

4. It is the plaintiff's case that antecedent to the execution of the suit agreement, the defendant received, by way of earnest, a sum of Rs. 1440/-. The defendant further received a sum of Rs. 2,000/- at the time of execution and registration of suit agreement before the Sub-Registrar. Thus, out of the total sale consideration, the defendant received in earnest a total sum of Rs. 3440/-. It was covenanted between parties that the defendant would execute a sale deed conveying the suit property in favour of the plaintiff within two years of the date of the suit agreement. It is the plaintiff's case that he has been always ready and willing to perform his part of contract and is still ready and willing. The defendant has been elusive about the performance required of him in terms of the suit agreement and evaded his liabilities thereunder. The suit was instituted on 13.04.1982, alleging that the defendant, on 15.03.1982, refused to settle the matter amicably and out of Court.

5. The defendant contested the suit by filing a written statement dated 12.07.1982. The defendant denied the execution of the suit agreement. He pleaded that he never received a sum of Rs. 1,440/- by way of earnest. Rather, he received a loan from the plaintiff in the sum of Rs. 2,000/- agreeing to pay the plaintiff interest @ 3% per month. It was agreed inter partes that the loan, together with the accrued interest, would be repaid within a period of two years. The plaintiff, in order to evade the provisions of the of the Uttar Pradesh Regulation of Money-Lending Act, 1976 got the suit agreement executed, where Rs. 3,440/- were shown as earnest. The suit agreement was registered. The defendant has pleaded that for a fact, no agreement covenanting to transfer the suit property was in the parties' contemplation. The defendant has also averred that he paid a sum of Rs. 2,920/- to the plaintiff in August, 1981, liquidating the entire outstanding due to the plaintiff, the principal and the interest included. The plaintiff discharged the suit agreement by endorsing on its reverse that he does not wish to secure a sale deed and had received back his earnest. It is further averred by the defendant that the plaintiff, however, did not return the suit agreement in original, where he made the last mentioned endorsement, telling the defendant that it was of no use to the defendant, as the plaintiff had already endorsed discharge thereon. The defendant has gone on to say that he is a simpleton and believed the plaintiff's last mentioned representations, leaving the suit agreement back with him. It has also been averred that the plaintiff has never been ready and willing to secure execution of the sale deed. It has also been asserted for a fact that the value of the suit property, contemporaneous to the execution of the suit agreement, was no less than Rs. 35,000/-. As such, there could be no reason for the defendant agreeing to sell the suit property for a sale consideration of Rs. 15,000/-.

6. The Trial Court, on the basis of pleadings of parties, and after hearing them, struck the following issues (translated into English from Hindi vernacular):

"(i) Whether the defendant executed the agreement dated 02.05.1980 in favour of the plaintiff agreeing to execute a sale deed for a sale consideration of Rs. 15,000/- and received an earnest in the sum of Rs. 3440/-?

(ii) Whether the plaintiff has always been ready and willing to perform his part of the contract?

(iii) To what relief, if any, is the plaintiff entitled?"

7. The Trial Court held in favour of the plaintiff on all issues and decreed the suit for specific performance. The defendant appealed the decree to the learned District Judge, Aligarh vide Civil Appeal No. 14 of 1984. The learned Third Additional District Judge, before whom the appeal came up for determination, partly allowed the same, setting aside the decree for specific performance granted by the Trial Court and substituting it by a direction for refund of the earnest. The plaintiff has also been held entitled to receive interest on the earnest money @ 6% per annum from the date of suit till realization. The plaintiff has been held entitled to receive costs from the defendant in the Trial Court and the lower Appellate Court. Aggrieved by the decree of the lower Appellate Court, both the plaintiff and the defendant have appealed to this Court under Section 100 of the Code of Civil Procedure1. The plaintiff has appealed from that part of the decree of the lower Appellate Court, by which specific performance has been denied. The defendant has appealed the other part, whereby he has been ordered to refund the earnest together with interest. This is how these two appeals have come up. The plaintiff's appeal was admitted to hearing by this Court on 04.11.1985, on the following substantial question of law :

"Whether the plaintiff could be refused the relief of specific performance simply because the suit was premature."

8. The defendant's appeal was instituted later, on 20.12.1985. It was admitted to hearing on 21.02.1995 on the two substantial questions framed in the memo of appeal, as questions A and B. These read :

"A. Whether the courts below are justified in law to admit secondary evidence of agreement dated 02.05.1980?

B. Whether the decree for money passed by court below is justified in law in view of the fact that the real controversy has not been adjudicated upon."

9. Heard Mr. Vinay Kumar Mishra, learned Counsel for the plaintiff and Mr. Mahtab Alam, learned Counsel appearing for the defendant in both the appeals.

10. Mr. Vinay Kumar Mishra, learned Counsel, in support of the plaintiff's appeal, has urged that the substantial question of law framed in that appeal ought to be answered in the negative. He submits that the lower Appellate Court, like the Trial Court, has found for the plaintiff on all issues. The findings on those issues are pure findings of fact that cannot be reopened at the instance of the defendant here, or undone, answering the substantial questions of law said to be involved in the defendant's appeal. Mr. Mishra urges that no substantial question of law is involved in the appeal preferred by the defendant, which ought to be determined under sub-Section 5 of Section 100 of the Code. Learned Counsel has argued that so far as the plaintiff's appeal is concerned, the only point that has veered the lower Appellate Court away from the right course into setting aside the decree for specific performance granted by the Trial Court is an issue that was brought up during hearing of the appeal before the lower Appellate Court. The point on which the lower Appellate Court has accepted the defendant's case is that the suit is premature. Mr. Mishra, learned Counsel, submits that this was not at all a plea taken by the defendant in his written statement or at any stage during trial. Admittedly, this point does not figure as a ground in the memorandum of appeal filed before the lower Appellate Court. The point was sprung during hearing before the lower Appellate Court, and, surprisingly accepted with no basis to it in the parties pleadings, evidence, case, or submissions at any earlier stage of the proceedings. This kind of a plea could not be suddenly urged, according to the learned Counsel, at the hearing of the appeal before lower Appellate Court, with no basis to it. The lower Appellate Court, in its submission, grossly erred in permitting it to be urged, let alone accepting it. In support of his submissions under reference, learned Counsel has placed reliance upon a decision of this Court in Ganga Prasad Rai v. Kedar Nath and Another, 2019 (3) ARC 624. Learned Counsel for the plaintiff has invited the attention of the Court towards that part of the decision, where the principle forbidding the Court from examining a party's case never pleaded, has been expressed in the following words:

"41. The rules relating to pleadings are set out in Order 6 C.P.C. under the heading "Pleadings Generally". The case of a party is set forth in the pleadings in the plaint. The plaint must conform to the provisions of Order 6 C.P.C. The law relating to the pleadings is stated with clarity in the C.P.C. and settled with finality in various judgments of the courts. The party has to state its case in a concise form in the plaint/written statement by pleading all material facts. The pleadings should not be vague. However, while construing the pleadings, the courts do not adopt a hypertechincal approach. The purpose of the pleadings is also to alert the adversary to the case of the party. This will enable the adversary/opposite party to assert its defence and or refutal in its pleadings and tender its evidence in regard thereto. The law of pleadings ensures that no party can spring a surprise upon its adversary and render the latter without opportunity to defend itself. The law of pleadings poses certain limitations on parties as well as the courts. The courts cannot travel beyond pleadings and cannot grant relief which is not sought. Similarly, the court cannot receive evidence of facts which are not stated in the pleadings."

11. On the merits of the plea, Mr. Vinay Kumar Mishra, learned Counsel, submits that the lower Appellate Court went utterly wrong in law in holding the suit to be premature. He points out that the reasoning of the lower Appellate Court is based on a flawed perception about the law relating to maturity of the cause of action. It is the learned Counsel's submission that the lower Appellate Court committed a manifest error of law in holding that the time period for performance being two years, determinable from the date of the suit agreement, which is one dated 02.05.1980, the suit instituted on 13.04.1982 was premature. He submits that the manifest error lies in ill appreciating the way the cause of action would arise in a case, where the defendant repudiates his liability under a contract to sell immovable property by disowning the covenant as an instrument not at all embodying a bona fide agreement between parties to sell. According to the learned Counsel, whenever the vendor says that for whatever reason he disowns a contract to sell or repudiates it in any manner, the period of time at the end of which performance falls due, becomes irrelevant. In the face of that kind of a stand by the vendor, cause of action arises immediately. It is here that the lower Appellate Court has erred in insisting, in the submission of Mr. Mishra, that the plaintiff ought to have waited for the passage of two years from the date of suit agreement before instituting the suit. In support of his submission, Mr. Mishra has placed reliance upon a decision of this Court in Malkhan Singh v. Raghubir Singh, AIR 1981 Allahabad 96. He has drawn the attention of this Court towards the decision in Malkhan Singh (supra), where it is held:

"15. In regard to the last submission made by the learned counsel for the appellant that the suit was not maintainable as it was premature. In regard to this submission also. In my opinion, it has no substance. In regard to this question also there was no plea in the written statement nor any issue for any argument either before the trial court or the appellate court nor any grounds was taken before the lower appellate court or before this Court. The only argument which is now sought to be made is that the appellant could have executed the sale deed by 4th June, 1971 and since the suit was filed on 2-6-1971, the suit was premature. This argument is also fallacious. In the agreement the appellant had agreed to execute the sale deed by 4th June, 1971. On 6th May, 1971 a notice was sent to the appellant to execute the sale deed by virtue of the agreement dated 5-9-1970. This notice was not accepted by the appellant and was served by refusal. The case of the appellant throughout had been that he had not executed the agreement at all. In the circumstance, the suit cannot be said to be premature as it was filed after the appellant had clearly refused to execute the sale deed in favour of the plaintiff-respondent. In the circumstances, I do not find that the suit is premature. There is another aspect of the matter. On the date when the decree was passed by the trial court, the suit was clearly maintainable and even till that date the appellant had not signified his assent to execute the sale deed, therefore, it cannot be said that the decree passed by the trial court was in any manner illegal."

12. Mr. Mahtab Alam, learned Counsel for the defendant, has refuted the submissions of Mr. Mishra on both scores. He has urged that so far as the suit being premature is concerned, that plea is based on unrebutted facts discernible from the plaint. It is not a plea that had to figure in the written statement and tried in accordance with law. The point is one that lends itself to the exercise of power by the Court akin to that under Order VII Rule 11 of the Code. It is a case, where on a reading of the plaint, the Court could determine at any stage that the suit, when instituted, was clearly premature. According to Mr. Mahtab Alam, no evidence was required to prove it. As such, in the submission of learned Counsel for the defendant, the findings of the lower Appellate Court cannot be faulted on ground that there was no pleading by the defendant to consider or sustain such a plea.

13. Repelling the other submission of Mr. Mishra, the learned Counsel for the defendant submits that once a period of time is specified in a contract at the end of which performance falls due, a suit instituted prior to expiry of that period is clearly premature. In his submission, no cause of action arose in this case on the date when the suit was instituted, inasmuch as the period of two years reckoned from the date of execution of the contract was not yet over. Mr. Mahtab Alam, learned Counsel for the defendant, emphatically submits that the availability, including the prematurity of the cause of action, is to be judged with reference to the date when the suit was instituted. Subsequent events or the passage of time would not supply the want or contribute to the maturity of the cause of action. In support of his submission on this count, learned Counsel for the defendant has reposed faith in the decision of this Court in Harihar Prasad and others v. Udaibir Singh and another 1978 AWC 79, where it was held by Hari Swarup, J. thus :

"3. The last contention raised by the learned counsel is that the suit was liable to be dismissed as it was premature. The submission is that the alleged agreement was dated May 19, 1969 and, provided two months time to the transferor to execute the sale. The suit had been filed on July 11, 1969, i.e before the expiry of the two months period envisaged by the agreement.

4. There appears prima facie merit in each one of the contentions raised by the learned counsel for the appellant. However, in view of the fact that the suit had been instituted before the expiry of the two months' period contemplated by the agreement, the suit was liable to be dismissed on the ground that it was premature. I accordingly do not consider it necessary to deal with the other points raised by the learned counsel for the appellant for purposes of the decision of the appeal.

5. Article 54 of Schedule E to the Limitation Act prescribes the period of limitation for a suit for specific performance of a contract. The time for filing of the suit begins to run from:

"the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused."

In the present case as the date was fixed as two months from the date of the agreement, the limitation will commence running from 19-7-1960 and the suit could not have been filed before the date had expired.

6. Clause (e) of rule 1 of Chapter VII of the Code of Civil Procedure requires that the plaint shall contain the facts constituting the cause of action and the date when it arose. In the case of specific performance of a contract the cause of action arises only after the time for the performance of the contract expires. In the present case, the time to perform the contract had not expired till 11-7-1969 when the suit was filed. The plaintiff thus had no cause of action for maintaining the suit under Section 9 of the of the Specific Relief Act.

7. In Gulzar Singh v. Kalyan Chand, ILR XV 399 it was held that "a plaintiff is not entitled to a decree in his suit unless by proof or admission or default of pleading, he shows that when he instituted that suit he was entitled to a decree." In Dorga Prasad v. Secy. of State, AIR 1945 PC 62, it was pointed out that the relief claimed in the suit must be confined to matters existing at the date when the suit was instituted. In U Ba Maung v. U Chit Halaing, AIR 1941 Rangoon 27, the observation in Smith v. Heptanstall, AIR 1938 Rangoon 134 was repeated which was to the following effect:

"Nothing arising after action brought can either create a new, or complete a then incomplete, cause of action entitling the plaintiff to any relief in that same then existing suit."

Applying the principles of law laid down in these cases it must be held that the plaintiff had instituted the suit for specific performance of the alleged contract on a date when the suit did not lie because the defendant still had time to perform the contract and could not be held to committed default. The suit could have been filed only after the defendant had committed the default in performing the contract. No decree for specific performance of contract could thus be passed in favour of the plaintiff in the present suit. The relief available under the Specific Relief Act is a discretionary relief and the court could not have exercised its discretion in favour of the plaintiff in a suit for the filing of which the limitation had not even begun to run."

14. This Court has keenly considered the submissions advanced by learned Counsel for both parties and perused the record. Article 54, that figures in Part II of the First Division of the Schedule to the Limitation Act, 19632, reads as follows:

Description of Suit

Period of Limitation

Time from which period begins run

54. For specific performance of a contract

Three years

The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.

15. The aforesaid Article is to be read in conjunction with the provisions of Section 2(j) and 3 of the Act of 1963. The Act is a statute of limitation that provides for the time prescribed, within which various proceedings, including suits, appeals, revisions, or applications of different kind and in various jurisdictions have to be instituted. It is neither the purpose or the object of the Act of 1963 to mandate when the cause of action for a particular kind of a suit would arise or to determine when a cause of action for a particular suit would become mature. It is neither the subject nor the substance of this statute. In keeping with its object and subject, the Act nowhere forbids that a suit instituted prior to a point of time indicated in the schedule, when limitation would begin to run, is premature. The object and the subject of the Act is to fetter out old and stale claims that the law regards on ground of wider public policy, no longer worthy of determination on merits. The statute is designed to give effect to one of the most fundamental principles that the law comes to aid of the vigilant and not those who sleep over their rights. In keeping with the aforesaid purpose of the Act of 1963, the schedule indicates a point of time for limitation to commence. It does not mean at all that a suit instituted prior in point of time to that mentioned in the schedule to the Act, for a particular kind of suit, must be regarded as premature. The prematurity of the cause of action has to be tested on other parameters of the law. In a suit relating to breach of contract, of which a suit for specific performance is one specie, the maturity or prematurity of the cause of action may well depend on the terms of the contract.

16. Article 54 of the Act of 1963 would certainly not be relevant to the matter. It would be relevant for the purpose of reckoning limitation; not the maturity of the cause of action. In the opinion of this Court where a date is fixed for the purpose of performance of a contract relating to the sale of an immovable property, but the vendor says that he never entered into that agreement or it is forged, or raises a plea of non est factum or still more, like the case here, asserts that the contract does not at all embody the true intention of parties about a solemn promise to sell the property, but one merely to serve as a security, the breach occurs as soon as this stand is taken (by the vendor). The cause of action arises immediately. There is another facet of the matter. It is that submission of the learned Counsel for the defendant that the cause of action has to be judged with reference to the date when it arises and cannot be perfected pending suit, if it is premature on the date of the suit.

17. In view of what this Court has held regarding the maturity of the cause of action in the case of a suit for specific performance, where the vendor denies the existence of the contract or otherwise repudiates his liability, this facet of the defendant's plea does not require to be squarely determined. But, since this plea has been urged with much force and on the authority of Harihar Prasad (supra), it may well be examined. The principle that this Court followed in Harihar Prasad is founded on the authority of an old Rangoon decision in Smith vs. Heptanstall, AIR 1938 Rangoon 134 which applies to what are called jurisdictional facts. These are facts which vest the Court with jurisdiction to try the suit. If these be wanting on the date when the suit was instituted, a pendente lite emergence of jurisdictional facts would not relate back to the date of institution of the suit and serve to supply a total lack of jurisdiction. But, this is not true of facts, such as expiry of the particular period of time at the end of which a right accrues. A right that accrues on the expiry of a certain period of time is, no doubt, a deficiency, if the time stipulated by a contract has not expired. But, it would not lead to the Court being totally or inherently without jurisdiction. If that plea is promptly raised, the Court may return the plaint or dismiss the suit with liberty to bring it afresh, on the expiry of time when the cause of action matures.

18. The view that this Court takes is squarely supported by the decision of S.D. Agarwal, J. in Malkhan Singh (supra) on both facets of the matter that have been considered by His Lordship, as would appear from the decision in Malkhan Singh. The earlier decision in Harihar Prasad relied upon by the defendant was not considered in Malkhan Singh. If it were just these two conflicting authorities, both rendered by learned Single Judges of this Court, this Court's agreement with the principle laid down in Malkhan Singh might have necessitated reference to a larger Bench. But the issue is no longer res integra in view of the decision of the Supreme Court in Vithalbhai (P) LTD. v. Union Bank of India (2005) 4 SCC 315.

19. The appeal before their Lordships of the Supreme Court arose from a suit for eviction, mesne profits, declaration and perpetual injunction, brought by the lessor against his lessee, who held on a fixed term lease. However, on service of a notice to deliver vacant possession to the lessor on the date of end of the lease term, the lessee responded by refusing to vacate. He also denied the lessor's entitlement to recover possession on ground that the lessor's title had come to an end due to eviction by a paramount title holder. In those circumstances, the suit was instituted by the lessor twelve weeks prior to expiry of term of the lease. It was in those facts and circumstances that the lessee raised a plea about the suit being premature. The suit was tried on the original side of the Calcutta High Court, where the learned Single Judge repelled the plea about the suit being premature. On merits, the suit was decreed. A Division Bench, on appeal, reversed the decree, leading the unsuccessful lessor to appeal by special appeal. Their Lordships of the Supreme Court, after a consideration of the plaintiff's submissions about the suit not being premature, expressed opinion that it was not indeed premature. The plaintiff-lessor's submission in this regard and their Lordships remarks in Vithalbhai (P) Ltd. (supra) read thus:

"8. The learned counsel for the plaintiff-appellant submitted that in the present case the suit cannot be said to have been filed as premature on the date of its institution. He submits that in the response dated 8-11-1983, the defendant-respondent had clearly disputed the plaintiff's entitlement to evict the defendant-respondent on 25-6-1984, the date of expiry of the lease and therefore a cloud was cast on the title of the plaintiff. The plaintiff was therefore fully justified in bringing the suit after the receipt of the reply dated 8-11-1983. In the alternative, it was submitted that assuming that the suit was premature on the date of its institution, it became ripe during its pendency and was certainly so on the date on which the written statement was filed by the defendant, and that the court has the power to take notice of such event and, therefore, to decree the suit.

9. In our opinion, a suit based on a plaint which discloses a cause of action is not necessarily to be dismissed on trial solely because it was premature on the date of its institution if by the time the written statement came to be filed or by the time the court is called upon to pass a decree, the plaintiff is found entitled to the relief prayed for in the plaint. Though there is no direct decision available on the point but a few cases showing the trend of judicial opinion may be noticed."

20. After the decisive remarks in paragraph no. 9 of the report in Vithalbhai (P) Ltd. (supra), their Lordships proceeded to undertake a copious review of authority on the point and summarized the position of the law:

"20. No amount of waiver or consent can confer jurisdiction on a court which it inherently lacks or where none exists. The filing of a suit when there is cause of action though premature does not raise a jurisdictional question. The claim may be well merited and the court does have jurisdiction to hear the suit and grant the relief prayed for but for the fact that the plaintiff should have waited a little more before entering the portals of the court. In such a case the question is one of discretion. In spite of the suit being premature on the date of its institution the court may still grant relief to the plaintiff if no manifest injustice or prejudice is caused to the party proceeded against. Would it serve any purpose, and do the ends of justice compel the plaintiff being thrown out and then driven to the need of filing a fresh suit -- are pertinent queries to be posed by the court to itself.

21. Where the right to sue has not matured on the date of the institution of the suit an objection in that regard must be promptly taken by the defendant. The court may reject the plaint if it does not disclose a cause of action. It may dismiss the suit with liberty to the plaintiff to file a fresh suit on its maturity. The plaintiff may himself withdraw the suit at that stage and such withdrawal would not come in the way of the plaintiff in filing the suit on its maturity. In either case, the plaintiff would not be prejudiced. On the other hand, if the defendant by his inaction amounting to acquiescence or waiver allows the suit to proceed ahead then he cannot be permitted to belatedly urge such a plea as that would cause hardship, maybe irreparable prejudice, to the plaintiff because of lapse of time. If the suit proceeds ahead and at a much later stage the court is called upon to decide the plea as to non-maintainability of the suit on account of its being premature, then the court shall not necessarily dismiss the suit. The court would examine if any prejudice has been caused to the defendant or any manifest injustice would result to the defendant if the suit is to be decreed. The court would also examine if in the facts and circumstances of the case it is necessary to drive the plaintiff to the need of filing a fresh suit or grant a decree in the same suit inasmuch as it would not make any real difference at that stage if the suit would have to be filed again on its having matured for filing.

22 We may now briefly sum up the correct position of law which is as follows:

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff's entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the court's jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v.Kedar Nath [1987 Supp SCC 663] .) One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained."

21. This Court, bearing in mind the facts of the present case, considers it appropriate also to refer to the remarks of their Lordships, next following the principle extracted. In paragraph no. 23 of the report in Vithalbhai (P) Ltd., it has been held:

"23. In the case at hand, the act of the plaintiff filing the suit before 25-6-1984 cannot be said to be malicious or intended to overreach the Court. The defendant's reply dated 8-11-1983 prompted the plaintiff in filing the suit inasmuch as the plaintiff reasonably thought that a cloud was already cast on his entitlement to recover the property and he should promptly approach the Court. True, the defendant could have changed his mind and thought of delivering the possession of the property to the plaintiff on or after 25-6-1984 -- the date whereafter only the suit could ordinarily have been filed and in that case there would have been no occasion at all for filing the suit. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. If only it would have been pressed for decision and the Court would have formed that opinion at the preliminary stage then the plaintiff could have withdrawn the suit or the Court could have dismissed the suit as premature. In either case, the plaintiff would have filed a fresh suit based on the same cause of action soon after 25-6-1984. By the time the suit came to be decided on 12-2-1992, the dismissal of the suit on the ground of its being premature would have been a travesty of justice when the plaintiff was found entitled to a decree otherwise. The learned Single Judge rightly overruled the defendant's objection and directed the suit to be decreed. The Division Bench ought not to have interfered with the judgment and decree passed by the learned Single Judge."

22. This being so, this Court, like the Courts below, has found it to be a case, where the defendant has disowned the suit agreement and his liability under it, giving rise to a mature and perfect cause of action before the suit was instituted. In view of the defendant's stand, there is absolutely no scope for the plaintiff to have waited for the two years contemplated under the suit agreement to expire.

23. In the present case, unlike Vithalbhai (P) Ltd. (supra), no plea regarding prematurity was ever raised in the written statement. Had it been done, though in error, the suit might have been dismissed as premature, with liberty to sue afresh, when the cause of action had ripened. Here, since the plea about prematurity was never raised, it would indeed be the greatest travesty of justice to hold the plaintiff disentitled at the appeal stage, on that ground, where otherwise, both the Courts have found the plaintiff entitled to a decree for specific performance. This again, is the most hypothetical proposition on which the defendant's case can receive consideration. On facts, however, this proposition or this facet of the defendant's case need not be considered.

24. It must also be remarked that even if the suit were to be held as one instituted before time, the prematurity would not be one that relates to a jurisdictional fact. The Court, therefore, would have jurisdiction to entertain the suit and grant relief, particularly, when no plea to that effect was raised by the defendant before the Court of trial or in the grounds of appeal. It must also be added that the prematurity does not fall into any of one or more of the five classes enumerated by the Supreme Court in Vithalbhai (P) Ltd. (supra), where premature institution cannot be ignored. Thus, relief of specific performance cannot be denied, holding the suit to be premature.

25. In view of what has been said above, the substantial question of law formulated and involved in the plaintiff's appeal, is answered in the negative in the terms hereinbefore detailed.

26. This Court now proceeds to consider the defendant's appeal. The first of the two questions required to be answered is whether the Courts below are justified in law to admit secondary evidence of the suit agreement. There is no issue on facts between parties that the suit agreement was never filed by the plaintiff on the basis of a stand that it was lost on 15.02.1982, when the plaintiff was proceeding from the District Court Post Office to his village, after dispatching the registered notice demanding execution of the sale deed. A report about the loss of this document was made to the Police Station Harduaganj on 19.02.1982. It was in those circumstances that a certified copy of the suit agreement was filed. The issue assumed some special significance because of the defendant's case that he had refunded a sum of Rs. 2,920/- to the plaintiff, who had, upon receipt of the said sum, discharged the agreement by an endorsement made on the reverse of the document. This stand of the plaintiff was in keeping with his case that the suit agreement never embodied a transaction about the contemplated sale, but one that was no more than a security for repayment of money lent by the plaintiff.

27. The merit of this case of the defendant's has been carefully examined by the two Courts below. They have, for a fact, concurrently disbelieved him on this score for cogent reasons assigned. Some of the sterling features of the reasoning that have weighed with the two Courts below to disbelieve the defendant, are that the fact that the defendant did not take back the original agreement from the plaintiff, after the plaintiff had endorsed discharge of his debt and forsaken his right to specific performance, is a conduct which no prudent person would exhibit; the fact that the earnest money advanced under the agreement was a figure of Rs. 3,440/- and that admittedly refunded was a figure of Rs. 2,920/-, does not make it to be a case happy on figures about a case of refund of debt; the fact that in response to the notice of demand to execute the sale deed, no reply came from the defendant, pointing out that he had refunded the earnest and the transaction had ended. It is on the basis of all this evidence, amongst others, that the two Courts below have disbelieved the defendant's case of a discharge of the suit agreement upon repayment of the earnest. These findings, without quarrel, are pure findings of fact, not amenable to our scrutiny under Section 100 of the Code. The only issue involved, that predicates the substantial question of law under consideration, is whether secondary evidence of the suit agreement was validly admitted.

28. Mr. Mahtab Alam, learned Counsel for the defendant, submits that in the absence of foundation being laid for reception of secondary evidence, as postulated under Section 65(c) of the Indian Evidence Act, 1872, the Court could never have permitted it. The question pertains to admissibility of that evidence. Admissibility of evidence may arise generally in two situations : one where the document is impeached as inadmissible on account of some legal bar or its relevance, say a will that is not attested by two marginal witnesses, or secondly, it may arise in the context of the mode of proof of that document. The objection as to mode of proof of document has to be taken at the earliest stage, when the document is laid in evidence and if not taken, it cannot be subsequently raised, once the document is admitted in evidence. The reason is not far to seek. If an objection about the mode of proof of a document were to be taken, as soon as it is laid, the person relying on the document can take steps to strictly prove the document in accordance with law. Reference in this connection may be made to the decision of the Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752, where it has been held :

"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."

29. However, if the party taking the objection urges it later on in appeal, the other side might be prejudiced unfairly in proving that what he could have easily done during trial. Here, the objection seems to have been taken by the defendant before the Courts below and urged with some seriousness before the lower Appellate Court. The plaintiff, on his part, took steps to lay the necessary foundation for reception of secondary evidence by filing what appears to be a copy of the report dated 19.02.1982, lodged with Police Station Harduaganj, about loss of the suit agreement.

30. Mr. Mahtab Alam, learned Counsel for the defendant, has urged before this Court that the original report about the loss of the document was never filed and, therefore, the foundation laid for reception of secondary evidence is not valid. This Court is afraid that this objection is specious, because the defendant waived formal proof of this document before the lower Appellate Court, a fact recorded in that judgment. In the opinion of this Court, therefore, sufficient foundation was laid by the plaintiff to lead secondary evidence about contents of the suit agreement and whatever objection about the mode of proof, if at all could be taken, was given up by the defendant before the lower Appellate Court.

31. In view of what this Court has found, as hereinabove said, substantial question of law 'A' formulated in this appeal is answered in the affirmative.

32. The other substantial question of law marked as 'B' is about the validity of the decree of refund of the earnest passed by the lower Appellate Court. In our opinion, the said question hardly arises in this appeal, in view of what the two Courts below have held on facts. Both the Courts below have found it to be a case where specific performance ought to be decreed, considering the evidence and the conduct of parties, relevant to the issue. There is a remark by the lower Appellate Court, where it is said that the plaintiff has served a notice of demand to execute the sale deed and has said in his evidence that he has been ever ready and willing and is still ready and willing to secure execution of the sale deed in his favour, in terms of the suit agreement. It has also been recorded that to this assertion of the plaintiff's in his examination-in-chief, there is no cross-examination undertaken to contradict or impeach the plaintiff's stand in this regard. The two judgments have noticed overwhelming evidence that leans in favour of specific performance. Once there are valid conclusions recorded in favour of specific performance, there is little scope to examine whether the lower Appellate Court committed a manifest error in passing a decree for refund of the earnest. To the contrary, the lower Appellate Court proceeded to pass that decree, holding the suit to be premature, which this Court, in answering the substantial question of law formulated on the plaintiff's appeal, has held to be erroneous. Nevertheless, it must be said in the passing that if on findings of the Courts below, an issue about the validity of the decree directing refund of earnest were to arise, that relief could not have been granted, as the plaintiff has not at all sought relief regarding refund of any earnest money or deposit paid or made by him, in the alternative, if his claim for specific performance were to fail. In a situation of that kind, to pass a decree for refund of earnest as the lower Appellate Court has done, would be impermissible in view of the provisions of Section 22 (1) (b) of the Specific Relief Act, 1963. In this view of the matter, the substantial question of law marked 'B' really does not arise in this case at all.

33. The conclusions on the various substantial questions of law involved in the two appeals would inevitably lead to the restoration of the Trial Court's decree, directing specific performance. But, the question that still survives in the matter of passing that decree is about the terms on which the decree ought to be passed. Should it be passed strictly in terms of the suit agreement and on payment of the balance sale consideration contracted between parties, or ought this Court require the plaintiff to pay something more to the defendant in view of the 39 long years, that have passed when the suit was instituted and the decision of this appeal? Bearing in mind the astronomical rise in prices of real properties, the Courts of late have introduced a principle where to do some equity to parties, who are not themselves directly responsible for the long delays of litigation, when compelled to specifically perform almost ancient contracts, are to be given succor that lends some relevance and sense in monetary worth of the present time. In this regard, reference may be made to the decision of the Supreme Court in Ferrodous Estates (Pvt.) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825. In Ferrodous Estates (Pvt.) Ltd. (supra), their Lordships undertook an extensive survey of their authority in the context of exercising discretion under Section 20 of the Specific Relief Act, 1963, vis-a-vis the issue of phenomenal increase in the price of real properties. It would be of immense profit to refer to what has been said in Ferrodous Estates (Pvt.) Ltd., which reads:

"41. Given section 20, the courts have uniformly held that the mere escalation of land prices after the date of the filing of the suit cannot be the sole ground to deny specific performance. Thus, in Nirmala Anand v. Advent Corporation (P) Ltd., (2002) 8 SCC 146, a three-Judge bench of this Court held:

"3. The appeal was heard by a two-Judge Bench. The learned Judges have concurred that the appellant is entitled to specific performance of the agreement dated 8-9-1966. There has, however, been difference of opinion between learned Judges on the condition in respect of additional amount that may be paid by the appellant to Respondents 1 and 2 and, therefore, the matter has been placed before this three-Judge Bench. The opinions of the learned Judges are reported in Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 5 SCC 481] In the opinion expressed by Brother Justice Doraiswamy Raju, the appellant has been directed to pay a sum of Rs. 40,00,000 in addition to the sum already paid to Respondents 1 and 2 and in the view of Brother Justice Ashok Bhan, it would be unfair to impose the condition of payment of Rs. 40,00,000 and the appellant is entitled to specific performance of agreement to sell on the price mentioned in the agreement."

xxx xxx xxx

"5. The appellant is prepared and willing to take possession of the incomplete flat without claiming any reduction in the purchase price and would not hold Respondents 1 and 2 responsible for anything incomplete in the building. It has been concurrently held that she did not commit breach of the agreement to sell. She has always been ready and willing to perform her part of the agreement. The appellant is ready and willing to pay to Respondents 1 and 2 interest on the sum of Rs. 25,000. The breach was committed by Respondents 1 and 2 as noticed hereinbefore. It is evident that the appellant is ready to take incomplete flat and pay further sum as noticed, most likely on account of phenomenal increase in the market price of the flat during the pendency of this litigation for over three decades. We see no reason why the appellant cannot be allowed to have, for her alone, the entire benefit of manifold mega increase of the value of real estate property in the locality. In our view, it would not be unreasonable and inequitable to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question. There is no reason why the appellant, who is not a defaulting party, should not be allowed to reap to herself the fruits of increase in value.

6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."

xxx xxx xxx

"8. Having regard to the totality of the circumstances, we would direct the appellant to pay to Respondents 1 and 2 a sum of Rs. 6,25,000 instead of Rs. 25,000. The amount of Rs. 40,00,000 wherever it appears in the opinion of Justice Doraiswamy Raju, would be read as Rs. 6,25,000. All other conditions will remain."

42. In P.D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649, this Court held:

"39. It is not a case where the defendant did not foresee the hardship. It is furthermore not a case that non-performance of the agreement would not cause any hardship to the plaintiff. The defendant was the landlord of the plaintiff. He had accepted part-payments from the plaintiff from time to time without any demur whatsoever. He redeemed the mortgage only upon receipt of requisite payment from the plaintiff. Even in August 1981 i.e. just two months prior to the institution of suit, he had accepted Rs. 20,000 from the plaintiff. It is, therefore, too late for the appellant now to suggest that having regard to the escalation in price, the respondent should be denied the benefit of the decree passed in his favour. Explanation I appended to Section 20 clearly stipulates that merely inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of sub-section (2) of Section 20.

40. The decision of this Court in Nirmala Anand [(2002) 5 SCC 481] may be considered in the aforementioned context.

41. Raju, J. in the facts and circumstances of the matter obtaining therein held that it would not only be unreasonable but too inequitable for courts to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question, preserved all along by Respondents 1 and 2 by keeping alive the issues pending with the authorities of the Government and the municipal body. It was in the facts and circumstances of the case held : (SCC p. 501, para 23)

"23. ... Specific performance being an equitable relief, balance of equities have also to be struck taking into account all these relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor. Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into (sic consideration) the totality of circumstances of each case."

43. Bhan, J., however, while expressing his dissension in part observed : (SCC pp. 506 & 507, paras 38 & 40)

"38. It is well settled that in cases of contract for sale of immovable property the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds. Further, the defendant cannot take advantage of his own wrong and then plead that decree for specific performance would be an unfair advantage to the plaintiff.

***

40. Escalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him. It would depend on the facts and circumstances of each case."

44. The learned Judge further observed that delay in performance of the contract due to pendency of proceedings in court cannot by itself be a ground to refuse relief of specific performance in absence of any compelling circumstances to take a contrary view. ......

xxx xxx xxx

45. The said decision cannot be said to constitute a binding precedent to the effect that in all cases where there had been an escalation of prices, the court should either refuse to pass a decree on specific performance of contract or direct the plaintiff to pay a higher sum. No law in absolute terms to that effect has been laid down by this Court nor is discernible from the aforementioned decision."

45. In Satya Jain v. Anis Ahmed Rushdie, (2013) 8 SCC 131, this Court held:

"40. 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 the 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 emphasised that efflux of time and escalation of price 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 v. M.K. Bhagyalakshmi [(2007) 10 SCC 231] and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd. [(2012) 5 SCC 712 : (2012) 3 SCC (Civ) 379] may be usefully recapitulated.

41. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final court.

42. Having given our anxious consideration to all the relevant aspects of the case we are of the view that the ends of justice would require this Court to intervene and set aside the findings and conclusions recorded by the High Court of Delhi in Anis Ahmed Rushdie v. Bhiku Ram Jain [Anis Ahmed Rushdie v. Bhiku Ram Jain, RFA (OS) No. 11 of 1984, decided on 31-10-2011 (Del)] and to decree the suit of the plaintiffs for specific performance of the agreement dated 22-12-1970. We are of the further view that the sale deed that will now have to be executed by the defendants in favour of the plaintiffs will be for the market price of the suit property as on the date of the present order. As no material, whatsoever is available to enable us to make a correct assessment of the market value of the suit property as on date we request the learned trial Judge of the High Court of Delhi to undertake the said exercise with such expedition as may be possible in the prevailing facts and circumstances."

46. In K. Prakash v. B.R. Sampath Kumar, (2015) 1 SCC 597, this Court held:

"18. Subsequent rise in the price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed.

19. However, the court may take notice of the fact that there has been an increase in the price of the property and considering the other facts and circumstances of the case, this Court while granting decree for specific performance can impose such condition which may to some extent compensate the defendant owner of the property. This aspect of the matter is considered by a three-Judge Bench of this Court in Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 8 SCC 146], wherein this Court held : (SCC p. 150, para 6)

"6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."

20. As discussed above the agreement was entered into between the parties in 2003 for sale of the property for a total consideration of Rs. 16,10,000. Ten years have passed by and now the price of the property in that area where it situates has increased by not less than five times. Keeping in mind the factual position we are of the view that the appellant should pay a total consideration of Rs. 25 lakhs, being the price for the said property."

49. In Sunkara Lakshminarasamma v. Sagi Subba Raju, (2019) 11 SCC 787, this Court held:

"9. Shri A. Subba Rao, learned counsel for the appellants was however forceful in his arguments, insofar as the suit for specific performance is concerned. According to him, the appellants herein (defendants in the suit for specific performance) would be put to hardship if the decree for specific performance is confirmed, inasmuch as there has been a huge escalation in the price of the properties since the agreement of sale. Such plea of escalation in price cannot be accepted in view of the fact that the appellants in the first instance do not have the right to question the agreement of sale. As mentioned supra, since Veeraswamy was the absolute owner of the properties including the property involved in the suit for specific performance, he had the right to enter into an agreement of sale also. This property was bequeathed to Veeraswamy under Ext. B-4 will by Padmanabhudu. Hence, Veeraswamy was the sole owner of the property. Consequently, he had entered into an agreement of sale with Sagi Subba Raju, as far back as on 19-9-1974. The suit was filed in the year 1978, which was later transferred to another court and the same was renumbered as OS No. 72 of 1983. Since 1978, this litigation is being fought by the prospective vendee. The property of about three-and-a-half acres was agreed to be sold by Veeraswamy in favour of the prospective vendee in the year 1974 for a sum of Rs. 51,000. Such price was agreed to between the vendor as well as the prospective vendee.

10. This Court cannot imagine the value of the property as it stood in the year 1974 in the said area i.e. at Bhimavaram Village in Andhra Pradesh. Be that as it may, we find that hardship was neither pleaded nor proved by the appellants herein before the trial court. No issue was raised relating to hardship before the trial court. A plea which was not urged before the trial court cannot be allowed to be raised for the first time before the appellate courts. Moreover, mere escalation of price is no ground for interference at this stage (see the judgment of this Court in Narinderjit Singh v. North Star Estate Promoters Ltd. [Narinderjit Singh v. North Star Estate Promoters Ltd., (2012) 5 SCC 712 : (2012) 3 SCC (Civ) 379]). Added to it, as mentioned supra, the appellants do not have the locus standi to question the judgment of the Division Bench since they are not the owners of the property. As a matter of fact, Veeraswamy, the vendor of the properties, had entered the witness box before the trial court and supported all his alienations in favour of the defendants. Therefore, in our considered opinion, the Division Bench has rightly concluded in favour of Sagi Subba Raju and against the appellants and granted the decree for specific performance." "

53. The resultant position in law is that a suit for specific performance filed within limitation cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where immovable property is to be sold within a certain period, time being of the essence, and it is found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour, even at the appellate stage.

(Emphasis by Court)

34. Here, the suit was most promptly instituted, so much so that the lower Appellate Court held in error that it was premature. It was instituted as soon as the plaintiff became cognizant of the fact that the defendant disowned the nature of the suit agreement as a covenant to convey property. He pursued his part of the contract by serving a notice of demand to perform through registered post, followed by institution of the suit. A look at the calendar of proceedings would indicate that the suit was instituted on 19.04.1982. It was tried and decreed for specific performance by the Trial Court on 29.11.1983. The defendant instituted an appeal from the original decree on 18.01.1984 and on the same date, it was admitted to hearing. The appeal was heard and allowed in part by judgment and decree dated 18.09.1985, substituting the decree of specific performance, with a direction for refund of the earnest with interest. The plaintiff's second appeal before this Court was instituted on 14.10.1985 and admitted to hearing on 04.11.1985, whereas the defendant's second appeal was presented on 20.12.1985 and admitted much later on 21.02.1995. Therefore, both these appeals have remained pending before this Court since the year 1985, that is to say, for a period of about 36 years. From the commencement of the suit to terminus of these appeals, it is a period of 39 years.

35. There is nothing on record to show that the plaintiff, or for that matter, the defendant have, in any manner, contributed to the delay. It is a delay, resulting from the process of Court, which, in our opinion, cannot be put against the plaintiff to decline specific performance. At the same time, the lapse of time is so long that it has altered all monetary values and placed parties in a position that they could not have imagined in the day that they bargained the contract. To the parties who contracted, it is like time travel to the future. The demand of equity would, therefore, require the plaintiff to pay consideration for the sale, that has some monetary relevance in the present time. Unfortunately, no material has been placed by parties before this Court to assess what would be current worth of the suit property. A photostat copy of the Collector's circle rate, relating to the area where the suit property is situate, was shown to the Court - virtually produced out of pocket by learned Counsel for the defendant at the hearing. This Court cannot assess the current market value of the property on the basis of the circle rate.

36. This Court is of opinion that the plaintiff ought to pay consideration for the suit property reckoned at 1/4th value of its current market worth. This reduced consideration, the defendant must accept, to answer his old obligations that he has observed in utter breach. The current market worth of the property, that is to say, on the date of our decree, shall be assessed by the Executing Court by requiring parties to produce exemplar sale deeds proximate in time, area and on other parameters known and relevant for the purpose of assessment of market value in the determination of compensation of properties acquired by the State. The Trial Court shall do so within a period of three months of the date of receipt of a copy of this judgment, after hearing both parties. The determination of market price made by the Trial Court shall be regarded as final and not open to objection. It will form part of this decree. Upon determination of market price of the suit property, the Trial Court shall liquidate the sale consideration payable by the plaintiff at 1/4th of the current market price determined by it and intimate both the plaintiff and the defendant about it within 15 days of the determination being made. The defendant shall proceed to execute the requisite registered sale deed in favour of the plaintiff, conveying the suit property in favour of the plaintiff and shall put the plaintiff in co-sharers' possession, of all his 1/5th share in the suit property within two months next of receipt of communication of the sale consideration payable, as determined by the Trial Court. The plaintiff shall bear the entire expenses of the execution and registration of the sale deed. Any alienation, assignment, transfer or encumbrance made by the defendant pendente lite in favour of any third party, one, more or successive, shall all be treated as void and of no consequence. In the event of default by the defendant, the plaintiff would be entitled to execution of the sale deed in terms of this decree through the process of Court.

37. Second Appeal no.1873 of 1985 stands allowed with costs throughout and Second Appeal 2315 of 1985 stands dismissed with costs throughout. Let a decree be drawn up by the Decree Section forthwith.

38. Let a copy of this judgment be communicated to the Trial Court through the learned District Judge, Aligarh by the Joint Registrar (Compliance).

Order Date :- 5.5.2021

Anoop/ Deepak