Rajjan Lal And Another vs Ram Manohar
2023 Latest Caselaw 19344 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:49532
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 93 of 2023
 

 
Appellant :- Rajjan Lal And Another
 
Respondent :- Ram Manohar
 
Counsel for Appellant :- Om Chandra Sahu,Avadhesh Kumar Shukla,Shambhu Shanker
 
Counsel for Respondent :- Abhinesh Kumar Verma,Kulbhushan Singh Sikarwar,Vijay Pratap Singh
 

 
Hon'ble Jaspreet Singh,J.

1. Heard Shri Avadhesh Kumar Shukla, learned counsel for the appellants and Shri Kulbhushan Singh Sikarwar, learned counsel for the respondent.

2. The instant second appeal has been preferred under Section 100 CPC assailing a judgment of reversal dated 16.02.2023 passed in Regular Civil Appeal No.144/2019, whereby the lower Appellate Court has allowed the plaintiff's appeal and set aside the judgment and decree dated 25.03.2019 passed by the trial Court in Regular Suit No.2992/2015, as a consequence, the suit for specific performance of contract which was dismissed by the trial Court, has been allowed by the lower Appellate Court.

3. Shri Shukla, learned counsel for the appellants has submitted the lower Appellate Court has committed an error in failing to consider the agreement in light of Section 20 of the Specific Relief Act, 1963. The emphasis is that a decree of specific performance of contract is discretionary in nature and even if at all all necessary ingredients are made out for grant of a decree, yet the Court has discretion in not granting a decree of specific performance rather the money may be returned to the respondent along with interest as was done by the trial Court. It is also urged that the appellants will be rendered landless and they would suffer great hardship. It is looking into this aspect that the second appeal needs consideration.

4. Learned counsel for the appellants further submits that though the aforesaid issue was not proposed as the substantial question of law in the memo of second appeal, however, an application bearing No.IA/2/2023 has been moved by the appellants proposing the aforesaid aspect as a specific question involved in the second appeal coupled with the fact that a ground supporting to the same effect that a decree of specific performance is unjust, unfair and inequitable may also be permitted to be raised in the present second appeal. Learned counsel for the appellants in support of his submissions has relied upon a decision of the Apex Court in Gobind Ram v. Gian Chand, (2000) 7 SCC 548 and has relied upon Paragraph-7 to indicate that a decree of specific performance is not automatic but is discretionary in nature and it will be necessary for the Court to see if it is fair and just and equitable before a decree is to be passed.

5. Shri Sikarwar, learned counsel for the respondent, on the other hand, submits that at the outset the agreement entered between the parties dated 09.01.2008 related to the property Khasra No.1683M, measuring 0.084 hectares, situate in Village Aadampur, Naubasta, Pargana and Tehsil Mohanlalganj, District Lucknow. In pursuance of the said registered agreement to sell, the plaintiff-respondent had paid the entire consideration of Rs.90,000/- to the appellants. It was one of the condition stipulated that upon the defendants-appellants having received the Bhumidhari rights to sell the property, they shall execute the sale-deed in favour of the plaintiff-respondent.

6. It is further submitted that despite the fact that the rights of Bhumidhari had been conferred on the appellants, yet this was not informed by the appellants to the respondent. It is only at a later stage when the respondent become aware that the appellants had received the Bhumidhari rights, he had issued two notices requiring the appellant to execute the sale-deed in pursuance of the registered agreement to sell dated 09.01.2008, but the appellants failed to respond, as a result, a suit bearing No.2992/2015 was filed. The appellants failed to contest the suit, but the trial Court erred in dismissing the suit on the ground that the plaintiff-respondent was unable to establish his readiness and willingness.

7. It is also urged that once the entire sale consideration has already been paid to the appellants and it was for the appellants to have informed the respondent regarding the conferring of rights of Bhumidhari, it is only thereafter the sale-deed could have been executed but the appellants having failed to do so and no error could be found with the respondent and this finding returned by the trial Court was patently erroneous.

8. Being aggrieved against the ex-parte decree dated 25.03.2019, the respondent instituted a regular civil appeal under Section 96 CPC bearing No.144/2019 and the lower Appellate Court after considering the relevant facts and circumstances was pleased to allow the appeal by means of the judgment and decree dated 16.02.2023 and set aside the judgment and decree dated 25.03.2019 decreeing the suit of the plaintiff-respondent and directing the appellants to execute the sale-deed in favour of the respondent within a period of two months.

9. It is further urged that nowhere the appellants pleaded that they are going to suffer any great hardship in case if the contract is specifically enforced, no evidence was led and even before the lower Appellate Court, the appellants had not raised this issue and now after having failed before the lower Appellate Court, this fact has been raised for the first time which in any case is not applicable insofar as the appellants are concerned, since, they have been enjoying the consideration which was paid by the plaintiff-respondent in the year 2008 itself and the appellants did not comply with their obligation, hence, their conduct itself is blameworthy.

10. In the aforesaid facts and circumstances, the issue proposed to be raised by the appellants do not constitute a substantial question of law and neither any perversity has been pointed out in the judgment passed by the lower Appellate Court, hence, the appeal deserves to be dismissed.

11. The Court has considered the rival submissions and also perused the material on record.

12. Apparently few facts, which are undisputed are that a registered agreement to sell dated 09.01.2008 was executed by the appellants in favour of the respondent. In terms of the said agreement, a sum of Rs.90,000/- has been received by the appellants which is not in dispute. It is also not disputed that the agreement was contingent upon the fact that once the appellants were conferred with the Bhumidhari rights they would execute the sale-deed in favour of the respondent. It is also not disputed that the Bhumidhari rights were conferred upon the appellants sometimes in the year 2014. Another fact which is not disputed that after the Bhumidhari rights were conferred and the name of the appellants were recorded in the revenue records but as such no intimation was given by the appellants to the respondent regarding the aforesaid fact. On the contrary, the respondent had issued a notice dated 08.09.2015 which was not responded. Thereafter, another notice was issued on 04.11.2015 which too was not responded. In terms of the agreement, the entire consideration has already been paid and was available with the appellants and this fact is not disputed. The retention of the consideration is since 2008 and was a fact in the notice of the appellants. Even when the suit came to be filed, the appellants did not contest the suit even though the suit was dismissed ex-parte on 25.03.2019.

13. Having perused the judgment of the trial Court dated 25.03.2019 apparently it indicates that the trial Court erred in dismissing the suit on the ground of readiness and willingness, for the reason, that perhaps there was no obligation for the respondent left to be performed inasmuch as the entire sale consideration already stood paid. Apart from the fact as soon as they become aware of the Bhumidhari rights have been conferred on the appellants, they issued two notices which remain unresponded. Accordingly, the dismissal of the suit on the ground of non-providing of readiness and willingness by the respondent was patently erroneous.

14. In the aforesaid backdrop, if the decision of the lower Appellate Court is examined, it would be found that the appellate Court had taken note of the fact and it has also noticed that insofar as the appellants are concerned, they have not shown any indication as to under what circumstances, the plaintiff-respondent may not be entitled to a decree of specific performance since, the agreement is not disputed, the sale consideration is also not disputed and it is also not disputed that now there was no legal impediment for grant of a decree as Bhumidhari rights were also conferred as well as the fact that at no point of time, the appellants discharged their obligation of informing the respondent of the same. It is taking a holistic view that the lower Appellate Court reversed the decree and granted a decree of specific performance of contract in favour of the plaintiff-respondent.

15. In the aforesaid backdrop, if the decision of the Apex Court in Gobind Ram (supra) is considered, it would be found that the Apex Court has merely considered it is a proposition which apparently is not disputed. However, this is to be seen specifically in the present facts and circumstances, if it can be of any aid to the appellants. It is another undisputed fact that there are no pleadings on behalf of the appellants even while contesting the first appeal before the lower Appellate Court. It was always open for the appellants to have filed a cross-appeal to the extent of assailing that part of the order by virtue of which the proceedings had been set ex-parte against the appellants, however, they failed to do so. Unfortunately this aspect has not been raised before this Court as well as a result this Court can only see the material on record which indicates that the matter of the respondent practically remained uncontroverted and there has been no serious challenge before the two Courts.

16. The only contention as was available before the lower appellate Court who was obliged to examine the material which was available before it on the record. In the aforesaid circumstances, in absence of any pleadings or any proof or evidence, nor, there was any material to indicate to the contrary or what hardship is going to be caused to the appellants which made the agreement inequitable was not established nor there is any material on record to the aforesaid effect even before this Court.

17. A feeble attempt has been made before this Court by the learned counsel for the appellants to state that with the passage of time the prices have escalated and the appellants would be rendered landless and it would be unjust to part with the property at the price mentioned in the agreement.

18. Be that as it may, the issue also requires to be seen from the another angle and that is to say whether mere escalation of prices is enough to deny a decree of specific performance in favour of the plaintiff-respondent which has appropriately considered by this Court in great detail in Arjun Prasad and others v. Ganesh Prasad and others, 2023 SCC OnLine All 364, wherein with the aid of leading decisions of the Apex Court, this Court has culled out certain principles noticed in the decision of Arujun Prasad (supra).

19. Taking note of the aforesaid, this Court is of the clear opinion that the contention raised by the learned counsel for the appellants regarding the agreement being inequitable and in terms of Section 20 of the Specific Relief Act and the decree may not be granted, does not hold water. However, though no other point has been pressed by the appellants before this Court, apparently for the detailed discussions and also noticing the dictum of this Court in Arjun Prasad (supra) and in terms of Section 20 which is sought to be argued but never pleaded before the two Courts and for the reasons mentioned above, no case for substantial question of law being involved is made out.

20. This Court will be failing its duty in case if does not notice the decision of the Apex Court in U.N. Krishnamurthy Vs. A.M. Krishnamurthy; 2022 SCC Online SC 840, it is looking into the facts and circumstances that while affirming the judgment and decree passed by the lower Appellate Court dated 16.02.2023 and taking the aid of the decision of the Apex Court in U.N. Krishnamurthy (supra), this Court balancing equity and noticing that the agreement is of the year 2008 and since then there has been marked escalation in the prices of real estate especially where the land is situated has come within the urban agglomeration. Since, the appellants have been in possession of the property in question since 2008 at least that is from the date of the agreement and till date, 15 years have lapsed, and the appellants must have made improvements. Accordingly, the Court directs that the plaintiff-respondent shall pay a total sum of Rs.7,00,000/- to the appellants including Rs.90,000/- which has already been paid as part of the full sale consideration within a period of 90 days from today.

21. The aforesaid sum shall be paid by the plaintiff-respondent to the appellant within a period of 90 days from today and upon payment of the aforesaid sum to the appellants they shall execute the sale-deed in favour of the respondent or in case if the appellants fails to receive the sum or fails to execute the sale-deed after receiving the money, then the said sum shall be deposited with the Executing Court by the plaintiff and the plaintiff shall be entitled to get the decree of specific performance of contract dated 09.01.2008 specially enforced through the Executing Court.

22. Subject to the above modification, the judgment and decree dated 16.02.2023 passed in Regular Civil Appeal No.144/2019 is modified. No substantial question of law arises in the appeal, hence, the second appeal is dismissed at the admission stage. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 27.07.2023

Rakesh/-