Rupsing Nathu Patil vs Dongar Paulad Chaudhary Deceased Lrs ...
2025 Latest Caselaw 2157 Bom

Bombay High Court

Rupsing Nathu Patil vs Dongar Paulad Chaudhary Deceased Lrs ... on 12 August, 2025

2025:BHC-AUG:21796
                                                           950-SA-334-2004.odt




                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                           SECOND APPEAL NO. 334 OF 2004

          Shri. Rupsing Nathu Patil,
          Age: 50 Years, Occupation: Agriculture,
          R/o: Amjalisim Post Vadoda,
          Taluka Chodpa, District: Jalgaon.           ...Appellant

          VERSUS

          1.      Shri. Dongar Paulad Chaudhary,
                  Deceased through his Legal Heirs,

          1/1. Himmat Dongar Chaudhary,
               Age: 46 Years, Occupation: Agril.,

          1/2. Manohar Manik Dongar Chaudhary.
               Age: 44 Years, Occupation: Agril.,

          1/3. Vatsalabai Vasudeo Patil,
               Age: 55 Years, Occupation: Household,

          1/4. Leelabai Kalidas Patil,
               Age: 53 Years, Occupation: Household,

          1/5. Kokilbai Dattatraya Patil,
               Age: 51 Years, Occupation: Household,

          1/6. Sushilabai Pandurang Patil,
               Age: 47 Years, Occupation: Household,

          1/7. Janabai Dhansing Patil,
               Age: 44 Years, Occupation: Household,

          1/8. Smt. Hulnabai Dongar Chaudhary
               Age: 75 Years, Occupation: Household,

                  All R/o: Nim, Taluka Amalner, District Jalgaon.

          2.      Shri. Himmat Dongar Chaudhary,
                  Age: 49 Years, Occupation: Agriculture,
                  R/o: Nim, Taluka Amalner, District Jalgaon.


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                                                              950-SA-334-2004.odt




3.      Shri. Manik Dongar Chaudhary,
        Age: 45 Years, Occupation: Agriculture,
        R/o: Nim, Taluka Amalner, District Jalgaon.

                                                         ...Respondent

                           ***
• Mr. V. B. Patil, Advocate for the Appellant
• Mr. B. R. Warma, Advocate for the Respondents
                           ***

                                      CORAM         : R. M. JOSHI, J
                                      RESERVED ON   : AUGUST 08, 2025
                                      PRONOUNCED ON : AUGUST 12, 2025

JUDGMENT :

1. This Appeal under Section 100 of the Code of

Civil Procedure takes exception to the judgment and

decree passed by the First Appellate Court in RCA No.

46/1995 whereby the First Appellate Court over turned

the judgment and decree passed by the Trial Court of

granting decree of specific performance of contract.

2. This Court by order dated 10.09.2004 in

addition to the points mentioned in paragraphs 10 and

12 of the memo of the Appeal, framed following

substantial question of law:

"Whether the First Appellate Court was right in interfering in the decree for specific performance passed by Trial Court, in the facts and circumstances of the present case and in particular, taking into consideration that the respondent defendant

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had not entered the witness box and had not adduced any evidence?"

3. Parties are referred as 'Plaintiff' and

'Defendant' for the sake of convenience.

4. The facts which led to the filing of this

Appeal can be narrated in brief as under:

Plaintiff filed suit for specific performance

of contract against Defendant being Special Civil Suit

No. 14/1993 on the basis of the agreement to sale

executed by Defendant in favour of Plaintiff on

20.07.1991. Defendant by filing written statement

though has admitted the execution of the agreement,

however, contents therein are denied. It is claimed

that the transaction is not sale transaction but a loan

transaction and that the Plaintiff is a money lender.

It is also claimed that there is no other land of the

Defendant and that he had no intention to sale the said

property.

5. After framing of the issues, Plaintiff led

evidence. Defendant did not enter the witness box nor

led any evidence. Trial Court decreed the suit by

judgment and decree dated 05.09.1995. By directing the

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Plaintiff to deposit the balance consideration within a

period of a month and Defendant was directed to execute

sale deed in respect of suit property.

6. Defendant being aggrieved by the said judgment

and decree, preferred RCA No. 46/1995. The learned

First Appellate Court framed points for consideration

and answered all the points in favour of the Plaintiff,

however, rejected the relief of specific performance on

the ground of hardship caused to the Defendant. The

First Appellate Court directed Defendant to return the

part of consideration received by him along with

interest. Plaintiff being aggrieved by said judgment

and decree, preferred this Second Appeal.

7. Learned Counsel for Plaintiff submits that the

Trial Court as well as First Appellate Court have

accepted the case of Plaintiff about execution of

agreement to sale in respect of suit property, payment

of part consideration of Rs. 15,000/-, readiness and

willingness of the Plaintiff to perform his part of

contract and rejecting the contention of Defendant of

the transaction being money lending transaction. It is

his submission that after recording those findings and

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without framing any issue of hardship, it was not open

for the First Appellate Court to reverse the judgment

and decree passed by the Trial Court. It is his

submission by referring to the judgment of the Supreme

Court in case of K. Prakash vs. B. R. Sampath Kumar,

2014 (107) ALR 896 that the Appellate Court ought not

to have interfered with the order of the Trial Court

unless it was established that the discretion has been

exercised perversely, arbitrarily or against judicial

principles. In respect of the issue of hardship without

framing any point for consideration, he placed reliance

on the judgment of Supreme Court in case of Prakash

Chandra vs. Narayan, 2012 AIR(SC) 2826. It is his

argument that neither there is specific pleading in

respect of the hardship nor Defendant has entered into

witness bock in order to substantiate the same. It is

his submission that unless Defendant proves the

hardship, it cannot become a ground for denying

specific performance of contract. It is his submission

that issue of hardship even otherwise ought not to have

been answered in favour of Defendant as when the

Defendant agreed to sale the suit property, he was

conscious of the fact that he would become landless. To

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support this submission, he placed reliance on the

judgment of this Court in case of Abdul Mutalik Rajjak

Musalman and Others vs. Khubai Majidkha Musalman and

Others, 2005 (1) All.M.R. 593. Finally it is argued

relying upon the judgment of Hon'ble Supreme Court in

case of Parswanath Saha vs. Bandhana Modak (Das) and

Another, 2025 AIR(SC) 280, that in absence of any

pleadings or evidence that there was hardship of any

kind, which was not foreseen by the Defendant at the

time of execution of the agreement to sale, it cannot

become a ground for denying decree of specific

performance of contract.

8. Learned Counsel for Defendants supported the

impugned order with submission that admittedly

Defendant is the tenant under the Bombay Tenancy and

Agricultural Lands Act, 1948 (for short 'the Act') and

the extent of the said legislature needs to be kept in

mind while deciding the lis of a tenant. It is his

submission that in fact he sought to argue that

wherever there is a agreement to sale in respect of the

land hold by tenant under the Tenancy Laws and in view

of the impediments for the transfer of the said land

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created under the said Act, the agreement to sale must

contain recitals that the tenant has ceased the

occupation as agriculturist or that he is

incapacitated. He further argues that written statement

indicates that there was no intention of sale coupled

with the fact that the Defendant would lose the entire

land and there is admission of Plaintiff in his cross-

examination to that effect. It is his submission that

in such circumstances it was not necessary for the

Defendant to enter into witness box. In so far as the

findings recorded by the First Appellate Court with

regard to the hardship, it is his submission that

having regard to the provisions of the Act and rules

framed thereunder and more particularly, Rule 25A(f) of

Bombay Tenancy and Agricultural Land Rules, 1956 (for

short 'Rules'), the findings of the First Appellate

Court cannot be termed as perverse in order to cause

interference therein. It is his submission unless it

was established before the Civil Court that the tenant

has given up the profession or he was incapacitated for

cultivation of the land, the permission granted by the

Authority under the said Act (Exhibit 33) ought not to

have been relied upon by the Trial Court. It is his

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submission that Trial should have Court refused to act

upon the same for being contrary to the provisions of

the Act.

9. There is no dispute about the fact that the

Trial Court as well as First Appellate Court held that

the Defendant had executed registered agreement to sale

dated 20.07.1991 for the sale of suit land for a

consideration of Rs. 40,000/-. Both Courts have further

held that the Plaintiff was ready and willing to

perform his party of the contract and that out of total

amount of consideration, an amount of Rs. 15,000/- is

already paid by Plaintiff to the Defendant. There is no

further dispute about the fact that the case of the

Defendant about this being no transaction for sale but

a money lending transaction has been rejected by both

Courts. Moreover, admittedly, after passing of the

judgment and decree by the Trial Curt with direction to

the Plaintiff to deposit balance consideration within a

month, the said direction has been duly complied with.

10. Now only question remains for consideration as

to whether the First Appellate Court was justified in

rejecting this specific performance on the ground of

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hardship. Similarly, it needs to be seen as to whether

in facts of the case the Defendant not entering into

witness bock and adducing any evidence, any such

refusal of specific performance is justified.

11. In order to appreciate the said rival

contention of the parties on this issue, it would be

relevant to take into consideration the observations of

Supreme Court in case of Paraswanath Saha (supra),

which reads thus:

27. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the court is not arbitrary but is "sound and reasonable", to be "guided by judicial principles". The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub-section (2) of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. (See: Jayakantham & Ors. v.

Abaykumar reported in (2017) 5 SCC 178.)

28. A perusal of Section 20 of the Specific

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Relief Act, 1963 as it then stood would go to show as to under what circumstances 'hardship' can be taken into consideration in refusing specific performance. It is not possible to enumerate the different circumstances which constitute a hardship. It will suffice if it is noted that the question of hardship will have to be adjudged in the facts and circumstances of the case. In this connection, the observations of the Privy Council in the decision in G.W. Davis v. Maung Shwe Go reported in 1911 SCC OnLine PC 25 throw light on an important aspect of the matter. Among other things, it is observed in the said case as under:

"In the absence of any evidence of fraud or misrepresentation on the part of the Plaintiff which induced the Defendant to enter into the contract, their Lordships see no reason to accede to the argument. The bargain is onerous, but there is nothing to show that it is unconscionable. The Defendant knew all along that a lakh was the Plaintiff's limit; it is in evidence that he had frequently urged the Defendant's daughter to advise him to sell the land if he was getting a higher offer.

It is difficult to say under the circumstances that he took an improper advantage of his position or the difficulties of the Defendant."

(Emphasis supplied)

29. Then again, it is necessary to remember that mere rise in price subsequent to the date of the contract or inadequacy of price is not to be treated as a hardship

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entailing refusal of specific performance of the contract. Further, the hardship involved should be one not foreseen by the party and should be collateral to the contract. In sum, it is not just one factor or two, that is relevant for consideration. But it is the some total on various factors which is required to enter into the judicial verdict.

30. The High Court seems to have been carried away by the fact that in the written statement the Defendants did plead that hardship would be caused if they would be asked to execute the Sale Deed of the suit property.

31. The Trial Court had not framed any issue as regards hardship that may be caused to the Defendants. It is also pertinent to note that the High Court concurred with the Trial Court on all other issues but thought fit to reverse the decree only on the ground that if the Defendants are asked to execute the Sale Deed of the suit property, i.e., the residential house they would be rendered shelterless.

32. In the aforesaid context, we may refer to a decision of this Court in Prakash Chandra v. Narayan reported in (2012) 5 SCC 403 wherein para 17 of the report, it has been held:

"17. The question as to whether the grant of relief for specific performance will cause hardship to the Defendant within the meaning of clause (b) of sub-section (2) of Section 20 of the Specific Relief Act,

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1963, being a question of fact, the first appellate court without framing such an issue ought not to have reversed the finding of the trial court while concurring with it on all other issues with regard to the Appellant's entitlement to relief for specific performance of contract."

33. Thus, in view of the aforesaid the High Court committed an error in taking the view that the Plaintiff is not entitled to the decree for specific performance as the same would cause hardship to the Defendants.

34. The High Court seems to have overlooked the fact that the question of hardship in terms of Section 20(2)(b) of the Act, 1963 read with explanation (2) bears reference to hardship, which the Defendant did not foresee at the time of entering into the contract. In other words, the issue of hardship would come into play only if it is established by cogent evidence that Late Prabha Ranjan Das who executed the Agreement of Sale was unable to foresee the hardship at the time of entering into the contract.

35. The explanation elucidates the point of time at which the hardship has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the Plaintiff subsequent to the contract.

36. There is nothing to indicate in the pleadings or evidence that there was a hardship of the kind which Late Prabha Ranjan Das did not foresee at the time he

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executed the Agreement of Sale or that the hardship which the Defendants herein would face is the result of an act of the Plaintiff based on his supervening acts.

37. This Court in K. Narendra (supra) in paras 29 and 30 held as under:

"29. Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the Defendant which he did not foresee while non- performance involving no such hardship on the Plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the Defendant or improvident in its nature, shall not constitute an unfair advantage to the Plaintiff over the Defendant or unforeseeable hardship on the Defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [(1996) 5 SCC 589 : AIR 1996 SC 2814] by stating that the decree for specific performance is in the discretion of the

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Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court.

30. Chitty on Contracts (27th Edn., 1994, Vol. 1, at p. 1296) states:

Severe hardship may be a ground for refusing specific performance even though it results from circumstances which arise after the conclusion of the contract, which affect the person of the Defendant rather than the subject- matter of the contract, and for which the Plaintiff is in no way responsible.

12. The above observations of the Supreme Court

clearly indicates that the question of hardship will

have to be adjudged in the facts and circumstances of

each case. Mere rise in price subsequent to the date of

the contract or non adequacy of the price cannot be

treated as hardship entailing refusal of specific

performance of contract. The hardship should be one

which is not foreseen by the party and should be

collateral to the contract. It is also observed that in

absence of any evidence of fraud or misrepresentation

on the part of the Plaintiff, which induced the

Defendant to enter into an contract and there is

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nothing to show that it is unconscionable or where

improper advantage is taken by the decision of the

Plaintiff or the difficulties of the Defendant, the

issue of hardship cannot be answered in favour of

Defendant. The aforestated observations need to be kept

in mind while appreciating the facts of the case.

13. Here in this case, admittedly, Defendant has

executed agreement to sale of suit land for valid

consideration. It is not the case of the Defendant that

he was been forced to execute the agreement to sale at

a lesser price than the market price or the price

entitled by him. Agreement to sale is a registered

document and as such, presumption of the registered

document would certainly be attached to it unless

rebutted. It is pertinent to note that the Defendant

has denied the intention to sale and has claimed that

it is a money lending transaction. Once such stand is

taken by the Defendant, it cannot be presumed that

there is likelihood of any hardship being caused to the

Defendant by execution of the said agreement. The

hardship involved must be collateral to the contract.

Thus, in order to accept the contention of the

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Defendant with regard to the hardship, the agreement to

sale ought to have been admitted by him. Though he

admits the execution of the document, he doe not admit

the contents therein and specifically claims it to be a

money lending transaction. Both Courts have recorded

the findings of fact on the basis of material evidence

on record that the Defendant had executed the agreement

to sale and it was always intended sale and not a money

lending transaction.

14. In this backdrop, the non appearance of the

Defendant in the witness box assumed relevance. The

First Appellate Court has sought to record findings

that the Plaintiff in his cross-examination has

admitted that the Defendant become landless, however,

the Court has failed to take into account that no

hardship was claimed by Defendant with execution of the

agreement to sale and consequent sale of the land. When

the Defendant has executed the sale deed and accepted

the part consideration, he was fully conscious of the

fact that he is going to lose the land. Thus, it cannot

be said that he becoming landless was not or could not

be foreseen by him. This fact of the knowledge of the

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Defendant of the land being lost get confirmed from the

fact that he applied to the Collector for seeking

permission of the sale of the suit land. Document

Exhibit 33 indicates that the sale was permitted in

respect of half portion of the suit land. The positive

act on the part of the Defendant of applying for the

permission not only shows that it was a case of the

sale deed only and not a money lending but also

indicates that a conscious decision was taken by the

Defendant to sale the suit land.

15. Though it is sought to be argued by the

Counsel for the Defendant that in case of sale of the

land belonging to the tenant under the Act, there

should be restoration of the agreement with regard to

the tenant becoming incapacitated or ceased to be

agriculturist. This cannot be made as a condition

precedent for holding an agreement to sale being the

valid. There cannot be direction to parties to

incorporate terms in mutual contract. Moreover,

issuance of such directions would not be supported by

law. This conclusion is inevitable in view of the

settled position of law that the specific performance

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of contract cannot even be refused merely on the ground

that there is no permission obtained for the sale of

the land under the Tenancy Laws. The condition of

sanction/permission would apply at the time of

execution of sale deed. Moreover, when there is no

embargo created by the law of sale/transfer of said

land, save and except permission of the competent

Authority, it would not be possible to accept the

contention of the learned Counsel for the Defendant in

this behalf.

16. Learned Counsel for Defendant has also sought

to impress upon this Court that the Trial Court ought

not to have accepted Exhibit 33 to be a permission for

sale as it was not on the ground that tenant has ceased

to be an agriculturist or is incapacitated. Exhibit 33

is an order passed by the Collector under the

provisions of the Act. In view of Section 85 of the

Act, there is clear embargo for the Civil Court to

decide any issue which is to be decided by the parties

under the said Act. In view of such legal impediment,

it was not open for the Trial Court to record any

findings in respect of correctness or otherwise of the

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said order passed by the Collector. Moreover, even as

of today the said order Exhibit 33 still subsits.

17. Learned Counsel for Defendant also sought to

argue that it is high time that the First Appellate

Court are required to be directed to frame points for

determination in advance and not at the time of

deciding the Appeal. This submission, however, is not

supported by the scheme of Order XLI of Code of Civil

Procedure. Rule 31 of Order XLI requires judgment to

state the points for determination and decision

thereon. There is no provision to frame points for

determination before this stage unlike framing of

issues in a trial. As far as the trial is concerned,

Trial Court is required to frame issues on the basis of

pleadings and also the evidence is required to be lead

by the parties thereon. In so far as the Appellate

Court is concerned, the Appellate Court is expected to

decide the issues and points for consideration, which

were raised before the Trial Court. In case Appellate

Court finds that any issue is required to be framed and

not framed by the Trial Court, as per Order XLI, Rule

25 additional issue can be framed and trial Court may

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be directed to record evidence and findings thereon. In

such circumstances, this Court finds it not possible to

issue any direction to the Appellate Court for framing

the points for determination in advance. Needless to

say that if Appellate Court finds any issue to be

additionally framed and there is sufficient evidence

available on record, it may decide same after putting

parties to the notice.

18. Though this Court accepts the contention of

learned Counsel for Defendant that being First

Appellate Court it was open for the District Court to

re-appreciate the evidence and record the findings

afresh, the findings recorded by the First Appellate

Court cannot be said to be in consonance with the

material evidence on record and more particularly, when

the Defendant has not substantiated the said hardship

by entering into witness box and consequently

subjecting himself to the cross-examination. Moreover,

the conclusion drawn by First Appellate Court are in-

consistent to settled position of law. The findings

recorded by the First Appellate Court are, therefore,

required to be held to be perverse being contrary to

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the evidence on record and settled position of law.

19. As a result of above discussion, the

substantial question of law framed herein above

deserves to be answered in affirmative. Hence, the

impugned judgment and order dated 12.11.2003 passed by

the First Appellate in RCA No. 46/1995 is set aside.

Judgment and decree passed by the Trial Court dated

05.09.1995 in Special Civil Suit No. 14/1993 is

restored.

20. Appeal stands allowed in above terms. Pending

civil application(s), if any, stands disposed of.

                                                     (R. M. JOSHI, J.)




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