Punjab-Haryana High Court
Sunder Lal vs Cholar Ram on 20 November, 2025
RSA No. 2957 of 1996
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 2957 of 1996(O&M)
Sunder Lal & Ors
...Appellants
Versus
Cholar Ram
...Respondent
Reserved on: 07.11.2025
Pronounced on: 20.11.2025
Uploaded on : 20.11.2025
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued by:- Mr. S.K. Garg Narwana, Senior Advocate with
Mr. Vishal Garg Narwana, Advocate,
Mr. Japjit Singh Johal, Advocate and
Ms. Sukri2 Jain, Advocate
for the appellants.
Mr. Akshay Jindal, Senior Advocate with
Mr. Tushar Kush, Advocate,
Mr. Bhavya Vats, Advocate and
Ms. Amyia Malhotra, Advocate
for the respondent.
***
DEEPAK GUPTA, J.
This Regular Second Appeal is directed against the concurrent
findings recorded by both the Courts below, whereby the suit for possession by
way of specific performance filed by the plain2ff-respondent Cholar Ram was
decreed by the learned trial Court vide judgment dated 30.11.1995, and the
appeal preferred by the defendant-appellant Kuda Ram was dismissed by the
learned First Appellate Court on 08.10.1996.
2. To avoid any confusion, the par2es are being referred to as per
their status before the trial Court. The record of the Courts below (available on
DMS) has been perused with the able assistance of learned counsel for both
sides.
3.1 Plain ff's Case :The case of the plain2ff is that defendant No.1 -
Kuda Ram, by virtue of an agreement to sell dated 28.05.1990 (Ex.P1), agreed to
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sell his ½ share out of agricultural land measuring 48 Kanal 8 Marla situated in
village Koer, Tehsil and District Karnal, as described in para 2 of the plaint, for a
total sale considera2on of ₹1,92,540/-. An amount of ₹25,000/- was paid as
earnest money vide receipt (Ex.P2) at the 2me of execu2on. It was s2pulated
that the sale deed would be executed and registered on or before 28.12.1990
upon payment of the balance sale considera2on, and that possession would also
be delivered on that day. Since part of the land measuring 8 Kanal was under
mortgage with one Jado Ram, it was agreed that the defendant would get the
same redeemed before execu2on of the sale deed.
3.2 The plain2ff averred that he was and con2nued to remain ready
and willing to perform his part of the contract. However, despite repeated re-
quests, defendant No.1 failed to perform his part and ul2mately refused to ex-
ecute the sale deed. Consequently, the plain2ff filed Civil Suit No. 745 of 1990
for permanent injunc2on to restrain the defendant from aliena2ng the property
or suffering any collusive decree. In that earlier suit, the defendant appeared
and filed wriIen statement admiJng the execu2on of the agreement to sell, but
took the objec2on that a suit for injunc2on was not maintainable, and that the
plain2ff should have filed a suit for specific performance.
3.3 Subsequently, the plain2ff discovered that defendant No.1 had
suffered a consent decree dated 20.11.1990 in Civil Suit No.1599 of 1990 in fa-
vour of his sons--defendant Nos.2 to 4, purpor2ng to transfer the suit land to
them. The plain2ff alleged the said decree to be collusive, null and void, and
prayed for a decree of specific performance of the agreement dated 28.05.1990
along with a declara2on that the judgment and decree dated 20.11.1990 was il-
legal and not binding on his rights.
4. Stand of the Defendants : The defendants filed wriIen statement
resis2ng the claim. They asserted that the property in ques2on was ancestral
and joint Hindu family property, of which defendant No.1 was only the Karta,
and thus had no authority to alienate it. The execu2on of the alleged agreement
to sell or receipt of earnest money was categorically denied. It was contended
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that since there was no valid agreement between the par2es, the ques2on of
readiness and willingness on the part of the plain2ff did not arise. The
defendants also denied that defendant No.1 had admiIed execu2on of any such
agreement in the earlier injunc2on suit. They maintained that the decree dated
20.11.1990 was based on a valid family seIlement, and not a sham transac2on.
With these submissions, dismissal of the suit was prayed for.
5. Rejoinder : In his rejoinder, the plain2ff reiterated the averments
made in the plaint and denied the defence set up by the defendants.
6. Findings of the trial Court :AMer framing necessary issues and upon
considera2on of the pleadings and evidence led by both par2es, the learned trial
Court, vide judgment dated 30.11.1995, held that the agreement to sell dated
28.05.1990 had been duly executed by defendant No.1 in favour of the plain2ff
for valid considera2on of ₹1,92,540/-, and that ₹25,000/- had indeed been paid
as earnest money. The Court further held that the plain2ff had proved his
con2nuous readiness and willingness to perform his part of the contract. The de-
cree dated 20.11.1990 suffered by defendant No.1 in Civil Suit No.1599 of 1990
in favour of defendant Nos.2 to 4 was declared null, void and non-binding upon
the plain2ff. On these findings, the suit was decreed in en2rety.
7. Findings of the First Appellate Court, upon re-appraisal of the
en2re evidence, learned District Judge, Karnal affirmed the findings of fact and
law recorded by the trial Court and dismissed the appeal filed by defendant No.1
vide judgment dated 08.10.1996.
8.1 Submissions by Appellant - Defendant : Assailing the concurrent
findings of the courts below, it is argued by Ld. Senior Advocate for the appellant
- defendant that the agreement to sell (Ex. P-1) does not bear the name or
signature of any scribe or typist. The plain2ff, however, introduced Balwant
Singh (PW-1) as the alleged typist, who claimed to have prepared the document
at the instance of the defendant. In cross-examina2on, PW-1 admiIed that he
was not a licensed deed writer and had not entered the document in any
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register. On the contrary, PW-2 Desa Ram, projected as an aIes2ng witness,
stated that aMer typing, he had entered the agreement in his register, which
both par2es signed. These contradictory statements, it is urged, render PW-1 an
introduced and unreliable witness, and since the actual scribe has not been
examined, the remaining evidence is hearsay.
8.2 It is argued that as per the plaint, the agreement was executed at
Nilokheri, but PWs 1 and 2 deposed that it was typed at Karnal. The plain2ff later
sought to reconcile this inconsistency by saying that the stamp paper was
purchased at Nilokheri but due to non-availability of a deed writer, the par2es
went to Karnal for typing. It is argued that this improvement undermines the
credibility of the plain2ff's case. It is urged that the introduc2on of a false or
doubQul witness itself, disen2tles the plain2ff to the discre2onary relief of
specific performance. Besides, no handwri2ng or expert witness was produced
to establish that the signatures on Ex. P-1 are those of the defendant.
8.3 S2ll further, it is argued that out of the total sale considera2on of
₹1,92,540/-, only ₹25,000/- was paid. The plain2ff has failed to produce any
credible evidence of financial capacity to pay the balance amount or of arranging
funds for the same. Hence, he cannot be said to have been ready and willing to
perform his part of the contract. Not only this, no no2ce is proved to have been
served upon the defendant calling him to appear before the Sub-Registrar on the
target date. Although the plain2ff claims to have issued a no2ce, the same was
neither pleaded nor proved. Moreover, the plain2ff himself did not appear
before the Sub-Registrar on 28.12.1990, thereby nega2ng his readiness and
willingness.
8.4 Pleading the bar under Order II Rule 2 CPC, it is argued that the
agreement is dated 28.05.1990 with the target date as 28.12.1990. The plain2ff,
however, filed the first suit for injunc2on on 21.11.1990 alleging refusal by the
defendant to execute the sale deed, and during its pendency, ins2tuted the
second suit (Civil Suit No. 1037 of 1990) for specific performance on 03.12.1990
without obtaining permission to withdraw the earlier suit. This, it is urged,
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aIracts the bar of Order II Rule 2 CPC, as the earlier suit could have included the
relief of specific performance. It is pointed out that the earlier injunc2on suit
was dismissed as withdrawn on 14.12.1990, wherein the trial Court observed
that the subsequent suit for specific performance would remain maintainable.
Learned counsel contends that such an observa2on was unwarranted,
par2cularly when the defendant's counsel was not present, and so, cannot
confer jurisdic2on or validate the later suit.
8.5 It is next contended that even if the agreement was proved, the
plain2ff must s2ll establish the readiness and willingness. Not only this, clause in
the agreement itself provides that on default of the vendor, the vendee may
claim double the earnest money, which the plain2ff has also sought as an al-
terna2ve relief. In such circumstances, the Court ought to have granted the al-
terna2ve relief rather than decreeing specific performance.
8.6 Finally, it is contended that although the findings are concurrent,
the High Court may interfere where the Courts below have mis-appreciated
evidence or drawn perverse inferences. According to learned counsel, the
present case squarely falls within that category, warran2ng interference and
seJng aside of the decrees.
9.1 Submissions by Respondent-Plain ff : In reply, learned Senior
Counsel for the respondent-plain2ff has supported the concurrent judgments,
submiJng that both Courts below have me2culously examined the evidence
and recorded concurrent findings that the agreement to sell was duly executed
by the defendant for valid considera2on. Minor discrepancies regarding the
scribe or place of typing are immaterial and do not outweigh the categorical
evidence on record. AIen2on is drawn to the wriIen statement filed by the de-
fendant in the earlier injunc2on suit, wherein he specifically admiIed the execu-
2on of the agreement to sell. His subsequent denial in the present proceedings
amounts to an aMerthought. During cross-examina2on in the present suit, the
defendant even denied his signatures on that earlier wriIen statement, which
further erodes his credibility.
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9.2 It is argued further that the earlier injunc2on suit was dismissed as
withdrawn on 14.12.1990. The Court while permiJng withdrawal expressly
observed that such withdrawal would not affect maintainability of the sub-
sequent suit for specific performance. Even if that observa2on was irregular, the
appellant never challenged it and cannot now derive any advantage from his
own inac2on.
9.3 It is submiIed that the findings of both Courts are based on proper
apprecia2on of oral and documentary evidence. No perversity or mis-reading of
evidence is shown so as to jus2fy interference under Sec2on 100 CPC or Sec2on
41 of the Punjab Courts Act. Accordingly, it is urged that the appeal lacks merit
and deserves dismissal.
10. This Court has considered the rival submissions of learned Senior
Counsel for both par2es and carefully re-appraised the record of the Courts
below.
11. Findings on the Execu on and Genuineness of Agreement (Ex. P-
1) : The principal conten2on raised by learned Senior Counsel for the appellant
relates to the genuineness and due execu2on of the agreement to sell (Ex. P-1).
It is argued that the document was not prepared by a regular deed writer; that
PW-1 Balwant Singh, the alleged typist, did not sign it and was later introduced
as a witness; that there exists inconsistency between PW-1 and PW-2 regarding
the place of execu2on; and that one of the aIes2ng witnesses, namely Singh
Ram, was not examined.
12. These conten2ons, though elaborately urged before this Court,
stand fully considered and rejected by the learned First Appellate Court on a
careful re-appraisal of the evidence. The Appellate Court recorded detailed
findings in paras 7 to 10 of its judgment, to the effect that the agreement was
duly executed by defendant No. 1 - Kura Ram in favour of the plain2ff for a valid
considera2on, and that the defendant's subsequent denial was false and an
aMerthought.
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13. The reasoning of the First Appellate Court, with which this Court
finds itself in full agreement, may be summarized as under :
x The agreement (Ex. P-1) is a typed document prepared by Balwant Singh
(PW-1), who categorically deposed that he typed the document at the
instance of both par2es and witnessed their signatures thereon. The
document was also aIested by Desa Ram (PW-2) and Singh Ram, the
laIer having since died.
x PW-1's failure to sign the document does not discredit his tes2mony be-
cause, as a typist, he was neither expected nor required to append his sig-
nature. The absence of his register entry likewise does not negate the fact
of his document prepara2on, par2cularly when his deposi2on remained
consistent and unrebuIed.
x PW-2 Desa Ram, an aIes2ng witness, corroborated that the agreement
was typed in the Courts Complex at Karnal in his presence and in the
presence of both par2es. The minor discrepancy as to whether an entry
was made in any register is inconsequen2al. His tes2mony regarding the
payment of earnest money of ₹ 25,000/- and execu2on of the document
by defendant No. 1 remained firm and credible.
x The plain2ff himself (PW-4) supported the due execu2on of the agree-
ment and the payment of earnest money, besides affirming his con2n-
ued readiness and willingness to perform his part of the contract.
14. This cumula2ve evidence, both direct and circumstan2al, fully
sa2sfies the requirement under Sec2on 67 of the Evidence Act, which mandates
that a document must be proved by primary evidence and by persons
acquainted with its execu2on.
15. S2ll further, it is most par2cularly significant to note that in the
earlier suit for injunc2on filed by the plain2ff in respect of the same transac2on,
the defendant filed wriIen statement (Ex.P-5) expressly admiJng that "an
agreement to sell was entered into between the par2es." Though he later
sought to evade this admission by alleging forgery of his signatures, his own
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advocate Shri P.R. Nagpal (PW-3) tes2fied that the wriIen statement was
prepared under the defendant's instruc2ons, read over and explained to him,
and duly signed and verified by him.
16. MaIer does not rest here. In the present case, tes2mony of Shri
P.R. Nagpal (PW-3) to the effect that the wriIen statement was prepared under
the defendant's instruc2ons, read over and explained to him, and duly signed
and verified by him, remained unchallenged, as he was not cross-examined at
all, indica2ng that defendant does not dispute the statement of PW3.
17. Such categorical admission of execu2on in prior proceedings
cons2tutes a relevant fact under Sec2on 21 of the Evidence Act, and the aIempt
to retract from it during cross-examina2on, by even denying signatures on the
wriIen statement filed in the present case, only exposes the falsity of the
defendant's stand. The Courts below were, therefore, jus2fied in trea2ng this
conduct as a deliberate aIempt to mislead the Court and defeat the plain2ff's
contractual rights.
18. The alleged inconsistency regarding whether the agreement was
executed at Nilokheri or Karnal is, at best, a trivial varia2on incapable of
affec2ng the core issue. The defendant has not alleged the existence of any
other agreement. Once the factum of execu2on, payment of earnest money,
and signatures of the defendant are proved, such minor discrepancies are
immaterial. The law is well seIled that minor contradic2ons or lapses in
recollec2on cannot outweigh credible evidence of execu2on, par2cularly when
the document itself bears the signatures of the executant and stands
corroborated by independent witnesses.
19. In light of the above discussion, this Court finds no illegality,
infirmity, or perversity in the concurrent findings of both the Courts below
holding that the agreement to sell (Ex. P-1) was duly executed by defendant No.
1 in favour of the plain2ff for valid considera2on and that the payment of
earnest money was proved. The apprecia2on of evidence by the First Appellate
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Court is consistent with the principles laid down under the Indian Evidence Act
and Sec2on 10 of the Specific Relief Act, 1963. Accordingly, the finding regarding
the due execu2on of the agreement to sell (Ex. P-1) is affirmed.
20. Findings on Readiness and Willingness : The next conten2on
advanced by learned Senior Counsel for the appellant pertains to the plain2ff's
readiness and willingness to perform his part of the contract. It is argued that
there is no evidence of the plain2ff having appeared before the Sub-Registrar on
28.12.1990, the date fixed for execu2on of the sale deed; that no prior no2ce
was served upon the defendant calling upon him to execute the sale deed; and
that the plain2ff failed to prove his financial capacity to pay the balance sale
considera2on and meet the incidental expenses of stamp and registra2on.
21. At the outset, it may be observed that the finding of the trial Court
on the issue of readiness and willingness was never challenged before the First
Appellate Court. The appellant, therefore, cannot be permiIed to raise this
conten2on for the first 2me in second appeal, par2cularly when it involves a
pure ques2on of fact. Nonetheless, since the argument has been pressed, this
Court has examined the record to sa2sfy itself on the merits of the plea.
22. The trial Court had found that prior to the target date of
28.12.1990, defendant No. 1 Kuda Ram, had already suffered a consent decree
dated 20.11.1990 in favour of his sons (defendants 2 to 4) in Civil Suit No. 1599
of 1990, thereby rendering it impossible for him to perform his part of the
contract. The plain2ff's act of filing an earlier suit for permanent injunc2on to
restrain the defendant from aliena2ng the suit property clearly demonstrates his
anxious inten2on and con2nuous readiness to secure specific performance.
23. Subsequently, upon learning of the collusive decree, the plain2ff
promptly ins2tuted the present suit for specific performance on 03.12.1990,
even before the target date, since the defendant had already repudiated the
agreement. In such a situa2on, the non-appearance of the plain2ff before the
Sub-Registrar, or his failure to serve a prior legal no2ce becomes wholly
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immaterial, as the defendant had already made performance impossible by his
own conduct. The law does not compel a party to perform a fu2le act.
24. Further, Ld. trial Court, while assessing the evidence of PW-4 Cholar
Ram, noted his categorical statement that he had repeatedly requested the
defendant to execute the sale deed and was ready and willing to do so even at
the 2me of deposi2on. In cross-examina2on, he further deposed that he was
ready with ₹ 1,70,000/- as balance sale considera2on and ₹ 30,000/- for
registra2on expenses. This unshaken tes2mony, in the absence of any contrary
evidence, sufficiently establishes his financial readiness.
25. The trial Court rightly relied on the Division Bench judgment of this
Court in Gurdial Singh & others v. Darshan Singh & another, 1995 PLJ 401,
which holds that where the plain2ff specifically pleads and proves con2nuous
readiness and willingness, the requirement of Form 47 of Appendix A CPC stands
sa2sfied. The Division Bench further observed that once execu2on of the
agreement is proved, specific performance should ordinarily follow, unless the
case falls within the excep2ons of Sec2on 10 of the Specific Relief Act, which is
not the situa2on here.
26. It is equally significant to note that the defendant, despite having
admiIed the execu2on of the agreement in the earlier injunc2on suit,
subsequently denied not only that admission but even his own signatures on the
wriIen statements in both suits. Such conduct reflects a deliberate aIempt to
evade his contractual obliga2ons and to mislead the Court. A party, who adopts
inconsistent and false stands, cannot be permiIed to ques2on the bona fides of
the opposite party. The defendant's evasive conduct, therefore, for2fies rather
than weakens the plain2ff's case on readiness and willingness.
27. Under Sec2on 16(c) of the Specific Relief Act, 1963, the plain2ff
must aver and prove that he has performed, or has always been ready and
willing to perform his part of the contract. The requirement is to establish
readiness in mind and willingness in conduct, not necessarily to produce
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documentary proof of cash in hand. The Supreme Court in Syed Dastagir v. T.R.
Gopalakrishna Se0y (AIR 1999 SC 3029) and Azhar Sultana v. B. Rajamani
(2009 4 SCC 305) has clarified that the plain2ff's consistent conduct and credible
oral tes2mony are sufficient to sa2sfy this statutory requirement. The plea of
"readiness and willingness" to perform a contract can be inferred from the facts
and circumstances of the case, even if the exact words are not used in the
pleading.
28. In the present case, the plain2ff's contemporaneous ac2ons i.e.,
repeated requests to the defendant, filing of the injunc2on suit, and immediate
ins2tu2on of the present suit upon learning of the collusive decree, cons2tute
unimpeachable evidence of con2nuous readiness and willingness.
29. Accordingly, this Court finds no infirmity or perversity in the finding
of the trial Court that the plain2ff had proved his readiness and willingness to
perform his part of the contract. The conten2on of the appellant to the contrary
is devoid of any merit and stands rejected.
30. Plea under Order II Rule 2 CPC : Ld. Senior Counsel for the appellant
has further argued that the plain2ff's present suit for specific performance was
barred by Order II Rule 2 of the Code of Civil Procedure, as the earlier suit filed
on 21.11.1990 for permanent injunc2on was based on the same cause of ac2on
arising out of the same agreement to sell dated 28.05.1990. It is urged that since
the plain2ff had alleged refusal on the part of the defendant to execute the sale
deed in the earlier suit, he was obliged to claim the relief of specific
performance in the earlier suit itself; that the subsequent suit filed on
03.12.1990 was not maintainable; and that withdrawal of the earlier suit without
permission under Order XXIII Rule 1(3) CPC could not cure this defect.
31.1 To support his conten2on, Ld. Counsel relies on Mohan Singh vs.
Prem Aggarwal, Law Finder Doc Id # 2736711 (decided on 01.04.2025), wherein
Hon'ble Supreme Court held that Order 2 Rule 2 CPC mandates that a plain2ff
must claim all reliefs arising from the same cause of ac2on in one suit. If a relief
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that ought to have been claimed is omiIed, a subsequent suit claiming that
relief is barred unless leave of the Court was obtained at the 2me of filing the
earlier suit.
31.2 In above case, second suit filed on 11.06.1990 for specific
performance was held to be barred under Order 2 Rule 2 CPC, as the cause of
ac2on in the earlier suit for permanent injunc2on was found to be iden2cal
arising from the appellants' alleged refusal to honour the agreement dated
12.06.1989. It was held that the respondent-plain2ff, having consciously omiIed
to claim specific performance in the earlier suit despite being aware of the
breach, could not be permiIed to raise the same cause in a subsequent suit.
32. Further reliance is placed on Jagmohan Bhargo vs Ajit Singh Law
Finder Doc Id # 2787926; and M/s Virgo Industries vs M/s Venturetech
Solu ons Pvt. Ltd. 2013 (1) SCC 625, wherein first suit was withdrawn aMer filing
of the second suit. Hon'ble Supreme Court held that Order 2 Rule 2 will apply in
such situa2on as well.
33. Order II Rule 2 CPC is intended to prevent mul2plicity of suits and to
compel a plain2ff to claim all reliefs arising from the same cause of ac2on in one
proceeding. In Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC 141,it has
been held by Hon'ble Supreme Court that :
"The object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no
defendant is sued and vexed twice in regard to the same cause of ac2on.
Second is to prevent a plain2ff from spliJng of claims and remedies based on
the same cause of ac2on. The effect of Order 2 Rule 2 of the Code is to bar a
plain2ff who had earlier claimed certain remedies in regard to a cause of ac2on,
from filing a second suit in regard to other reliefs based on the same cause of
ac2on. It does not however bar a second suit based on a different and dis2nct
cause of ac2on."
34. However, the said bar applies only where both suits are based on
the same cause of ac2on; the earlier suit was decided on merits or withdrawn
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without liberty to file afresh; and the relief claimed in the later suit could have
been claimed in the earlier one. The Cons2tu2on Bench of Hon'ble Supreme
Court, in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 while considering the
scope and applicability of Order 2 Rule 2 of the Code of Civil Procedure, has held
as under:
"In order that a plea of a bar under 0. 2. r. 2(3), Civil Procedure Code should
succeed the defendant who raises the plea must make out (1) that the second
suit was in respect of the same cause of ac2on as that on which the previous
suit was based, (2) that in respect of that cause of ac2on the plain2ff was
en2tled to more than one relief, (3) that being thus en2tled to more than one
relief the plain2ff, without leave obtained from the Court, omiIed to sue for the
relief for which the second suit had been filed."
35. In the instant maIer, the record reveals that the plain2ff filed the
earlier suit for permanent injunc2on on 21.11.1990 only against the defendant
Kura Ram to restrain him from aliena2ng the suit property, or suffering any
collusive decree. At that stage, though the target date under the agreement was
28.12.1990, the defendant had already exhibited conduct sugges2ng his
inten2on to defeat the contract. The relief then sought was preven2ve and
emergent, intended to preserve the subject maIer of the contract pending
performance. However, as the plain2ff later on came to know that said
defendant had suffered a consent decree on 20.11.1990 in favour of his sons
(defendants 2 to 4), effec2vely repudia2ng the agreement to sell, therefore, this
act gave rise to a fresh and dis2nct cause of ac2on to him (plain2ff), not only to
seek specific performance but also the declara2on that consent decree dated
20.11.1990 in favour of defendants 2 to 4 was null & void and not binding on his
rights. Thus, the subsequent suit ins2tuted on 03.12.1990 was not based on the
same cause of ac2on as the earlier one but on a new set of facts, which arose
later.
36. Further, the earlier suit was formally dismissed as withdrawn on
14.12.1990, with the trial Court specifically observing that such withdrawal
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would not affect the maintainability of the later suit for specific performance.
Although Ld. Senior Advocate for the appellant contends that such an
observa2on was beyond the Court's jurisdic2on, the fact remains that the order
of withdrawal has aIained finality, and was never challenged by the defendant
before any superior forum.
37. In the aforesaid facts and circumstances, reliance on M/s Virgo
Industries vs M/s Venturetech Solu ons Pvt. Ltd. (supra), Jagmohan Bhargo's
case (supra)andMohan Singh vs. Prem Aggarwal (supra), is misplaced.
38. Even otherwise, the absence of express leave under Order XXIII Rule
1(3) CPC would not, in the facts of the present case, operate as a bar because
the subsequent suit is founded on new circumstances i.e., the consent decree +
refusal of performance; and thus, the reliefs claimed in both suits are dis2nct.
39. Moreover, the defendant's own conduct in suffering a collusive
decree in favour of his sons and repeatedly shiMing his stand regarding execu2on
of the agreement to sell, debars him from taking technical pleas to defeat
substan2ve jus2ce.
40. In view of the above, this Court finds that the bar under Order II
Rule 2 CPC is not aIracted. The subsequent suit for specific performance was
based on a fresh cause of ac2on arising out of the defendant's repudia2on of the
agreement by suffering a collusive decree. The withdrawal of the earlier
injunc2on suit does not render the present suit incompetent, par2cularly when
the trial court specifically held in its order 14.12.1990 that such withdrawal
would not affect the maintainability of the later suit for specific performance.
41. Accordingly, the finding of maintainability recorded by the Courts
below calls for no interference and is hereby affirmed.
42. Findings on exercise of discre on :A further submission advanced
on behalf of the appellant-defendant is that, even if the execu2on of the
agreement to sell (Ex. P-1) is proved, the trial Court ought not to have decreed
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specific performance and should instead have granted the alterna2ve relief of
recovery of double the earnest money, as men2oned in the agreement itself and
also claimed by the plain2ff in the alterna2ve.
43. It is well seIled that specific performance is an equitable and
discre2onary relief, governed by Sec2on 20 of the Specific Relief Act, 1963
(unamended). The Court is not bound to grant such relief merely because it is
lawful to do so. However, once the contract is proved to be valid and
enforceable, and the plain2ff demonstrates con2nuous readiness and
willingness under Sec2on 16(c), the normal rule is to enforce performance
unless special circumstances exist rendering it inequitable to do so. The Supreme
Court in K. Nanjappa v. R.A. Hameed, (2016) 1 SCC 762, and P. D'Souza v.
Shondrilo Naidu, (2004) 6 SCC 649, held that discre2on must be exercised
judicially and not arbitrarily, and that mere availability of an alterna2ve clause
for damages does not, by itself, dis-en2tles the plain2ff from a decree for
specific performance.
44. The clause in the agreement sta2ng that in case of default by the
vendor, the vendee may recover double the earnest money is only a protec2ve
s2pula2on, inserted to secure the buyer's rights in case he chooses to seek
damages instead of performance. It does not amount to an exclusion clause
ous2ng the right to specific performance.The law is well seIled that unless the
contract expressly provides that payment of double earnest money shall be the
sole remedy, the Court cannot infer that specific performance is barred.
45. In the present case, there is no indica2on that the par2es intended
to make the payment of double earnest money the exclusive remedy. On the
contrary, the plain2ff specifically pleaded that he was always ready and willing
to perform his part of the contract and sought specific performance as the
principal relief. The alterna2ve prayer was made only by way of abundant
cau2on.
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46. There is nothing on record to suggest that the plain2ff has acted
inequitably or that enforcement of the contract would cause undue hardship to
the defendant. Rather, the defendant's conduct in suffering a collusive decree in
favour of his own sons to defeat the plain2ff's legi2mate contractual right, dis
en2tles him from invoking equity in his favour.
47. As observed by the Supreme Court in A.C. Arulappan v. Ahalya
Naik, (2001) 6 SCC 600, the relief of specific performance should not be denied,
where the defendant's own conduct is blameworthy or obstruc2ve, since equity
aids the vigilant and not those who defraud. In Bal Krishna v. Bhagwan Das,
(2008) 12 SCC 464, it has been held that when the defendant's conduct is
unconscionable and the plain2ff has come to Court with clean hands, the
discre2on of the Court must be exercised in favour of performance rather than
compensa2on.
48. Further, the plain2ff has con2nuously pursued his remedy since
1990, and both Courts below concurrently held that the contract was genuine,
enforceable, and fairly priced.
49. Both the trial Court and the First Appellate Court exercised judicial
discre2on in decreeing specific performance. Once it was found that the
contract was validly executed; that the plain2ff was ready and willing to perform
his part; and the defendant's refusal was deliberate and dishonest, there was no
legal jus2fica2on to subs2tute the equitable relief with damages.
50. To conclude this point, the conten2on that only double earnest
money should have been awarded is devoid of substance because, this Court
finds that the clause for refund of double earnest money does not bar specific
performance; the plain2ff proved his readiness, willingness, and good faith; and
the defendant's conduct jus2fies equitable enforcement of the contract.
Therefore, the decree for specific performance of the agreement to sell dated
28.05.1990 passed by the trial Court and affirmed by the First Appellate Court
represents a proper and judicious exercise of discre2on under the Specific Relief
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Act, 1963.As such, the argument to subs2tute the relief with monetary
compensa2on is rejected.
51. Conclusion :Upon a comprehensive considera2on of the record and
the submissions advanced by learned Senior Counsel for both sides, this Court is
of the view that the concurrent findings recorded by the learned trial Court and
the learned First Appellate Court are well founded, supported by evidence, and
in accordance with seIled principles of law.
52. The material conclusions emerging from the foregoing discussion
may be summarised thus:
x The agreement to sell dated 28.05.1990 (Ex. P-1) stands duly proved to
have been executed by defendant No. 1 - Kuda Ram in favour of the
plain2ff for valid considera2on. The tes2mony of PW-1 Balwant Singh
(typist), PW-2 Desa Ram (aIes2ng witness), and PW-4 Cholar Ram
(plain2ff) is credible and consistent, and the defendant's subsequent de-
nial of his own signatures is false and self-contradictory.
x The admission of execu2on made by the defendant in the earlier
injunc2on suit (Ex. P-3) and proved through his own counsel Sh. P.R.
Nagpal further corroborates the plain2ff's case. The concurrent finding of
due execu2on is neither illegal nor perverse and is hereby affirmed.
x The plain2ff has proved his con2nuous readiness and willingness to
perform his part of the contract as required under Sec2on 16(c) of the
Specific Relief Act, 1963. His conduct in filing the earlier injunc2on suit
and, immediately thereaMer, the present suit on 03.12.1990 upon learning
of the collusive decree dated 20.11.1990 clearly manifests bona fide in-
ten2on to complete the transac2on. Non-appearance before the Sub-
Registrar, or absence of a prior no2ce is inconsequen2al, when the defen-
dant himself had made performance impossible.
x The objec2on under Order II Rule 2 CPC is misconceived. The earlier suit
for injunc2on and the present suit for specific performance arise out of
dis2nct causes of ac2on, the laIer having emerged aMer the defendant's
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repudia2on of the agreement by suffering a collusive decree in favour of
his sons. The withdrawal of the earlier suit on 14.12.1990 with specific
liberty leM the present suit unaffected. Hence, no procedural bar exists.
x The plea that the plain2ff should be confined to double earnest money, or
that the decree causes hardship due to rise in land prices is devoid of any
merit. The clause for refund is merely ancillary and does not exclude
specific performance. Price escala2on over the years is a natural
consequence of 2me and cannot defeat a lawful contract, par2cularly
when the delay stems from the defendant's own conduct. No genuine
hardship or inequity has been established.
x Both the Courts below have rightly exercised their equitable discre2on un-
der Sec on 20 of the Specific Relief Act (pre-amendment) in decreeing spe-
cific performance, as the plain2ff acted fairly and the defendant's conduct
was demonstrably mala fide.
53. Result : For the reasons recorded hereinabove, this Court finds no
illegality, infirmity, or perversity in the concurrent judgments and decrees of the
Courts below warran2ng interference by this court. The findings being purely
factual and based on proper apprecia2on of evidence, do not warrant in-
terference, as no substan2al ques2on of law arises for determina2on. Ac-
cordingly, appeal stands dismissed on merits.
54. However, before par2ng with the maIer, this Court cannot ignore
the extraordinary 2me lag between the execu2on of the agreement to sell and
the stage at which the decree is now to be enforced. The agreement to sell in
ques2on was executed in May, 1990 for a total sale considera2on of ₹1,92,500/-
out of which an amount of ₹25,000/- was paid as earnest money. The suit was
filed in 1990; decreed by the trial Court in 1995; and the first appeal was
dismissed in 1996. The present Regular Second Appeal, filed in 1996, has
remained pending thereaMer. As of today, almost three and a half decades have
elapsed since the date of the agreement.
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55. There can be no doubt that during this long interregnum, the
market value of agricultural land in and around District Karnal has increased
manifold, on account of infla2on, development and expansion in the area. If the
decree for specific performance is enforced strictly at the original contractual
price, the plain2ff-respondent would obtain valuable agricultural property at a
rate, which has become completely out of tune with present-day reali2es,
resul2ng in what would virtually amount to a windfall gain for him and a
corresponding unjust impoverishment of the defendant-appellant and his legal
representa2ves.
56. At the same 2me, however, this Court is equally conscious that the
delay is not aIributable to any laches on the part of the plain2ff. On the
contrary, he has been vigilant throughout, as he first filed a suit for injunc2on;
then promptly ins2tuted the present suit for specific performance upon coming
to know of the collusive decree dated 20.11.1990; succeeded before the trial
Court and the First Appellate Court; and has been contes2ng the maIer ever
since. The protrac2on of the li2ga2on is substan2ally the result of the
defendant's own conduct, suffering a consent decree in favour of his sons,
seJng up mutually inconsistent defences, and pursuing appeals. The defendant,
therefore, cannot be permiIed to take advantage of his own default and say
that, because of the delay caused by his own resistance, the decree for specific
performance should now be refused.
57. In all such circumstances, the equitable answer does not lie either in
denying specific performance altogether, or in enforcing the contract
mechanically at the 1990 price. Hon'ble Supreme Court, in K.S. Vidyanadam v.
Vairavan (1997) 3 SCC 1;K. Narendra v. Riviera Apartments (P) Ltd. (1999) 5
SCC 77;andNirmala Anand v. Advent Corpora on (P) Ltd. (2002) 5 SCC 481, has
recognised that where there is a long passage of 2me and substan2al rise in
prices, the Court, while upholding the decree for specific performance, may
mould the relief by direc2ng the purchaser to pay an enhanced amount so that
the enforcement of the contract does not operate harshly against the vendor
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nor confer an unfair bonanza upon the purchaser. The discre2on under Sec2on
20 of the Specific Relief Act, 1963 (pre-amendment) is meant precisely to
address such situa2ons and to secure what is substan2ve jus2ce between the
par2es.
58. Keeping in mind the above factors i.e., (i) the 2me gap of more
than three decades, (ii) the undisputed escala2on in land values, (iii) the
plain2ff's consistent diligence, and (iv) the defendant's blameworthy conduct in
repudia2ng a valid agreement, this Court is of the considered view that the
equi2es between the par2es would be appropriately balanced, if the decree for
specific performance is maintained, but the plain2ff-respondent is required to
pay a substan2ally enhanced considera2on as a condi2on for obtaining the sale
deed.
59. Direc ons: Consequently, without disturbing the concurrent
findings on execu2on of the agreement, and readiness and willingness of the
plain2ff but simultaneously exercising the equitable jurisdic2on of this Court
under Sec2on 20 of the Specific Relief Act, 1963 (as applicable), the decree is
modified with the following direc2ons:
¾ The decree for specific performance of the agreement to sell dated
28.05.1990 (Ex. P-1) passed by the trial Court and affirmed by the First
Appellate Court is upheld, subject to the following condi2on:
o The plain2ff-respondent shall deposit, before the Execu2ng Court,
an amount equal to seventy 2mes (double the 2me gap between
date of agreement and this order) balance sale considera2on under
the agreement.
o The balance as per the agreement was ₹1,67,540/- (₹1,92,540/- mi-
nus earnest money of ₹25,000/-).
o Seventy 2mes this balance amount comes to ₹1,17,27,800/- (Ru-
pees One Crore, Seventeen Lacs, Twenty Seven thousand and Eight
hundred only).
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¾ The said sum of ₹1,17,27,800/- shall be deposited by the plain2ff-
respondent within a period of three months from the date of this
judgment.
¾ Upon such deposit being made within the s2pulated 2me, the defendant-
appellant and/or his legal representa2ves, from the date of being
informed about the deposit, shall execute and get registered the sale deed
in respect of the suit land in favour of the plain2ff-respondent within a
further period of two months thereaMer, on the basis of the agreement to
sell dated 28.05.1990, failing which the plain2ff-respondent shall be
en2tled to have the sale deed executed through the process of the Court.
¾ In case the plain2ff-respondent fails to deposit the aforesaid amount of
₹1,17,27,800/- within the 2me s2pulated, the decree for specific per-
formance shall stand vacated and in that event, the suit of the plain2ff
shall be deemed to have been decreed only for the alterna2ve relief of
refund of double the earnest money, i.e. ₹50,000/-, together with interest
@ 9% per annum from the date of the agreement 2ll realisa2on, which
the defendant-appellant or his legal representa2ves shall be liable to pay.
60. Subject to the above modifica2on in the terms of enforcement, the
Regular Second Appeal stands dismissed, and the findings of the Courts below
on all issues, are affirmed. Decree be drawn accordingly.
(DEEPAK GUPTA)
20.11.2025 JUDGE
Jiten
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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