Munni Devi vs Sunita
2023 Latest Caselaw 5036 Raj

[2023/RJJD/013421]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 381/2022

1. Munni Devi W/o Shri Mangilal Khadriya, Aged About 60 Years, R/o Ward No. 14, Near Panchayat School, Bhadra, Tehsil Bhadra, Distt. Hanumangarh.

2. Sunil Kumar S/o Mangilal, Aged About 35 Years, R/o Ward No. 14, Near Panchayat School, Bhadra, Tehsil Bhadra, Distt. Hanumangarh.

----Appellants Versus

1. Sunita W/o Anil Kumar, R/o Ward No. 19, Bhadra Tehsil Bhadra, Distt. Hanumangarh.

2. Savitri W/o Harbans Lal, R/o Village Mehriya, At Present Ward No. 19, Bhadra, Tehsil Bhadra, Distt. Hanumangarh.

3. State Of Rajasthan, Through District Collector, Hanumangarh.

4. Tehsildar (Sub Registrar), Bhadra, Distt. Hanumangarh

----Respondents

For Appellant(s) : Mr. Moti Singh For Respondent(s) : Mr. Narendra Thanvi

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

23/05/2023

1. The present regular appeal has been preferred against the

judgment and decree dated 29.07.2022 passed by the Additional

District Judge, Bhadra, District Hanumangarh in Original Suit

No.09/2016 (CIS No.09/2016), whereby the suit for specific

performance of the contract as preferred by the plaintiffs has been

decreed.

[2023/RJJD/013421] (2 of 14) [CFA-381/2022]

2. As per the plaint, the defendants Munni Devi and Sunil

Kumar being the wife and son of Mangilal respectively, after his

death on 01.05.2001, became the owners of the residential

premises of which a lease had been issued in his favour. Besides

the residential house, one shop was also registered in the name of

defendant no.2-Sunil Kumar. On 03.12.2015, both the defendants

executed an agreement to sell in favour of the plaintiffs qua both,

the residential house as well as the shop for a consideration of

Rs.9 lac and 11 lac respectively. The consideration amount of Rs.6

lac each was paid to the defendants on the same date and it was

agreed that the remaining consideration amount of Rs.8 lac would

be paid on 18.07.2016, the date fixed for execution of the sale-

deed in favour of the plaintiffs. As the defendants did not execute

the sale deed in favour of the plaintiffs, the present suit was

preferred with a relief for specific performance of the contract.

3. Written statement was filed jointly by the defendants and the

factum of agreement to sell dated 03.12.2015 was specifically

denied. The case of the defendants was that neither the

agreement to sell was entered into between the parties nor any

consideration was received by the defendants qua the alleged

agreement. It was averred that the said document as well as the

signatures of the defendants were forged. The plea regarding the

agreement being insufficiently stamped and unregistered were

also raised. On the basis of the pleadings as made, the Court

framed as many as 6 issues as under :

"1& vk;k okn i= ds iSjk la- 2 esa of.kZr vklkiklk dh lEifr edku dks foØ; djus dk izfroknhx.k la[;k 1 o 2 }kjk

[2023/RJJD/013421] (3 of 14) [CFA-381/2022]

bdjkjukek fnukad 03-12-2015 dks oknhx.k ds i{k esa fd;k Fkk\ 2& vk;k oknhx.k bdjkjukek dh ikyuk gsrq lnSo rS;kj ,oa bPNqd gS \ 3& vk;k izfroknhx.k fookfnr lEifr dks vU;= varj.k ij vkeknk gS \ 4& vk;k vjftLVªhd`r bdjkjukek gksus ls oknhx.k fofufnZ"V ikyuk djkus ds vf/kdkjh ugha gS \ 5& vk;k okn oknhx.k vYi U;k; 'kqYd ij izLrqr gS \ 6& vuqrks"k \"

4. During the pendency of the suit, a written compromise was

entered into between the parties and in terms of the compromise,

the plaintiffs were permitted to withdraw the relief qua the shop

and the suit proceeded on for relief qua the residential house only.

5. After hearing the parties, the learned trial Court proceeded

on to decree the suit in favour of the plaintiffs and held them

entitled to get the sale deed executed in their favour after

payment of due consideration amount of Rs.3 lac and also to get

possession of the residential premises.

6. Aggrieved against the said judgment and decree dated

29.07.2022, the present appeal has been preferred.

7. Learned counsel for the appellants raised the following

grounds :

(i) on 04.01.2017, a written compromise was entered into

between the parties during the pendency of the suit in pursuance

to which, an amount of Rs.6 lac was repaid to the plaintiffs qua

the consideration amount of commercial premise/shop. Therefore,

once the plaintiffs had entered into a compromise qua the shop

and accepted the repayment of the amount of Rs.6 lac, no decree

for specific performance could have been passed in their favour.

[2023/RJJD/013421] (4 of 14) [CFA-381/2022]

When relief qua one of the premises i.e. the shop had been

withdrawn by the plaintiffs in terms of the compromise entered

into between the parties and an alternative prayer had been made

in the suit for refund of the consideration amount, the Court ought

not to have decreed the suit for specific performance but should

have proceeded on to pass decree in terms of the alternate prayer

i.e. the refund of the consideration amount.

(ii) It was the specific case of the defendants that alleged

agreement was a forged one and the defendant Munni Devi

specifically deposed that her signatures on the document were

forged but the same has totally been ignored by the Court and the

finding on issue no.1 therefore is totally contrary to the evidence

available on record.

(iii) It was admitted on record that no notice/communication was

ever served on the defendants calling upon them to execute the

contract and therefore, the finding on issue no.2 regarding the

readiness and willingness of the plaintiffs is also contrary to the

record. The plaintiffs utterly failed to prove the readiness and

willingness to perform their part of the contract which is a

mandate for grant of a decree for specific performance of the

contract. The burden having not been discharged by the plaintiffs,

the decree could not have been granted in their favour.

(iv) It was an admitted case on record that the plaintiffs neither

approached the defendants calling upon them to perform their

part of the contract nor did they tender the due consideration

amount. Hence, in view of specific admissions of the plaintiffs

[2023/RJJD/013421] (5 of 14) [CFA-381/2022]

themselves, the issue of readiness and willingness could not have

been decided in their favour.

8. In support of his submissions, learned counsel relied upon

the following judgments:

i. Zarina Siddiqui vs. A. Ramalingam @ R. Amarnathan, 2015 DNJ (SC) 367 ii. Sohan Singh vs. LR's of Avtar Singh & Ors., 2014(4) DNJ (Raj.) 1641

iii. Kammana Sambamurthy (D) by LR's vs. Kalipatnapu Atchutamma (D) & Ors., 2010 DNJ (SC) 1179

iv. Sanjay Narain vs. Monika, 2008 DNJ (SC) 1020

v. B. Santoshamma & Anr. vs. D. Sarala & Anr., (2020) 19 SCC 80

vi. Madhukar Nivrutti Jagtap & Ors. vs. Smt. Pramilabai Chandulal Parandekar & Ors., (2020) 15 SCC 731

vii. M. Meenakshi & Ors. vs. Metadin Agarwal (D) by Lrs & Ors., (2006) 7 SCC 470 viii. Siyad & Anr. vs. Titto & Ors., [RFA No.205 of 2009 decided on 18.05.2022] [by Kerala High Court]

9. Per contra, while supporting the impugned judgment and

decree and the findings as arrived at by the learned trial Court on

all the issues, learned counsel for the respondents submitted as

under:

(i) The present one is a case of complete contradictory

statements of the defendants and the stand of the defendants that

they never entered into any agreement to sell, is demolished by

their own contradictory statements. DW-1 Munni Devi, although

denied her signatures on agreement to sell, in her cross-

examination, admitted the fact of written compromise having

entered into between the parties. She also admitted that after the

[2023/RJJD/013421] (6 of 14) [CFA-381/2022]

said compromise, his son sold out the said shop. The specific plea

of defendant Munni Devi in her written statement had been that

she did not even know the plaintiffs and therefore, no question of

having entered into any agreement arise. Whereas in her cross-

examination, she specifically admitted that the plaintiffs kept on

requesting her to get the sale deed executed and she kept on

refusing. Similarly, DW-2 Sunil Kumar also admitted in his cross-

examination that a compromise in writing was entered into

between the parties. Therefore, the compromise having been

admitted by the defendants, their plea of never having executed

the agreement to sell falls flat. If the agreement to sell had not

been executed by the defendants, there was no reason for them

to enter into a compromise regarding one of the properties which

were the subject matter of the agreement.

(ii) So far as hardship is concerned, it is admitted on record that

the defendants resided at Jaipur and even the shop qua which the

compromise was entered into between the parties was sold out by

defendant no.2 during pendency of the suit itself. Therefore, no

hardship whatsoever can even be alleged by the defendants.

(iii) On the premise of the agreement being forged and

fabricated, even a FIR was lodged by the defendants wherein a FR

was filed and no offence as alleged was found against the

plaintiffs.

10. In support of his submissions, learned counsel relied upon

the following judgments:

i. Leeladhar (D) Thr. LRs. vs. Vijay Kumar (D) Thr. LRs & Ors., 2019(4) Civil Court Cases 730 (SC)

[2023/RJJD/013421] (7 of 14) [CFA-381/2022]

ii. Gopal Mandir Trust Through Settler of Trust Hitesh Mishra & Ors. vs. Thakur Dwara Mausuma Gopal Ram Ji Virajman & Ors., 2017(4) Civil Court Cases 732 (Allahabad)

11. Heard learned counsel for the parties and perused the

material available on record.

12. Before proceeding on the analysis of issue-wise finding, the

document Exhibit-A1, the compromise entered into between the

parties during the suit proceedings becomes relevant.

The document Exhbit-A1 reads as under:

"le>kSrk ek;kds lquhrk /keZiRuh vfuy dqekj tkfr vxzoky fuoklh okMZ ua0 19] Hkknjk rglhy Hkknjk ftyk guqekux<+ ¼jktLFkku½ ,oa lkfo=h iRuh gjcalyky tkfr vxzoky fuoklh esgfj;k gky fuoklh Hkknjk ¼izFke i{k½ ,oa eqUuh nsoh iRuh ekaxhyky tkfr vxzoky [knfj;k okMZ ua0 14] Hkknjk rglhy Hkknjk ftyk guqekux<+] lquhy dqekj iq= ekaxhyky tkfr vxzoky fuoklh Hkknjk rglhy Hkknjk ¼f}rh; i{k½ gSA tks fd izFke i{k lquhrk o lkfo=h us f}rh; i{k eqUuhnsoh o lquhy dqekj ds f[kykQ U;k;ky; vij ftyk U;k;k/kh'k] Hkknjk esa bdjkjukek fnukad 03-12-2015 dh fofufnZ"V ikyuk gsrq okn is'k dj j[kk gSA ftlesa vkbZUnk rkjh[k is'kh 16-01-2017 fuf'pr gSA mDr bdjkjukek esa izFke i{k us f}rh; i{k ds fo:) ,d nqdku okds okMZ ua0 22] Hkknjk o fjgk;'kh edku okds okMZ ua0 14] ds bdjkjukek dh ikyuk gsrq is'k fd;k gqvk gSA ftlesa ls okMZ ua0 22 Hkknjk esa fLFkr lEifRr la[;k [email protected] dh nqdku 251-25 oxZQhV ftldk cS;ukek lquhy dqekj ds i{k esa 10-09-2012 dks fu"ikfnr fd;k gqvk gSA mDr nqdku ds lEcU/k esa vkil esa izFke i{k o f}rh; i{k ds chp esa le>kSrk gks x;k gS o nqdku isVs nh gqbZ lkbZ dh jde izFke i{k us f}rh; i{k ls eq0 6 yk[k :i;sa okil izkIr dj fy,A blfy, vc izFke i{k f}rh; i{k ds f[kykQ nqdku ds lEcU/k esa dksbZ dk;Zokgh ugha djokuk pkgrk gS ,oa nqdku dh gn rd vkil esa fookn lekIr gks x;k gSA nqdku dh gn rd izFke i{k U;k;ky; ls dk;Zokgh viuh okil ysus ds fy,

[2023/RJJD/013421] (8 of 14) [CFA-381/2022]

lger gS rFkk okMZ ua0 14 ds fjgk;'kh edku dh ckcr izFke i{k dk okn f}rh; i{k ds fo:) ;Fkkor tkjh jgsxkA fygktk le>kSrk i= fy[k fn;k gS fd lun jgs oDr t:jr dke vkosaA"

13. The execution of the above agreement Exhibit-A1 was

specifically admitted by both the defendants. DW-1 Munni Devi

admitted in her cross-examination as under :

";g ckr lgh gS fd bl eqdnes esa fookfnr nwdku ds lEcU/k esa gekjk o oknhx.k dk le>kSrk gks x;k FkkA fQj esjs yM+ds us oks nwdku csp nh FkhA"

DW-2 Sunil Kumar admitted in his cross-examination as

under:

";g ckr lgh gS fd le>kSrk ExA-1 esa o.khZr nqdku ftldk fooj.k Ex-1 esa of.kZr gS fd gn rd gekjk jkthukek gks x;k gSA Ex-1 ij gLrk{kj esjs gSA"

14. The specific clause in the above agreement highlighted in

bold, is the clear admission of the defendants regarding the

receipt of the advance consideration amount of Rs.6 lac qua the

shop.

15. In the opinion of this Court, in view of the specific

admissions as aforementioned, the learned trial Court could not

have reached to any other conclusion than that the defendants did

execute the agreement to sell and receive the consideration

amount as alleged by the plaintiffs. Therefore, the finding of the

learned trial Court on issue no.1 being based on the clear

admission of the defendants, does not deserve any interference

and the same is hereby affirmed.

[2023/RJJD/013421] (9 of 14) [CFA-381/2022]

16. Now coming on to issue No.2 regarding readiness and

willingness of the plaintiffs to perform their part of contract.

In Madhukar Nivrutti Jagtap's case (supra), the Hon'ble

Apex Court held as under:

"13.2. The question as to whether the plaintiff seeking specific performance has been ready and willing to perform his part of the contract is required to be examined with reference to all the facts and the surrounding factors of the given case. The requirement is not that the plaintiff should continuously approach the defendant with payment or make incessant requests for performance. For the relief of specific performance, which is essentially a species of equity but has got statutory recognition in terms of the Specific Relief Act, 1963, the plaintiff must be found standing with the contract and the plaintiff's conduct should not be carrying any such blameworthiness so as to be considered inequitable. The requirement of readiness and willingness of the plaintiff is not theoretical in nature but is essentially a question of fact, which needs to be determined with reference to the pleadings and evidence of parties as also to all the material circumstances having bearing on the conduct of parties, the plaintiff in particular."

PW-1 Sunita deposed as under:

"geus eqUuhnsoh ,oa lquhy dqekj dks ckj&ckj cdk;k 8 yk[k :i;sa ysdj 18-07-2016 dks cS;ukek dks gekjs uke djok nsus ds fy, dgk] rks os VkyeVksy djrs jgs rFkk cS;ukek vkt rd gekjs uke ugha djok;kA geus cdk;k 8 yk[k :i;sa o jftLVªh [kpsZa dh O;oLFkk 18-07-2016 dks dj yh Fkh] ftldh O;oLFkk vc Hkh geus dj j[kh gS] eSa o esjh ekrk cS;ukek djokus ds fy, ges'kk rS;kj ,oa bPNqd jgs gS rFkk vc Hkh cS;ukek djokus ,oa cdk;k jkf'k vnk djus dks rS;kj gSA izfroknhx.k tkucq>dj cS;ukek gekjs i{k esa ugha djok jgs gSA "

17. Interestingly, the said witness has not been cross-examined

on this aspect and not a single question/suggestion regarding she

be not ready and willing to perform her part of the contract has

been put/made to her. To the contrary, DW-1 Munni Devi

specifically admitted in her cross-examination as under:

[2023/RJJD/013421] (10 of 14) [CFA-381/2022]

"oknh;ku eq>s jftLVªh djokus dh dgrh jgh eSa euk djrh jghA "

18. In view of the above statements, it has rightly been

concluded by the learned trial Court that the plaintiffs had,

beyond reasonable doubt, proved their readiness and willingness

to perform their part of the contract. Further, in view of the

specific admission of defendant no.1 as aforementioned, the

finding as recorded by the learned trial Court on issue No.2 also

does not call for any interference and the same is also affirmed.

19. No argument regarding the findings on other issues have

been made by learned counsel for the appellants and therefore,

this Court is not required to go into the said issues and the

findings qua the same are also affirmed.

20. Now, coming on to the analysis on first ground raised by

learned counsel for the appellants and the judgments relied upon

by him on the issue, whether the Court below ought to have

granted a decree for compensation in lieu of specific

performance ?

(i) Sohan Singh (supra) was the case wherein the Court

declined to grant decree for specific performance of contract only

for the reason that the property in question was a joint property of

several persons and the vendor had only 1/7 th share in the total

land measuring 3 bighas and 12 biswas. It is in those

circumstances that the Court concluded that the relief of specific

performance qua the small share would not be just and proper.

(ii) Kammana Sambamurthy (supra) was the case wherein

the Court proceeded on to grant the decree for part performance

only for the reason that although the vendor had agreed to sell

[2023/RJJD/013421] (11 of 14) [CFA-381/2022]

the property in its entirety but it later turned out that the vendor

had only half share in the property. The Court concluded that

there was no impediment for enforcement of the agreement

against the vendor to the extent of his half share in the property

and hence partly decreed the suit qua the same.

(iii) Sanjay Narain (supra) was the case wherein the Court

reached to the specific finding that the respondent therein (the

executant of the agreement), had no legal authority to enter into

an agreement to sell and the suit for specific performance itself

was incompetent. In those circumstances, the Court proceeded

on to award compensation for breach of contract instead of

decreeing the suit for specific performance.

(iv) Siyad (supra) was the case wherein there was a specific

finding of the Court that the plaintiffs failed to prove their

readiness and willingness as mandated under Section 16 of the

Specific Relief Act, 1963 and therefore, the Court proceeded on to

award compensation in lieu of specific performance.

(v) B. Santoshamma (supra) was the case wherein the Hon'ble

Apex Court was dealing with the issue whether the Court can

direct specific performance of contract in part? Therein also, the

Hon'ble Apex Court held that

"It is well settled that the Court ordinarily enforces a contract in its entirety by passing a decree for its specific performance."

Deciding in favour of the plaintiff therein, the Court further

held as under:

"88. Section 12 has to be construed in a liberal, purposive manner that is fair and promotes

[2023/RJJD/013421] (12 of 14) [CFA-381/2022]

justice. A contractee who frustrates a contract deliberately by his own wrongful acts cannot be permitted to escape scot free."

(vi) M. Meenakshi (supra) was the case wherein the Court

declined to pass a decree for specific performance of contract in

view of the fact that the sanction by the concerned authority had

not been granted.

21. In view of the analysis of the ratio as laid down in the above

judgments as relied upon by learned counsel for the appellants, it

is clear that none of them would apply to the present case. To

conclude whether the Court below ought to have exercised its

equitable discretion in the present matter, reliance on the ratio laid

down in the case of Zarina Siddiqui (supra) would be relevant.

The Hon'ble Apex Court in the said judgment held as under:

"34. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant specific performance."

The Court further held as under:

"37. As held by this Court time and again, efflux of time and escalation of price of the property by itself cannot be a valid ground to deny the relief of specific performance. But the Court in its discretion may impose reasonable conditions including payment of additional amount to the vendor. It is equally well settled that the plaintiff is not to be denied specific performance only on account of phenomenal increase of price during the pendency of litigation."

[2023/RJJD/013421] (13 of 14) [CFA-381/2022]

22. Testing on the touchstone of the above ratio as laid down by

the Hon'ble Apex Court, analyzing the facts of the case at hand,

this Court is of the specific opinion that the discretion to grant the

relief for compensation in lieu of specific performance of contract

cannot be exercised in the present matter in favour of the

defendants for the following reasons:

i. The defendants did not come with clean hands and clearly

suppressed the material facts, rather made contrary statements

which have been clearly proved to be untrue on record. At the

first instance, the defendants denied the execution of the

agreement to sell itself. Then they entered into a compromise

with the plaintiffs while admitting the receipt of advance

consideration amount qua the agreement to sell.

ii. It is admitted on record that the defendants are not residing

in the disputed premises at Bhadra but are residing at Jaipur.

Therefore, no hardship to the defendants can be concluded hence,

no equity stands in their favour.

iii. The hardship of the defendants can also not be concluded

because of the admitted fact that the share qua which the

compromise was entered into between the parties, i.e. the shop

had also been sold out by defendant No.2 during the pendency of

the suit itself.

iv. It was nowhere the prayer/case of the defendants that if the

Court proceeds on to decide in favour of the plaintiffs, the decree

for compensation in lieu of the specific performance of contract be

[2023/RJJD/013421] (14 of 14) [CFA-381/2022]

granted. Therefore also, the defendants are not entitled to the

relief which was never ever prayed for.

23. In view of the above facts, this Court is of the specific

opinion that the case of the defendants does not succeed on the

touchstone of the ratio laid down in the case of Zarina Siddiqui

(supra) and therefore, equitable discretion could not have been

exercised in their favour.

24. In view of the above analysis and in view of the findings on

all the issues as reached by the Court below having been affirmed,

this Court does not find any ground to interfere with the impugned

judgment and decree dated 29.07.2022 and the same is hereby

affirmed.

25. Consequently, the present first appeal is dismissed.

26. Stay petition and all the pending applications also stand

dismissed.

(REKHA BORANA),J Vij/-

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