Ashok Kumar Mishra vs Lajja Ram And Others
2023 Latest Caselaw 5143 Raj/2

[2023:RJ-JP:21772]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 323/2016

Ashok Kumar Mishra S/o Ram Swaroop R/o, Mishra Gali, Purana
Shahar, Dholpur
                                                       ----Defendant-Appellant
                                     Versus
1.       Lajja Ram S/o Maharaj Singh, Mohalla Birjapada, Purana
         Shahar, Dholpur
                                                             Plaintiff-Respondent

2. Mst. Shyamo Wd/o Shiv Charan

3. Kum. Usha D/o Shiv Charan

4. Rajvir S/o Shiv Charan All resident of Kumharpada, Purana Shahar, Dholpur

5. Vedo son of Kammuda (expired and suit declared abated against him), resident of Kumharpada, Purana Shahar, Dholpur

----Respondents

For Appellant(s) : Mr. R.K. Mathur, Sr. Advocate with Mr. Ram Prasad Sharma For Respondent(s) : Mr. J.P. Goyal, Sr. Advocate with Ms. Sakshi Tiwari) Mr. Siddharth Singh)

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment Reserved on : : 24.08.2023

Judgement pronounced on : : 21.09.2023

This civil second appeal is preferred against the judgement

and decree dated 4.6.2016 passed by the learned District Judge,

Dholpur (Rajasthan) (for short-`the learned appellate court') in

regular civil appeal no.21/2010 whereby, while dismissing the

appeal preferred by the appellant/defendant no.2 (for short-`the

defendant no.2'), the judgement dated 23.2.2010 passed by the

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learned Additional Civil Judge (Jr. Division) No.1, Dholpur (for

short- the learned trial court') decreeing the suit filed by the

respondent no.1/plaintiff (for short-`the plaintiff') for specific

performance, cancellation of sale deed and permanent injunction,

has been upheld.

The relevant facts in brief are that the plaintiff filed a suit for

specific performance of the agreement dated 5.7.1989,

cancellation of sale deed dated 29.4.1993 and permanent

injunction against the defendant no.2 and the respondents no.2 to

5 stating therein that the defendant no.1-late Shiv Charan, has

executed an agreement to sell dated 5.7.1989 in plaintiff's favour

of his 1/2 share in the 17 biswas of land comprising of khasra

no.504 and 9 biswas of land comprising of khasra no.505 situated

in village Shekhupura, Dholpur, Tehsil Dholpur for a sale

consideration of Rs.6,500. It was averred that receiving an

advance sale consideration of Rs.2,500/-, possession of the

subject property was handed over to him and it was agreed that

balance sale consideration of Rs.4000 shall be received by the

defendant no.1 at the time of execution of the sale deed in his

favour as and when requested by him. It was further stated that

from about last six months, the plaintiff has been requesting the

defendant no.1 to execute and register the sale deed; but, he kept

on avoiding on one pretext or another whereupon, a notice dated

5.8.1993 was served upon him through registered post; but, the

same was refused to be accepted. It was alleged that when he

met the defendant no.1 with a request to execute the sale deed, it

transpired that he has already sold his 1/2 share in 17 biswas land

comprising of khasra no.504 in favour of the defendant no.2 and

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his share in 9 biswas of land of khasra no.505 in favour of the

defendant no.3. Stating that he has been ready and willing to

perform his part of the agreement, the decree as aforesaid was

prayed for.

The defendant no.3-Vedo expired during pendency of the suit

and it was declared as having abated against him. On expiry of

the defendant no.1 during its pendency, his legal heirs were

brought on record.

Ex-parte proceedings were drawn against all the defendants.

After recording evidence of the plaintiff, the learned trial

court framed four issues for disposal of the suit. Deciding all the

issues in favour of the plaintiff, the learned trial court decreed the

suit vide judgement dated 23.2.2010. The first appeal preferred

thereagainst by defendant no.2 has been dismissed by the learned

appellate court vide judgement and decree dated 4.6.2016.

Assailing the impugned judgement and decree dated

4.6.2016, Shri R.K. Mathur, learned senior counsel for the

defendant no.2, made four fold submissions; the suit was barred

by law of limitation, the plaintiff neither averred that he was

always ready and willing to perform his part of the contract, nor,

he could establish the same, the plaintiff was not entitled for the

discretionary relief of specific performance of the agreement, and

lastly, him being a bona fide purchaser, decree of cancellation of

sale deed could not have been passed.

Elaborating his submissions, the learned senior counsel

would submit that since, the limitation for filing the suit seeking

specific performance of the agreement dated 5.7.1989 would start

from the date of its execution as it was on the plaintiff's will, the

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suit filed on 14.9.1993 deserved to be dismissed having been filed

beyond the period of limitation of three years. Referring to Section

3 of the Limitation Act, 1963, Mr. Mathur submits that even if

defendant failed to raise this objection, it was bounden duty of the

learned courts to have examined the issue of the suit being barred

by limitation.

Inviting attention of this Court towards the contents of the

plaint, learned senior counsel submits that therein, only superficial

averments have been made with regard to readiness and

willingness of the plaintiff to perform his part of the contract. He,

in this regard, also referred to the recitals in the affidavit of the

plaintiff by way of his examination-in-chief as PW1. Learned senior

counsel submitted that the averments did not satisfy the

requirement of Section 16(c) of the Specific Relief Act, 1963 (for

short-`the Act of 1963'). He, in this regard, also relied upon Form

no.47 and Form no.48 of Appendix-1 CPC which require pleadings

as to readiness and willingness in a suit for specific performance in

specified proforma. Mr. Mathur submits that since, pleadings in the

plaint are not in conformity with Form no.47/48, the learned

courts erred in decreeing the suit.

Referring to the provisions of Section 20 of the Act of 1963,

Mr. R.K. Mathur submits that the grant of decree of specific

performance is a discretionary relief and in view of the fact that

the agreement to sell pertained to 1/2 undivided share of the

defendant in the agricultural land and the plaintiff did not demand

its execution for a period of about three years from the date of its

execution, learned courts ought not to have passed the

discretionary decree of specific performance in his favour.

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Lastly, learned senior counsel for the defendant no.2 submits

that since he is a bona fide purchaser with valuable consideration

without notice, learned courts have erred in decreeing the suit

filed by the plaintiff for specific performance and cancellation of

sale deed executed in his favour.

He, therefore, prays that the civil second appeal be allowed,

the judgement and decree dated 4.6.2016 be quashed and set

aside and the suit be dismissed.

Mr. Mathur relied upon following judgements in support of his

submissions:

1) Bogidhola Tea & Trading Co. Ltd. & Anr. vs. Hira Lal Somani-2008 SAR (Civil) 142 Supreme Court;

2) Kamlesh Babu & Ors. vs. Lajpat Rai Sharma & Ors.- 2008 SAR (Civil) 542;

3) Nanjappan vs. Ramasamy & Anr.-(2015) 14 SCC 341;

4) Hemanta Mondal & Ors. Ganesh Chandra Naskar-(2016) 1 SCC 567;

5) Bal Krishna & Anr. vs. Bhagwan Das (Dead) by L.Rs. & Ors.-2008 SAR (Civil) 433;

6) Lachhman Singh (Deceased) through L.Rs. & Ors. vs. Hazara Singh (Deceased) through L.Rs. & Ors.-2008 SAR (Civil) 664.

Per contra, Mr. J.P. Goyal, learned senior counsel for the

plaintiff would submit that since, no date was fixed in the sale

agreement for its execution, the suit filed within three years from

the date of refusal by the defendant no.1 of the execution of the

sale deed, was not hit by the law of limitation.

He submits that not only the plaint contained specific

averment with regard to his readiness and willingness to perform

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his part of contract; i.e., payment of the balance sale

consideration of Rs.4,000; but, he has also proved the same by

leading cogent evidence. Mr. J.P. Goyal further submits that the

learned courts did not err in granting discretionary relief of specific

performance in his favour in the facts and circumstances of the

case. He, therefore, prays for dismissal of the civil second appeal.

Heard. Considered.

Execution of the agreement to sell dated 5.7.1989 by the

defendant no.1 of his 1/2 share in the subject agricultural land in

favour of the plaintiff for a sale consideration of Rs.6,500 is not in

dispute. It is also undisputed that the defendant no.1 has received

part sale consideration of Rs.2,500, has handed over possession of

the subject property to the plaintiff and has agreed to execute its

sale deed receiving the balance sale consideration of Rs.4,000 as

and when required by the plaintiff. It is also not disputed that the

plaintiff has served a legal notice dated 5.8.1993 through

registered post to the defendant no.1 seeking execution of the

sale deed and before that, on 29.4.1993, a part of the subject

land was sold by the defendant no.1 through registered sale deed

in favour of the defendant no.2. In the backdrop of aforesaid

admitted facts, the first question which has been posed by the

learned senior counsel for the defendant no.2 for consideration of

this Court is whether the suit for specific performance was hit by

the law of Limitation.

Article 54 of the Act of 1963 which deals with limitation in a

suit for specific performance, reads as under:

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          Description of suit          Period     of Time from which period beings to
                                       limitation    run
          For specific performance Three years         The date fixed for the performance,
          of a contract                                or if no such date is fixed, when the
                                                       plaintiff has notice that performance
                                                       is refused

From the aforesaid provision, it is apparent that where a

date is fixed for performance of the agreement, the limitation

would begin from that date; otherwise, from the date the plaintiff

becomes aware of the refusal of performance by the defendant.

A five-Judges Bench of the Hon'ble Supreme Court has, in

the case of Chand Rani (Smt.) (Dead) by L.Rs. vs. Kamal

Rani (Smt.) (Dead) by L.Rs.-(1993) 1 SCC 519, held

categorically that time is never reckoned as essence of contract in

a case of sale of immovable property unless specifically or by

necessary implication, provided otherwise in the agreement.

A three-Judges Bench of the Hon'ble Supreme Court of India

has, in the case of Ahmed Sahab Abdul Mulla (Dead) by

Proposed LRs. vs. Bibijan & Ors.-(2009) 5 SCC 462, held as

under:

"11. The inevitable conclusion is that the expression "date fixed for the performance" is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on "when the plaintiff has notice that performance is refused". Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances.

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12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression "date" used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits."

In the case of Rathnavathi & Anr. vs. Kavita

Ganashamdas-(2015) 5 SCC 223, the Hon'ble Supreme Court

held as under:

"42. A mere reading of Article 54 of the Limitation Act would show that if the date is fixed for performance of the agreement, then non-compliance with the agreement on the date would give a cause of action to file suit for specific performance within three years from the date so fixed. However, when no such date is fixed, limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that the defendant has refused the performance of the agreement.

43. The case at hand admittedly does not fall in the first category of Article 54 of the Limitation Act because as observed supra, no date was fixed in the agreement for its performance. The case would thus be governed by the second category viz. when the plaintiff has a notice that performance is refused.

44. As mentioned above, it was the case of the plaintiff that she came to know on 02.01.2000 and 09.01.2000 that the owner of the suit house along with the so-called intending purchaser are trying to dispossess her from the suit house on the strength of their ownership over the suit house. This event was, therefore, rightly taken as starting

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point of refusal to perform the agreement by defendant no.2, resulting in giving notice to defendant no.2 by the plaintiff on 6.3.2000 and then filing of suit on 31.3.2000.

45. In the light of the foregoing discussion, we uphold the findings of the High Court and accordingly hold that the suit filed by the plaintiff for specific performance of the agreement was within limitation prescribed under Article 54 of the Limitation Act."

In Urvashi Ben & Anr. vs. Krishnakant Manuprasad

Trivedi-(2019) 13 SCC 372, their Lordships have held as under:

"15. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of refusal. When rejection of plaint is sought in an application filed under Order 7 Rule 11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application.

16. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25.05.2017 he had come to know that the same land was sold to third parties and the appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of such allegation made in the plaint. In the suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants. For the purpose of cause of

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action and limitation when it is pleaded that when he had visited the site on 25.05.2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the sale deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under Order 7 Rule 11(d) of CPC."

From the conspectus of the aforesaid judgements, the legal

position which emerges is that in absence of a date fixed in the

agreement for its performance, the limitation would start from the

date of notice to the plaintiff of refusal of the performance by the

defendant.

In the instant case, a perusal of the agreement to sell (Ex.1)

does not reveal that any date or even any specified time frame

was fixed for its execution; rather, the only averment is that

whenever the purchaser shall ask for execution of the sale deed,

the vendee would do so receiving the balance sale consideration of

Rs.4,000. In view thereof, in the backdrop of the aforesaid

precedential law, in the considered opinion of this Court, the later

part of Article 54 of the Limitation Act, 1963, i.e., when the

plaintiff has notice that performance is refused, would be attracted

in the present case. Indisputably, the suit has been filed very

shortly after the service of the registered notice dated 5.8.1993 by

the plaintiff upon the seller, i.e., the defendant no.1. There is

pleading and evidence that before service of notice, the plaintiff

had been requesting the defendant no.1 for execution of the sale

deed; but, he kept on avoiding on one pretext or another. In view

thereof, the learned appellate court did not err in rejecting the

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contention of the defendant no.2 that the suit was hit by the law

of Limitation.

This Court is in respectful agreement with the law laid down

by the Hon'ble Supreme Court of India in the cases of Bogidhola

Tea & Trading Co. Ltd. (supra), Kamlesh Babu & Ors. (supra)

and Lachhman Singh (Deceased) through L.Rs. & Ors.

(supra) relied upon by the learned senior counsel for the

defendant no.2 wherein, it has been held that even if limitation is

not set up as a defence, it is duty of the Court to examine this

issue. However, as already held in the present case, the suit filed

by the plaintiff for specific performance of agreement is not hit by

the law of Limitation.

Submission of the learned senior counsel for the defendant

no.2 that plaintiff did not aver that he was always ready and

willing to perform his part of contract nor, he could establish the

same, does not merit acceptance.

In the plaint, there is an averment that he has been

requesting the respondent no.1 to execute and register the sale

deed; but, he has been avoiding it. It is further averred that he

was ready and willing to pay the sale consideration of Rs.4,000 to

the defendant no.1 under the agreement and get the sale deed

executed. There is no rebuttal to the aforesaid averments.

Similarly, the plaintiff (PW1) has, in his examination-in-chief,

specifically stated that he has requested the defendant no.1 on

several occasions to execute the sale deed receiving the balance

sale consideration of Rs.4,000; but, he avoided on one pretext or

another. It is also averred therein that he has always been ready

and willing to pay the balance sale consideration of Rs.4,000 to

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the defendant no.1 and to get the sale deed executed and

registered. Conspicuously, the plaintiff has not been subjected to

cross examination by any of the defendants. The plaintiff has also

served a registered notice dated 5.8.93 upon the defendant no.1

requiring him to execute the sale deed. In view of aforesaid

unrebutted averments and oral as also documentary evidence on

record, in the considered opinion of this Court, the learned courts

did not err in holding that the plaintiff was always ready and

willing to perform his part of the contract as under the agreement

dated 5.7.1989.

Contention of the learned senior counsel for the defendant

no.2 that the averments in the plaint did not meet the

requirement as prescribed in Form no.47/48 of Appendix A of CPC

as also Section 16(c) of the Act of 1963, is misconceived and

cannot be countenanced inasmuch as, it is trite law that it is not

form or any specific phraseology which is required to be pleaded

and established to show readiness and willingness by the plaintiff

to perform his part of obligation; but, in pith and substance from

the material on record, it must be established that it was so. A

three-Judges Bench of the Hon'ble Supreme Court has, in the case

of Syed Dastagar vs. T.R. Gopal Krishna Setty-(1999) 6 SCC

337, held as under:

"9. So the whole gamut of the issue raised is, how to construe a plea specially with reference to Section 16(c) and what are the obligations which the plaintiff has to comply with reference to his plea and whether the plea of the plaintiff could not be construed to conform to the requirement of the aforesaid Section, or does this section

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require specific words to be pleaded that he has performed or has always been ready and is willing to perform his part of the contract. In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of ones case for a relief. Such an expression may be pointed, precise, some times vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. In India most of the pleas are drafted by counsels hence aforesaid difference of pleas which inevitably differ from one to the other. Thus, to gather true spirit behind a plea it should be read as a whole. This does not distract one from performing his obligations as required under a statute. But to test whether he has performed his obligations, one has to see the pith and substance of a plea. Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. The same plea may be stated by different persons through different words; then how could it be constricted to be only in any particular nomenclature or word. Unless a statute specifically requires for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16

(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of a statute is to insist for the form rather than essence. So the absence of form cannot dissolve an essence if already pleaded."

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Similarly, a co-ordinate bench of this Court in the case of

L.Rs. of Bhinva Ram vs. Sohan Ram-(2005) 4 Western Law

Cases (Raj.) 34, while referring to the Form 47/48 of Appendix A

of CPC, held as under:

"46. One may also usefully refer to Forms No.47 and 48 in Appendix-A of the Code of Civil Procedure. Order 6 Rule 3 CPC requires that the forms in Appendix-A, when applicable, shall be used for all pleadings. Form No.47 deals generally with a suit for specific performance, whereas Form No.48 deals with a particular kind of a suit for specific performance where the plaintiff even pleads about tendering of the amount (of consideration) to the defendant and demands transfer of property. No such kind of an averment is seen in Form No.47. Forms No.47 and 48 carry different required pleadings so far as readiness and willingness is concerned. While Para 3 of Form No.47 requires thus,-

"3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice."

On the other hand, Para 5 of Form No.48 states thus,-

"5. The plaintiff is still ready and willing to pay the purchase-money of the said property to the defendant."

47. Another significant factor to be noticed is that these kind of pleadings formed the part of Code of Civil Procedure, 1908 even before the provision as contained in Section 16(c) was enacted in the Specific Relief Act, 1963.

The elements of essentials of equity are clearly visible in the Forms of pleadings contemplated by the Code of Civil Procedure and with the insertion of Section 16(c) in the Act of 1963, the requirement has been put as a statutory

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mandate and the principles recognised by the courts have been incorporated in the statute with necessary explanations.

49. It is of course true that the rules of pleadings cannot be put into any strait jacket formula and one cannot insist for repetition of the mere words, yet the requirement cannot be brushed aside as a mere technical formality. It is rather the very foundation for exercise of equity jurisdiction and forms the very basis for which the relief in equity is granted."

The Hon'ble Supreme Court of India in Sughar Singh vs.

Hari Singh (Dead) through L.Rs. & Ors.-AIR 2021 SC 5581,

held as under:

"7. Even otherwise it is required to be noted that as such there were concurrent findings of fact recorded by the learned Trial Court as well as the learned First Appellate Court on readiness and willingness on the part of the plaintiff, which were on appreciation of evidence on record. Therefore, in exercise of powers under Section 100 of the CPC the High Court ought not to have interfered with such findings of fact unless such findings are found to be perverse. Having gone through the findings recorded by the learned Trial Court as well as the learned First Appellate Court on readiness and willingness on the part of the plaintiff, we are of the opinion that findings recorded cannot be said to be perverse and/or contrary to the evidence on record. On the contrary High Court has ignored the necessary aspects on readiness and willingness which are stated hereinabove including the conduct on the part of the parties."

As already held, the plaintiff has not only averred that he

was ready and willing to perform his part of the obligation under

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the agreement; but, has also proved the same by leading cogent

evidence. Therefore, in the backdrop of the aforesaid precedential

law, this Court does not find any perversity in the finding of fact

recorded by the learned appellate court as also by the learned trial

court that the plaintiff was always ready and willing to perform his

part of the contract.

The judgements relied upon by the learned senior counsel for

the defendant no.2 in this regard are of little help to him.

In the case of Bal Krishna (supra), their Lordships have

held that specific performance of a contract cannot be enforced in

favour of the person who fails to aver readiness and willingness to

perform essential terms of the contract and compliance of the

requirement of Section 16(c) is mandatory and in absence of proof

of the same that the plaintiff has been ready and willing to

perform his part of contract, the suit cannot succeed. It was

further held that the readiness and willingness to perform the

essential part of the contract would be required to be

demonstrated by him from the institution of the suit till it is

culminated into decree of the court. However, as already held in

the instant case, the plaintiff has not only averred that he was

ready and willing to perform his part of the contract; but, has also

been able to establish the same from the unrebutted evidence.

Now, this Court examines the tenability of the third

submission made by the learned senior counsel for the defendant

no.2 with regard to error on the part of learned courts in granting

discretionary relief of specific performance ignoring that under the

subject agreement, the defendant no.1 has agreed to sell his

undivided 1/2 share in the agricultural land and that the notice

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seeking its performance was not given for a period of almost three

years.

The 1st plank of submission of Mr. Mathur that since, under

the agreement dated 5.7.1989, the defendant no.1 has sold his

undivided 1/2 share in the agricultural land, the decree of specific

performance would not have been granted, is misconceived

inasmuch as, as per the unrebutted averments in the plaint and

deposition of the plaintiff as PW1, at the time of its execution, the

defendant no.1 has handed over possession of the subject

property to him and since then, he has been cultivating and

enjoying the same. Similarly, another limb of submission that

since, the plaintiff did not serve the notice for a period of about

three years from the date of execution of the sale agreement, he

was dis-entitled for the discretionary relief of specific performance,

does not merit acceptance. From the material on record, it is

revealed that the plaintiff has continuously been requesting the

defendant no.1 to execute the sale deed in his favour receiving

the balance sale consideration of Rs.4,000; but, he kept on

avoiding on one pretext or another compelling the plaintiff to give

the legal notice seeking its specific performance; but, the

defendant no.1, without putting the plaintiff to any notice, sold his

entire share in the agricultural land vide the sale deeds in favour

of defendant no.2 and the defendant no.3.

A three-Judges Bench of the Hon'ble Supreme Court in the

case of Prakash Chandra vs. Angadlal & Ors.-(1979) 4 SCC

393, held as under:

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"9. The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mnhsinai and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foreses. In our opinion, there is no reason why the appellant should not be granted be relief of specific performance. An application on has been filed before us by the first and second respondents alleging that the said respondents had raised certain court ructions on the site during the pendency of the litigation and, there fore, specific relief should not be granted to the appellant. It is denied by the appellant that any permanent constructions have been erected on the land in dispute. It is said that a temporary wooden structure only has been put up on a portion of the land. The respondents have attempted to show by reference to a map and photographs that permanent constructions have been made on the site. Having regard to the material before us, we are unable to hold that any permanent constructions have been raised on the said land. If the first and second respondents have in fact raised any constructions on the site, it will be open to them to remove the building material when possession is delivered to the appellant."

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The Hon'ble Supreme Court in Sughar Singh (supra) has

also held as under:

"10. Now, so far as the finding recorded by the High Court and the observations made by the High court on Section 20 of the Act and the observation that even if the agreement is found to be duly executed and the plaintiff is found to be ready and willing to perform his part of the Agreement, grant of decree of specific performance is not automatic and it is a discretionary relief is concerned, the same cannot be accepted and/or approved. In such a case, many a times it would be giving a premium to the dishonest conduct on the part of the defendant / executant of the agreement to sell. Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant - executant of the agreement to sell, while exercising the discretion judiciously.

For the aforesaid, even amendment to the Specific Relief Act, 1963 by which Section 10(a) has been inserted, though may not be applicable retrospectively but can be a guide on the discretionary relief. Now the legislature has also thought it to insert Section 10(a) and now the specific performance is no longer a discretionary relief. As

[2023:RJ-JP:21772] (20 of 22) [CSA-323/2016]

such the question whether the said provision would be applicable retrospectively or not and/or should be made applicable to all pending proceedings including appeals is kept open. However, at the same time, as observed hereinabove, the same can be a guide."

In the aforesaid circumstances, in the considered opinion of

this Court, the learned courts did not err in granting the plaintiff

the decree of specific performance.

Even otherwise also, to balance the equity, the learned

courts have directed execution of the sale deed of a smaller part

of the agricultural land than the land agreed to be purchased by

the plaintiff through agreement to sell dated 5.7.1989 still paying

the entire balance sale consideration of Rs.4,000.

Although, this Court is in respectful agreement with the law

laid down in the judgements relied upon by the learned senior

counsel for the defendant no.2 pertaining to Section 20 of the Act

of 1963; but, the same have no applicability in the instant case. In

the case of Nanjappan (supra), the Hon'ble Apex Court did not

find it appropriate to grant the discretionary relief of specific

performance to the plaintiff for the reasons that the suit property

was the only property of the defendant wherein, he has raised

construction of a house and currently residing therein with his

family, the agreement was executed about 27 years ago, the

property was situated in Coimbatore City and the rates would have

considerably increased. However, no such situation obtains in the

present case. The subject agricultural land is situated in a village

with its possession handed over to the plaintiff by the vendor at

the time of execution of the agreement to sell.

[2023:RJ-JP:21772] (21 of 22) [CSA-323/2016]

In the case of Hemant Mondal & Ors. (supra), the Hon'ble

Apex Court, instead of affirming the decree of specific

performance, directed refund of the sale consideration with

interest on the premise that possession of the subject property

was not given to the plaintiff at the time of execution of the

agreement, area of the land agreed to be sold was not specific

and measurement of the lands actually agreed to be sold, were

not final. Learned senior counsel for the defendant no.2 could not

satisfy this Court how does this judgement helps him.

In the case of Bal Krishna & Anr., (supra), it was held that

while exercising the discretion under Section 20, the Court would

take into consideration the circumstances of the case, the conduct

of the parties and their respective interests under the contract. It

was held that no specific performance of the contract, though it is

not vitiated by fraud or misrepresentation, can be granted if it

would give an unfair advantage to the plaintiff and where the

performance of the contract would involve some hardship on the

defendant, which he did not foresee. In other words, the court's

discretion to grant specific performance is not to be exercised if

the contract is not equal and fair, although the contract is not

void. However, in the present case, not only the possession of the

subject property was handed over to the plaintiff by the defendant

no.1 at the time of execution of the agreement to sell; but, later

on, ignoring the requests of the plaintiff to execute the sale deed

and without putting the plaintiff to notice, he has sold the subject

property in favour of the defendants no.2 and 3. In view thereof,

this judgment has no applicability in the present case.

[2023:RJ-JP:21772] (22 of 22) [CSA-323/2016]

The submission of the learned senior counsel for the

defendant no.2 as to being bona fide purchaser, he should not

suffer the decree of specific performance, is being noted only for

rejection. Indisputably, neither any written statement was filed by

him nor, the PW1 was subjected to cross examination nor, any

evidence was led by him to show and establish that he was a bona

fide purchaser for valuable consideration without notice, in

absence whereof, the contention cannot be countenanced.

Since, the learned senior counsel for the defendant no.2 has

not been able to satisfy this Court that the concurrent findings of

facts recorded by the learned courts suffer from any illegality,

infirmity, perversity or jurisdictional error so as to warrant

interference of this Court under Section 100 CPC, the civil second

appeal is dismissed being devoid of any substantial question of

law.

(MAHENDAR KUMAR GOYAL),J

RAVI SHARMA /C1

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