Uttarakhand High Court

Smt. Indra vs Laksar on 4 May, 2021

                                           1



                                                                          RESERVED

           HIGH COURT OF UTTARAKHAND AT NAINITAL

                         Second Appeal No. 17 of 2004



   1. Smt. Indra W/o Sri Chhotelal, D/o Late Raja Ram, R/o Village

       Sethpur, Tehsil Laksar, District Haridwar

                                                                    ........Deceased

   1/1. Ankit Kumar

   1/2. Ankur Kumar

   1/3. Abhishek, minor represented through his elder brother/ next friend

           Sri Ankit Kumar.

           All sons of Late IndraW/oChhote Lal, R/o Village Sethpur, Tehsil

           Laksar, District Haridwar.

                                                                     ......Appellants

                                        Versus


           Dharam Pal Singh S/o Sri Roop Ram, R/o Village Sethpur, Tehsil

           Laksar, District Haridwar.

                                                                   ......Respondent



Present:
           Mr. Siddhartha Singh, Advocate for the appellants.
           Mr. Mahavir Singh Tyagi, Senior Advocate for the respondent.


                                    JUDGMENT

Hon'ble RavindraMaithani, J.

The instant Second Appeal is preferred against judgment

and decree dated 15.01.2004 passed in the First Appeal No. 356 of 1983,

Smt. Indra Vs. DharamPal Singh, by the Court of First Additional District

Judge, Haridwar (in short "the appeal"), by which the judgment and decree

dated 26.08.1983 passed in Original Suit No. 83 of 1982, Dharampal Vs.

Raja Ram by the Court of First Additional Civil Judge, Roorkee

(Shaharanpur)(for short "the suit") has been confirmed.

2. Facts necessary for the disposal of the instant appeal, briefly

stated, are as follows;The respondent filed the suit against Raja Ram for

specific performance. During the pendency of the suit, Raja Ram died,

therefore, his daughter Smt. Indrawas substituted. Initially, the appeal was

filed by Smt. Indra Devi in this Court, but,after her death, her legal

representatives have now been substituted as appellants.It is the case of the

respondentthat Late Raja Ram agreed to sale his half share admeasuring 7

Bigha, 10 biswa 17 biswansi,17 KachvansiPukhta situated in Khasra No.184

Village MaujaSethpur, ParganaManglore, Tehsil Roorkee,

ZilaShaharnpur(for short "the suit land") to him for a consideration of

Rs.23,000.An agreement of sale was executed on 4.7.1980 (for short 'the

agreement') and Rs. 4,500 as advance were paid by the respondent to Late

Raja Ram. The remaining amount was to be paid at the time of execution of

the sale deed. It was agreed between the parties that the sale deed would be

executed within two years since then. Late Raja Ram didnot execute the sale

deed.A notice was given on 27.04.1981 by the respondent to him but he

gave a wrong reply on 01.05.1981. Again, a notice dated 16.6.1982 was

given to Late Raja Ram by the respondent requiring him to appear for

execution of the sale deed but despite service, he did not appear on 3.7.1982,

the date fixed in the notice,for execution of the sale deed.On thesegrounds

the suit was filed seeking specific performance of the agreementand related

reliefs.

3. Late Raja Ram filed written statement in the suit. According

to him, he never executed any agreement of sale in favour of the respondent;

in the month of July, 1980, the wife of Raja Ram, namely, Smt. Atari was

seriously ill and for her treatment, Raja Ram was short of

money,therefore,he took Rs. 3,000 as loan from the respondent. The

respondent agreed to advance the loan of Rs. 3,000 on the condition that in

the next two years, Raja Ram would return him Rs. 4,500 and as a security

of the loan, a mortgage deed was executed. It is the case of Raja Ram that

after advancing loan, respondent took him to court wherecertain documents

were executed. He was askedto sign those documents and if by playing

fraud, an agreement of sale has been executed by the respondent, Raja Ram

is not bound by it.

4. After exchange of pleadings, the following issues were

framed in the suit:

"1. Whether defendant has executed the disputed agreement deed in favour of plaintiff dated 4.7.80 for Rs. 23000/-?

2. Whether defendant had received Rs. 4500/- as advance?

3. Whether defendant has taken a loan of Rs. 3000/- by execution Rahnnama?

4. Whether the suit is barred by Sections 14& 20 of Specific Relief Act?

5. Whether defendant was not owner of disputed property dated 4.07.80?

6. Whether plaintiff is entitled for any other relief?"

5. Parties led evidence in the suit. On issue Nos. 1 and 2, the

Court concluded that Late Raja Ram executed the agreement of sale in

favour of the respondent for Rs.23000/- and received Rs.45000/- as an

advance.The Court also held that the appellants could not prove that Rs.3000

was taken as a loan from the respondent.On issue No. 4, it was held that the

suit is not barred by Sections 14 and 20 of the Specific Relief Act, 1963 (for

short 'SR Act'). On issue No. 5, the Court held that it is not open to Raja

Ramto take the plea that he was not owner of the suit land at the time of the

agreement. In view of the findings recorded, the Court of the first instant

decreed the suit with costs,on 26.08.1983. The judgment and decree dated

26.08.1983 passed in the suit was challenged by the appellants.It was

decided on 15.01.2004 and by the judgment and decree dated 15.01.2004

passed in the appeal, the judgment and decree passed in the suit has been

confirmed.Aggrieved by it, the instant Second Appeal has been filed.

6. The instant second appeal was admitted on 04.02.2004 on

the following two substantial questions of law;

(i) Whether burden of proof lies on the plaintiff to

prove execution of agreement to sell when illiterate

defendant demonstrate misrepresentation and fraud in

view of A.I.R. 1990 Allahabad page 75 A.I.R. 1996

Allahabad 253? If yes impugned judgement and decree

vitiate.

(ii) Whether suit is barred by principle of estoppels and

waiver in getting the relief of specific performance in

view of non-filing of suit for more than a year after

specific denial of agreement by the defendant in reply

notice narrating therein circumstances of fraud and

misrepresentation?

7. Heard learned counsel for the parties and perused the

record.

8. At the very outset, learned counsel for the appellants would

submit that, in fact, substantial questions of law on which the second appeal

has been admitted are not the actual substantial question of law which arises

in the instant second appeal.He would submit that the Court can reformulate

the substantial questions of law. Reference has been made to Section 100 (5)

of the Code of Civil Procedure, 1908 (for short "CPC") and its proviso is as

hereunder;

"100. Second appeal.

....................

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

9. Section 100 of CPC provides that a second appeal may be

entertained by the High Court, if the High Court is satisfied that the case

involves a substantial question of law. What is substantial question of law, it

has come up for discussion multiple times before the Hon'ble Supreme

Court. In the case of Gurnam Singh Vs. Lehna Singh1, the Hon'ble Supreme

Court in paragraph 13.1 held as hereunder;

"13.1. The suspicious circumstances which were

considered by the learned trial court are narrated/stated

hereinabove. On reappreciation of evidence on record and after

dealing with each alleged suspicious circumstance, which was

dealt with by the learned trial court, the first appellate court by

giving cogent reasons held the will genuine and consequently did

not agree with the findings recorded by the learned trial court.

However, in second appeal under Section 100 CPC, the High

Court, by the impugned judgment and order has interfered with the

judgment and decree passed by the first appellate court. While

interfering with the judgment and order passed by the first

appellate court, it appears that while upsetting the judgment and

decree passed by the first appellate court, the High Court has again

appreciated the entire evidence on record, which in exercise of

powers under Section 100 CPC is not permissible. While passing

the impugned judgment and order, it appears that the High Court

has not at all appreciated the fact that the High Court was deciding

the second appeal under Section 100 CPC and not first appeal

under Section 96 CPC. As per the law laid down by this Court in a

catena of decisions, the jurisdiction of the High Court to entertain

second appeal under Section 100 CPC after the 1976 Amendment,

is confined only when the second appeal involves a substantial

question of law. The existence of "a substantial question of law" is

a sine qua non for the exercise of the jurisdiction under Section

100 CPC. As observed and held by this Court in KondibaDagadu

Kadam [KondibaDagadu Kadam v. SavitribaiSopan Gujar, (1999)

(2019) 7 SCC 641

3 SCC 722] , in a second appeal under Section 100 CPC, the High

Court cannot substitute its own opinion for that of the first

appellate court, unless it finds that the conclusions drawn by the

lower court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

or

(ii) Contrary to the law as pronounced by the Supreme Court;

or

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if

the first appellate court has exercised its discretion in a judicial

manner, its decision cannot be recorded as suffering from an error

either of law or of procedure requiring interference in second

appeal. It is further observed that the trial court could have decided

differently is not a question of law justifying interference in second

appeal."

(emphasis supplied)

10. In the case of Municipal CommitteeVs. Punjab State

Electricity Board2, the Hon'ble Supreme Court has categorically dealt with

Section 100 and 103 CPC to hold that perversity is a substantial question of

law. The Hon'ble Court, observed as hereunder [It may be noted that this

case has not been referred to in the case of Gurnam Singh (supra)];

"26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity.

2010 (13) SSC 216

More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.

27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604] ; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343 : AIR 1999 SC 3067] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740 : AIR 2010 SC 2679] .)"

11. The word 'perversity' has been discussed in the case of

BasalingappaVs. Mudibasappa3 and according to it, perversity means

'against the weight of evidence'. Therefore, in view of the legal position, a

second appeal may be admitted only on the substantial question of law and if

finding is erroneous and based on inadmissible evidence, which means that

if it is perverse it is also a substantial question of law. This Court has

recorded these observationsin view of the proposed substantial question of

law. The Court can very wellin the second appeal reformulate the substantial

questions of law and as suggested by learned counsel for the appellantsand

admitted by learned counsel for the respondent, the following substantial

questions of law are for consideration in the second appeal;

(2019) 5 SCC 418

1. Whether it has wrongly been held that at the relevant time, based

on the rate of land, late Raja Ram had agreed to sell the suit land

for Rs. 23,000.

2. Whether in the instant case, the decree for specific performance

cannot be granted in view of Section 18 and 20 of SR Act.

12. Learned Counsel for the appellants would submit that while

examining the validity of a document, surrounding circumstances are also to

be seen as held by this Court in First Appeal No. 3441 of 2001 (Old No.89

of 1989) Smt. Shakuntala Rani (Deceased) and another Vs. Om Prakash

Kohli.Learned counsel would also submit as follows;

(i) The scribe of the deed has not been examined.

(ii) Witness are relatives.

(iii) Contents not proved.

(iv) In the agreement of sale, two years time has been

granted for execution of the deed which creates doubt

about the authenticity of the agreement because a

purchaser would like to purchase the property at the

earliest and similarly a vendor would like to sell his

property at the earliest.

(v) The appellate Court erred in law while observing at

page 14 Para 1 of the judgment that the land at the

relevant time was valued at Rs. 2000 per Bigha.It is

argued that Rs.8000 cost of 4 Bigha was told by Raja

Ram for KachaBigha not for puccabigha; in one

puccabigha there are three kachabighas and in the instant

case, the land which was agreed to be sold was allegedly

sevenpuccabigha, which makes out more than twenty

two kachabigha.

(vi) Why should Raja Ram sell22 bigha land for Rs.

23,000/- and if 7 bigha was kacha, why the respondent

agreed to purchase a land of Rs.14,000/- for Rs.23,000/-.

Therefore, it is argued that the impugned judgment and

decree is bad for this reason alone.

13. On the other hand, learned counsel for the respondent would

submit that the onus was upon the appellants to establish and prove as to

what was the rate of land at the relevant time; the appellantswere required to

prove it by evidence. DW1 Raja Ram at one place told that he sold 4

kachabigha for Rs.8,000/- (at page 5 of the statement). But, in the

subsequentlines, he has also admitted to have sold Rs.5 Bigha land, without

referring whether it was kacha or puccabigha, therefore, it is argued that the

judgment and decree is not bad. The execution of agreement has been

proved. The value is not an issue. Late Raja Ram had sold land to many

persons.

15. Undoubtedly, in the case of Smt. Shakuntala Rani (supra)

decided by this Court on 04.12.2020, this Court discussed the law on the

point of authenticity of a document. The surrounding circumstancesunder

which a document is written also become relevant.In the case of Smt.

Shakuntala(supra),this Court observed;

18. A question might arise that even if a document is proved to have been authored or signed by some person, can the case be decided merely on this basis, or the court may have to look beyond it. It is a question of testing the veracity of oral evidence vis-à-vis documentary evidence. Even if it is proved that the contents are authored by some person, the question still remains as to the correctness of the contents. A document should pass the test of "righteousness of the transactions". This phrase has been used in the context of a will and quoted from the judgment passed in the case of Fulton Vs. Andrew, (1875) LR 9 7HL 448 and referred to in the case of H. VenkatachalaIyengar Vs. B. N. Thimmajamma and others, 1959 (Supp. 1) SCR 426.

19. In the case of W. Scott Fulton (supra), it was observed that "those who take a benefit under a will, and have been instrumental in preparing and obtaining it, have thrown open them the onus of showing the righteousness of the transaction".

20. In the case of H. VenkatachalaIyengar (supra), Hon'ble Supreme Court laid down various tests with regard to correctness of a will. How to prove a will, there are different procedure. Even the rules may be different, but a document has to qualify the test of "righteousness of transaction." In para 20, in the case of H. VenkatachalaIyengar (supra), the Hon'ble Court observed as hereunder:-

"20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind mayappear to be very

feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to the unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said disposition may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.""

16. It is a case of the appellants that Late Raja Ram (original

defendant) took Rs.3000 loan from the respondentand issued a rehennama

for securing the loan. During the course of argument, reference has been

made to rukkawhich according to learned counsel for the appellants is

rehennama. But, when the attention of learned counsel for the appellants

was drawn to the statement of DW1 Raja Ram at Page 3 bottom lines, where

he hasstated that he had got a rukkaexecuted from the respondent and after

repaying the loan he had taken the rukka back and set it ablaze. Learned

Counsel for the appellantswould submit that these are not the pleadings and

evidencewithout pleadingscannot be read. This argument perhaps has less

strength.It is pleaded case of the appellants that Late Raja Ram had taken a

loan of Rs. 3,000 from the respondent and in lieu thereof he had

mortgagedhis property. But, fraudulently,the respondent got anagreement of

sale executed from him. The pleaded case was demolished by DW1 Raja

Ram himself when he statesthat though he had executed a rukka

(rehennama) but after repaying the loan, he had taken the rukka back. If the

rehennama was returned by the respondent to late Raja Ram, which

according to Raja Ram, he had destroyed by putting it to fire, how come the

second document i.e. the agreement of sale, which is in question, came into

existence. There is no reply to it by the appellants.These are attending

circumstances.Whether scribe was examined or not or witnesses are

relatives, it does not make the document doubtful.

17. The issue is with regard to the price of the land. In page 5 of

his statement, DW1 Raja Ram has stated that he had sold 4 kachabighaland

for Rs.8000/- and the learned Appellate Court below on the basis of it, held

that late Raja Ram had agreed to sell the suit land for Rs. 23,000. This has

been questioned on the ground that it was kachaBighanot puccabigha and

the agreement of sale in the instant case is with regard to more than 7

puccabigha,which comes out to be about 22KachaBigha. But, this is not as

such pleaded.In page 5 bottomlines, Raja Ram has further stated that he sold

5 bigha land for 10,000/-.He did not qualify this 5 bighaeither as Kacha or

puccaBigha.Moreover,the statement of DW1 Raja Ram was recorded on

2.8.1983 and according to him, he sold 4 KachaBighaland,about 15 months

prior to giving of statement. It means that in the year 1982, he sold 4

Bigha land for a Rs. 8000/-.

18. In the instant case, the agreement of sale was executed on

4th July, 1980. Price of land in a village may not be uniform even at one

given point of time for the simple reason that it is the location or usefulness

of the land which also determines its price.A land near Motor Road may

fetch more price than a land which is adjacent to a forest where even

agricultural crop may not be possible or which may be flooded with water

during rainy season, etc.The appellants never pleaded categorically as to

what was the price of land at the relevant time; the appellants did not even

establish or prove as to what was the price of land, which was adjacent to the

land in question. The appellants did not file any other sale deed of the

adjacent land to the suit land. Therefore, this Court is of the view that based

on the evidence of DW1 Raja Ram,it has been rightly held that late Raja

Ram had agreed to sell the suit land for Rs. 23,000. The substantial question

of law is answered accordingly.

19. Second substantial question of law relates to as to whether

in the instant case, specific performance cannot be granted in view of the

Section 18 and 20 of SR Act. Learned Counsel for the appellantswould

submit that Raja Ram was a farmer.Apart from the suit land, he is left with

no other land and it would be inequitable if the specific performance of

contract is enforced in the instant case. Instead, it is argued that that equity

demands that the consideration which was allegedly paid by the respondent

may be returned to him. Section 18 and 20 of the SR Act are as hereunder;

"18. Non-enforcement except with variation.--Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain

the performance sought, except with the variation so set up, in the following cases, namely:--

(a) whereby fraud, mistake of fact or mis-representation, the written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contact;

(b) where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce;

20. Discretion as to decreeing specific performance.- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may properly exercise discretion not to decree specific performance-

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Explanation I.- Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).

Explanation II.- The question whether the performance of a contract would involve hardship on the defendant within the

meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

20. Insofar as execution of agreement of sale is concerned, it is

not in dispute now. This is not a question of law as such framed for disposal.

21. What is being argued on behalf of the appellants is that if

specific performance is ordered, it will give unfair advantage to the

respondent over the appellants and it would also cause greater hardship to

the appellants. In support of his case, learned counsel placed reliance on the

principles of law, as laid down in the case of ParakunnanVeetill Joseph's

Son Mathew, v. NedumbaraKuruvila's Son and others4,

DamacherlaAnjaneyulu and another vs. DamcherlaVenkataSeshaiah and

another5, Janardhanam Prasad Vs. Ramdas6 andVimaleshwarNagappaShet v.

Noor Ahmed Shariff7.

22. In the case of ParakunnanVeetill Joseph's (supra), the

Hon'ble Supreme Court, inter alia, held that the Court is not bound to grant

specific performance merely because it is lawful to do so. The motive behind

the litigation should also be entered into the judicial verdict.

AIR 1987 SC 2328

AIR 1987 SC 1641

(2007) 15 SCC 174

(2011) 12 SCC 658

23. In the case of Damacherla (supra), the Hon'ble Supreme

Court found that in case, specific performance is granted, it would result in

special hardship. Accordingly, the relief was altered.

24. In the case of Janardhanam Prasad (supra), the Hon'ble

Court observed as hereunder;

"18. Furthermore, the appellant is in possession of the said land. He had dug a well. He had made improvement on the suit land. Digging of well as also making improvements was within the notice of the respondent. The witnesses examined on his behalf had categorically admitted the same. In that view of the matter too, in our opinion, it was a fit case where the discretionary jurisdiction of the Court under Section 20 of the Specific Relief Act should not have been exercised and, instead, monetary compensation could be granted. (See M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470].).

19. This question was yet again considered in Jai NarainParasrampuria v. Pushpa Devi Saraf [(2006) 7 SCC 756] wherein it was held that for balancing the equities in a given case, compensation can be awarded in lieu of grant of decree of specific performance of contract."

25. In the case of VimaleshwarNagappaShet(supra), the

Hon'ble Supreme Court held that Section 20 of the SR Act confers

discretionary power and it is also well settled that the value of property

escalates in urban areas very fast and it would not be equitable to grant

specific performance after a lapse of long period of time.

26. On the other hand, learned counsel for the respondent would

submit that it is not a case in which the provision of Section 18 and 20 of the

SR Act are attracted. It is submitted that Late Raja Ram sold many lands

during his lifetime not before the instant agreement of sale but also after the

instant suit was decreed by the Trial Court. Thereafter, also Raja Ram sold

many lands and repeatedly, he kept on selling his land, therefore, there is no

equity in his favour.

27. Learned counsel for the respondent placed reliance on the

principles of law as laid down in the cases of Prakash Chandra Vs. Narayan8,

Surya NarainUpadhyayaVs. Ram Roop Pandey and Others9, Ramathal v.

Maruthathal and others10 andNarinderjit Singh v. North Star Estate

Promoters Limited11.

28. In the case of Prakash Chandra (supra), the Hon'ble

Supreme Court observed as hereunder;

"17. The question as to whether the grant of relief for

specific performance will cause hardship to the defendant within

the meaning of clause (b) of sub-section (2) of Section 20 of the

Specific Relief Act, 1963, being a question of fact, the first

appellate court without framing such an issue ought not to have

reversed the finding of the trial court while concurring with it on

all other issues with regard to the appellant's entitlement to relief

for specific performance of contract.

18. The High Court in the second appeal failed to

notice that the respondent had not taken any defence of hardship

and no such issue was framed and in the absence of any such

evidence on record, the first appellate court held that he would be

landless should the decree for specific performance be granted."

(2012) 5 SCC 403

1995 Supp (4) SCC 542

AIR 2018 SC 340

AIR 2012 SC 2035

29. In the case of Surya NarainUpadhyaya (supra), the Hon'ble

Supreme Court observed as hereunder;

"4. Though the decree for specific performance is a discretionary power, yet the court is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellant court, namely the appellant has always been ready and willing to perform his part of the contract."

30. In the case of Ramathal (supra), the Hon'ble Supreme Court

considered the factum of escalation of prices and held that it cannot be a

ground for denying the relief of specific performance. In para 22, the Court

has observed as hereunder;

"23. The buyer has taken prompt steps to file a suit for

specific performance as soon as the execution of the sale was

stalled by the seller. From this discussion, it is clear that the buyer

has always been ready and willing to perform his part of the

contract at all stages. Moreover, it is the seller who had always

been trying to wriggle out of the contract. Now the seller cannot

take advantage of their own wrong and then plead that the grant of

decree of specific performance would be inequitable. Escalation of

prices cannot be a ground for denying the relief of specific

performance. Specific performance is an equitable relief and

granting the relief is the discretion of the court. The discretion has

to be exercised by the court judicially and within the settled

principles of law. Absolutely there is no illegality or infirmity in

the judgments of the courts below, which has judicially exercised

its discretion and the High Court ought not to have interfered with

the same."

31. In the case of Narinderjit Singh (supra), the Hon'ble

Supreme Court also considered the question of escalation of price and

hardship and observed as hereunder;

"25. We are also inclined to agree with the lower appellate court that escalation in the price of the land cannot, by itself, be a ground for denying relief of specific performance. In K. Narendra v. Riviera Apartments (P) Ltd. [(1999) 5 SCC 77] this Court interpreted Section 20 of the Act and laid down the following propositions: (SCC p. 91, para 29) "29. Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant."

(emphasis supplied)

26. In the present case, the appellant had neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement. Rather, the important plea taken by the appellant was that the agreement was fictitious and fabricated and his father had neither executed the same nor received the earnest money and, as mentioned above, all the courts have found this plea to be wholly untenable."

32. Late Raja Ram was examined as DW2 in the suit. At page 5

of his statement, he has categorically stated that post the agreement in the

instant case, he sold land to various persons. He was having huge chunk of

land which he admitted at page 3 of his statement. The factum of hardship,

etc. has neither been pleaded nor proved by the appellants. This Court does

not see any hardship to the appellants or it is also not established or shown

that in case, specific performance is ordered, it would give unfair advantage

to the respondent. Therefore, this Court is of the view that instant is not a

case in which specific performance may not be granted in view of Section 18

and 20 or the SR Act. Second substantial question of law is answered

accordingly.

33. In view of the foregoing discussion, this Court is of the view