Jharkhand High Court
Mathura Prasad vs Smt. Kunti Devi on 26 April, 2018
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
SA 63 OF 2008
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.63 of 2003
Mathura Prasad, son of Babuni Prasad Saw, deceased ancestral address-
Panchwa, Mohalla Chatra, P.S. Chatra, District-Chatra, though throughout
resident of Jatrahibag, Chatra, P.O., P.S. and District-Chatra
..... ... Appellant
Versus
Smt. Kunti Devi, wife of Krishna Kumar Jaiswal, resident of Goraksvhni
Road within Chatra Town, P.O., P.S. and District-Chatra
..... ... Respondent
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For the Appellant : Mr. Manjul Prasad, Sr. Advocate
For the Respondent : Mr. Krishna Murari, Advocate
Mr. M. Asghar, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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CAV on 15.02.2018 Pronounced on : 26.04.2018
Anil Kumar Choudhary, J.- This Second appeal under Section 100 of the Code of Civil Procedure at the instance of the defendant-respondent- appellant is directed against the judgment and decree dated 01.10.2002 passed by the 1st Additional District Judge, Chatra whereby and whereunder the learned 1st Additional District Judge allowed the Title Appeal no. 49 of 1998 and set aside the judgment and decree dated 31.07.1998 passed by the Subordinate Judge-I, Chatra in Title Suit No.16 of 1994.
2. The respondent of this Second Appeal instituted the aforementioned Title Suit No.16 of 1994 with a prayer for directing the defendant to execute and register a sale deed for the suit property in favour of the plaintiff and if the defendant fails to execute and register the sale deed within the time fixed by the court, it was prayed that the Officer of the court be appointed to execute and register the sale deed and that the plaintiff be put in khas possession over the suit property and other reliefs.
3. The case of the prosecution in brief is that the defendant being in urgent need of the money to perform the marriage of his daughter approached the husband of the plaintiff to purchase the suit property which consists 1 SA 63 OF 2008 of a house. The husband of the plaintiff became ready to purchase the suit property in the name of his wife who is the plaintiff of the suit. The consideration money for the suit property was negotiated and fixed at Rs.40,000/-. It was agreed to and decided between the parties that the husband of the plaintiff shall advance Rs.30,000/- on behalf of the plaintiff to the defendant and the defendant in token of receipt of Rs.30,000/- shall execute and register a deed of Baibeyanama in favour of the plaintiff for the suit property and whenever the husband of the plaintiff will pay the remaining balance amount of Rs.10,000/- to the defendant towards consideration money of the suit property within 17.11.1994, the defendant shall execute and register a sale deed in favour of the plaintiff in respect of the suit property at the cost of the plaintiff. It is further the case of the plaintiff that the husband of the plaintiff advanced Rs.30,000/- in cash to the defendant and in lieu thereof, the defendant executed registered deed of Baibeyanama No. 5483 of 1992 in favour of the plaintiff on 17.11.1992 and the defendant also executed a separate receipt in token of acceptance of the payment of Rs.30,000/- to him. Thereafter, the husband of the plaintiff and plaintiff approached the defendant several times requesting him to receive the balance consideration amount of Rs.10,000/- but the defendant deferred to receive the said Rs.10,000/- on some plea or other and lastly on 13.07.1994 when the husband of the plaintiff again requested the defendant to receive Rs.10,000/- towards balance consideration money and to execute and register the sale deed at the cost of the plaintiff, the defendant lastly refused to receive money and to execute and register the sale deed in respect of the suit property. The plaintiff thereafter sent a notice through his lawyer on 18.07.1994 to the defendant requesting him to receive the balance consideration amount of Rs.10,000/- and to execute and register a sale deed in respect of the suit property but instead of receiving Rs.10,000/- and executing the sale deed, the defendant through his advocate sent a reply denying execution of any deed of Baibeyanama by him. Hence, the plaintiff has filed the suit. The plaintiff has deposited Rs.10,000/- only by a civil challan in favour of the defendant. In his written statement, the defendant took the specific plea in paragraph - 3 of his written statement that he never entered into any agreement with the 2 SA 63 OF 2008 plaintiff much less an agreement to sale of the suit premises which is the residential house of the defendant and his family. The defendant further pleaded that the husband of the plaintiff agreed to advance a sum of Rs.30,000/- to the defendant under the mutual understanding against the security of the suit premises which is the dwelling place of the defendant and his family members. The amount of Rs.30,000/- has been advanced to the defendant by the husband of the plaintiff as a loan at the interest of 6% per annum on agreeing that the suit premises will be the mortgaged property in respect of the said advance, by executing a formal agreement to sale as security towards repayment of the loan but never to be acted upon. It is also the case of the defendant that it is unconscionable that any sane person will agree to sale his own dwelling house for a paltry sum of Rs.40,000/- when the market value of the said house at the relevant time was Rs.5,00,000/-. It is the plea of the defendant that the fact that it was agreed to, that the remaining consideration amount of Rs.10,000/- which was small amount was to be paid within a period of two years specifying the date ending on 17.11.1994 as the same was also mentioned in the said deed of Baibeyanama, itself indicates that the document in question was not an agreement for sale rather the same was executed for the purpose of securing the advance which was given by the husband of the plaintiff to the defendant. The defendant also took the plea that the deed of Baibeyanama was never read over to the defendant and the defendant was not knowing the contents of the said deed of Baibeyanama and as the defendant had no dishonest intention hence, the defendant at the request of the husband of the plaintiff gave a receipt noting on a blank paper in its margin to the effect that he has received Rs.30,000/-. The defendant also pleaded that the contents of the receipt was not written in his presence so the defendant is not aware about the contents of the said receipt. In paragraph - 9 of the written statement it was averred by the defendant that the deed of Baibeyanama dated 17.11.93 (sic 17.11.92) executed by the defendant is not a deed of Baibeyanama but was collusively created instead of a deed of mortgage in essence and reality only to avoid the provision of law and that the deed of mortgage in its actual term was not written, because the Plaintiff's husband or the Plaintiff had no money lending licence at the time. It was also pleaded by 3 SA 63 OF 2008 the defendant that the plaintiff or her husband never approached nor offered the defendant a sum of Rs.10,000/- at any point of time prior to 17.11.1994. In response to the notice of the plaintiff through her advocate, the defendant through his advocate requested the plaintiff and her husband to take refund of the loan amount of Rs.30,000/- with interest at the rate of 6%.
4. The trial court basing upon the rival pleadings framed the following issues :-
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff valid cause of action or right to sue?
(iii) Has there been any agreement to sale and purchase the suit premises between the parties?
(iv) Has there been payment of Rs.30,000/- as earnest money or in terms of loan ?
(v) Is the agreement a document for security against the payment of loan?
(vi) Has the plaintiff being ever ready and willing to purchase the suit properties.
(vii) Is the plaintiff entitled to a decree for specific performance of contract?
(viii) Is the plaintiff entitled to the reliefs as sought for?
(ix) To what other relief or reliefs if any is the plaintiff entitled?
5. The trial court after considering the evidences both oral and documentary as also the pleading of the parties decided all the issues in favour of the defendant and dismissed the suit on contest.
6. The plaintiff preferred Title Appeal No.49 of 1998 against the judgment and decree of the trial court. The appellate court allowed the appeal and set aside the judgment and decree dated 31.07.1998 of the trial court and directed the defendant-respondent to execute the deed of sale as per the agreement dated 17.11.1992 after receipt of the balance amount deposited by the appellant in the court. The appellate court recorded its own finding and observed that the basic components of a valid agreement such as capacity to contract, valid consideration and free consent were fulfilled. Hence, the agreement in question is enforceable in law. The readiness and willingness to perform his part of contract is proved by the 4 SA 63 OF 2008 plaintiff- appellant. Hence, the lower appellate court observed that the plaintiff-appellant was entitled to get the relief for specific performance of contract.
7. This Court while admitting the appeal for hearing vide order dated 20.05.2004 formulated the following substantial questions of law :-
(i) Whether the non-consideration by the appellate court below of the provision of Section 20 of the Specific Relief Act which declares the jurisdiction of the Court as discretionary for the grant of decree of specific performance of contract and also that the Court is not bound to grant such relief merely because it is lawful to do so in view of the admission of P.W.3 appearing in para-4 that he was asked to scribe a mortgage deed has caused miscarriage of justice?
(ii) Whether the learned appellate court below committed grave error of law in outright excluding or ignoring the proved circumstances of undue influence in their execution of the purported agreement for sale (Ext.1)?
(iii) Whether the learned lower appellate court committed grave error of law in refusing to take into consideration the declared or well laid law, if there was a dispute in regard to the true character of the agreement for sale; evidence dehors the agreement for sale could be led to show the agreement for sale was not real nature of transaction but was only on illusory, fictitious and colourable device which cloaked something else and that the apparent state of affairs was not the real state of affairs?
8. Mr. Manjul Prasad, learned Senior Advocate appearing on behalf of the appellant assailed the impugned judgment and decree of the lower appellate court as being illegal, contrary to the facts and evidence on record. Learned Senior Advocate firstly submitted that the lower appellate court has committed serious illegality in reversing the judgment and decree of the trial court without meeting the reasons given by the trial court while recording findings of facts. Learned Senior Advocate further submitted that the lower appellate court failed to take note of the fact that the plaintiff has not come to court with clean hands as the contention of the Plaintiff that the husband of the plaintiff is a power of attorney holder of the appellant was suppressed till the 11 th hour in the suit and as on several occasions before the examination of the plaintiff in the suit, adjournment was taken for examining the plaintiff on the ground 5 SA 63 OF 2008 of unavailability of the plaintiff to be examined in court. Hence, it is submitted that the power of attorney executed by the plaintiff in favour of her husband is an antedated document as the same was not filed along with the plaint and even after the alleged date of execution of the power of attorney, the plaintiff has taken adjournment on the ground of unavailability of the plaintiff herself to be examined in court. In support of his contention, learned Senior Advocate relied upon the judgment of Hon'ble Supreme Court of India in the case of Zarina Siddiqui v. A. Ramalingam alias R. Amarnathan reported in 2014 AIR SCW 6614 wherein in para-34, the Hon'ble Court has 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."
Learned Senior Advocate further submitted that it is a settled principle of law that when a party to the agreement for sale keeps the option of paying a paltry sum of remaining consideration amount of an agreement for sale for a long time then it has to be presumed that the instrument was not a sale transaction. In support of his contention, learned Senior Advocate relied upon the judgment of Hon'ble Supreme Court in the case of Tejram v. Patirambhau reported in AIR 1997 SC 2702 wherein in the facts and circumstances of that case where the admitted facts are that the appellant executed a document purporting to be an agreement for sale executed on 20.04.1972 for a consideration of Rs.50,000/- and from the recital of the agreement and the endorsement made on the foot of it to the effect that a sum of Rs.48,000/- was received as advance consideration for the sale of the said loan as balance of Rs.2000/- was required to be paid within one year and the sale deed was required to be executed thereon wherein both the courts below gave the concurrent finding that the document in question was not an agreement for sale and where the witness no.2 of that case who was scribe of the agreement admitted in the examination-in-chief that he has executed several documents and all those documents i.e. ten out of eight relate to specific performance and all 6 SA 63 OF 2008 of them are of those who took loan from the respondent and it was an admitted position that the respondent is a money lender. The Hon'ble Apex Court in those facts and circumstances of that case held as under:-
"Under these circumstances the document purporting to be an agreement for sale is in fact not an agreement of sale; it is towards the unpaid interest on the loan taken by the respondent." The Hon'ble Apex Court in that case further went on to held " if it is true sale transaction and the respondent being a businessman and having purported to have paid Rs.48,000/- one would expect that he would seek possession or he would pay the balance consideration and request for execution of the sale deed instead he kept quiet for full three years, be that as it may, it would appear that there was money transaction between the appellant and the respondent and the respondent being money lender was taking documents purporting to be an agreement of sale from the loanees" and further went on to observe that "it is unlikely that being a money lender and having parted with Rs.48,000/- in cash, the plaintiff would have kept quiet either for seeking possession of the property or payment of Rs.2000/- immediately and then sought specific performance. It would be unlikely in the normal circumstances that he would have waited for three years to issue notice and then file the suit on the last date" and went on to observe further that under these circumstances the court below rightly came to the conclusion that it is not an agreement for sale or purports to be a sale in truth and in reality. Learned senior counsel further submitted that the lower appellate court has further committed error of law exercising the discretion in favour of the plaintiff under Section 20 of the Specific Relief Act. Hence, it is submitted that the second appeal be allowed and the impugned judgment and decree passed by the 1st Additional District Judge, Chatra be set aside.
9. On the other hand Mr. Krishna Murari, learned counsel appearing on behalf of the respondent firstly submitted that the substantial question of law No.1 and 3 framed in this appeal vide order dated 20.05.2004 while admitting this second appeal was vitiated in law being based in misreading of the wrong version of the certified copy of the statement of the scribe P.W.-3 wherein it has been erroneously mentioned in para-4 that " Us din Kanti Devi ne humse kuch nahi kaha balki Bharat Prasad se 7 SA 63 OF 2008 bandhaknama taiyar karne ko kahi" whereas in fact, the said P.W.3 in Para-4 of his deposition has categorically stated that "Us din Kanti Devi ne humse kuch nahi kaha balki Bharat Prasad se unhone Baibeyanama taiyar karne ko kaha tha". It was also submitted by the learned counsel for the respondent that the defendant appellant has not pleaded in his written statement that the plaintiff has not come to court with clean hands. Further it is submitted that it being a settled principle of law that the first appellate court being the final court of facts, the finding of facts arrived at by the first appellate court should not be interfered with while exercising the jurisdiction of second appeal unless the finding of fact arrived at by the first appellate court is perverse. In support of this contention the learned counsel for the respondent relied upon the judgment of Hon'ble Supreme of India, in the case of Damodar Lal vs. Sohan Devi & Ors., reported in 2016 (2) JBCJ 109 [SC] wherein it was held in paragraph -13 as under:-
"13. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity." (Emphasis Supplied) Further, the learned counsel for the respondent in this respect relied upon the judgment of Hon'ble Supreme of India, in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by LRS., reported in (2001) 3 SCC 179 which is as follows:-
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously 8 SA 63 OF 2008 settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."
(Emphasis Supplied) The learned counsel for the respondent then relied upon the judgment of this Court in the cases of Md. Murtaza vs. Md. Israil & Anr. and , reported in [2006 (4) JCR 281 (Jhr)] and Arbind Kumar Sinha vs. State of Bihar (Now Jharkhand) & Ors., reported in [2006 (4) JCR 285 (Jhr)] wherein in the facts and circumstances of those cases the coordinate benches of this court relying upon the decision of the Supreme Court in Arumugham v. Sundarambal reported in (1999) 4 SCC 350 held that This Court cannot interfere with the judgment and decree of learned lower appellate Court on the ground that the lower appellate Court failed to advert to the reasons ascribed by the trial Court .
The learned counsel for the respondent has further relied upon the judgment of Md. Khalil vs. Hamida and others reported in 2000 (1) PLJR 841 where in a coordinate bench of this court held as follows:-
"14. So far exercise of powers by this court under section 100 CPC is concerned, the Apex court has settled the law. In the case of Satya Gupta vs. Brijesh Kumar [1998 (6) SCC 423] it was held that the findings of facts recorded by the lower appellate court as a final court of fact, are based on appreciation of evidences and the same cannot be treated as perverse or based on no evidence. That being the position, this court, after re-appreciating the evidences, cannot reverse the findings of fact on the ground that the view taken by it was also possible view on the facts.
17. Having regard to the entire facts and circumstances of the case and the discussions made hereinabove, I am of the view that the substantial questions of law formulated at the time of admission of this appeal, do not arise as the finding recorded by the lower appellate court is a finding of facts which needs no interference by this court." (Emphasis Supplied) 9 SA 63 OF 2008 The learned counsel for the respondent next relied upon the decision of the Hon'ble Supreme of India, in the case of Krishnan vs. Backiam and Another, reported in (2007) 12 SCC 190 where the Hon'ble Supreme Court of India in Paragraph - 11 has held as under:-
"11. It may be mentioned that the First Appellate Court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the First Appellate Court under Section 96 CPC. No doubt the findings of fact of the First Appellate Court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the finding of the First Appellate Court that Ramayee and Lakshmi are one and the same person, is a finding based on no evidence or is perverse. Hence the findings of the First Appellate Court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court." (Emphasis Supplied) In the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., reported in (2010) 15 SCC 530 relied upon by the learned counsel for the respondent the Hon'ble Supreme Court of India held as under in paragraph -10 as under:-
"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied) In the case of Kulwant Kaur and Others vs. Gurdial Singh Mann (dead) by LRS. and Others, reported in (2001) 4 SCC 262 relied upon by the respondent the Hon'ble Supreme Court of India held in paragraph - 34 as under:-
"34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that 10 SA 63 OF 2008 the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication - what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
"103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-
(a) which has not been determined by the lower Appellate Court or by both the Court of first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or courts by reason of a decision on such question of law as is referred to in the Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with." (Emphasis Supplied) Further, the learned counsel for the respondent relied upon the decision of Hon'ble Supreme of India, in the case of Thiagaranjan and Others vs. Sri Venugopalaswamy B. Koil and Others, reported in (2004) 5 SCC 762 which is as follows:-
"24. In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 CPC.
25. In the present case, the lower appellate Court fairly appreciated the evidence and arrived at a conclusion that the appellants' suit 11 SA 63 OF 2008 was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
Further, the learned counsel for the respondent has relied upon the judgment of Hon'ble Supreme of India, in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, reported in AIR 1999 SC 2213 wherin the Hon'ble Supreme Court of India held in paragraph -5 as under is as follows:-
"5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence." (Emphasis Supplied) It was further submitted by the learned counsel for the respondent that the learned trial court in detail discussed and rightly gave the finding that the defendant has executed the agreement for sale and the said agreement of sale is a valid agreement for a valid consideration and with free consent. It is also submitted that as the plaintiff has already deposited the remaining consideration amount of Rs.10,000/- being the remaining consideration amount in court as has been mentioned in the plaint itself. The learned lower appellate court has rightly decreed the suit. Hence, there being no merit in this second appeal and no substantial question of law being involved in this second appeal, this second appeal being without any merit be dismissed.
10. It will be proper to refer to section 20 of Specific Relief Act which reads as under :-12
SA 63 OF 2008 "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 1.--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 2.-- 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." (Emphasis Supplied)
11. It is a settled principle of law that 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, as has been held in paragraph -9 by the Hon'ble Supreme Court of India in the case of Prakash Chandra v. Angadlal and others (AIR 1979 SC 1241).
12. The plain reading of clause (a) of section 20(2) of the Specific Relief Act reveals that specific performance of contract is to be denied in case of unfair advantage to the Plaintiff over the defendant say for example fiduciary relationship between the parties to the agreement in which the 13 Plaintiff is in a position to dominate the will of the defendant at the time of execution of the agreement. Similarly clause (b) of section 20(2) of the Specific Relief Act envisages that specific performance of contract is to be denied 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. Clause (c) of section 20(2) of the Specific Relief Act lays down that specific performance of contract is to be denied where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
13. Now coming to the facts of the case the pleadings of the defendant in paragraph 3 and 9 of his written statement are contradictory. In paragraph no.3 of his written statement though the defendant has taken a categorical stand that he never entered into an agreement with the plaintiff much less an agreement for sale of the suit premises which is the residential house of the defendant and his family but in paragraph no.9 of his written statement, he has taken a contradictory stand in the sense that therein the defendant has averred that the deed of Baibeyanama executed by him is not a deed of Baibeyanama but was collusively created instead of the deed of mortgage in a sense and reality only to avoid the provision of law and that the deed of mortgage in its actual term was not written because the husband of the plaintiff or the plaintiff had no money lending licence at that time. By this averment in paragraph-9 of the written statement as emphasized above, obviously the defendant admitted entering into an agreement though according to him the same was not intended to be an agreement nor was the same to be acted upon between the parties. Defendant thereby also admitted that the said agreement was entered into instead of a deed of mortgage.
14. Learned trial court while dismissing the suit of the plaintiff has erroneously taken into consideration and referred to in paragraph no.5 of its judgment that it is also the defence of the defendant that the plaintiff in collusion with the scribe got the said agreement scribed as an agreement for sale of the suit property. This defence attributed to the defendant by the trial court is erroneous because nowhere in the written statement of the defendant, he has pleaded that the scribe colluded with the plaintiff at the time of execution of the agreement for sale.
15. The learned trial court also took into consideration that the plaintiff being a pardanasin lady had gone to the office of Sub-Registrar situated in the court premises for execution of the said agreement and also took into consideration that the agreement is silent as to what will happen if the purchaser in the agreement will not pay the remaining consideration amount, which according to the learned trial court was an indicator that the money taken by the defendant was a loan and not the part consideration amount provided for the agreement for sale. The trial court also interpreted that as the plaintiff could not say correctly about the existence of rooms and other details of the suit house which according to the trial court shows that the plaintiff never inspected the suit house before entering into the agreement for sale in question and uses the same as another factor which goes to show that the agreement for sale in question was not an agreement for sale but was a security for loan of Rs.30,000/- taken by the defendant from the plaintiff.
16. The appellate court on the other hand appreciated the evidence in record independently. After referring to the settled principle of law and being conscious of the requirement of law about the preference for examining the plaintiff to examine herself has come to a finding that in the instant case adverse inference cannot not be drawn for non-examination of the plaintiff. It is a settled principle of law as has been held by the Hon'ble Supreme Court of India in paragraph- 11 of the case of Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar, (dead) by LRs and others reported in AIR 1981 SC 2235, that the question of drawing an adverse inference on account of absence of a party to a civil proceeding from the court would arise only when there is no other evidence in the record on the point in issue. In paragraph no.84 of its decision in Jagjit Singh v. State of Haryana and Ors reported in AIR 2007 SC 590, the Hon'ble Supreme Court has held that ordinarily adverse inference can be drawn in respect of allegations not traversed but there is no general rule that adverse inference must always be drawn whatever the facts and circumstances in the case maybe. In this case as already indicated above the plaintiff lady as far the case of the plaintiff is concerned is only a passive party and all the transactions and facts relevant for the case was done by her husband who has been examined as a power of attorney holder of the plaintiff herself.
17 It is needless to mention that the defendant has not pleaded of any fiduciary relationship between him and the plaintiff. The learned lower appellate court has referred to the deposition of D.W.1- who is the defendant himself wherein he has indicated that he is a matriculate having passed matriculation examination and knows both Hindi and English. Another important feature of this case is that though in his notice through his advocate in reply to the notice of the plaintiff, the defendant has taken the plea that the scribe was in collusion with the plaintiff at the time of execution of the agreement but the defendant has not ventured to make any such pleading in his written statement, obviously consciously and deliberately even though several amendments has been made to his written statement during the pendency of the suit. No suggestion was given to the scribe who was examined as a witness that he in collusion with the plaintiff wrote something different from what has been written in the deed of Baibeyanama. It is trite law that inadequacy of the consideration amount of an agreement cannot be a ground for the agreement being not a valid contract as per section 25 (f) of the Indian Contract Act. Similarly in Explanation 1 of Subsection 2 of Section 20 of the Specific Relief Act it has specifically been mentioned that inadequacy of consideration amount will not be an unfair advantage referred to in clause (a) of the said subsection.
18. So far as the judgment of Hon'ble Supreme Court of India in the case of Tejram v. Patirambhau (supra), relied upon by the appellant is concerned, the facts of that case was different from the facts of this case in the sense that in that case, it was accepted by both the courts below that the plaintiff of that case is a money lender. Here in this case there is no evidence that the plaintiff was a money lender. Further in that case, the scribe admitted that eight out of ten deeds were prepared by the plaintiff of that case through the said scribe though were the documents of agreement for sale but in fact no agreement of sale were entered into by the parties and the agreement for sale documents were prepared by the plaintiff of that case in lieu of mortgage deeds, which is not the case, in this case. In this case as already indicated above, the scribe has not been put any question whatsoever regarding his being in collusion with the plaintiff or his having done anything illegal or there was any other agreement or arrangement other than what the contents of Ext.1- which is the registered agreement for sale speaks for. So in the facts and circumstance of this case, the decision of Tejram v. Patirambhau (supra) in the considered opinion of this case is not applicable. So far as the case of Zarina Siddiqui v. A. Ramalingam alias R. Amarnathan (supra) relied upon by the appellant is concerned, the same is no doubt a settled principle of law but here as rightly pointed out by the learned counsel for the respondent that the defendant have neither pleaded nor even whispered a word about the plaintiff having not come to court with clean hands. Nor there is any evidence of the plaintiff having not come to court with clean hands except that though the plaintiff executed a power of attorney in favour of her husband to depose in court still adjournment was sought for by the plaintiff in the learned court below on the ground to examine herself as a witness.
19. So far exercise of powers by this court under section 100 CPC is concerned, the Apex court has settled the law as has been extensively discussed above while dealing with the citations placed by the respondent in this respect at the time of hearing.
20. Having regard to the entire facts and circumstances of the case and the discussions made hereinabove, I am of the view that the substantial questions of law formulated at the time of admission of this appeal, do not arise as the finding recorded by the lower appellate court is a finding of facts which needs no interference by this court.
21. In the result, I find no merit in this appeal which is, accordingly, dismissed but in the circumstances without any costs. Send back the lower court records with a copy of this judgment to the court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th April, 2018 AFR/gunjan