Rajasthan High Court - Jaipur
Dilsukh And Others vs Madan Lal And Others on 25 July, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil First Appeal No. 65 / 2014
1. Dilsukh S/o Late Shri Ganpatram Jat,
2. Richpal S/o Late Shri Ganpatram Jat,
3. Smt. Bhagwati widow of Late Shri Bhanwar Lal Jat,
4. Surendra Kumar S/o Late Shri Bhanwar lal Jat,
5. Sanjesh Kumar S/o Late Shri Bhanwar Lal Jat,
All are by caste Jat, residents of Village Ghassu Ka Bas Tehsil
Laxmangarh, District Sikar (Rajasthan)
----Defendant-Appellants
Versus
1. Madan Lal S/o Shri Ram Kumar Singh, by caste Jat, R/o Village
Ghassu Ka Bas Tehsil Laxmangarh, District Sikar (Rajasthan).
2. Jeevanram Jangid S/o Shri Durgarm Jangid, by caste Jangid,
R/o Village Narodada, Tehsil Laxmangarh, District Sikar
(Rajasthan).
----Respondent
_____________________________________________________
For Appellant(s) : Mr. R.N. Mathur, Sr. Adv. with
Mr. Shobhit Jhanjharia Adv.
For Respondent(s) : Mr. G.S. Bapna Sr. Adv. with
Mr. Sarvesh Jain Adv.
_____________________________________________________
HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA
Judgment
Judgment Reserved on : 17/05/2017
Judgment Pronounced on : 25/07/2017
1. This appeal is directed against the judgment & decree
dt.13.12.2013 passed by the Additional District Judge No.2 Sikar
in Civil Regular Suit No.(104/2009) 93/2009 decreeing a suit for
specific performance and permanent injunction filed by the
plaintiff-respondents.
(2 of 20)
[CFA-65/2014]
2. Briefly stated, the plaintiffs instituted a suit for specific
performance and permanent injunction against the defendants
with the assertion that defendants agreed to sell their agricultural
land bearing khasra No.27 Ad-measuring 1.67 hectare situated at
Gram Ghassu Ka Bas Tehsil Laxmangarh, District Sikar
(hereinafter referred to as the "suit land") to the plaintiffs under
an oral contract on 17.03.2009 for a consideration of
Rs.9,90,000/- (Nine Lac Ninety Thousand) in presence of
witnesses Ranjeet Singh and Devi Singh. It was claimed that
payment was to be made to the defendants till 20.04.2009 upon
which the defendants were to execute and register the sale deed
in favour of plaintiffs. It was asserted that suit land along with
other lands of the defendants was mortgaged with Bank of Baroda
branch at Laxmangarh, District Sikar and as such registration of
sale deed was not possible, hence, it was agreed that the
defendants would get the suit land freed from mortgage. It was
asserted that in furtherance of the agreement, suit land was got
freed from mortgage by defendants on 31.03.2009 and entry to
this effect was made in the revenue records and a certified copy of
Jamabandi was given to the plaintiff by the defendant No.1. It was
further claimed that on 13.04.2009 upon the plaintiffs urging to
the defendant to receive the sale price and register the sale deed,
the defendants assured to attend the Sub-Registrar Office
Laxmangarh on 15.04.2009 and do the needful. It was further
asserted that on 15.04.2009, plaintiffs reached the Sub-Registrar
Office along with the entire sale price with witnesses Ranjeet
Singh & Suresh, whereupon the defendant No.4, Surendra Kumar
(3 of 20)
[CFA-65/2014]
purchased stamp papers of Rs.79,200/- in the name of
defendants, the payment of which was made by the plaintiffs. It
was further claimed that the draft of sale deed was given to deed
writer Narottam Baid to be engrossed on the stamp paper and
defendant No.4 provided the relevant Photograph, Identity Proofs
and relevant documents to the plaintiffs. It was further asserted
that defendants No.3 to 5 put their signature on the original sale
deed engrossed on stamp paper along with two photocopies of the
same as also upon the declaration deed, cheque list in front of
witnesses Ranjeet Singh & Suresh Kumar and a sum of
Rs.90,000/- was received in cash by defendant No.4 and residual
sale consideration was received as under:-
(i) Rs.1,50,000/- by Cheque No.517761 dt.15.04.2009 &
Rs. 1,50,000/- by Cheque No.664588 dt.15.04.2009 in the
name of defendant No.1 Dilsukh.
(ii) Rs.1,50,000/- by Cheque No.517762 dt.15.04.2009 &
Rs.1,50,000/- by Cheque No.664584 dt.15.04.2009 in the
name of defendant No.2 Richpal.
(iii) Rs.50,000/- by Cheque No.517763 dt.15.04.2009 &
Rs.50,000/- by Cheque No.664585 dt.15.04.2009 in the
name of defendant No.3 Smt. Bhagwati.
(iv) Rs.50,000/- by Cheque No.517764 dt.15.04.2009 &
Rs.50,000/- by Cheque No.664586 dt.15.04.2009 in the
name of defendant No.4 Surendra Kumar.
(v) Rs.50,000/- by Cheque No.517765 dt.15.04.2009 &
Rs.50,000/- by Cheque No.664587 dt.15.04.2009 in the
name of defendant No.5 Sanjesh Kumar.
3. It was also asserted that after receipt of such cheque and
cash, defendant Nos. 3 to 5 stated that defendant No.1 & 2 would
not be able to execute the sale deed on that date and hence sale
(4 of 20)
[CFA-65/2014]
deed was not registered on such date. It was claimed that
thereafter the plaintiffs contacted defendants to get the sale deed
registered but on one pretext or other, they avoided the same and
on 20.04.2009 defendant No.1 returned all the cheques and
assured to execute the sale deed after consulting family members
whereupon the plaintiff on 18.06.2009, served a registered notice
upon the defendant calling upon to get the sale deed registered
which was not responded but the defendants started making
attempt to sell the "suit land", to third party, constrained by which
suit for specific performance and permanent injunction was filed.
4. Defendant entered appearance in the suit and denying the
plaint averments asserted that they never agreed to sell the suit
land to the plaintiff on 17.03.2009, never received any
consideration and never assured the plaintiffs to execute and
register the sale deed in their favour. It was further asserted that
the suit land was freed from mortgage but that was on their own
volition and not in furtherance of any agreement as asserted by
the plaintiffs. It was denied that defendant No.4 purchased any
stamp papers worth Rs.79,200/- and it was asserted that the suit
was filed with the connivance of Ranjeet Singh, Ram Lal & Suresh.
It was also asserted that the plaintiff No.1 used to regularly
purchase petrol from the petrol pump of defendant No.1 from
where he stole the documents of the defendant and developing
the concocted story, instituted the suit.
5. Based on a pleadings, the following issues were framed by
(5 of 20)
[CFA-65/2014]
the Trial court which reads as under:-
"1& vk;k izfroknhx.k }kjk oknhx.k ds lkFk fooknxzLr d`f"k foØ; djus dk
ekSf[kd djkj fnukad 17-03-2009 dks 9]90]000@&:i;s esa fd;k \
& oknh
2& vk;k oknh us fnuakd 15-04-2009 dks izfroknh la[;k 4 dks 90]000@&:Ik;s
udn o 'ks"k ds nl pSd izfroknh la[;k 4 dks fn, vkSj mlh jkst fyf[kr foØ;
i= izfroknh la0 3 rk 5 }kjk gLrk{kfjr fd;k x;k \
& oknh
3& vk;k oknh rFkkdfFkr ekSf[kd djkj fnuakfdr 17-03-2009 dh vius fgLls dh
ikyuk djus ds fy, lnSo rS;kj ,oa rRij Fkk o gS \
& oknh
4& vk;k oknh 'ks"k izfrQy jkf'k 9]00]000@& izfroknhx.k dks vnk dj foØ;
ds djkj dh fofufnZ"V vuqikyuk esa c;ukek vius gd esa djokus dk vf/kdkjh
gS\
& oknh
5& vk;k oknh izfroknhx.k ls fooknxzLr tk;nkn dk dCtk izkIr djus dk
vf/kdkjh gS \
& oknh
6& vk;k oknh izfroknhx.k ds fo:) LFkkbZ fu"ks/kkKk bl vlj dh izkIr
djus dk vf/kdkjh gS fd fooknxzLr dks oknhx.k ds vykok vU; O;fDr;ksa dks
jgu] c; ;k nhxj rjhds ls eqarfdy u djs \
& oknh
7& vk;k oknhx.k dks okn dkj.k gkfly ugha gksus ls okn i= [kkfjt fd, tkus
;ksX; gS \
& izfroknhx.k
8& vk;k U;k;ky; dks {ks=kf/kdkj ugha gksus ls okn i= [kkfjt fd, tkus ;ksX; gS \
&
izfroknhx.k
9& vk;k bdjkjukek fyf[kr ,oa jftLVMZ ugha gksus ls oknhx.k dk okn
[kkfjt fd, tkus ;ksX; gS \
& izfroknhx.k
10& vuqrks"k \"
6. In support of the respective case, both the parties submitted
the following documentary evidence as well as oral evidence:-
Plaintiffs:-
(i) Oral Evidence:- (A) PW-1 Madan Lal, (B) PW-2 Devi Singh,
(C) PW-3 Ranjeet Singh, (D) PW-4 Suresh Kumar & (E) PW-5 Ram
Lal Jat.
(6 of 20)
[CFA-65/2014]
(ii) Documentary Evidence:- (A) Exhibit-1 application to Sub-
Registrar, (B) Exhibit-2 form filled before the Sub-Registrar, (C)
Exhibit-3 Sale deed dt.15.04.2009, (D) Exhibit-4 declaration From,
(E) Exhibit 5 & 6 copy of sale deed, (F) Exhibit-7 certified copy of
the land record, (G) Exhibit-8 to 17 Cheques, (H) Exhibit-18 copy
of notice, (I) Exhibit-19 to 23 Postal receipts, (J) Exhibit-24 Paper
notice, (K) Exhibit-25 News paper Bill, (L) Exhibit-26 Letter of
Bank of Baroda & (M) Exhibit-27 certified copy of sale deed.
Defendants:-
(i) Oral evidence :- (A) DW-1 Dilsukh, (B) DW-2 Surendra
Kumar, (C) DW-3 Sanjesh Kumar.
7. The learned Trial Court decided issues No.1 to 7 & 10 in
favour of the plaintiffs and issue Nos.8 & 9 against the
defendants and decreed the suit for specific performance and
permanent injunction as prayed for.
8. Dissatisfied with the outcome, the defendants are before
this Court in first appeal filed u/Sec. 96 CPC.
9. Learned senior counsel for the appellants-defendants
strenuously attacking the legal proprietary and correctness of
the impugned judgment and decree contended that the suit was
based on an oral contract alleged to be entered on 17.03.2009
and on such date, no consideration was alleged to be given and
as such even if, such fact is taken on face value, suit for specific
(7 of 20)
[CFA-65/2014]
performance was not maintainable for being based on an oral
agreement without consideration, which is void. Counsel further
contended that Exhibit-3 sale deed & Exhibit-5 & 6 copies of
such sale deeds did not bear the signatures of defendant Nos.1
& 2, hence, the Trial Court committed a gross error in decreeing
the suit against defendant Nos.1 & 2 on the basis of such sale
deed, whereas the plaintiffs were unable to prove the theory of
oral contract by all the defendants on 17.03.2009. He also
contended that the Trial Court also committed illegality in
comparing the signatures put on Exhibit-3, 5, 6 with Exhibit-27
& 28 as such an exercise was not warranted and it was for the
plaintiffs to prove the signatures on Exhibit-3, 5 & 6 by
producing a handwriting expert which was never done by the
plaintiffs, hence, the suit was bound to fail. He also drew the
attention of the Court towards S.20 Sepcific Relief Act and urged
that in view of such provisions, specific performance need not be
necessarily ordered merely because it was lawful to do so and
the matter lies in the judicious exercise of discretion of the
Court. He further drew the attention of the Court towards
various discrepancies in the plaintiffs' witnesses and in support
of his contention, he relied upon following judgments:-
Fakhruddin Vs. The State of Madhya Pradesh AIR 1967 SC
1326, Dattatraya Vs. Rangnath Gopalrao Kawathekar
(Dead) by his Legal representatives and Ors. AIR 1971 SC
2548, Mohammed Yusuf and Anr. Vs. D. And Anr. AIR
1968 BOM 112 & H. Venkatachala Iyengar Vs. B.N.
Thimmajamma and Others AIR 1959 SC 443.
(8 of 20)
[CFA-65/2014]
10. Per-contra, learned Senior counsel for the respondents
supporting the impugned judgment and decree vehemently contended that the same is well reasoned and the Trial Court has dealt with each and every aspect and there is no illegality in such finding. He also drew the attention of the Court towards the various preposition made by the witnesses and documentary evidence produced by the plaintiffs. In support of his contention, he relied upon following judgments:- Panchanan Dhara & Others Vs. Monmatha Nath Maity (Dead) through Lrs and Another (2006) 5 SCC 340 & Jayakantham & Others Vs. Abay Kumar in Civil Appeal No.3049 of 2017 decided on 21.02.2017.
11. I have heard the senior counsel on behalf of the parties and given my thoughtful consideration upon the rival contention raised at the bar.
12. Before delving further, it would be appropriate to note that the sale deed produced by the plaintiffs, the original Exhibit-3 & copies Exhibit-5 & 6 only bears the alleged signatures of defendants No.3, 4 & 5 and not defendant Nos.1 & 2. Same is the position with respect to Exhibit-1 application submitted before Sub-Registrar and Exhibit-2 form filled before the Sub- Registrar. It is not the case of the plaintiff that defendant Nos.3 to 5 were authorized to sign the above documents on behalf of the defendant Nos.1 & 2. Nor any authority letter or other documents is produced by the plaintiffs from which such (9 of 20) [CFA-65/2014] inference would be drawn. Plaintiffs have categorically stated that the sale deed could not be executed for defendant Nos.1 & 2, did not turn up on 15.04.2009 in Sub-Registrar Office and as such the absence of defendant Nos.1 & 2 on 15.04.2009 becomes an admitted fact.
13. In such a scenario to claim specific performance against defendant Nos.1 & 2, the plaintiffs were required to prove the oral contract with such defendants alleged to be entered on 17.03.2009. To resolve the controversy depositions of PW-1 Madan Lal, PW-2 Devi Singh, PW-3 Ranjeet Singh & DW-1 Dilsukh assumes significance.
14. PW-1 Madan Lal in his cross-examination stated:-
"esjs vkSj fnylq[k izfroknhx.k ds chp ds chp tehu dk lkSnk fnuakd 17-03-09 dks lqcg 11 cts gqvk Fkk tks isVªksy iEi ds ihNs vofLFkr fnylq[k th ds edku ij gqvk FkkA gekjs chp lkSns dh ckr yxHkx ,d ?k.Vk pyhA gekjs e/; tehu dk tks lkSnk gqvk Fkk og fyf[kr esa ugha gqvk Fkk cfYd ekSf[kd gh gqvk FkkA ;g lgh gS fd ml lkSns esa 'kkfey Hkkxorh ds vykok vU; lHkh O;fDr i<s+ fy[ks gSA iEi ij dkxt iSu rks miyC/k jgrk gh gSA"
15. PW-2 Devi Singh in his cross-examination stated:-
"ftl dejs esa lkSnk gqvk ml dejs esa fnylq[k] fjNiky] Hkkxorh] lats'k] lqjsUnz] j.kthr] tho.kjke] enuyky vkSj eSa Lo;a ekStwn FkkA lkSns dh ;g ckr ?k.Vs Hkj pyh FkhA lkSnk mlh fnu eq[ktckuh gqvk Fkk fyf[kr esa ughaA ge lHkh yksx tks ogka ekStwn Fks i<s fy[ks FksA ;fn ge dkxt iSu ogka pkgrs rks ogka fey ldrs FksA"
16. PW-3 Ranjeet Singh in his cross-examination stated:-
(10 of 20) [CFA-65/2014] "ckrphr y{e.kx< esa isVªksy iai ds ihNs ds edku esa gqbZ FkhA isVªksy iai ij tgka ckr gqbZ ml le; isVªksy iai ij dkxt isu miyC/k Fks ysfdu tgak ge cSBs Fks ogka dkxt isu ugha FkkA"
17. DW-1 Dilsukh during his cross-examination stated:-
";g dguk xyr gS fd eSa vkt tku cw>dj lkSnk fnuakd 17-3-09 dh ikyuk djus dh xtZ ls >wBs c;ku ns jgk gksÅA"
18. The above deposition do not prove with certainty the oral agreement alleged to be entered upon by all the defendants on 17.03.2009. It is pertinent to mention that the sale deed Exhibit-3, 5 & 6 also do not contain a recital that there was an oral agreement between the parties on 17.03.2009. There is no doubt that an agreement can be entered orally and the suit for specific performance can be led on such oral agreement but the heavy burden lies upon the plaintiffs to prove such oral agreement in contrast where there is a written agreement and the terms & conditions agreed upon with precision. The plaintiff is bound to prove with a certain degree of certainty, the exact terms of the contract, the presence of witnesses and all other persons at such time and the circumstances under which such oral agreement was entered. Suffice to add, that the above salient features are merely illustrative and not exhaustive which one has to assess in the light of obtaining facts and evidence tendered. In the instant case, from the above depositions and overall assessment of obtaining facts and circumstances, this Court is of the opinion that the plaintiff failed to prove that there was an oral agreement with respect to the suit property as far as defendant Nos.1 & 2 were concerned.
(11 of 20) [CFA-65/2014]
19. The Trial Court has decided issue No.1 by giving undue weightage to circumstances occurring after 17.03.2009 which led to an erroneous conclusion, as far as defendant Nos.1 & 2 are concerned. No document produced by the plaintiffs, bear the signature of such defendants and so to be successful in their endeavor to claim specific performance against such defendants, the plaintiff had to strictly prove the entrance of oral agreement with such defendants on 17.03.2009 as asserted by plaintiffs and they failed in their endeavor. The vital fact that the sale deed Exhibit-3, 5 & 6 produced by the plaintiffs did contain any recital of an oral agreement on 17.03.2009, escaped the notice of the Trial Court and the Trial Court was impressed by the documentary evidence coming in existence after 17.03.2009.
20. Basically while discussing issue No.1, the Trial Court ought to split the matter in two parts because the sale deed did not bear the signatures of defendant Nos.1 & 2 and so an independent analysis was required to be made to ascertain whether defendant Nos.1 & 2 entered into any oral contract or not. This brings us to the second part and that is whether defendant Nos.3 to 5 entered into an agreement with the plaintiffs orally on 17.03.2009. This Court is of the view, if it is found that the sale deeds Exhibit-3, 5 & 6 bear the signatures of defendant Nos.3 to 5, the above question more or less diminishes in value. Learned counsel for the appellants had contended that in the absence of any expert evidence produced by the plaintiffs, signatures of defendant Nos. 3 to 5 could not (12 of 20) [CFA-65/2014] be held to be proved and the Court was not competent to compare the signatures of defendant Nos.3 to 5 and in support of such contention, he placed reliance upon judgment in the case of Fakhruddin Vs. The State of Madhya Pradesh (supra) wherein it has been noted as under:-
"comparison of the handwriting by the expert with other documents.......... It depends entirely on the facts of each case, there is no watertight formula which can be stated "
21. But in an instant case, it can safely be deduced that the sale deed Exhibit-3 and copy of such sale deed Exhibit-5 & 6 bear the signatures of defendant Nos.3 to 5. The above conclusion can easily be drawn by comparing the signatures on form filled before the Sub-Registrar Exhibit-2, application submitted before the Sub-Registrar Exhibit-1 & declaration Exhibit-4 and prepondering the probabilities.
22. Further DW-1 Dilsukh stated in his cross-examination:-
"eSa lqjsUnz] lats'k o Hkkxksrh ds gLrk{kj igpkurk gWwA tokc nkok ds vafre ist ij Hkkxorh] lqjsUnz] lats'k ds uke fy[ks gq, gS ysfdu gLrk{kj muds ugha gSA izn'kZ 27 o izn'kZ 28 iwoZ dh jftLVªh;ksa dh izekf.kr izfrfyfi;ksa ij , ls ch lqjsUnz] lh ls Mh lats'k] bZ ls ,Q Hkkxorh ds glrk{kj gSA ftUgsa eSa igpkurk gWwA ;g dguk lgh gS fd izn'kZ 1 ij , ls ch Hkkxksrh] lh ls Mh lqjsUnz o bZ ls ,Q lats'k ds glrk{kj gSA izn'kZ 3 ij lh ls Mh lqjsUnz pkS/kjh] , ls ch Hkkxksrh ,oa bZ ls ,Q lats'k ds gLrk{kj gS tks izn'kZ 3 ds gj i`"B ij gSA izn'kZ 4 ij lqjsUnz pkS/kjh] Hkkxksrh o lats'k ds gLrk{kj gSA izn'kZ 5 ij lh ls Mh lqjsUnz pkS/kjh] , ls ch Hkkxksrh o bZ ls ,Q lats'k ds gj i`"B ij lkbu gSA blh rjg izn'kZ 6 ij lh ls Mh lqjsUnz pkS/kjh] , ls ch Hkkxksrh o bZ ls ,Q lats'k ds gj i`"B ij lkbu gSA ;g dguk xyr gS fd izn'kZ 1] izn'kZ 3] izn'kZ 4] izn'kZ 5 o izn'kZ 6 ij lqjsUnz] Hkkxksrh o lats'k us fnuakd 15-4-09 dks rglhy esa lkbu fd, gks cfYd os rglhy esa x, gh ugha FksA ;g dguk xyr gS fd 15-4-09 dks izn'kZ 1] izn'kZ 2] izn'kZ 3] izn'kZ 4] izn'kZ 5] izn'kZ 6 ij gLrk{kj ls iwoZ enuyky o tho.kjke } kjk 9 yk[k :i;s dh jkf'k ds nl pSd tks esjs gd esa] fjNiky ds gd (13 of 20) [CFA-65/2014] esa] lqjsUnz] lats'k o Hkkxksrh ds gd esa tkjh fd, gq, lqjsUnz dks fn, gksA ;g lgh gS fd izn'kZ 2 ij Hkkxksrh] lqjsUnz o lats'k ds gLrk{kj fd, gq, gSA"
23. DW-2 Surendra Kumar in his cross-examination stated:-
"izn'kZ 27 o 28 esa A ls B esjs gLrk{kj gS C ls D esjs HkkbZ lats'k ds gLrk{kj gSa o E ls F esjh eka Hkkxksrh nsoh ds gLrk{kj gSA"
24. DW-3 Sanjesh Kumar stated in his cross-examination:-
"izn'kZ 27 o 28 ij esjs gLrk{kj lh ls Mh gSA esjh eka ds glrk{kj E ls F gSA"
25. Apart from the above deposition, PW-3 Ranjeet Singh and PW-5 Ram Lal Jat, who were the attesting witnesses to such sale deeds have also deposed that Exhibit-3, 5 & 6 and Exhibit-1, 2 & 4 bear the signatures of defendant Nos.3 to 5 and their evidence has not been shaken during cross-examination. Thus, from a critical assessment of overall facts and circumstances, it is apparent that defendant Nos.3 to 5 indeed signed the sale deeds and the conclusion drawn by the Trial Court to this extent cannot be faulted. The contention of the learned counsel for the appellant that it was incumbent on the plaintiff to call upon an expert to prove the signatures on the sale deed, is fallacious. It is not incumbent upon a person to call an expert whenever the adversary denies his signature on a disputed document. The Court can reach to its own conclusion by evaluating the evidence available, attending circumstances and comparing the signatures as envisaged under the Evidence Act. As soon as the sale deeds are found to bear signatures of defendant Nos.3 to 5 as a (14 of 20) [CFA-65/2014] corollary, it also stands proved that a sum of Rs.90,000/- was received in cash by defendant No.4. Recital to the same effect is included in the sale deed and there is no apparent reason to hold contrary to the same. The cheque amount was not received by the defendant is obvious for all the original cheques (Exhibit- 8 to Exhibit-17) are produced by the plaintiffs in the Court. Hence, it turns out that out of total sale of Rs.9,90,000/- only Rs. 90,000/- was received and that too by defendant No.4.
26. In so far as the question of readiness and willingness is concerned, the case is based on an alleged oral agreement and plaintiffs assert that payment was to be made till 20.04.2009. In fact, the plaintiffs claim that on 15.04.2009 itself, the plaintiffs handed over the cheque and performed their part but has not produced the respective pass books which could throw light, whether or not on 15.04.2009 there was sufficient fund in the bank accounts. The Trial Court has not made any independent enquiry about the readiness and willingness of the plaintiffs but has consolidated issues No.1 to 3 and decided the same in favour of the plaintiffs.
27. In the peculiar circumstances of this case, such an approach adopted was erroneous for the agreement is alleged to be orally entered into with 5 persons. Once it is held that the plaintiffs have failed in their endeavor to prove oral agreement with all the five defendants, the question of readiness and willingness qua defendant Nos.1 & 2 pales into insignificance. As far as defendant Nos.3 to 5 are concerned, this Court is of the (15 of 20) [CFA-65/2014] opinion that qua them also the same is not relevant for it is settled law that specific performance of an agreement need not necessarily be ordered merely because it is lawful to do so and the matter lies in the judicious exercise of discretion of the Court. In a latest judgment delivered by the Hon'ble Apex Court in Jayakantham & Others Vs. Abay Kumar (supra) it has been held:-
"The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section 20(1) of the Specific Relief Act, 1963 indicates that the jurisdiction to decree specific performance is discretionary. Yet, the discretion of the Court is not arbitrary but is "sound and reasonable", to be "guided by judicial principles". The exercise of discretion is capable of being corrected by a court of appeal in the hierarchy of appellate courts. Sub- section 2 of Section 20 contains a stipulation of those cases where the court may exercise its discretion not to grant specific performance. Sub-Section 2 of Section 20 is in the following terms:
"Section 20(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, through 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;
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance."
However, explanation 1 stipulates that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its (16 of 20) [CFA-65/2014] nature, will not constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Moreover, explanation 2 requires that the issue as to whether the performance of a contract involves hardship on the defendant has to be determined with reference to the circumstances existing at the time of the contract, except where the hardship has been caused from an act of the plaintiff subsequent to the contract.
9. The precedent on the subject is elucidated below :
(i) In Parakunnan Veetill Joseph's Son Mathew v.
Nedumbara Kuruvila's Son and Ors, the Apex Court held that:
"...14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff..."
(ii) A similar view was adopted by Supreme Court in Sardar Singh v. Smt. Krishna Devi and another :
"...14. Section 20(1) 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; 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. The grant of relief of specific performance is discretionary. The circumstances specified in Section 20 are only illustrative and not exhaustive. The court would take into consideration the circumstances in each case, the conduct of the parties and the respective interest under the contract."
(iii) Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd, Supreme Court held thus :
"...29. Performance of the contract involving some hardship on the defendant which he did not foresee while (17 of 20) [CFA-65/2014] 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 recognized 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. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy by stating that the decree for specific performance is in the discretion of the Court but the discretion should not be used arbitrarily; the discretion should be exercised on sound principles of law capable of correction by an appellate court."
(iv) These principles were followed by Supreme Court in A.C. Arulappan v. Smt. Ahalya Naik, with the following observations:
".....7. The jurisdiction to decree specific relief is discretionary and the court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20(2) of the Specific Relief Act, 1963 as to under what circumstances the court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the court would desist from granting a decree to the plaintiff."
........
".....15. Granting of specific performance is an equitable relief, though the same is now governed by the statutory provisions of the Specific Relief Act, 1963. These equitable principles are nicely incorporated in Section 20 of the Act. While granting a decree for specific performance, these salutary guidelines shall be in the forefront of the mind of the court....."
(18 of 20) [CFA-65/2014]
(v) A Bench of three Judges of Supreme Court considered the position in Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors., and held thus :
".....6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen."
28. In the present case, there are several aspects which have to be kept in mind before granting the discretionary relief & equitable of specific performance. They are detailed as under:-
(A) The case of the plaintiff is based on an alleged oral agreement dt. 17.03.2009 with five independent (19 of 20) [CFA-65/2014] persons and the plaintiffs have not been able to prove such oral agreement with defendant Nos.1 & 2.
(B) The plaintiffs have themselves asserted in their plaint that all cheques were returned to them and so out of the total sale consideration of Rs.9,90,000/-, a petty sum of Rs.90,000/- is found to be received and that too by defendant No.4 only.
(C) The plaintiffs have not sought specific performance only against defendant Nos.3 to 5 and to split the agreement to the extent of defendant Nos. 3 to 5 share in the suit appears to be not reasonable for the total suit land which is agricultural in nature ad-measures 1.67 hectare and partition and fragmentation of the same would make the matter more complex, inviting further litigation.
In such an eventuality, this Court is of the opinion that instead of a decree for specific performance against the defendant Nos.3 to 5, it would be just and proper if in lieu thereof, a decree for payment of compensation is passed which could meet the ends of justice. It is found that the defendant No.4 received Rs.90,000/- on 15.04.2009 from the plaintiffs. Stamp duty on sale deed to the extent of Rs. 79,200/- is paid by the plaintiffs apart from other expenses. In view of the above, end of justice would be met by directing the appellants to pay to the respondents an amount of Rs. 15,00,000/- (Fifteen Lac only). Such amount is fair taking into view, the escalation in land price, the time period spent in litigation, the amount spent by the plaintiffs and the prevailing interest rates.
29. Resultantly, the decree for specific performance passed by the Trial Court stands set aside and substituted with a direction to the appellants to pay a sum of Rs.15,00,000/- (Fifteen Lac (20 of 20) [CFA-65/2014] only) to the respondents within a period of two months from the date of receipt of certified copy of the judgment. Upon the expiry of the period of two months, the amount shall carry interest @ 10% per annum till payment or realization. Thus, the impugned judgment & decree is set aside and the decree is modified accordingly.
30. The appeal stands allowed in the above terms with no order as to costs.
( JAINENDRA KUMAR RANKA),J S.Kumawat Jr. P.A.