Himachal Pradesh High Court
Sangat Ram And Another vs Harsh Krishan on 11 December, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 54 of 2017
Date of de cision: 11th December, 2017
.
Sangat Ram and another .....Appellants
Versus
Harsh Krishan .....Respondent
Coram
The Hon'ble Mr. Justi ce Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? 1 No
For the appellants: Mr. Anup Rattan, Advocate.
For the respondent: Mr. Sanjeev Kuthiala, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
The appellants are the defendants, who have suffered the decree of specific performance of the contract at the hands of both the learned courts below and aggrieved thereby have preferred the instant appeal.
The parties shall be referred to as the plaintiff and defendants.
2 The plaintiff filed a suit for specific performance of the contract on the ground that defendant No.1 was owner in 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 2 possession of the land measuring 0-04-43 hectare being 1/4th share out of total land measuring 0-17-74 hectare, comprised in Khata and Khatauni No.36/52, Kittas 2, situated at Mouja Shirar, .
Phati Shirar, Kothi Raison, land measuring 0-25-48 hectare being 1/4th share out of total land measuring 1-01-94 hectares, comprised under Khata and Khatauni No.11/11, Kittas 7 and land measuring 0-10-47 hectare being 2067/3975 shares out of total land measuring 0-25-48 hectare, comprised in Khata and Khatauni No. 12/12, Khasra No.182, total land measuring 0-10- 47 hectare, situated at Up Muhal Trisari , Phati Mandalgarh, Kothi, Mandalgarh, Tehsil and District Kullu, H.P. (for short, the suit land). Defendant No.1 agreed to sell the suit land to the plaintiff. The sale consideration was fixed at Rs.6,50,000/- as per agreement, dated 30.10.2009 and out of the said amount, a sum of Rs.6,30,000/- was paid to defendant No.1 as earnest money in presence of the witnesses and remaining sale consideration of Rs.20,000/- was agreed to be paid at the time of execution and registration of the sale deed on 5.11.2010. However, defendant No.1 did not execute the sale deed in favour of the plaintiff on the given date, although the plaintiff remained present in Tehsil complex on 4.11.2010 and 6.11.2010 as it was holiday on 5.11.2010 on account of 'Diwali' festival. The plaintiff was ready ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 3 and willing to perform his part of the contract, whereas it was defendant No.1 who was not willing to perform his part and, he with connivance of defendant No.2, who is his daughter, .
transferred the suit land in her favour vide settlement deed No.2084, dated 15.11.2010, which settlement was alleged to be null and void and not binding on the rights of the plaintiff. The plaintiff requested defendant No.1 to execute the sale deed in his favour, but he did not pay any heed constraining him to file the suit for specific performance along with possession of the suit land against both the defendants with further prayer to declare the settlement deed No.2084, dated 15.11.2010 as illegal, null and void.
3 The defendants contested the suit by filing joint written statement, wherein preliminary objections regarding cause of action, maintainability of the suit, the alleged agreement being forged and fictitious having never been entered into between the plaintiff and defendant No.1 we re taken. On merits, it was specifically denied that defendant No.1 had entered into an agreement to sell the suit land or had received Rs.6,30,000/- from the plaintiff towards sale consideration. It was further averred that the agreement was forged and fictitious and not binding on the defendants. Defendant No.1 being the owner in possession of ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 4 the suit land had rightly transferred the same in favour of defendant No.2 on the basis of settlement deed No.2084, dated 15.11.2010.
.
4 On the pleadings of the parties, the learned trial court on 9.1.2012 framed the following issues:-
1. Whether defend ant No.1 is owner in possession of the suit land to the extent of his share, as alleged? OPP
2. Whether defendant No.1 had agreed to sell the suit land in favour of the plaintiff for a sale consideration of Rs.6,50,000/- vide agreement to sell dated 30.10.2009 entered between defendant No.1 and plaintiff, as alleged? OPP
3. Whether defendant No.1 on the date of agreement has received Rs.6,30,000/- as earnest money, as alleged?
4. Whether the remaining sale consideration of Rs.20,000/- was agreed to be paid at the time of execution and registration of the sale deed as alleged? OPP
5. Whether the plaintiff had been and is still ready and willing to perform his part of agreeme nt, but it is the defendant No.1, who is not ready to perform his par t, as alleged? OPP
6. If issue Nos. 1 to 5 are proved in affirmative, whether the plaintiff is entitled to possession of the suit land by way of execution of sale deed, as alleged? OPP
7. If aforesaid issues are answered in the affirmative, whether settlement deed No. 2084 executed by defendant No.1 in favour of defendant No.2 is illegal and void, as alleged? OPP ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 5
8. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD
9. Whether the suit is not maintainable in the present form, as alleged? OPD.
.
10. Relief.
5 After recording the evidence and evaluating the same, the learned trial court decreed the suit filed by the plaintiff vide judgment and decree dated 22.2.2014 by passing decree for specific performance of contract dated 30.10.2009, which was directed to be executed within two months in favour of the plaintiff on receipt of balance sale consideration of Rs.20,000/-
and the settlement deed No.2084, dated 15.11.2010 executed by defendant No.1 in favour of defendant No.2 was declared null and void.
6 Aggrieved by the judgment and decree passed by the learned trial court, the defendants filed an appeal before the learned District Judge, Kullu, who vide his judgment and decree dated 10.12.2015 dismissed the same.
7 It is against the judgments and decrees rendered by both the learned courts below that the defendants have preferred the instant appeal on the grounds (i) the findings recorded by both the learned courts below are perverse and, therefore, deserve to be set aside ; (ii) the suit of the plaintiff could not have been ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 6 decreed as so called agreement in question was forged and fabricated and, therefore, could not be given effect to ; and (iii) taking into consideration the entire facts and circumstances of .
the case, the learned courts below instead of decreeing the suit for specific performance ought to have ordered the defendants to refund the amount as price of the suit land had drastically shot up.
8 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
9 Before adverting to the relative merits of the case, certain well established principles of law need to be taken note of.
10 What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order.
In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 7 right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various .
dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English -
International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 8 the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same .
is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
(SCC p.14, paras 9 -10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 9 Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) .
"7. In the pre sent case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to th e High Court re -appreciate the primary or rperceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 10
11 What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on .
28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of th e law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiate d."::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 11
12 What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
.
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "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 evid ence 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."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "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 ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 12 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."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent- defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement.
PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. 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 ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 13 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.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "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 ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 14 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 the findings stand 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. Power of High Court to determine issues of fact.- 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 Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 15 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."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case 6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 :
1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 16 Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
.
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
13 Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court's entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 17 perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or .
that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
14 As regards the specific performance of the contract, it would be necessary for the Court to bear in mind the fundamental principles of law. 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-::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 18
(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;
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance."
15 However, explanation 1 stipula tes that the mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its 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. (Refer: Jayakantham and others vs. Abaykumar, (2017) 5 SCC 178) ::: Downloaded on - 14/12/2017 23:01:35 :::HCHP 19 16 Having made a note of the well settled principles, certain binding precedents on the subject also need to be considered. Though there is plethora of law on the subject, .
however, the court need not to make note of the entire law and reference to certain recent decisions in this regard shall suffice .
17 In K. Nanjappa vs. R.A. Hameed, (2016) 1 SCC 762, it was held that in a suit for specific performance of a contract, the court has to keep in mind Section 20 of the Specific Relief Act, 1963. Section 20 preservers judicial discretion to grant decree for specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. Relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonable judicial principles. The cases providing for a guide to courts to exercise discretion one way or the other are only illustrative, they are not intended to be exhaustive. In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. It ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 20 shall be apt to reproduce relevant observations as contained in paras 22 to 28 thereof, which read thus:
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"22. However, in a case where the plaintiff come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immoveable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties.
23. In a suit for specific performance of a contract, the Court has to keep in mind Section 20 of the Specific Reliefs Act.
This Section preserves judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant.
24. In the case of Surya Narain Upadhyaya vs. Ram Roop Pandey and others, 1995 Supp (4) SCC 542, this Court while considering Section 20 of the Specific Relief Act held as under:-::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 21
"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."
25. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions.
26. In the case of Mayawanti vs. Kaushalya Devi, (1990) 3 SCC 1, this Court observed as under:-
"8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 22 to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within .
which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them.
Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation."
27. In the case of K. Prakash vs. B.R. Sampath Kumar, (2015) 1 SCC 597, this Court held:
"13. Indisputably, remedy for specific performance is an equitable remedy. The court while granting relief for specific performance exercises discretionary jurisdiction. Section 20 of the Act specifically provides that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles.
14. The King's Bench in Rooke's case said:::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 23
"Discretion is a science, not to act arbitrarily according to men's will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are not to oppose, but each, in .
its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others, allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with."
15. The Court of Chancery in Attorney General v.
Wheate followed Rooke's case and observed: (ER p.
666) "... the law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui consulta patrum, qui leges juraque servat. And as it is said in Rooke's case, that discretion is a science not to act arbitrarily according to men's wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieve s against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 24 grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial .
capacity, is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every Judge."
16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 25 discretion in favour of granting relief for specific performance."
28. Reference may also be made by this Court in the case of .
Zarina Siddiqui vs. A. Ramalingam, 2015 (1) SCC 705, this Court observed as under:-
"33. 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 r not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance."
18 Similar reiteration of law can be found in Satish Kumar vs. Karan Singh, (2016) 4 SCC 352, wherein it was observed as under:-
"8. It is well settled that the jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the Court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the Court will not be there even though the contract is otherwise valid and enforceable.::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 26
9. This Court in Mayawantivs. Kaushalya Devi(1990) 3 SCC 1 held thus:-
.
"8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the rcourt will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation."
10. Exercise of discretionary power under Section 20 of the Specific Relief Act for granting a decree, this Court in the case of Parakunnan Veetill Joseph's Son Mathew vs. Nedumbara Kuruivila's Son and others, AIR 1987 SC 2328 observed:-
::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 27"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. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Exhibit A-1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance."
19 The principles as noted above, have thereafter been reiterated in recent decision of Hon'ble Supreme Court in Jayakantham and others vs. Abaykumar, (2017) 5 SCC 178, wherein it was observed as under:
"7. While evaluating whether specific performance ought to have been decreed in the present case, it would be necessary to bear in mind the fundamental principles of law. The court is not bound to grant the relief of specific performance merely because it is lawful to do so. Section ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 28 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, though not voidable, gives the plaintiff an unfair advantage over the defend ant; 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."::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 29
8. 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 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.
9.1.
r to
9. The precedent on the subject is elucidated below :
In Parakunnan Veetill Joseph's Son Nedumbara Kuruvila's Son, this Court held that : (SCC Mathew v.
p.345, para 14) "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..."
9.2. A similar view was adopted by this Court in Sardar Singh v. Smt. Krishna Devi : (SCC p. 26, para 14) "...14. Secti on 20(1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 30 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."
9.3.
Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd , this Court held thus : (SCC p.91, para
29) "...29. 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 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 ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 31 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."
.
9.4. These principles were followed by this Court in A.C. Arulappan v. Smt. Ahalya Naik, with the following observations : (SCC pp. 604 & 606, paras 7 & 15) "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 rrelief, 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 ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 32 specific performance, these salutary guidelines shall be in the forefront of the mind of the court....."
9.5. A Bench of three Judges of this Court considered the .
position in Nirmala Anand Vs. Advent Corporation (P) Ltd.
and Ors., and held thus : (SCC p.150, para 6) "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 rincluding 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 ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 33 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."
20 Similar reiteration of law can be found in the judgment of this Court in Rajesh Kumar Sood vs. Parvej Nowrojee, 2016 (3) SLC 1673 = 2016 (4) ILR 1583 21 Even though, Mr. Anup Rattan, Advocate, would vehemently argue that the agreement in question Ext.PW1/B is an outcome of fraud, therefore, cannot be enforced, however, I find said contention to be totally without merit as no issue to this effect was framed before the learned trial court and even pleadings to this effect are inadequate.
22 Rule 4 of Order 6 C.P.C., reads thus:
"4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be state d in the pleading."
23 It is clearly evident from the aforesaid provision that as per Rule 4, particulars with dates and items are clearly ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 34 required to be stated in the pleading inter alia in cases of misrepresentation, fraud, breach of trust, willful default or undue influence. The object of insisting on these particulars is two fold:
.
(i) It enables the opposite party to know the case he has to meet with; and
(ii) It prevents the issue being enlarged and enables the court to determine the controversy at the earliest.
'Fraud' is obtaining of an advantage by unfair or wrongful means.
24 Under this rule, where fraud is alleged, necessary particulars have to be set out and stated in the pleadings which must be clear, definite, express and specific. It is not enough to allege fraud without stating particulars with dates and items as to such fraud. General allegations, however strong, if unaccompanied by sufficient particulars, are not enough and the Court will not take notice.
25 The defendants apart from using the word "fraudulent/misrepresentation" have not given any specific particulars regarding fraud and misrepresentation and it is more than settled that a vague or general plea can never serve this purpose of Order 6 Rule 4 CPC and the party pleading must therefore be required to plead the precise nature of the influence ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 35 exercised, the manner of use of the influence and the unfair advantage obtained by the other.
26 Reference in this regard can conveniently be made to .
the judgment of the Hon'ble Supreme Court in Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others AIR 1967 SC 878 wherein it was held as under:
"10. Before, however a court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6 Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal (1964) 1 SCR 270: (AIR 1963 SC 1279) above referred to. In that case it was observed (at p. 295 of SCR):
(at p. 1288 of AIR):
"A vague of general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other."
"25. There was practically no evidence about the domination of Balaram over Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 36 obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock one's conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere.
.
According to his own admission in cross-examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstances that a grandfather made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father."
27 It shall be apt to make reference to the judgment of the Hon'ble Supreme Court in Afsar Shaikh and another v.
Soleman Bibi and others AIR 1976 Supreme Court, 163, wherein the Hon'ble Supreme Court has held as under:
"15. While it is true that 'undue influence', 'fraud', 'misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, Rule ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 37 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence .
in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the first round, even before the first appellate court."
28 In Sukhdei (Smt.) (dead) by LRs vs. Bairo (dead) and others (1999) 4 SCC 262 the Hon'ble Supreme Court held that while pleading fraud, particulars necessary for establishing the same should be specifically stated in the plaint and it was further held that findings on a question of fraud concurrently arrived at by the Courts below should not be interfered with by the High Court while exercising power under Section 100 of CPC.
The aforesaid Rule is mandatory and no departure from the Rule is permissible while leading evidence. As regards the plea of misrepresentation, the same means wrong, false or misleading representation.
29 Yet again on the subject, reference to a judgment rendered by this Court in Upasna and others vs. Omi Devi, 2001 (2) Current Law Journal (H.P.) 278 is also essential as the law on the subject was lucidly dealt and it was held as under:
::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 38"............The allegation of fraud, coercion and undue influence could not be proved by the plaintiffs and as such both the courts below have rightly held that the plaintiffs have failed to prove that the gift deed was as a result of .
fraud, coercion and undue influence. The possession of the land in dispute was given to the defendant and the mutation of entry in the revenue record in her name was made by the Patwari in the presence of Beli Ram during his life time. The execution of the gift deed was the personal right of the donor and since Beli Ram had not assailed the gift made by him in favour of the defendant during his life time, the plaintiffs have failed to establish that the donee had not rendered any service to the donor during his life time. The gift has been validly made by the donor in favour of the donee voluntarily and with his free will and accepted by the donee it cannot be said that the gift was induced by undue influence under Section 16 (2) & (3) of the Indian Contract Act, 1872 and was as a result of fraud as defined under Section 1 of the Act. The ratio of the judgment in Ladli Parshad Jaiswal v. The Karnal Distillery Co., Ltd. Karnal & Ors., AIR 1963 Supreme Court 1279 strongly relied on by the learned counsel for the plaintiffs in my view does not advance the cas e of the plaintiffs that the gift in question was as a result of undue influence under S. 16 (2) & (3) of the Contract Act, 1872. In Subhas Chandra Das Mushib v.
Ganga Prasad Das Mushib & Ors., AIR 1967 Supreme Court 878, it has been observed that law under Section 122 of the Transfer of Property Act, 1882 as to undue influence is the same in case of a gift inter vivos as in case of a contract. It has further been held that the court trying a case of undue influence under Section 16 of the Contract Act, 1872 must consider two things to start with, namely, (1) are the ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 39 relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these .
issues a third point emerges, which is that or the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. The judgment further proceeded to observe that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. In this view of the matter, as noticed hereinabove, the plaintiffs have miserably failed to establish that the gift deed was executed by donor in favour of the donee under undue influence or fraud......"
30 Bearing in mind the aforesaid exposition of law, I would now proceed to determine the lis on merits.
31 It is the specific case of the defendants that defendant No.1 had not entered into any agreement with the plaintiff, whereas perusal of the record clearly evinces the execution of such agreement.
32 In order to prove his case, the plaintiff apart from examining himself has also examined scribe and one of the marginal witnesses to the agreement, Ext.PW1/B. ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 40 33 The plaintiff while appearing as PW1 categorically stated that an agreement was entered into between him and defendant No.1 on 30.10.2009 for sale of the suit land and a sum .
of Rs. 6,30,000/- was paid to defendant No.1 as earnest money in the presence of the witnesses, which he received and acknowledged; and the remaining amount of Rs.20,0 00/- was agreed to be paid at the time of execution and registration of the sale deed on 5.11.2010. However, since 5.11.2010 was holiday on account of 'Diwali' festival, he remained present in the Tehsil premises on 4.11.2010 and thereafter on 6.11.2010, but defendant No.1 did not turn up.
34 Raj Kumar, PW2, who is the scribe of agreement, Ext.PW1/B, deposed that it was at the instance of the parties that he on 30.10.2009 scribed the agreement to sell, Ext.PW1/B, whereby defendant No.1 had agreed to sell the suit land in favour of the plaintiff for a total sale consideration of Rs.6,50,000/ -, out of which a sum of Rs.6,30,000/- was paid to defendant No.1 and balance of Rs.20,000/ - was to be paid at the time of execution and registration of the sale deed on 5.11.2010. He further deposed that after scribing the agreement to sell, he had read over and explained the same to defendant No.1 in presence of the witnesses namely Hira Lal and Ramu Ram, Namberdar, who after ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 41 accepting the same to be correct put his thumb mark on the said agreement.
35 To the similar effect is the statement of PW3, Hira Lal, .
who is one of the marginal witnesses to the agreement to sell.
36 Now adverting to evidence of the defendants, it would be noticed that both the defendants appeared in the witness box.
37 Sangat Ram, Defendant No.1 appeared as DW1 and deposed that he never entered into an agreement to sell the suit land in favour of the plaintiff. He had not received any sale consideration and the agreement set up by the plaintiff was forged and fictitious, therefore, not binding on him.
38 Shanta Devi, defendant No.2, who is daughter of defendant No.1, appeared in the witness box as DW2 and deposed that defendant No.1 had never entered into an agreement with the plaintiff nor did he receive any sale consideration. The suit land was transferred in her favour by her father, DW-1 by way of settlement deed along with possession and now she is owner in possession of the same 39 As per the evidence noticed above, the agreeme nt, Ext.PW1/B, was executed between the plaintiff and defendant No.1 on 30.10.2009 as is duly established from the testimonies of PW1 to PW3. Further, even the sale consideration is duly proved ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 42 on record as this finds mention in the agreement, Ext.PW1/B itself, wherein it is recorded that sale consideration of Rs.6,30,000/- being earnest money was paid to defendant No.1 .
on the date of execution of the agreement and rest of amount of Rs.20,000/- was to be paid on 5.11.2010. The mode and manner in which the payment was made has been duly proved by the plaintiff and his witnesses. The plaintiff has also prove d on record his presence in the Tehsil office on 4.11.2010 and also on 6.11.2010, which clearly proves that he was ready and willing to perform his part of the agreement at the time when the same was entered into and even thereafter. Even today, the plaintiff has categorically submitted that he is ready and willing to perform his part of the agreement.
40 Adverting to the case of the defendants, it would be noticed that defendant No.1 has not approach the Court with clean hands and has suppressed the material facts and evidence;
and has also mislead the Court, and therefore, no discretion in his favour can be exercised by refusing to grant specific performance.
41 It is more than settled that 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 ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 43 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. (Refer Zarina Siddiqui vs A.Ramalingam @ R.Amarnathan, 2015(1) SCC 705) 42 The Court has to see the totality of the circumstances, conduct of the parties and respective interests under the contract while granting/refusing the plea of specific performance.
Evidently, it is established on record that the plea as set up by defendant No.1 is absolutely false and in order to defeat the claim of the plaintiff he has entered into a sham transaction with defendant No.2 and even if this transaction is assumed to be legal and valid even then in the teeth of already subsisting agreement, Ext.PW1/B, subsequent settlement deed would have to give way.
43 It is otherwise more than settled that the appellate Court continues to be a final court of fact and law and second appeal to the High Court lies only where there is a substantial question of law. Meaning thereby, the pure findings of fact remain immune from challenge before this Court in second appeal. It ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 44 shall be apt to refer to three Judges Bench decision of the Hon'ble Supreme Court in Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 wherein it was observed as .
follows:
"15......The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one."
44 What would be the substantial question of law was thereafter considered in para 12 of the judgment, which reads thus:
"12. The phrase 'substantial question of law', as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 45 importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a .
substantial question of law of general importance. In Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase "'substantial question of law" as it was employed in the last clause of the then existing Section 110 of the C.P.C. (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative view, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law."::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 46
and laid down the following test as proper test, for determ ining whether a question of law raised in the case is substantial:-
.
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
45 Finally, in paragraph 14, the Hon'ble Supreme Court laid down the guidelines on the test of as to what is the substantial question of law, which reads thus:
"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 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, in so far 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 ::: Downloaded on - 14/12/2017 23:01:36 :::HCHP 47 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."
46 The findings recorded by the learned Courts below are based on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal.
47 No question of law much less substantial question of law arises for consideration in this appeal.
48 Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs.
Pending application, if any, also stands disposed of.
December 11 , 2017 (Tarlok Singh Chauhan)
(pankaj) Judge
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