Allahabad High Court
Matloob Khan And Others vs Smt. Hanuman Prasad And Others on 18 September, 2023
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2023:AHC-LKO:59435
RESERVED
Case :- FIRST APPEAL No. - 55 of 1977
Appellant :- Matloob Khan And Others
Respondent :- Smt. Hanuman Prasad And Others
Counsel for Appellant :- D.C.Mukherjee,Amit Mukherjee,H.P.Srivastava,Mohd. Arif Khan,S.M.Wasim,T.A.Khan
Counsel for Respondent :- B.R.Tripathi,L.P. Mishra,M.B.Tripathi,Rajeiu Kr. Tripathi
Connected With
Case :- SECOND APPEAL No. - 90 of 1981
Appellant :- Abdul S.Khan And Others
Respondent :- Mst. Ram Pati And Others
Counsel for Appellant :- T.A. Khan,K.C. Tewari,Mohd. Arif Khan,Mohd. Aslam Khan,U.P. Singh
Counsel for Respondent :- P.L. Mishra,B.R. Tripathi,D.C. Mukherjee,K. Mohan,Rajeiu Kr. Tripathi,Smt. Vishwamohini
*****
Hon'ble Jaspreet Singh,J.
1. These are a batch of two appeals. (i) First Appeal under Section 96 CPC arising out of the Suit bearing No.5/1974 seeking a decree of specific performance of contract dated 13.01.1971 which was partly decreed in favour of the plaintiff Hanuman Prasad. Being aggrieved, the defendants No.2 to 4 (of Suit) have filed the instant first appeal. (ii) Second appeal under Section 100 CPC also connected with the aforesaid first appeal which arises from the judgment of reversal passed by the lower appellate Court dated 15.01.1981, whereby the defendants' first appeal No.75/1980 was allowed, as a result, the suit No.180/1971 which was decreed by the trial Court has been dismissed.
2. Since, the property in dispute and the parties are the same and they have been litigating since 1971, accordingly, both the appeals had been connected and were heard together. Since, the facts and parties in both the appeals are quite common to a large extent, accordingly, for the sake of convenience, the Court shall refer to the parties as they were originally impleaded in the respective suits. The Court shall also take up the facts together of both the appeals, but since one appeal arises from a suit of specific performance and the other is arising out of a suit for injunction and scope of both the appeals are quite different, hence, they will be treated separately but are being decided by a common judgment which shall be placed on record of the both the files.
Factual Background Suit for Injunction No.180/1971
3. Since, the suit for permanent injunction bearing Suit No.180/1971 was instituted prior in time, accordingly, the facts of the said case are being considered first.
4. Smt. Rampati (the plaintiff of the suit for injunction) was a tenure holder of Plots No.32 and 33 (agricultural plots), Plots No.64 and 67 (grove plots) and Plot No.17-A, total measuring 4.75 acres, situate in Mauja Moghalaha, Paragana Hishampur, Tehsil Kaisarganj, District Bahraich.
5. The record indicates that Smt. Rampati, Vindeshwari Prasad (son of Smt. Rampati), Abdul Samad Khan, Matloob Khan and Talib Khan instituted a suit for permanent injunction in the Court of Munsif, Kaisarganj, District Bahraich against Hanuman Prasad, Bhagwan, Sagar, Shyamlal, Keshav, Shambhu Dutt, Shambhu Nath and Badlu.
6. The plaintiffs, as mentioned above, stated that the plot bearing No.64, 67 which were grove plots and plots No.32 and 33 agricultural plots were recorded in the name of Smt. Rampati, the plaintiff No.1 as 'bhumidhar' with transferable rights. The plaintiff No.2 (son of Smt. Rampati) on account of arrears of certain Government dues had been apprehended by the Tehsildar and was a guest of the Government and his mother Smt. Rampati, not being a worldly-wise woman, was facing trouble on account of the arrest of her son and she was faced with inadequate finances and she was introduced in such circumstances to the defendant No.2 (Hanuman Prasad), who had a shop of fabrics and garments. Since, the plaintiff No.1 Smt. Rampati had some acquaintance with the defendant No.1 Hanuman Prasad, accordingly, she offered to sell the property to garner funds to get her son released after paying the Government dues. In this fashion, the defendant No.1 Hanuman Prasad agreed to buy the property in question comprising of two kaccha houses at the rate of Rs.250/- per bigha. However, later, he refused to buy and stated that the plaintiff may sell the same to some other person.
7. In the aforesaid backdrop, the plaintiff No.1 Smt. Rampati sold her grove plots in favour of Abdul Samad, the plaintiff No.3 (in the suit for injunction) for a total sum of Rs.5500/- by means of the sale-deed dated 15.02.1971. Plots No.32 and 33 were also sold by plaintiff No.1 Smt. Rampati by means of the registered sale-deed dated 23.04.1971 in favour of Matloob Khan and Talib Khan (plaintiffs No.4 and 5 of the injunction suit). It was further alleged that the defendants (of the injunction suit) made repeated attempts to encroach upon the property of the plaintiffs and were disturbing the possession and threatening to oust the plaintiffs, thus in the aforesaid backdrop, the suit for injunction was filed which was registered as Case No.180/1971.
8. The injunction suit came to be contested by Hanuman Prasad (defendant No.1) wherein he denied the allegations made in the plaint and stated that the plaintiff No.1 Smt. Rampati was not a simple but a worldly-wise lady. It was also stated that she was not acquainted with the defendant No.1 (Hanuman Prasad), but since her son was apprehended on account of non-payment of Government dues, she had approached the defendant No.1 (Hanuman Prasad) for sale of all her plots i.e. Plots No.17-A, 32, 33, 64 and 67 for a total agreed rate of Rs.250/- per bigha and an agreement was also executed between Hanuman Prasad and Smt. Rampati on 13.01.1971. In pursuance whereof, a sum of Rs.1000/- was paid on the date of the agreement which was followed by another sum of Rs.1500/- which was paid by Hanuman Prasad to the plaintiff No.1 Smt. Rampati on 15.01.1971 and the remaining of Rs.3,437.50/- was to be paid at the time of execution of the sale-deed. It was also stated that in pursuance of the agreement to sell dated 13.01.1971, the plaintiff No.1 Smt. Rampati had also transferred the possession of the property to Hanuman Prasad and thus he was in its possession lawfully.
9. It was also stated that the plaintiffs No.3 to 5 were persons having influence over and in the area and had dominated the plaintiff No.1 Rampati to execute the deeds in their favour and as such the suit has been filed on the basis of false and incorrect statement apart from the fact that the suit has been filed by under valuing the suit and for all the aforesaid reasons, the suit was liable to be dismissed.
10. This suit for permanent injunction bearing No.180/1971 was initially partly decreed and partly dismissed by means of the judgment and decree dated 12.02.1973 passed by the Munsif, Kaisarganj, Bahraich, as a result, the defendant No.3 was perpetually restrained from making any interference in the possession of the plaintiffs No.4 and 5 (of the injunction suit) over the plots in question. The claim of the plaintiff No.4 (Matloob Khan) for damages against Hanuman Prasad was dismissed.
11. Hanuman Prasad being aggrieved against the judgment and decree dated 12.02.1973 filed a Regular Civil Appeal No.44/1973 in the Court of District Judge, Bahraich which came to be allowed by means of the judgment and decree dated 19.07.1974 and the suit of the plaintiffs bearing No.180/1971 was dismissed in its entirety.
12. The plaintiffs of Regular Suit No.180/1971 further escalated the matter and filed a second appeal before this Court bearing No.44/1973 which came to be allowed by means of the judgment and decree dated 08.05.1978 and this Court set aside the judgment and decree of the two Courts and remanded the matter to Munsif Kaisarganj, District Bahraich with a direction to frame a specific issue on the question of agreement which was set up by the defendant (Hanuman Prasad) and after framing the issue, an opportunity be provided, to the parties and the parties were further directed to appear before the Court on 11.07.1978.
13. In terms of the order of remand made by the High Court in its judgment dated 08.05.1978 in Second Appeal No.44/1973, the trial Court framed additional issue No.7, whether there was any agreement between the plaintiff No.1 (Smt. Rampati) and the defendant No.1 (Hanuman Prasad) and if so its effect? After reconsidering the aforesaid issue, the trial Court by means of its judgment dated 11.02.1980 partly decreed the suit and restrained the defendants from interfering in the possession of the plaintiffs No.4 and 5, however, it maintained the dismissal of the claim insofar as the damages is concerned.
14. Once again Hanuman Prasad preferred a regular civil appeal bearing No.75/1980 assailing the judgment and decree dated 11.02.1980 passed by the Munsif, Kaisarganj in Regular Suit No.180/1971. The lower appellate Court after considering the submissions of both the parties by means of the judgment and decree dated 15.07.1981 once again allowed the appeal of Hanuman Prasad, as a result, the suit of the plaintiff for injunction was dismissed.
15. It is in the aforesaid backdrop that the original plaintiffs No.3, 4 and 5 of the Suit No.180/1971 preferred a second appeal bearing No.90/1981 which was admitted by this Court on 22.01.1981 on the substantial question of law as formulated in the memo of appeal at S.No.4, which read as under:-
"Whether the lower appellate Court erred in ignoring the documentary evidence relating to the possession of the plaintiff-appellants No.3 to 4 (i.e. Exhibit-7 to 12) and the khasra khatauni and the relevant documents?"
16. Later in the second appeal No.90/1981, this Court by means of the order dated 01.05.1981, after hearing the parties ordered that there was a serious dispute between the parties regarding possession. It was not necessary to decide the said question at the said stage and, therefore, the Court ordered that whosoever is in possession will continue to remain in possession till the disposal of the appeal and both the parties were further restrained from cutting the trees standing over the land in dispute till the disposal of the appeal. This is the entire chronology of events giving rise to the institution of the instant second appeal.
Suit No.5/1974 (Specific Performance of Contract)
17. A suit for specific performance of contract, which has giving rise to the first appeal No.55/1977, was filed in the background of the factual matrix as noticed in the preceding paragraphs. While the parties were contesting the suit for injunction, Hanuman Prasad (plaintiff of R.S. No.5/1974) instituted a suit for specific performance of contract before the Civil Judge, Bahraich against Smt. Rampati, defendant No.1, Matloob Khan, defendant No.2, Talib Khan, defendant No.3, Abdul Samad, the defendant No.4 and Kailash Nath Bathwal, defendant No.5.
18. This suit came to be filed on 14.01.1974 and in the said suit, it was pleaded by Hanuman Prasad that the defendant No.1 Smt. Rampati was the recorded owner of the Plot No.17-A, 32, 33, 64 and 67 situate in Gram Moghalaha, Paragana Hishampur, Tehsil Kaisarganj, District Bahraich. It was pleaded that since the defendant No.1 was in need of money as her son had been apprehended for non-payment of Government dues and she offered to sell the aforesaid plots which was agreed to be purchased by the plaintiff at the rate of Rs.250/- per bigha. An agreement was entered into between Hanuman Prasad and Smt. Rampati on 13.01.1971 and in furtherance thereof, a sum of Rs.1000/- was paid as earnest money. This was followed by a sum of Rs.1500/- on 15.01.1971 for which a receipt was issued by Smt. Rampati and the plaintiff was also put in possession of the said plots. It was also pleaded that the plaintiff was always ready and willing to perform his part of the contract, but the defendant No.1 was delaying and evading to perform her obligations and on the contrary she had filed a suit along with the defendants No.2 to 4 in the Court of Munsif Kaisarganj seeking a decree of injunction bearing R.S. No.180/1971 on false grounds.
19. It was also stated that the plaintiff is still ready and willing to perform his part of contract and that the defendants No.2 to 4 had purchased the property without any right especially when they were aware that Smt. Rampati had already agreed to sell the property to the plaintiff. It was specifically pleaded that the defendants No.1 to 4 had come to the plaintiff's shop and requested that he may take back his earnest money with some profit to which the plaintiff refused and thereafter the defendants got the sale-deed executed from Smt. Rampati and as such their sale-deed was bad. It was also pleaded that since the plot No.17-A was sold by Smt. Rampati to Kailash, hence, he has been impleaded as the defendant No.5 and in the aforesaid backdrop, a relief of specific performance of contract dated 13.01.1971 was prayed after paying the balance sale consideration with a request to execute the sale-deed in favour of the plaintiff.
20. This suit was contested by the defendants No.2 to 4, who had filed joint written statements denying the averments of the plaint and stated that the defendants were the owner of the property in dispute on the basis of the sale-deed executed by Smt. Rampati in their favour and that the plaintiff was very well aware of the sale-deed in favour of the defendants but he surreptitiously prepared an antedated agreement, fraudulently, dated 13.01.1971 and as such the plaintiff had no right to get a decree of specific performance. It was also pleaded that the plaintiff had filed a suit in the Court of Civil Judge, Bahraich which was not maintainable rather the suit ought to have been filed in the Court of Munsif Kaisarganj and for all the aforesaid reasons, the suit was liable to be dismissed.
21. Upon exchange of pleadings, the trial Court framed the following issues:-
"1. Whether the defendant no.1 contracted to sell the suit plots mentioned in para 1 of the plaint to the plaintiff on 13.1.71 on a consideration of Rs.250/- per Bigha and received Rs.1000/- as advance from the plaintiff and executed any Ikrarnama in plaintiff's favour.
2. Whether in lieu of the said agreement the plaintiff again paid Rs.1500/- to the defendant no.1 on 15.1.71 as part of the sale consideration in advance and the defendant No.1 executed a receipt of the same in plaintiff's favour?
3. Whether the defendants no.2 to 4 had notice of the alleged contract as alleged in para 6 of the plaint?
4. Whether the defendants no.2 to 5 are bonafide purchasers for value and without notice of the contract alleged by the plaintiff?
5. Is the suit within time?
6. Is the suit bad for multifariousness as alleged in para 14 of the written-statement of defendants No.2 to 4?
7. Is the suit under-valued and court fee paid, insufficient?
8. What is the effect of the decree passed by Munsif Kaiseranj in suit no.180 of 1971?
9. To what relief, if any, is the plaintiff entitled?"
22. In the meantime, the suit which was pending before the Court of Civil Judge, Bahraich was transferred to the Court of First Additional District Judge, Bahraich.
23. Before the said Court, the defendants of the suit had raised certain grievances against the Presiding Officer and also moved an application for transfer. However, after the transfer application was dismissed, the Court of First Additional District Judge, Bahraich before whom the suit had been transferred it decided the same by means of the judgment and decree dated 23.03.1977 and decreed the suit partly and granted a decree of specific performance only in respect of Plot No.32, 33, 64 and 67 and the defendants No.1 to 4 were directed to execute the sale-deed within a period of two months of receipt of the balance consideration of Rs.2,812.50/-. The suit insofar as the Plot No.17-A is concerned, was dismissed and the costs were made recoverable from the defendants No.2 and 3 whereas the defendants No.4 and 5 were to bear their own costs. It is this judgment and decree dated 23.03.1977 passed by the First Additional District Judge, Bahraich which has been made the subject matter of the First Appeal No.55/1977.
24. Since both the two appeals were pending before this Court relating to the same property in between the same parties, accordingly, as already noticed above, they were heard together and are being decided by this judgment dealing with the two appeals, separately.
25. This Court proposes to take up the first appeal for consideration first and thereafter shall consider the second appeal separately.
Submissions of the Appellant in First Appeal No.55/1977
26. Shri Mohd. Arif Khan, learned Senior Counsel assisted by Mohd. Aslam Khan, learned counsel for the appellant has primarily made a multi-pronged attack on the judgment and decree passed by the First Additional District Judge, Bahraich dated 23.03.1977.
(A) The institution of the suit before the Court of Civil Judge, Bahraich by Hanuman Prasad was erroneous. Since, the suit for injunction was already pending before the Court of Munsif, Kaisarganj, accordingly, the suit for specific performance also ought to have been filed before the same Court. It is also urged that the transfer of the said suit from the Civil Judge, Bahraich to the Court of Additional District Judge, Bahraich was also erroneous inasmuch as the defendants-appellants have been deprived of a forum of appeal. It is submitted that ordinarily if a suit would have been decided by the Civil Judge, its first appeal would lie before the District Judge. However, in the instant case, since the suit was transferred to the Court of Additional District Judge, hence, the forum of the first appeal before the District Judge has been lost and the appellants have been compelled to institute the first appeal before the High Court. It is thus urged that right from the inception i.e. from institution of the suit and its transfer to the Court of First Additional District Judge, Bahraich is bad and against the principles of U.P. Civil Laws (Reforms and Amendment) Act, 1976 and also in violation of Sections 6 and 15 CPC. Consequently, the decree is an nullity and deserves to be set aside.
(B) Learned Senior Counsel for the appellants further submits that the trial Court erred in not recording any finding regarding readiness and willingness before decreeing the suit for specific performance. It is urged that in a suit for specific performance, the compliance of Section 16(c) of the Specific Relief Act is necessary and without recording a finding in respect thereto, the suit could not have been decreed. This finding on readiness and willingness goes to the root of the matter and for the said reason, the decree deserves to be set aside.
(C) Learned Senior Counsel further submits that the trial Court had committed an error in partly decreeing the suit and partly dismissing the same inasmuch as it has been held by the trial Court that the defendant No.5 namely Kailash Nath Bathwal had no notice of the agreement of the plaintiff and the defendants dated 13.01.1971 and, therefore, he was treated as a bonafide purchaser for valuable consideration without notice and the sale-deed has been saved whereas the trial Court has taken an erroneous view that the defendants No.2 to 4 had notice of the agreement dated 13.01.1971 between the Hanuman Prasad and Smt. Rampati merely on the basis of the statement made by the plaintiff himself without proving the same and thus actually the sale-deeds of the defendants No.2 to 4 were also protected in terms of Section 19(b) of the Specific Relief Act, 1963 as the defendants No.2 to 3 were also bonafide purchasers for valuable consideration without notice and were entitled to the same protection as granted to the defendant No.5 but not having extended the same, the trial Court has committed an error.
(D) It is also urged that the trial Court has not appropriately exercised its jurisdiction in terms of Section 20 of the Specific Relief Act and in the given backdrop of the fact that the parties had been contesting the litigation since 1971 and effect of the injunction suit has also not been taken note of and in the aforesaid circumstances, the suit was liable to be dismissed, but it has been erroneously decreed partly.
(E) It is also urged by the learned Senior Counsel for the appellants that no adequate opportunity was granted to the appellants to contest the suit before the First Additional District Judge, Bahraich and they have been deprived of a reasonable opportunity to contest which has resulted in the impugned judgment and decree which deserves to be set aside. It is further submitted that while the suit was pending, the appellants had moved an application for transfer before the District Judge, Bahraich. Certain applications were pending before the trial Court and the counsel for the appellants before the trial Court on the given day had taken leave of the Court for conducting the matter after lunch, but the Court concerned without waiting for the appellants and their counsel examined the witnesses of the respondents No.1 to 3 and closed the evidence. The application for recall which was moved was also rejected and despite the trial Court was informed of the fact that the transfer application has been moved which had been dismissed for want of prosecution and that application for restoration had also been moved but in the meantime, the trial Court decreed the suit and in this fashion the defendants-appellants have been deprived of reasonable opportunity which has resulted in sheer prejudice to the appellants, hence, the judgment and decree dated 23.03.1977 be set aside and the suit for specific performance of the contract deserved to be dismissed.
27. Learned Senior Counsel for the appellants in support of his submissions has relied upon the decision of the Apex Court in Om Prakash Agarwal and others v. Vishan Dayal Rajpoot and another, (2019) 14 SCC 526; Ram Narayan v. Rakesh Tandon and others, 2006 (3) AWC 2700; Harshad Chiman Lal Modi v. DLF University Ltd. and another, (2005) 7 SCC 791; Kanshi Ram v. Om Prakash Jawal and others, (1996) 4 SCC 593; S. Rangaraju Naidu v. S. Thiruvarakkarasu, 1995 Supp (2) SCC 680; Smt. Bimla Devi and others v. Smt. Mangla Devi and others, 2023:AHC-LKO:42472.
Submissions on behalf of the respondents (First Appeal No.55/1977)
28. (A) Shri Rajeiu Kumar Tripathi, learned counsel for the respondents has responded to the aforesaid submissions and urged that the trial Court has rightly decreed the suit. It is submitted that the agreement to sell was entered between Smt. Rampati and Hanuman Prasad on 13.01.1971 and the plaintiff was also put in possession of the property in dispute. The defendants had taken a plea that the plaintiff had fabricated the alleged agreement dated 13.01.1971 by ante-dating the same but the said plea could not be established by the defendants.
29. It is urged that neither Smt. Rampati nor her son Vindeshwari Prasad was examined as a witness but the defendants denied the agreement dated 13.01.1971 and the receipt dated 15.01.1971 and from the pleadings of the plaint filed in the injunction suit No.180/1971, it was admitted to Smt. Rampati that she had entered in an agreement with Hanuman Prasad. It is taking note of the aforesaid facts including the evidence which established the agreement and only thereafter the trial Court decreed the suit.
30. (B) It is also urged that the contention regarding the institution and the transfer of the suit was bad is also baseless for the reason that when the suit for specific performance of contract came to be filed in the year 1974 the pecuniary jurisdiction of Munsif was only upto Rs.5,000/- and since the valuation of the suit was Rs.5,937.50/- consequently it was filed in the proper Court of Civil Judge, Bahraich. It is further urged that the suit was transferred by the District Judge on the administrative side from the Civil Judge to the First Additional District Judge, Bahraich and at that point of time no objection was raised by the appellants. It is only at a later stage when the suit was being protracted before the trial Court by moving frivolous applications that the appellants moved an application for transfer under Section 24 CPC.
31. It is further urged that the ground for transfer which was raised was not appropriate rather it was a grievance raised against the Presiding Officer and as per the allegations, the appellants were being deprived of an opportunity of hearing. It is further submitted that the record would indicate that ample opportunity was granted to the appellants, since, they were adopting delaying tactics which did not find favour with the trial Court and thus the applications were rejected.
32. Upon filing of the transfer application since an order of stay was passed by the District Judge, the trial Court had stayed the proceedings, however, later when the transfer application came to be rejected, the trial Court then decided the suit and as such no prejudice can be said to have been caused to the defendants.
33. (C) Learned counsel for the respondents further urged that the plaintiff had categorically pleaded that the plaintiff was ready and willing to perform his part of contract and still was ready. A notice prior to the institution of the suit was also given to the defendants wherein the plaintiff had itself expressed his willingness and readiness and this fact was not denied by the defendants. In absence of any denial or oral controversion of the said plea, the trial Court decreed the suit as the agreement to sell was proved coupled with the fact that the plaintiff was ready and willing to perform his part of contract. Moreover, the defendants did not raise any such plea in their written statement that they were bonafide purchasers for valuable consideration without notice and on the contrary the plaintiff had pleaded that the defendants had come requesting the plaintiff to take back his earnest money along with some profit as the plaintiff was in possession of the property in pursuance of the agreement to sell dated 13.01.1971, hence, this aspect has been appropriately considered by the trial Court and, therefore, taking a wholesome view, the suit was decreed.
34. (D) The trial Court has rightly exercised its jurisdiction in terms of Section 20 of the Specific Relief Act, 1963 and this is amplified by the fact that the suit was partly decreed only in respect of Plot No.32, 33, 64 and 67 but not in respect of Plot No.17-A. Since, Kailash Nath Bathwal was found to be bonafide purchaser for valuable consideration without notice and thus in these aforesaid facts and circumstances it cannot be said that the suit has incorrectly been decreed and for all the aforesaid reasons, the appeal is liable to be dismissed.
35. Learned counsel for the respondents in support of his submissions has relied upon the extracts of 'The Bengal and Assam Civil Courts Act, 1887' and the amendments made therein. He has also relied upon the decision of the Apex Court in Kiran Singh and others v. Chaman Paswan and others, AIR 1954 SC 340; Indermani Kirtipal v. Union of India and others, (1996) 2 SCC 437; Sriram Pistons and Rings Ltd. v. Mrs. Manju Awasthi, 1997 SCC OnLine Del. 444; National Institute of Mental Health and Neuro Sciences v. C. Parmeshwara, (2005) 2 SCC 256; Jitendra Singh v. Bhanu Kumari and others, (2009) 1 SCC 130; Aspi Jal v. Khusroo Rustom Dadyburjor, (2013) 4 SCC 333 and a decision of this Court in Ram Yagga v. Ram Niwaz, 2021 (39) LCD 1512.
Discussion and Analysis
36. The Court has heard the learned counsel for the parties and also perused the material on record including the written submissions filed by the respective parties.
37. At the outset, in light of the submissions made by the learned counsel for the parties, the controversy can be crystallized by framing the following points for determination:-
(a) Whether the suit for specific performance of contract was instituted in the correct Court and if not, its effect?
(b) Whether the transfer of the suit from the Civil Judge to the Additional District Judge has caused any prejudice as alleged by the plaintiff as he has lost a forum of appeal before the District Judge and if so its effect?
(c) Whether the defendants-appellants have been deprived of an opportunity to represent the case appropriately as the suit was decreed while the restoration application against a transfer petition under Section 24 CPC was pending for consideration?
(d) Whether the suit has been decreed appropriately taking into consideration Section 16(c) of the Specific Relief Act?
(e) Whether the plea of bonafide purchaser for valuable consideration without notice and the exercise of powers under Section 20 of the Specific Relief Act has been appropriately exercised by the trial Court?
38. Before proceeding further, this Court finds that the appellants had filed an application No.154/(F)/1979 under Order 41 Rule 27 CPC to bring on record the order dated 09.12.1974 passed by the Board of Revenue recommending for allowing of revision and the order passed by the reference Court dated 31.01.1978.
39. Since, the said orders have been passed relating to mutation proceedings and were already in the knowledge of the parties including in the connected injunction suit from which the second appeal No.90/1981 has been filed and since it is between the same parties and there is no dispute in respect thereto, accordingly, the said application is allowed and the document shall be considered by the Court.
40. Now, the Court proposes to take up the issue regarding institution of suit, the transfer of the suit as well as the issue raised by the appellants regarding being deprived of an opportunity of hearing first which covers points no.(a), (b) and (c) together as they are closely intertwined.
41. It is now well settled that the jurisdiction of the Court is determined on the basis of the averments made in the plaint in suit. It is equally well settled that a suit is to be instituted in the Court of lowest grade who is entitled and competent to try it.
42. The jurisdiction of the Civil Court is governed by The Bengal and Assam Civil Courts Act, 1887 (hereinafter referred to 'as the Act of 1887') and the same is also applicable to the State of U.P. including the territories which were in the erstwhile region of Oudh. The Act contemplates four classes of the Courts as envisaged in Section 3 i.e. (i) The Court of the District Judge; (ii) The Court of the Additional Judge; (iii) The Court of the Subordinate Judge; and (iv) The Court of the Munsif. Section 9 of the Act of 1887 provides that the District Judge shall have an administrative control over all the Civil Courts under this Act within the local limits of his jurisdiction subject to the Superintendence of the High Court.
43. Section 11 of the Act of 1887 preserves the powers with the District Judge who is entitled to transfer all or any of the proceeding in the Court of Subordinate Judge either to his own Court or to any Court under his administrative control competent to dispose of the same. For clarity, Section 11 of the Act of 1887 is being reproduced hereinafter:-
"11. Transfer of proceedings on vacation of office of Subordinate Judge.--(1) In the event of the death, resignation or removal of a Subordinate Judge, or of his being incapacitated by illness or otherwise for the performance of his duties, or of his absence from the place at which his Court is held, the District Judge may transfer all or any of the proceedings pending in the Court of the Subordinate Judge either to his own Court or to any Court under his administrative control competent to dispose of them.
(2) Proceedings transferred under sub-section (1) shall be disposed of as if they had been instituted in the Court to which they are so transferred.
(3) Provided that the District Judge may re-transfer to the Court of the Subordinate Judge or his successor any proceedings transferred under sub-section (1) to his own or any other Court.
(4) For the purposes of proceedings which are not pending in the Court of the Subordinate Judge on the occurrence of an event referred to in sub-section (1), and with respect to which that Court has exclusive jurisdiction, the District Judge may exercise all or any of the jurisdiction of that Court."
44. Section 19 of the Act of 1887 relates to extent of the jurisdiction of Munsif and this Section 19 of the Act of 1887 has been amended from time to time and as per the amendment made vide U.P. Civil Laws (Reforms and Amendment) Act, 1976, Section 19 of the Act of 1887 was substituted and it reads as under:-
"19.(1) Save as aforesaid, and subject to the provisions of sub-section (2), the jurisdiction of a Munsif extends to all like suits of which the value does not exceed five thousand rupees.
(2) the State Government may, on the recommendation of the High Court, direct by notification in the official gazette, with respect to any munsif named therein, that his jurisdiction shall extend to all like suits of such value not exceeding ten thousand rupees as may be specified in the notification:
Provided that the State Government may, by notification in the official gazette, delegate to the High Court its powers under this section."
45. The record would indicate that the suit for specific performance of contract was filed on 14.01.1974 whereas the U.P. Civil Laws (Reforms and Amendment) Act came into force in the year 1976. As per the existing provisions, at the time of institution of the suit, the pecuniary jurisdiction of the Court of Munsif was upto Rs.2,000/- and since the suit was valued at Rs.5,937.50/-, accordingly, the suit could only be filed before the Court of lowest grade, competent to try it and that would be the Civil Judge, Bahraich.
46. It will be relevant to notice that as per Section 19 of the Act of 1887, the initial jurisdiction of the Court of Munsif was upto Rs.1,000/- which came to be amended in the State of U.P. by the Amending Act No.V of 1925 and Rs.1000/- was substituted with the words Rs.2,000/-. Thus, it would be seen that insofar as initial institution of the suit on 14.01.1974 is concerned, the same was appropriately instituted. To that extent, the submission of the learned Senior Counsel for the appellants that the institution of the suit was bad has no legs to stand.
47. Taking the matter forward, now it is to be seen as to whether the transfer of the suit from the Civil Judge to the Additional District Judge was proper or not.
48. The contention is that since the amendment in the U.P. Civil Laws (Reforms and Amendment) Act, 1976 had came into operation, therefore, the suit ought to have been transferred to the Court of Munsif, however, by transferring it to the Court of First Additional District Judge, Bahraich, the appellants have been deprived of their remedy of first appeal before the District Judge.
49. In this regard, certain facts which are not disputed are being noticed as under:-
(i) At the time when the suit was so transferred from the Civil Judge to the First Additional District Judge, Bahraich, there was no protest or challenge made by the defendants-appellants.
(ii) It is also not disputed that the transfer was effected by the District Judge on the administrative side and in light of the provisions contained in Section 24 CPC, the District Judge has a right to transfer any suit pending before the Court subordinate to it either to himself or to any other Court. Section 24 CPC is being reproduced hereinafter for ease of reference:-
"24. General power of transfer and withdrawal.--(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage--
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
[(3) For the purposes of this section,--
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) "proceeding" includes a proceeding for the execution of a decree or order.] (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]"
50. At this stage, it will also be relevant to notice Section 21 CPC, which reads as under:-
"21. Objections to jurisdiction.--[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]"
51. From the conjoint reading of the aforesaid provisions, it would be clear that the District Judge has general powers of transfer which can be exercised by him. In case if it is exercised on the administrative side then it is not required to give any notice to the parties but if such a transfer is being exercised at the behest of any party then the other party is required to be noticed before passing any order on transfer. The powers of transfer were considered by the Division Bench of this Court in Babu Singh and others v. Raj Bhadur Singh, 2022 (12) ADJ 178 (DB) (LB). The general powers of the transfer and the relevant portion thereof read as under:-
"10. The power to be exercised under Section 24 CPC is both administrative and judicial. The administrative power is exercised by the competent authority in routine for allocation of cases amongst different Courts subordinate to it or having concurrent jurisdiction with power of allocation of cases generally. No issue is raised thereof generally unless someone files an application seeking transfer of his case to some other court. This application again can be either on administrative side or judicial side. The issue which is pending for consideration before this Court is regarding the application filed by the litigant under Section 24 CPC on judicial side. If such an application is filed, the Court concerned is required to consider the same in terms of the parameters settled therefor. An application filed by a party to the litigation under Section 24 CPC can either be accepted or rejected.
PRINCIPLES OF TRANSFER OF CASES
11. The principles with respect to the transfer of case under Section 24 CPC have been dealt with by Hon'ble the Supreme Court in Kulwinder Kaur vs. Kandi Friends Education Trust and others. Relevant paragraphs 13, 14 and 17 of aforesaid judgment are reproduced below :
"13. Having considered rival contentions of the parties and having gone through the proceedings of the case, we are of the view that the impugned order deserves to be set aside. So far as the power of transfer is concerned, Section 24 of the Code empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any Court subordinate to it to any other Court for trial and disposal. The said provision confers comprehensive power on the Court to transfer suits, appeals or other proceedings ''at any stage' either on an application by any party or suo motu.
14. Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interest in the litigation; ''interest of justice; demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a ''fair trial' in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.
x x x x
17. ..............It is true that normally while making an order of transfer, the Court may not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must reflect application of mind by the court and the circumstances which weighed in taking the action..............""
52. Having noticed the powers of transfer, it would be found that in exercise of such powers, the Court is empowered to transfer a suit or any proceeding pending before any Court either to itself or any other Court.
53. In the instant case, it is not disputed that the powers were exercised by the District Judge on the administration side and it had transferred the case from the Civil Judge to the First Additional District Judge, Bahraich. The source of this power could not be disputed nor can it be said that in exercise of such powers the said suit could not be transferred from Civil Judge to the Additional District Judge. Moreover, at the given point of time, no objection was raised by the appellants that this exercise of powers was without jurisdiction or in any manner it caused any prejudice to the appellant. Primarily what is being urged on the issue of overvaluation/ under valuation of the suit itself has no substance in light of Section 21 CPC. It was the bounden duty of the appellants to have raised the issue at the first instance when such cause arose but no such objection was raised at the given time. Now once decision has been rendered against the appellant, it is being sought to be raised as a ground to challenge the decree.
54. This aspect can be seen from another angle. On the date of the institution of the suit if a forum of appeal is provided, the same is available to the party unless the same is taken away by any legislative measure. However, it cannot be said that the forum of appeal which is provided under the law is confined to be heard by any particular Court.
55. In the instant case, the suit was filed before the Civil Judge and ordinarily an appeal lies to the Court of District Judge under Section 96 CPC and this is dependent on the pecuniary jurisdiction of the suit. In case the pecuniary jurisdiction is higher then a first appeal lies to the High Court or else it lies before the District Judge. Thus, the forum of appeal has remained intact and it is not as if the forum of an appeal has been taken away by the transfer. The only difference being that ordinarily the appeal would lie before the District Judge, but since the suit has been decided by the First Additional District Judge, Bahraich, hence, in such case, the appeal would lie before the High Court and this Court has heard the parties in exercise of powers under Section 96 CPC. Neither the forum of appeal has been lost nor any prejudice has been caused to the appellants. The appellants cannot insist that his appeal be heard by any one Court as this is not open for the appellants to challenge.
56. In view of the aforesaid discussions, it also cannot be said that the appellants have been deprived of a forum of appeal. The forum of appeal has been provided and the appellants have also availed the same.
57. In the aforesaid backdrop, this Court notices the decision of the Apex Court in Harshad Chiman Lal Modi (supra) wherein the issue was not regarding pecuniary jurisdiction but was in context with the territorial jurisdiction. The concept of jurisdiction and the effect of not raising the issue at the earliest has been noticed in paragraph 30 to 33, which read as under:-
"30. The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.
31. In Halsbury's Laws of England, (4th Edn.), Reissue, Vol. 10, para 317, it is stated:
317. Consent and waiver.--Where, by reason of any limitation imposed by a statute, charter or commission, a court is without jurisdiction to entertain any particular claim or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the court, nor can consent give a court jurisdiction if a condition which goes to the root of the jurisdiction has not been performed or fulfilled. Where the court has jurisdiction over the particular subject-matter of the claim or the particular parties and the only objection is whether, in the circumstances of the case, the court ought to exercise jurisdiction, the parties may agree to give jurisdiction in their particular case; or a defendant by entering an appearance without protest, or by taking steps in the proceedings, may waive his right to object to the court taking cognizance of the proceedings. No appearance or answer, however, can give jurisdiction to a limited court, nor can a private individual impose on a judge the jurisdiction or duty to adjudicate on a matter. A statute limiting the jurisdiction of a court may contain provisions enabling the parties to extend the jurisdiction by consent."
32. In Bahrein Petroleum Co. [(1966) 1 SCR 461 : AIR 1966 SC 634] this Court also held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court, otherwise incompetent to try the suit. It is well settled and needs no authority that "where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing". A decree passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice.
33. In Kiran Singh v. Chaman Paswan [(1955) 1 SCR 117 : AIR 1954 SC 340] this Court declared : (SCR p. 121) "It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction ... strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
(emphasis supplied)"
58. After having noticed the aforesaid proposition, the Apex Court found that since the suit was relating to an immovable property situate in Gurgaon, State of Haryana and in terms of Section 16 CPC, a suit in respect of the immovable would lie before a Court having territorial jurisdiction to entertain it. Even by agreement/consent, the parties could not confer the jurisdiction on a Court which did not possess any jurisdiction and, therefore, the agreement between the parties agreeing to file proceedings at Delhi was held to be without jurisdiction.
59. However, there is no such dispute in the instant case. The suit has been filed in District Bahraich where the property was situated and there has been no objection raised regarding pecuniary jurisdiction in terms Section 21 CPC nor objections were raised at the time when the District Judge exercised its powers under Section 24 CPC for transferring a suit from the Civil Judge to the First Additional District Judge, Bahraich. The Court is fortified in its view and it also finds support from the decision of the Delhi High Court in Sriram Pistons and Rings Ltd. (supra) and the Paragraph 12 and 17 of the said report read as under:-
"12. The question of right of appeal being taken away as a result of exercise of powers under Section 24, CPC happened to be considered in Sarjudei v. Rampati Kunwari, (AIR 1962 All. 503). The Court in this case was concerned with the amendment to the Bengal, Agra and Assam Civil Courts Act. As a result of amendment therein, the District Judges became competent to hear appeals against decree in suits valued upto Rs. 10,000/-. The Court held that the High Court could transfer the appeals to the District Judges and this did not affect the vested rights of litigants to have appeal disposed of by the High Court. The Court observed that "the right of a litigant to an appeal is always subject to right of the High Court to transfer it under Section 24, CPC. If the District Judges are competent to dispose of appeals, the High Court has the power under Section 24 to transfer appeals to them, regardless of the question of the right of the parties to have them disposed of by the High Court."
xxx xxx xxx
17. Reference may also be made to a subsequent decision in Behari Lal v. Keshri Nandan, AIR 1970 All. 201. The Full Bench of the Allahabad High Court considered the provision of U.P. Civil Laws Amendment Act (35 of 1968) and particular Sections 21(1)(a) and (1-A), as inserted by U.P. Civil Laws Amendment Act, by which the pecuniary jurisdiction of the District Courts was raised to Rs. 20,000/-. The Legislature intended to give retrospective effect to Section 21 of Civil Courts Act. The High Court could, therefore, transfer to District Court an appeal filed even before commencement of Act 35 of 1968. The Court further noticed that unlike in Lakshmi Narain's case (supra) there was no corresponding saving clause in the latest President's Act and, therefore, Lakshmi Narain's case (supra) would not be of any assistance in interpretation of Section 3 of the President's Act, by which the limit of jurisdiction of District Judges had been raised to Rs. 20,000/-. The Allahabad High Court further observed as under:
"It is true that litigants have got vested right of appeal the moment a suit is instituted. But it is open to the appropriate Legislature to take away such vested right. On examining the language of Clause (a) of Sub-section (1) of Section 21, Civil Courts Act and Sub-section (1-A) of Section 21, Civil Courts Act (as inserted by the President's Act), it becomes clear that the Legislature was anxious to give retrospective effect to amended Section 21 of the Civil Courts Act. In other words, the amendment will be effective even as regards a suit instituted before 2.12.1968.""
60. It will be relevant to notice that reliance placed by the learned Senior Counsel on the decision of the Apex Court in Om Prakash Agarwal (supra) is of no help as it would be seen that even in the said case, the Apex Court in Paragraph 64, 68 and 69 had noticed that Section 21 CPC lays down the legislative policy with an object and purpose and the object is to avoid retrial of cases on merits on the basis of technical objections.
61. In light of what has been held by the Apex Court in the aforesaid paragraphs, it would be found that the same are true for the instant case as the appellant did not raise the said objections at the given point of time and, therefore, the decision of Om Prakash Agarwal (supra) does not aid the appellants at all.
62. In continuation of the aforesaid, the third limb of the submission of the learned Senior Counsel regarding prejudice being caused, is now being examined. The record would indicate that the proceedings were pending before the First Additional District Judge, Bahraich. An application for transfer was moved by the appellants before the District Judge, Bahraich which was registered as Transfer Application being Misc. Case No.33/1977 and the District Judge by means of the order dated 21.05.1976 had stayed the proceedings before the Court concerned.
63. The record further indicates that upon the transfer from the Court of Second Additional District Judge, the file was received by the First Additional District Judge on 13.01.1977 and the matter was fixed for final hearing on 22.01.1977. The matter was adjourned at the behest of the defendant No.5 for 28.03.1977. On the said date, i.e. 28.03.1977, the plaintiff examined three witnesses and closed his evidence and the case was adjourned for 19.04.1977 for the evidence of the defendants. The matter was further posted on 23.04.1977 and on the said date, the defendants No.2 to 4 examined two witnesses and for the remaining evidence, the date was fixed for 29.04.1977. On 29.04.1977, one of the witness Matloob Khan was examined. The counsel for the defendants requested that the matter be taken up after the lunch on account of Friday prayers. The matter was taken up after lunch and the counsel for the defendants closed the evidence and thereafter the defendant No.5 examined his one witness and after conclusion of the evidence of the defendant No.5, the matter was fixed for 05.05.1977.
64. Thereafter on account of adjournment at the behest of the defendant No.5, the case was posted for 17.05.1977 for arguments. In the meantime, on 12.05.1977, the defendants No.2 to 4 moved an application for filing the original sale-deed and also requested for cross-examination of the witnesses of the defendant No.5.
65. Insofar as the prayer for taking the original sale-deed is concerned, the same was allowed on 17.05.1977 and it was also proved formally by examining the defendant's witness Matloob Khan on the same very date. The arguments also commenced and the matter was fixed on 18.05.1977. It is on the said date, an application was moved stating that the proceedings be stayed. The said application was disposed of and rejected. Thereafter, another application was moved seeking time to move before the District Judge to get the matter transferred.
66. It is in the aforesaid backdrop that initially an order of stay was passed in the transfer application moved by the appellants on 21.05.1977, however, later, the record indicates that the transfer application was dismissed in default and so also the stay was discharged. It is in the aforesaid backdrop that the Court concerned i.e. Additional District Judge heard the parties and decided the matter.
67. Merely because the appellants had moved an application for seeking restoration of the transfer application, which stood dismissed in default, did not prevent the Court from proceeding with the matter. It is urged by the learned Senior Counsel that once it was in the notice of the Court concerned that the appellants had moved an application seeking restoration of the transfer application, it should not have proceeded with the matter rather the Court should have granted time to the appellants.
68. It will be relevant to notice that merely because the Court passed an order which is not in favour of one party it does not give any cause to file a transfer application. In this regard, this Court gainfully refers to the decision of this Court in Vinod Kumar Singh v. Board of Revenue, U.P., Lucknow, 2022 Latest Caselaw 17238 All, wherein the grounds for transfer and its implications and how the application should be considered has been noticed with the aid of two previous decisions of this Court and the relevant paragraph read as under:-
"This Court is reminded of two decisions rendered by this Court in the cases of Raja Ram and others Vs. Ashok Kumar and others; 2014 SCC Online ALL 15845 and Ram Prakash Vs. District Judge, Ballia and others; 2014 SCC Online ALL 15491, wherein the issue of transfer has been considered and it has also been noticed that acting upon mere allegations without any material particulars and substantiated material would cause deleterious effect on the administration of justice. In the case of Raja Ram and others (Supra) this Court in paragraphs 7 and 9 has held as under:
"7. Mere presumptions or possible apprehensions are not sufficient therefor ; only good and sufficient grounds, clearly set out in the order, may justify the transfer and a transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets fair and impartial justice.
9. Thus, The power vested in the High Court under Section 24 C.P.C. is comprehensive and discretionary. The discretion to be exercised, as we all know, is a judicial discretion based on sound reasonings. While considering the question of transfer, the very bias which has to be law laid down for transfer of the same is to be considered and in the present case, the reason that opposite party no.2 is a practicing lawyer cannot be a ground for transfer when there is no concurrent reason that the said person in any manner may influence the proceedings of the matter and if on the said ground, the case is transferred then it is practically himself to get influence against the practitioner lawyer in a particular district as transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets fair and impartial justice."
Further, in the case of Ram Prakash (Supra) this court has observed in paras 5 to 12 as under:
"5. The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under Section 24 C.P.C., the Court must be satisfied that the apprehension of bias or prejudice is bona fide and reasonable. The expression of apprehension, must be proved/substantiated by circumstances and material placed by such applicant before the Court. It cannot be taken as granted that mere allegation would be sufficient to justify transfer. In Smt. Sudha Sharma (supra) the Court observed that it is the duty of learned counsel to draft the application and made allegations with utmost care and caution. Hon'ble B.M. Lal, J. (as His Lordship then was), said:
"9. ...a foremost duty casts upon the counsel concerned while drafting and making allegations in the transfer petition against the Judge concerned with utmost care and caution, particularly in making wild allegations against the Presiding Judge. But, it appears that now-a-days it has become common feature to make allegations against the Court Presiding Judge. The counsel should realise that they are also officers of the Court. Introducing fanciful and imaginary allegations as grounds for transfer and harbouring apprehension such grounds that fair and impartial justice would not be done should always be deprecated.
10. Nonetheless, it is also important for all those who are engaged in the task of administering justice to remember that it is incumbent on them to create and maintain such confidence and atmosphere by giving every litigant an assurance by their judicial conduct that fair and impartial justice will be imparted. It is necessary to create such a confidence in the mind of the litigants so that their faith may not be shaken in Courts of law."
6. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. (Rajkot Cancer Society Vs. Municipal Corporation, Rajkot, AIR 1988 Gujarat 63; Pasupala Fakruddin and Anr. Vs. jamila Mosque and anr., AIR 2003 AP 448; and, Nandini Chatterjee Vs. Arup Hafi Chatterjee, AIR 2001 Culcutta 26)
7. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer.
8. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice.
9. The justice delivery system knows no caste, religion, creed, colour etc. It is a system following principle of black and white, i.e., truth and false. Whatever is unfair, that is identified and given its due treatment and whatever is good is retained. Whoever suffers injustice is attempted to be given justice and that is called dispensation of justice. The prevailing system of dispensation of justice in Country, presently, has different tiers. At the ground level, the Courts are commonly known as "Subordinate Judiciary" and they form basis of administration of justice. Sometimes it is said that subordinate judiciary forms very backbone of administration of justice. Though there are various other kinds of adjudicatory forums, like, Nyaya Panchayats, Village Courts and then various kinds of Tribunals etc. but firstly they are not considered to be the regular Courts for adjudication of disputes, and, secondly the kind and degree of faith, people have, in regular established Courts, is yet to be developed in other forums. In common parlance, the regular Courts, known for appropriate adjudication of disputes basically constitute subordinate judiciary, namely, the District Court; the High Courts and the Apex Court.
10. The hierarchy gives appellate and supervisory powers in various ways. The administrative control of subordinate judiciary has been conferred upon High Court, which is the highest Court at provincial level and is under constitutional obligation to see effective functioning of subordinate Courts by virtue of power conferred by Article 235 read with 227 of the Constitution. No such similar power like Article 235, in respect to High Court is exercisable by Apex Court, though it is the highest Court of land. Its judgments are binding on all. Every order and judgment of any Court or Tribunal etc., in the Country, is subject to judicial review by Apex Court. This is the power on judicial side.
11. In Ajay Kumar Pandey, Advocate, In Re:, (1998) 7 SCC 248, the Court said that superior Courts, i.e. High Court as also the Apex Court is bound to protect the Judges of subordinate Courts from being subjected to scurrilous and indecent attacks, which scandalise or have the tendency to scandalise, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear.
12. If there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, it is bound to shake confidence of the litigating public in the system and has to be tackled strictly. The damage is caused not only to the reputation of the concerned Judge, but, also to the fair name of judiciary. Veiled threats, abrasive behaviour, use of disrespectful language, and, at times, blatant condemnatory attacks, like the present one, are often designedly employed with a view to tame a Judge into submission to secure a desired order. The foundation of our system is based on the independence and impartiality of the men having responsibility to impart justice i.e. Judicial Officers. If their confidence, impartiality and reputation is shaken, it is bound to affect the very independence of judiciary. Any person, if allowed to make disparaging and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice.""
69. In light of the aforesaid decisions of this Court in Vinod Kumar Singh (supra) and in the given facts and circumstances, the decision of Ram Narayan (supra) does not help the appellants.
70. In the aforesaid backdrop and in the chronology of events which has been noticed hereinabove, this Court finds that it is not the case of the defendants that they have been deprived of leading any evidence rather they examined their witnesses and the arguments had also commenced. The issue sought to be raised is regarding the deprivation to cross-examine the witness of defendant No.5 is concerned, is misconceived for the reason that the suit had two sets of defendants (i) the defendants No.2, 3 and 4 who had purchased the plot from Smt. Rampati and (ii) Kailash Nath Bathwal. The defendant No.1 Smt. Rampati had not entered into the witness box and the defendant No.5 had examined his witness. This witness was entitled to be cross-examined by the plaintiff and not by the co-defendant especially when there was no conflict of any interest between them. It would have been a different situation if there was any cause conflicting with the other co-defendant and only then the defendant could cross-examine the witness of any co-defendant with the leave of the Court. However, there were no such circumstances.
71. Even the application moved by the appellants to stay the proceedings on account of the second appeal was disposed of inasmuch as the second appeal had been pending and yet there was no stay from the High Court on the proceedings. The issue before the High Court in second appeal which was arising out the suit for injunction was totally different than the issue arising in the suit for specific performance of contract. Hence, the issue of prejudice is misconceived and is turned down.
72. It will not out of place to mention here that even before this Court an attempt was made by the appellants to get the proceedings deferred. It will be relevant to notice that the first appeal was pending before this Court since 1977 and there were already orders to list the matter peremptorily yet on account of certain substitution applications, the matter was deferred and could not be heard on merits. Moreover, the appeal was adjourned on number of occasions at the behest of both the parties.
73. Be that as it may, on 07.07.2023, the Court while allowing the application for substitution noticed that the appeal was pending since 46 years and requested both parties' counsel for cooperation so that the matter can be heard and be finally decided. The consent of the learned counsel for the parties was also recorded that they were ready to argue the matter and with their consent, the matter was listed on 17.07.2023 peremptorily along with the connected matter with the understanding that the matter would be taken up on day to day basis unless concluded or unless the Court passed any other order. Thereafter, the matter was heard on 24.07.2023 and it was fixed on 26.07.2023. The order dated 26.07.2023 will give a background of previous orders and it read as under:-
"The instant appeal is of the year 1977.
This Court by means of order dated 07.07.2023 had passed the following order and in presence of the learned counsel for the parties are requiring their corporation and also with the understanding that the matter shall go on day to day basis. The relevant portion of the order dated 07.07.2023 reads as under:-
"Ref:-C.M.A. Nos. 18, 19 and 20 of 2022.
The instant three applications have been moved seeking condonation of delay, setting aside abatement in moving the substitution application on account of death of the appellant no. 3.
The Court has considered the aforesaid applications and the grounds shown therein in seeking condonation of delay and setting aside abatement are found sufficient, consequently, the delay is condoned, abatement, if any, is set aside and the application for substitution is allowed.
The learned counsel for the appellants shall carry out the necessary amendments within a week from today and shall also furnish a memo of parties in both the appeals.
Order on Appeal.
The appeal is of the year 1977 and apparently 46 years have lapsed and the matter is still engaging attention of this Court. It is a matter of regret that the instant first appeal has not been decided.
The Court requested the learned counsel for the both the parties to extent their cooperation so that the matter can be heard and finally decided.
The learned counsel for both the parties have been kind enough to accord their consent that they are ready to argue the matter and on their joint request the appeal shall be listed on 17th July, 2023, peremptorily along with the connected matters with the understanding that the matter shall be taken up on day to day basis unless concluded or unless the Court passes any other order."
The record further indicates that on 24.07.2023 when the matter was listed, the Court had passed the following order which reads as under:-
This Court on 07.07.2023 has passed the following order, which reads as under:-
"Ref:-C.M.A. Nos. 18, 19 and 20 of 2022.
The instant three applications have been moved seeking condonation of delay, setting aside abatement in moving the substitution application on account of death of the appellant no. 3.
The Court has considered the aforesaid applications and the grounds shown therein in seeking condonation of delay and setting aside abatement are found sufficient, consequently, the delay is condoned, abatement, if any, is set aside and the application for substitution is allowed.
The learned counsel for the appellants shall carry out the necessary amendments within a week from today and shall also furnish a memo of parties in both the appeals.
Order on Appeal.
The appeal is of the year 1977 and apparently 46 years have lapsed and the matter is still engaging attention of this Court. It is a matter of regret that the instant first appeal has not been decided.
The Court requested the learned counsel for the both the parties to extent their cooperation so that the matter can be heard and finally decided.
The learned counsel for both the parties have been kind enough to accord their consent that they are ready to argue the matter and on their joint request the appeal shall be listed on 17th July, 2023, peremptorily along with the connected matters with the understanding that the matter shall be taken up on day to day basis unless concluded or unless the Court passes any other order."
Since the matter could not be taken up on 17.07.2023, accordingly, it was directed to be listed on 24.07.2023 amongst the top ten cases. Accordingly, it was listed at top of the cases today. When the matter was taken up, request has been made on behalf of the appellants that the Senior counsel, who was required to argue is on his legs in another Court.
The Court has called upon Shri Rajeiu Kumar Tripathi, learned counsel for the respondents to open his submissions while the junior counsel on behalf of the appellants was present to take down the notes.
Put up this matter tomorrow i.e. 25.07.2023. In case, if the appellants chooses to argue, he shall be at liberty to do so as no adjournment shall be granted."
Again on 25.07.2023 at the time of call of the case, the learned counsel for the appellant was not present, however, after the request was made the matter was taken up after lunch and the Senior Counsel has made his submissions for sometime and thereafter it was fixed for 26.07.2023.
The matter was again put up today for further hearing and at the time of call of the case again Senior Counsel is not present nor any junior or colleague from his chamber is present to inform the Court regarding his availability.
Sri Rajeiu Tripathi, learned counsel for the respondents is present.
This Court finds that there is some reluctance on the part of the learned counsel for the appellant to argue the matter. Despite noticing that the appeal is of the year 1977 and the earlier orders dated 07.07.2023, 24.07.2023 and 25.07.2023, no illness slip, out of station slip or engagement slip has been sent to inform the Court in case if the Senior Counsel was facing any difficulty.
In the aforesaid circumstances, with a heavy heart this Court has no option but to dismiss the appeal for want of prosecution. Consigned to records.
Order Date :- 26.7.2023 Asheesh After the order was passed and before it could be signed Sri M.A. Khan, learned Senior Counsel had made a request that due to certain unforeseen circumstances, he could not appear to argue the appeal and further his colleagues were also not present to inform the Court for which he apologies and he further undertakes, he shall ensure that this case is given priority and he shall argue the same tomorrow.
Considering his assurance and also looking into the fact that the Court has already spent time with the aforesaid matter and the appeal is of the year 1977, it would be in the larger interest to hear the appeal on merits rather to take a softer option.
Considering the aforesaid assurance given by Sri M.A. Khan, learned Senior Counsel, put up this matter tomorrow, i.e. 27th July, 2023 along with connected matters.
Sri M.A. Khan, learned Senior Counsel is also directed to inform Sri Rajeiu Kumar Tripathi, learned counsel for the respondents of the order passed today in writing so that he can also be present when the matter is taken up tomorrow."
74. Again on 27.07.2023, the matter was taken up and on the said date and the learned counsel for the appellant was heard and the matter was fixed for 28.07.2023. Again cooperation was not extended by the appellants on 28.07.2023 and the Court had passed an order on 28.07.2023 which read as under:-
"It is a great regret that after giving an undertaking and assurance to argue the matter by the learned Senior Counsel, Shri Mohd. Arif Khan appearing for the appellants is not present when the case called out.
The record indicates that the Court had passed a detailed order on 26.07.2023, but only upon the assurance given by the learned Senior Counsel on behalf of the appellants, the Court had granted indulgence so that the matter may be heard on merits.
After arguing the matter yesterday, it was listed today for further hearing.
At the time of call of the case, none appeared on behalf of the appellants. However, the learned counsel for the respondents is present.
Since, the Court has heard learned counsel for the parties, therefore, the Court reserved the judgment in the matter. It will be open for the parties' counsel to give their written submissions, if they so choose a week from today."
75. After the order was passed, the learned Senior Counsel appeared and made insinuations and was rude in his behaviour to the Court. Thereafter two applications were moved by the appellants on different dates bearing Civil Misc. Application No.17 of 2023 and Civil Misc. Application No.23 of 2023 which came to be rejected and it is only thereafter the learned counsel for the appellants had filed his written submissions. Thus, it would be seen that it is easy to raise allegations. Merely because the Court takes a tough stand by noticing that the matter is pending since 1977 and required cooperation for only hearing that does not give right to a party to point fingers. In Ishwarlal Mali Rathod v. Gopal and others (2021) 12 SCC 612, the Apex Court has observed in Para-12 as under:-
"12. Time has now come to change the work culture and get out of the adjournment culture so that confidence and trust put by the litigants in the justice delivery system is not shaken and Rule of Law is maintained."
This must be remembered by the members of the bar especially the Senior counsel as they are equal stake holders in the process of dispensation of justice.
76. Be that as it may for the detail discussions as noticed hereinabove, the submissions of the learned Senior Counsel on points of determinations at serial (a), (b) and (c) do not impress this Court and are thus turned down.
77. Now the stage is set to examine the matter on merits and in this context the points for determination No.(d) as to whether the suit has been appropriately decreed taking Section 16(c) into account is being considered.
78. In this regard, it is stated that in a suit for specific performance of contract, the compliance of Section 16(c) is mandatory. It is incumbent on the plaintiff to not only plead but also prove his readiness and willingness throughout the proceedings. This aspect of Section 16 of the Specific Relief Act, 1963 in a suit for specific performance has been considered recently by this Court in Arjun Prasad and others v. Ganesh Prasad and others, 2023 SCC OnLine All 364 by taking aid of the decisions of the Apex Court. The relevant paras of Arjun Prasad (supra) reads as under:-
"29. The plea of readiness and willingness is an important and essential ingredient in relation to Section 16(c) of the Specific Relief Act, 1963 and it has been held that it is not a straight jacket formula. In R.C. Chandiok v. Chuni Lal Sabharwal (1970) 3 SCC 140, the Hon'ble Apex Court observed as under:-
"readiness and willingness cannot be treated as a straitjacket formula and the issue has to be decided keeping in view the facts and circumstances relevant to the intention and conduct of the party concerned"
30. In Narinderjit Singh v. North Star Estate Promoters Limited, (2012) 5 SCC 712, in para 21 to 23 held as under:--
"20. In our view, the concurrent findings recorded by the trial court and the lower appellate court on the issues of execution of the agreement by the appellant's father and the respondent's readiness and willingness to perform its part of the agreement were based on correct evaluation of the pleadings and evidence of the parties and the learned Single Judge of the High Court did not commit any error by refusing to upset those findings. The argument of the learned Senior Counsel for the appellant that in the absence of specific pleading about continued readiness and willingness of the respondent to perform its part of the agreement and availability of funds necessary for payment of the sale consideration, the High Court should have set aside the concurrent finding recorded by the courts below sounds attractive but on a careful scrutiny of the record we do not find any valid ground to entertain the same.
21. In R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC 140] this Court observed that "readiness and willingness cannot be treated as a straitjacket formula and the issue has to be decided keeping in view the facts and circumstances relevant to the intention and conduct of the party concerned". The same view was reiterated in P. D'Souza v. Shondrilo Naidu [(2004) 6 SCC 649].
22. In N.P. Thirugnanam v. R. Jagan Mohan Rao [(1995) 5 SCC 115] the Court found that the appellant was dabbling in real estate transaction without means to purchase the property and observed : (SCC pp. 117-18, para 5) "5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
23. In J.P. Builders v. A. Ramadas Rao [(2011) 1 SCC 429 : (2011) 1 SCC (Civ) 227] the Court has merely reiterated the principles already laid down and no new proposition has been laid down which may help the cause of the appellant."
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31. Recently, this Court considered the issue of readiness and willingness with the aid of decided cases of the Apex Court in Ramzan Ali v. Altafur Rahman, 2023 :AHC-LKO-30146 and in paras 27 to 30 reads as under:--
"27. In the Corpus Juris Secundum, vol. 81 pp.950-951, the readiness and willingness has been interpreted to mean, a general principle of law that a person seeking specific performance must show that he has performed or offered to perform or is ready, able and willing to perform, all the essential acts required by the contract and he must not remain quiet or hold himself aloof so as to enforce or abandon the contract as events may prove advantageous. The plaintiff is entitled to specific performance where he alleges and proves that he has complied substantially with the conditions of the contract or is able, ready and willing to perform the contract. (See also Satya Jain v. Anis Ahmed Rushdie, (2013) 8 SCC 131 : AIR 2013 SC 434).
28. In the case of Bijai Bahadur v. Shri Shiv Kumar, AIR 1985 All 223, this Court held that so far as the question of readiness and willingness is concerned while 'willingness' is merely a mental process, 'readiness' is something to do with translating that will into action and is preceded by a necessary preparation for being in a position to be ready. As to the averments about this continuous readiness and willingness the law never insists on any particular form and the necessary averment may be made in any language the plaintiff may choose to employ. The language is not important. The crucial thing is that the totality of the averments made in the plaint must indicate the readiness and willingness of the plaintiff, even though by necessary inference.
29. This Court also notices the decision of the Apex Court in His Holiness Acharya Swami Ganesh Dassji v. Sitaram Thapar, (1996) 4 SCC 526 wherein the concept of readiness and willingness has been noticed and has been held as under:--
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27-2-1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract."
30. Similarly, In J.P. Builders v. A. Ramadas Rao, (2011) 1 SCC 429 wherein the Apex Court in paragraph nos. 22 to 27 has observed as under:--
"22. The words "ready" and "willing" imply that the person was prepared to carry out the terms of the contract. The distinction between "readiness" and "willingness" is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.
23. In N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115] at SCC para 5, this Court held : (SCC pp. 117-18) "5. ... Section 16(c) of the Act envisages that the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
24. In P. D'Souza v. Shondrilo Naidu [(2004) 6 SCC 649] this Court observed : (SCC p. 654, paras 19 and 21) "19. It is indisputable that in a suit for specific performance of contract the plaintiff must establish his readiness and willingness to perform his part of contract. The question as to whether the onus was discharged by the plaintiff or not will depend upon the facts and circumstances of each case. No straitjacket formula can be laid down in this behalf.
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21. ... The readiness and willingness on the part of the plaintiff to perform his part of contract would also depend upon the question as to whether the defendant did everything which was required of him to be done in terms of the agreement for sale."
25. Section 16(c) of the Specific Relief Act, 1963 mandates "readiness and willingness" on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
26. It has been rightly considered by this Court in R.C. Chandiok v. Chuni Lal Sabharwal [(1970) 3 SCC 140] that "readiness and willingness" cannot be treated as a straitjacket formula. This has to be determined from the entirety of the facts and circumstances relevant to the intention and conduct of the party concerned.
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."""
79. Having crystallized the legal proposition regarding readiness and willingness, it can now be seen as to whether there has been a compliance of Section 16(c) of the Specific Relief Act, 1963 in the instant case by the plaintiff.
80. From a perusal of the plaint in the suit, it would be seen that in Paragraph-4, the plaintiff had clearly pleaded that he had been reminding the defendant (Smt. Rampati) to execute the sale-deed and that he has always been ready and willing to perform his part of the contract. The plaintiff even in his examination-in-chief has stated that he had issued a notice to the defendants prior to the institution of the suit and from a perusal of the said notice also there is a clear averments that the plaintiff is ready and willing to perform is part of the contract. In the examination-in-chief, the plaintiff reiterated the same and stated that he was ready to get the sale-deed executed, even today but the defendants has executed the sale-deed in favour of the defendants No.2 to 5.
81. In contrast to the aforesaid averments made in the plaint as well as examination-in-chief. It would be seen that there is no contradiction made by the defendants in the written statement rather the defendants set up a case that the plaintiff antedated the alleged the agreement dated 13.01.1971 and that he is not entitled for the decree of the specific performance as the agreement is fabricated. In the written statement, the financial capacity of the plaintiff has also not been challenged and even in the cross-examination of Hanuman Prasad, who was examined as PW-1 no question was put to him regarding his financial capacity or that he was not ready and willing to perform his part of the contract. Apparently, from a perusal of the evidence of the PW-1, which is in consonance with the pleadings, there is a clear averment regarding readiness and willingness and this aspect has not been challenged by the defendants even by raising any plea in the written statement or by putting any question in the cross-examination. No adverse response could be elicited which could impact or establish that there was any reluctance on the part of the plaintiff which may caste a cloud over the averments of the readiness and willingness at the behest of the plaintiff.
82. Though learned Senior Counsel for the appellant did raise this plea but he could not establish from the record regarding any reluctance on the part of plaintiff regarding the issue of willingness and readiness. It may be true that the trial Court had not specifically framed an issue on the readiness and willingness and did not return any clear finding but merely on this count, this Court is not inclined to interfere for the reason that as a first appellate Court, the entire matter both on fact and law is open to be scrutinized by this Court.
83. This Court has ample powers to re-appreciate the evidence in exercise of powers under Section 96 CPC and if any finding is found to be bad or perverse, this Court has ample jurisdiction to set the same aside. It is in the aforesaid context that the Court has perused the entire evidence and the pleadings and finds that the plea of readiness and willingness for the reasons noticed above stands proved.
84. It will also be relevant to state that the defendants at any point of time did not make any application for re-framing the issues and that is for the obvious reason as in the written statement, there was no challenge to the pleading on the issue of readiness and willingness. Even from a perusal of the evidence, which was led, there is a clear averment on behalf of the plaintiff regarding readiness and willingness and there is nothing on record which could create a doubt over the evidence of the plaintiff. From a perusal of the evidence of the defendants, there is no deposition worthwhile on the said point. Accordingly, this Court is of the clear view that even though the trial Court did not frame any specific issue nor gave its finding on readiness and willingness but the same is not going to prejudice the defendants for the reason that the plaintiff had established his readiness and willingness while the defendants could not elicit any adverse response from the plaintiff on the said point nor had denied it in its pleadings. For the aforesaid reasons, the submission of the learned Senior Counsel on the issue of readiness and willingness also fails.
85. Now, this Court takes into account the last plea which is encapsulated in the point of determination No.(e) which has a composite outlook in context with the interplay of Section 19 as well as Section 20 of the Specific Relief Act.
86. The submission of the learned Senior Counsel for the appellants on the aforesaid count is in two parts.
(a) The submission is that the defendants No.2 to 4 were also bonafide purchaser for valuable consideration without notice and that their sale-deeds were protected. Taking the submission forward, it has also been urged that there was no material evidence to establish that the defendants had the notice regarding the alleged agreement between Hanuman Prasad and Smt. Rampati. The inference drawn by the trial Court is not based on proper appreciation of evidence and that the trial Court has committed an error in protecting the sale-deed of the defendant No.5 while decreeing the suit partly against the defendants No.2 to 4.
(b) The other aspect which is highlighted by the learned Senior Counsel is taking cue from the previous submission as noted above that in the given facts and circumstance, it was not an appropriate case for exercise of discretion in favour of the plaintiff against the defendants No.2 to 4.
87. So far as the plea of the defendants being bonafide purchasers for valuable consideration without notice is concerned, it is a plea which is open to a subsequent purchaser and the burden of proving the same also lies on the person raising the said plea.
88. In the instant case, it wold be found from a perusal of the written statement which was filed by the defendants No.2 to 4 jointly, no plea in context with Section 19 of the Specific Relief Act, 1963 was raised by the defendants rather there is not even a whisper regarding the said plea that the defendants No.2 to 4 were bonafide purchaser for valuable consideration without notice. However, the parties did lead evidence which may not be in context with the said plea at the behest of the defendants No.2 to 4.
89. Upon perusal of the plaint, Paragraph-6, it was pleaded by the plaintiff (Hanuman Prasad) that the defendants No.2 and 3 were real brothers and that the defendant No.4 was the father-in-law of the defendant No.3 Matloob Khan. It was also pleaded that in February 1971, the defendants No.1 to 4 had come to the plaintiff and requested him to take back his earnest money along with some profit so that they may be able to get the sale-deed executed from Smt. Rampati and since the plaintiff did not agree, the defendant No.1 did not have right to execute the sale-deed in favour of the defendants No.2 to 4 and even once they got the sale-deed executed in their favour, they would be liable to execute the sale-deed in favour of the plaintiff upon decree of the suit as there was an agreement between the plaintiff and the defendant No.1 dated 13.01.1971 prior in time to the sale deeds of the defendants.
90. This has been clearly denied in the written statement filed by the defendants No.2 to 4. It is in view thereof, that the issues No.3 and 4 were framed by the trial Court which read as under:-
"3. Whether the defendants No.2 to 4 had noticed of the alleged contract as alleged in Para-6 of the plaint?
4. Whether the defendants No.2 to 5 are bonafide purchaser for valuable consideration without notice of the contract alleged by the plaintiff?"
91. The trial Court dealt with the Issue No.3 and 4 together and noticed that as per the averments made by the plaintiff, who examined himself as PW-1, it was stated that Devendra Nath was present when the defendant No.2 who had come to the shop of the plaintiff about 12-13 days after the agreement. It was also stated thereafter that in the beginning of February 1971, the defendants No.2 to 4 again came to the shop of the plaintiff and at that time Ram Lakhan and Kailash were present.
92. The trial Court also took note of the notice dated 15.05.1971 which was given by the plaintiff to the defendant No.1 Smt. Rampati asking her to execute the sale-deed and the said notice is Exhibit-10 while the postal receipt is Exhibit-3. Even though there was no acknowledgment, yet the trial Court found that since the notice was sent by the registered post addressed to the defendant No.1 at her correct given address, it would have been delivered to her and since she was already in negotiation with the defendants No.2 to 4, it would be reasonable to infer that Smt. Rampati would have passed the information to the defendants No.2 to 4 and as the sale-deeds of the defendants No.2 to 4 are dated 15.02.1971 and 23.04.1971 and in favour of the defendant No.5 on 30.03.1971. The trial Court found that the defendants No.2 to 4 had notice and it also drew an inference that it is for the very same reason that Abdul Samad who is the father-in-law of Matloob Khan who had purchased the Plot Nos.64 and 67 by means of the sale-deed dated 15.02.1971 again sold the same for the same consideration of Rs.5,500/- to his son-in-law Matloob Khan on 22.07.1971. The trial Court inferred that there was no reason for the defendant No.4 Abdul Samad to sell the property within five months to his own son-in-law at the same price and there was collusion between the defendants No.2 to 4 on one hand and Smt. Rampati on the other and for the aforesaid reasons it concluded that the defendants No.2 to 4 had knowledge of the agreement between the plaintiff and the defendant No.1.
93. The trial Court further noticed that the plaintiff had stated that after he had advanced a total sum of Rs.2500/- on two dates i.e. 13.01.1971 and 15.01.1971 and he was also handed the possession, he had created a Madaha over the property. He examined Shri Jagdish Manohar as PW-3 to prove the factum of the possession whereas the defendant's witnesses namely Sukhai and Jugnu were not found reliable as they were the servant of Smt. Rampati for about a year and a half and that having left the service of Smt. Rampati they occasionally worked for Matloob Khan and Talib Khan also. The trial Court also found that the evidence led by the defendants through witness DW-1 and 2 were not inspiring confidence and moreover the statement of the DW-3 Matloob Khan was contradictory inasmuch as in respect of a dispute between the plaintiff and Matbool Khan regarding harvesting wheat, Hanuman Prasad had got a criminal case instituted against Matloob Khan and in the said proceedings the trees which were felled were entrusted to a Supurdgar through the Court and thus, the Court inferred that the possession was not with the defendants. For all the aforesaid reasons, the defendants were held to be not bonafide purchaser for valuable consideration without notice.
94. Insofar as the defendant No.5 is concerned, it was observed by the trial Court that a specific plea had been taken by the defendant No.5 that he is a bonafide purchaser for valuable consideration without notice and the plaintiff did not lead any evidence to contradict the same. The trial Court also noticed that insofar as the plaintiff and the defendant No.1 to 4 are concerned, they were already involved in the litigation since 1971 (the injunction Suit No.180/1971) while the defendant No.5 was not a party to the said injunction suit and there is no evidence to show that the defendant No.5 had any notice of the agreement dated 13.01.1971 and that the witness examined on behalf of the defendant No.5 namely Keshav his testimony was uncontroverted and that Shri Kailash Nath was in possession and the fact that the mutation in favour of Shri Kailash Nath was not assailed, hence, the trial Court concluded that the defendant No.5 was a bonafide purchaser for valuable consideration without notice and his sale-deed was protected.
95. This Court has perused the evidence and has also taken a relook at the entire record in the aforesaid perspective.
96. At the outset, it may be stated that the findings which were returned against the plaintiff in respect of the defendant No.5 that he was a bonafide purchaser for valuable consideration without notice and the suit had been dismissed, apparently in respect of Plot No.17-A relating to the sale-deed executed by the defendant No.1 in favour of the defendant No.5 dated 30.03.1971. This finding has not been assailed by the plaintiff in this first appeal by making any cross objection or cross appeal in terms of Order 41 Rule 22 CPC. Thus, this finding has attained finality.
97. Now the only issue remaining is to examine the correctness of Issues No.3 and 4 as to whether the defendants No.2 to 4 are bonafide purchaser for valuable consideration without notice.
98. Apparently the record would indicate that it was the specific case of the plaintiff that he had entered into an agreement with the defendant No.1 dated 13.01.1971 and paid an advance money of Rs.1000/- for purchase of all the five plots belonging to Smt. Rampati. Again on 15.01.1971, he had further paid a sum of Rs.1,500/- to the defendant No.1 and the remaining sum of Rs.3437.50/- was to be paid at the time of execution of the sale-deed. The plaintiff is also said to have issued a notice to the defendant No.1 dated 15.05.1971 which is Exhibit-10 and as per his statement that after 12-13 days of the execution of the agreement dated 13.01.1971, the defendants No.2 and 3 had come to the shop of the plaintiff and at that time Shri Devendra Nath and other persons were present. It has also stated that again in the beginning of February, 1971, the defendants No.2 to 4 along with Smt. Rampati had come to the shop of the plaintiff and at that time Ram Lakhan Shukla and Kailash Nath were present. Though the aforesaid fact has been denied by the defendants. As already noticed above that insofar as the defendants No.2 to 4 are concerned, they did not specifically raise the plea of bonafide purchaser for valuable consideration without notice rather this plea was either raised by the defendant No.5 or it emerged from the pleadings of the plaintiff himself who had made the specific averments in Para-6 of the plaint. Thus, the initial burden of proving the said plea was on the plaintiff.
99. The record would show that the plaintiff apart from making the statement in his deposition, there is no other independent source to confirm the said fact. As per the plaintiff on the first visit when Matloob and Talib Khan had come to the shop of the plaintiff at that time Devendra Nath is said to have been present. Significantly, Devendra Nath was not examined as a witness. Even in respect of second visit, it is stated that Ram Lakhan Shukla and Kailash Nath were present. In this context, it would be seen that the plaintiff examined Shri Ram Lakhan Shukla as a witness in his capacity as an attesting witness of the agreement dated 13.01.1971 and he did not make any statement regarding the fact that he was present when the defendant No.1 to 4 came to the shop of the plaintiff in the beginning of February, 1971. This fact has also been taken note of by the trial Court. Thus, apart from the statement of the plaintiff himself there was no other witnesses who could confirm the said fact as the plaintiff did not examine any other witness to prove the said fact.
100. It will be relevant to notice that the alleged notice which was sent by the plaintiff to the defendant No.1 is dated 15.05.1971. However, it would further reveal that prior to the said date, the defendant No.1 had sold the Plot No.64 and 67 to Abdul Samad on 15.02.1971. She had sold the Plot No.17-A to the defendant No.5 on 30.03.1971 and had sold the Plot No.32 and 33 on 23.04.1971. Thus, three sale-deeds were all prior to the notice dated 15.05.1971.
101. In this backdrop, it will also be relevant to notice that the suit for injunction was filed by the defendants No.1 to 4 along with Vindeshwari Prasad in December, 1971. The pleadings in the injunction suit has already been exchanged and significantly the injunction suit had been partly decreed for the first time on 12.02.1973 and the first appeal in the said suit was also allowed on 19.07.1974.
102. In the aforesaid context with the chronology of facts including the dates as noticed above, it would been seen that the plea of bonafide purchaser for valuable consideration without notice was raised by the plaintiff and the initial burden also lay upon him but apart from his statement there was no efforts made to examine the other persons before whom the said defendants had made the visit. It was incumbent upon the plaintiff to have adequately explained and establish the said plea. The statements of the plaintiff were merely self serving statement without any specific dates and particulars.
103. The plaintiff further stated that on the first visit apart from Devendra Nath there were some other persons present but he did not remember their names. Apart from Devendra Nath, who was not examined and the factum that the defendants had denied this, there was no corroborative source nor the statement of the plaintiff was precise that it could be blindly relied upon. The trial Court though relied upon the notice dated 15.05.1971 which is said to have been served on the defendant No.1. The record also indicates that the sale-deeds had been executed by the defendant No.1 prior to the said notice and, therefore, even if at all that the notice may have been served on the defendant No.1 yet she may have not communicated to the defendants No.2 to 4 because the sale-deed had already been executed as seen from the dates mentioned above.
104. The subsequent sale-deed which was made by Abdul Samad in respect of the Plot No.64 and 67 in favour of the son-in-law of Matloob Khan on 22.07.1971 can be said to be a deed after the service of notice but that will have no impact since the defendant No.1 had already sold the property to Abdul Samad on 15.02.1971. Thus, the inference drawn on the basis of the notice dated 15.05.1971 in the opinion of the Court clearly has been drawn to impute notice of the defendants No.2 to 4 is not well founded.
105. Even the injunction suit which was prior in time and instituted in December, 1971, even then the sale-deeds were much prior thereto and even in that suit Hanuman Prasad who was the defendant had not raised this plea regarding Smt. Rampati and Matloob, Talib and Abdul Samad had visited the shop. Thus, in the totality the inference on the said point does not appear to have been correctly drawn by the trial Court upon proper appreciation of evidence on record.
106. The issue of possession as claimed by the respective parties was also in a fluid state and in absence of any clear and cogent evidence in this regard it cannot be said that only on account of possession that notice of the previous agreement could be imputed to the defendants No.2 to 4 without any order cogent evidence. Thus, this Court finds that the inference which has been drawn against the defendants No.2 to 4 was not adequately proved and was not adequately corroborated by the clear and cogent evidence to hold that the defendant No.2 to 4 had the notice of the sale-deed as it was not appropriately borne out from the record too. To this extent, the submission of the learned Senior Counsel for the appellants has substance and the findings in this regard are set aside and reversed by this Court.
107. The other limb of the submissions regarding the exercise of discretionary jurisdiction in terms of Section 20 of the Specific Relief Act is now to be examined. It is now well settled that the Court is vested with ample jurisdiction to even refuse a decree of specific performance even if the plaintiff is entitled to it. The decree of specific performance is discretionary in nature, hence, only in certain cases, the Court may be justified and refuse to grant of specific performance even though it may be lawful to do so but this discretion which is vested in the Court must be exercised in accordance with law and should not be arbitrary or whimsical.
108. This aspect was considered by this Court in Bimla Devi (supra). Again in Arjun Prasad (supra), this Court by taking aid of the provisions as well as settled decisions of the Apex Court noted the scope of Section 20 of Specific Relief Act, 1963 in the following paragraphs:-
"46. ... It would thus be seen that in any given circumstances where the Court comes to the conclusion that though the plaintiff is entitled to a decree of specific performance, but in case if such decree is executed then it may give rise to certain unconscionable consequences or the Court finds that the terms of the agreement in itself are unconscionable or there are certain accentuating circumstances revealing that in case the contract is specifically enforced then it may give an unfair advantage to one party and it will not be equitable to do so, then in such cases, the Court may be justified in refusing to grant a decree of specific performance and in lieu thereof may pass such orders including refund of earnest money in order to do complete and substantial justice between the parties.
47. It is also to be observed that a decree of specific performance is purely equitable in nature, accordingly, it is required that the plaintiff must come to the Court with clean hands and his conduct must not be blameworthy and while weighing the circumstances for exercising the discretion, the Court is also obliged to ascertain that the defendants may not be benefited or rewarded for any of his own fault or his conduct and that the defendant must also be free from blame.
***
50. The Apex Court again in Ramesh Chandra v Asruddin, (2016) 1 SCC 653, held as under:-
"8. Section 20 of the Specific Relief Act, 1963, provides that the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so. However, the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles. Sub-section (2) of Section 20 of the Act provides the three situations in which the court may exercise discretion not to decree specific performance. One such situation is contained in clause (a) of sub-section (2) of Section 20 which provides that 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, the decree of specific performance need not be passed. It is pertinent to mention here that in the present case, though execution of the agreement dated 21-6-2004 between the parties is proved, but it is nowhere pleaded or proved by the plaintiff that he got redeemed the mortgaged land in favour of Defendant 2 in terms of the agreement, nor is it specifically pleaded that he was ready and willing to get the property redeemed from the mortgage."
51. The Apex Court again in K. Nanjappa v. R.A. Hameed, (2016) 1 SCC 762 considered the scope of Section 20 and in Paras 23 to 28 held as under:-
"23. In a suit for specific performance of a contract, the court has to keep in mind Section 20 of the Specific Relief Act, 1963. 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 Surya Narain Upadhyaya v. Ram Roop Pandey [1995 Supp (4) SCC 542] , this Court while considering Section 20 of the Specific Relief Act held as under: (SCC pp. 543-44, para 4) "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 [Ram Roop Pandey v. Surya Narain Upadhyaye, Second Appeal No. 2385 of 1974, decided on 26-9-1979 (All) (unreported)] 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 appellate 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 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.
26. In Mayawanti v. Kaushalya Devi [(1990) 3 SCC 1] , this Court observed as under: (SCC pp. 5-6, para 8) "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 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 K. Prakash v. B.R. Sampath Kumar [(2015) 1 SCC 597 : (2015) 1 SCC (Civ) 600] , this Court held: (SCC pp. 604-05, paras 13-16) "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 [(1598) 5 Co Rep 99b : 77 ER 209] said:
'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 [(1759) 1 Eden 177 : 28 ER 652] followed Rooke's case [(1598) 5 Co Rep 99b : 77 ER 209] 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 [(1598) 5 Co Rep 99b : 77 ER 209] , 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 relieves against the abuse, or 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. 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 discretion in favour of granting relief for specific performance."
28. Reference may also be made by this Court in Zarina Siddiqui v. A. Ramalingam [(2015) 1 SCC 705 : (2015) 1 SCC (Civ) 660] wherein this Court observed as under: (SCC p. 718, para 33) "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 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."
***
53. This issue was considered by the Apex Court in Jayakantham and others v. Abaykumar, (2017) 5 SCC 178 and it held 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 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:
"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 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."
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. The precedent on the subject is elucidated below:
9.1. In Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son [Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son, 1987 Supp SCC 340 : AIR 1987 SC 2328] , this Court held that : (SCC 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. Krishna Devi [Sardar Singh v. Krishna Devi, (1994) 4 SCC 18] : (SCC p. 26, para 14) "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."
9.3. Reiterating the position in K. Narendra v. Riviera Apartments (P) Ltd. [K. Narendra v. Riviera Apartments (P) Ltd., (1999) 5 SCC 77] , 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 recognised in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant. The principle underlying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy [Lourdu Mari David v. Louis Chinnaya Arogiaswamy, (1996) 5 SCC 589] 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."
9.4. These principles were followed by this Court in A.C. Arulappan v. Ahalya Naik [A.C. Arulappan v. Ahalya Naik, (2001) 6 SCC 600] , 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 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.
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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. ..."
9.5. A Bench of three Judges of this Court considered the position in Nirmala Anand v. Advent Corpn. (P) Ltd. [Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 8 SCC 146] , 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 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.""
54. This aspect regarding escalation of prices and its impact on the discretion of the Court was taken up by the Apex Court, who made an arduous exercise to trace and renew all the relevant cases on the said point and elucidated the position in Ferrodous Estate (P) Ltd. v. P. Gopirathnam (Dead) and others, 2020 SCC OnLine SC 825.
55. Recently in Shenbagam and others v. K.K. Rathinavel, 2022 SCC OnLine SC 71, the Apex Court in paragraphs 36 to 41 held as under:-
"36. Even assuming that the respondent was willing to perform his obligations under the contract, we must decide whether it would be appropriate to direct the specific performance of the contract in this case. In Zarina Siddiqui v. A. Ramalingam (2015) 1 SCC 705 a two-judge Bench of this Court while dealing with a suit for specific performance of a contract regarding the sale of immovable property observed that the remedy for specific performance is an equitable remedy and Section 20 of the Specific Relief Act confers a discretion on the Court. The Court held:
"24. It is well settled that remedy for specific performance is an equitable remedy. The court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that the Court's discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles."
37. In the context of the discretion under Section 20 of the Specific Relief Act, several decisions of this Court have considered whether it is appropriate to direct specific performance of a contract relating to the transfer of immovable property, especially given the efflux of time and the escalation of prices of property. In Satya Jain v. Anis Ahmed Rushdie (2013) 8 SCC 131 this Court held:
"39. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the plaintiffs to have the agreement enforced in law.
40. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasised that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. [...]
41. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalising the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour."
(emphasis supplied)
38. In directing specific performance of the agreement, this Court in Satya Jain (supra) held that sale deed must be executed for the current market price of the suit property.
39. In Nirmala Anand v. Advent Corporation (P.) Ltd. (2002) 8 SCC 146, a three-judge Bench of this Court observed that in case of a phenomenal increase in the price of the land, the Court may impose a reasonable condition in the decree such as payment of an additional amount by the purchaser. In decreeing the suit for specific performance, the Court observed:
"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."
(emphasis supplied)
40. In KS Vidyanadam v. Vairavan (1997) 3 SCC 1, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant-seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance. The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half years seeking performance of the contract. The Court held:
"10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing.
[...] In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? [...] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months', he purchased the stamp papers and offered to pay the balance consideration.
[...]
13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices -- according to the defendants, three times -- between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff."
(emphasis supplied)
41. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum."
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71. While taking a holistic view of the matter, this Court while confirming the decree of the lower appellate Court cannot refrain from noticing the dictum of the Apex Court in K. Prakash v. B.R. Sampath Kumar, (2015) 1 SCC 597 and the relevant paragraphs 19 and 20 of the aforesaid report are quoted as under for convenience.
"19. However, the court may take notice of the fact that there has been an increase in the price of the property and considering the other facts and circumstances of the case, this Court while granting decree for specific performance can impose such condition which may to some extent compensate the defendant owner of the property. This aspect of the matter is considered by a three-Judge Bench of this Court in Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 8 SCC 146] , wherein this Court held: (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 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."
20. As discussed above the agreement was entered into between the parties in 2003 for sale of the property for a total consideration of Rs 16,10,000. Ten years have passed by and now the price of the property in that area where it situates has increased by not less than five times. Keeping in mind the factual position we are of the view that the appellant should pay a total consideration of Rs 25 lakhs, being the price for the said property."
72. Similarly, the Apex Court in Zarina Siddiqui v. A. Ramalingam (2015) 1 SCC 705 held as under:-
"36. As held by this Court time and again, efflux of time and escalation of price of the property by itself cannot be a valid ground to deny the relief of specific performance. But the Court in its discretion may impose reasonable conditions including payment of additional amount to the vendor. It is equally well settled that the plaintiff is not to be denied specific performance only on account of phenomenal increase of price during the pendency of litigation.
37. The respondent-defendant alternatively pleaded in the written statement that even at the relevant time the price of the suit property was Rs 3,00,000 when the said agreement was executed for Rs 40,000 only. But on the other hand it has come in evidence that against Rs 40,000, the appellant-plaintiff has paid a total amount of Rs 65,000.
38. Be that as it may, in the facts and circumstances of the case and considering the phenomenal increase in price during the period the matter remained pending in different courts, we are of the considered opinion that the impugned order [A. Ramalingam v. H. Siddiqui, RFA No. 265 of 1999, decided on 1-3-2012 (KAR)] under appeal be set aside but with a condition imposed upon the appellant-plaintiff to pay a sum of Rs 15,00,000 (Rupees fifteen lakhs) in addition to the amount already paid by the appellant to the respondent. On deposit in the trial court of the aforesaid amount by the appellant, for payment to the respondent, within three months from today, the respondent shall execute and register the sale deed in favour of the plaintiff in respect of the suit property. In the event the aforesaid condition of deposit of Rs 15 lakhs is fulfilled within the time stipulated hereinabove but if the defendant fails to comply with the direction, then the appellant shall be entitled to execute the decree in accordance with the procedure provided in law."
73. The Apex Court lately in U.N. Krishnamurthy Vs. A.M. Krishnamurthy; 2022 SCC Online SC 840, in paragraph nos. 38 to 42 has observed as under:-
"38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate in Hosur. The proposition finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court "we cannot be oblivious to reality - and the reality is constant and continuous rise in the values of urban properties-fuelled by large scale migration of people from rural areas to urban centres and by inflation."
39. Mr. Venugopal argued that the Plaintiff had only paid an insignificant amount of Rs. 10,001/- as advance when the consideration was Rs. 15,10,000/-. Having paid an insignificant amount the Plaintiff was not entitled to discretionary equitable relief of Specific Performance, as observed by this Court in Saradamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18. The relevant paragraph of the judgment of this Court is set out hereinbelow:--
"37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and "non-readiness". The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and receiving rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees."
40. As argued by Mr. Venugopal, the fact that the suit had been filed after three years, just before expiry of the period of limitation, was also a ground to decline the Respondent Plaintiff the equitable relief of Specific Performance for purchase of immovable property. Mr. Venugopal's argument finds support from the judgments of this Court in P.R. Deb and Associates v. Sunanda Roy (1996) 4 SCC 423; K.S. Vidyanadam v. Vairavan (1997) 3 SCC 1; Manjunath Anandappa v. Tammanasa (2003) 10 SCC 390, Azhar Sultana v. B. Rajamani (2009) 17 SCC 27; Saradamani Kandappan v. S. Rajalakshmi (2011) 12 SCC 18.
41. In K.S. Vidyanadam v. Vairavan (supra) this Court held:
"10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limit(s) specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani [(1993) 1 SCC 519] : (SCC p. 528, para 25) "... it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (evident?) : (1) from the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example, the object of making the contract."
In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised..."
42. In Azhar Sultana v. B. Rajamani (supra) this Court held:--
"28. ...The court, keeping in view the fact that it exercises a discretionary jurisdiction, would be entitled to take into consideration as to whether the suit had been filed within a reasonable time. What would be a reasonable time would, however, depend upon the facts and circumstances of each case. No hard-and-fast law can be laid down therefor. The conduct of the parties in this behalf would also assume significance.
***
35. We, therefore, are of the opinion that interest of justice would be subserved if this Court refuses to exercise its discretionary jurisdiction in terms of Section 20 of the Act, directing the defendant to pay a sum of Rs. 60,000 to the plaintiff which sum would include the amount of advance paid by her.""
109. Having considered the exposition of law as extracted hereinabove, it is now to be applied to the facts of the instant case and upon doing so, this Court finds that there is an emerging factual pattern which can be summarized as under:-
(i) That admittedly the defendant No.1 had executed the sale-deed in respect of Plot No.64 and 67 in favour of Abdul Samad on 15.02.1971. The said plots were again resold by Abdul Samad in favour of his son-in-law Matloob Khan on 22.07.1971. The defendant No.1 sold Plot No.32 and 33 to the defendants No.2 to 4 on 24.03.1971 and sold Plot No.17-A in favour of the defendant No.5 on 30.03.1971.
(ii) On the basis of the aforesaid sale-deed, defendant No.1 to 4 had instituted a suit for permanent injunction in December, 1971. Hanuman Prasad the present plaintiff had filed his written statement in the said injunction suit on 03.07.1972. It is only after he had acquired the knowledge of the injunction suit that he issued a notice to the defendant No.1 on 15.05.1971. Despite having issued the notice yet Hanuman Prasad did not take any concrete steps to get his agreement dated 13.01.1971 enforced rather he continued to contest the injunction suit.
(iii) The injunction suit initially came to be partly decreed on 12.02.1973 and Hanuman Prasad had filed his appeal No.44/1973 and the said appeal came to be allowed on 19.07.1974 and it is during pendency of the first appeal that he filed a suit for specific performance on 14.01.1974 and seen with the context date of his agreement dated 13.01.1971 it was primarily on the last date of limitation, if calculated within three years from the date of agreement.
(iv) Since, the parties were litigating hotly in the injunction suit and Hanuman Prasad who was a defendant in the said suit was resisting on the ground of his right on the basis of an agreement in pursuance whereof he claimed that he had received the possession yet the record indicates that there is no clear findings in respect of the mutation in favour of Hanuman Prasad rather the mutation entries were in favour of Matloob Khan, Talib Khan, Abdul Samad and Kailash Nath. The plaintiff Hanuman Prasad contested the mutation entries only in respect of Matloob Khan and Talib Khan but not in insofar as Kailash Nath is concerned. Even the litigation regarding mutation entries went on up to the Board of Revenue and the matter was remanded yet thereafter nothing was brought on record to indicate that what transpired after 31.01.1978 when the reference made by the Additional Commissioner in light of the order dated 09.12.1974 was confirmed and the matter was remitted for giving a decision afresh. None of the parties have brought on record the fact regarding the mutation matter which was remanded for a decision afresh and what was its outcome though more than 44 years have lapsed.
(v) Another fact which has been brought on record by the plaintiff-respondent is that during pendency of the instant first appeal, the defendants No.2 to 4 have also sold the property by means of two sale-deeds dated 24.02.2014 and 14.03.2014 and the defendants No.2 to 4 have sold their shares in Plot No.32 and 33 in favour of Smt. Meena Devi. The said fact has been brought on record by an application No.31299/2016. Though this fact has been brought on record by moving the said application but nevertheless this can only be treated as an information and nothing more as the application is not in nature of Order 41 Rule 27 CPC for this Court to take cognizance of the sale-deeds. However, despite the efforts of the plaintiff to bring this fact on record, but there has been no effort to bring on record the outcome of the mutation proceedings. Nor the factum of the two sale-deeds have been denied by the appellants.
110. Considering that the parties have been litigating since 1971 and in the meantime, the property as stated by the plaintiff himself has changed hands twice and also noticing that the plaintiff had made an advance payment of Rs.2,500/- in the year 1971 and that the defendants are the owners of the property and this Court has already noticed that the sale-deed of the defendant No.5 was protected by the trial Court against which the plaintiff did not file any cross appeal, this Court has also held that the inference drawn again the defendants No.2 to 4 that they were not bonafide purchaser for valuable consideration without notice is not adequately born out from the record.
111. In the aforesaid circumstances and noticing that over a period of 46 years, the person in possession must have made improvements over the land and the prices of the real estate including the agriculture and grove lands have manifold escalated. In the aforesaid circumstances taking note of the decision of the Apex Court in U.N. Krishnamurthy Vs. A.M. Krishnamurthy; 2022 SCC Online SC 840, this Court finds that as per Section 20 of the Specific Relief Act, 1963 if the principles are applied, accordingly, it would be in the fitness of things that the suit for specific performance which has been partly decreed by the trial Court against the defendants No.2 to 4 may be set aside and the defendants No.2 to 4 and their successor-in-interest be directed to compensate the plaintiff who has been contesting since last 46 years. Noticing that the agreement dated 13.01.1971 stood proved by examining the plaintiff and Ram Lakhan Shukla, who were the attesting witness and Afzal Husain. The plea raised by the defendants that the agreement was antedated could not be established moreso the defendant No.1 did not enter into the witness-box nor her son was examined both in the injunction suit and also in the suit for specific performance of contract. The plaintiff No.2 of the injunction suit namely Vindeshwari Prasad (son of Smt. Rampati) did not refute the execution of the agreement dated 13.01.1971 and the receipt dated 15.01.1971. In this view of the matter the agreement and the payment made stood proved. Accordingly, though the plaintiff had a valid agreement but in the backdrop of these events over last four decades with property in hands of different persons and unsettling the position at this stage and comparing it to grant of compensation will be more appropriate and the plaintiff be entitled to compensation. In normal circumstances, the plaintiff could be entitled to a decree of specific performance, but for the circumstances as noticed above coupled with the passage of time and escalation of the prices of the property rates, the Court exercising the powers under Section 20 of the Specific Relief Act directs the defendants No.2 to 4 to refund and return a sum of Rs.7,00,000/- to the plaintiff and only then the sale-deed of the defendants No.2 to 4 shall stand protected in terms of Section 19 of the Specific Relief Act, 1963 in light of the discussions made above. Resultantly, this Court directs the defendants No.2 to 4 including their successor/assignees pay a sum of Rs.7,00,000/- to the plaintiff-respondent within a period of 60 days, failing which the plaintiff will be entitled to recover the same through execution proceedings from the defendants No.2 to 4 and their successor-in-interest/assignees.
Conclusion
112. In light of the detailed discussions hereinabove, the instant first appeal is allowed. The judgment and decree of the trial Court dated 23.03.1970 passed in Regular Suit No. 5 of 1974 shall stand set aside only in respect of the suit for specific performance relating to Plot No.32, 33, 64 and 67 of Village Moghalaha, Paragana Hishampur, Tehsil Kaisarganj, District Bahraich. The remaining part of the decree of the trial Court dated 23.03.1970 which relates to Plot No.17-A is confirmed. Subject to the aforesaid, the defendant nos. 2 to 4/their assignee/the successor shall within 60 days from today deposit a sum of Rs. 7,00,000/- which shall be payable to the plaintiff Hanuman Prasad/his heirs/successors. In case if the defendant nos. 2 to 4 fail to deposit the aforesaid sun, the plaintiff shall be entitled to recover the same through the Executing Court. Subject to the aforesaid, the costs are made easy. The record of the trial Court be returned expeditiously.
Second Appeal No.90 of 1981113. Now this Court takes up the question of law which has been formulated in Second Appeal No.90 of 1981. The facts have already been noticed in the opening paragraphs which are common to both, the first appeal and the second appeal, hence they are not being repeated for the sake of brevity.
114. To recapitulate the question of law which is required to be answered is being reproduced once again for better appreciation:-
"Whether the lower Appellate Court has erred in ignoring the documentary evidence relating to the possession of the plaintiffs-appellants no.3 to 5 (that is exhibit nos.7 to 12) and the Khasra and Khataunies and the relevant documents?"
115. The aforesaid question of law has emerged as in a suit for injunction bearing No.180 of 1971 wherein the basic pleadings of the plaintiffs were that they had purchased the property in question from Smt. Rampati and were in possession thereof and that the defendant Hanuman Prasad alongwith the other defendants were attempting to interfere in the possession.
116. Initially, the trial court had decreed the said suit partially by means of judgment and decree dated 12.02.1973 and it was only decreed in respect of the relief of injunction restraining the defendants from interfering in the possession of the plaintiffs but the relief for damages was dismissed. This decree was challenged by Hanuman Prasad in Civil Appeal No.44 of 1973 which was allowed in its entirety as a result the suit of the plaintiffs was dismissed by means of judgment and decree dated 19.07.1974. The plaintiffs thereafter filed second appeal bearing No.44 of 1973 which came to be allowed on 08.05.1978 and the matter was remanded directing the trial court to frame an issue in respect of the agreement set up by the defendants (Hanuman Prasad).
117. In furtherance thereof, issue no.7 was framed by the trial court "whether there was an agreement between plaintiff no.1 and the defendant no.1 and if so its effect?" The trial court considered the evidence and returned a finding that the plaintiffs did not have the notice of the agreement between Smt. Rampati and Hanuman Prasad and therefore the sale deeds executed in favour of the plaintiffs were held to be valid and once again on 11.02.1980, the trial court partly decreed the suit for injunction but refused the decree for damages. Hanuman Prasad once again filed a Civil Appeal No.75 of 1980 which was again allowed on 15.07.1981 as a result the suit of the plaintiffs was dismissed. In the aforesaid backdrop, the instant second appeal was filed on the question of law which has been noticed hereinabove.
118. The trial court while dismissing the suit found that Smt. Rampati had already sold the property to Matloob Khan, Talab Khan and Abdul Samad. It also found that Matloob Khan, Talab Khan and Abdul Samad did not have the notice of the alleged agreement between the plaintiff Smt. Rampati and Hanuman Prasad dated 13.01.1971. It also found that the possession was with the plaintiffs and therefore the suit for injunction was decreed.
119. In appeal, the lower appellate court found that in so far as the agreement between the plaintiffs and the defendant no.1 i.e. Smt. Rampati and Hanuman Prasad is concerned, the same was duly proved. However, the lower appellate court found that in pursuance of the agreement dated 13.01.1971 which stood proved also contained a recital that the possession have been handed over to Hanuman Prasad and thus Hanuman Prasad was in possession. It also reasoned that the documents which have been filed by the plaintiffs which are the entries in the revenue records as well as irrigation receipts. It did not help the case of the appellants for the reason that it is not the case of the plaintiffs that they have been dispossessed, rather the case was that Hanuman Prasad had been to be in possession in pursuance of the agreement dated 13.01.1971 and therefore it would first ought to be shown that the defendant Hanuman Prasad had been dispossessed and then the plaintiffs came in possession and since the plaintiffs have merely claimed injunction which is a discretionary relief without claiming any declaration of their title and injunction on the basis of their possession this can only be granted, once it is found that their possession was undisputed, hence the lower appellate court did not find favour with the findings of the trial court and dismissed the suit by means of judgment and decree dated 15.07.1981.
120. At the outset, this Court finds that the rival contentions is primarily based on possession and certain facts which are undisputed are:-
(i) Smt. Rampati is the undisputed recorded tenure holder of plots No.17-A, 32, 33, 64 and 67, situate in Gram Moghala, Pargana Hasinpur, Tehsil Kaisarganj, District Bahraich.
(ii) Another undisputed fact is that Smt. Rampati sold plots No.64 and 67 to Abdul Samad by means of registered sale deed dated 15.02.1971 who re-sold it to his son-in-law Matloob Khan on 22.07.1971. Smt. Rampati sold plots No.32 and 33 by means of a registered sale deed dated 23.04.1971 in favour of Matloob Khan and Talib.
(iii) Another fact which is not in dispute is that the plaintiffs had an agreement to sell from Smt. Rampati dated 13.01.1971 in respect of not only the above mention plots but also plot No.17-A and in furtherance thereof, she had taken an advance money of ₹1000/- on 13.01.1971 and ₹1500/- on 15.01.1971. Hanuman Prasad in respect of his rights emerging from the agreement to sell had filed the suit for Specific Performance of Contract in the month of January 1974 whereas the injunction suit was being contested on the aforesaid plea since the year 1971.
(iv) It is not disputed that the land in question comprises of agricultural plots bearing No.32 and 33 and grove plots bearing No.64 and 67. It is also to be noticed that in respect of an open piece of land, possession follows title.
121. In the aforesaid backdrop, the contention of Hanuman Prasad is that he had been put in possession in pursuance of the unregistered agreement to sell dated 13.01.1971 whereas the contention of the plaintiffs is that they were put in possession in pursuance of the sale deed executed by Smt. Rampati in their favour.
122. As far as title is concerned, the same stood vested with the plaintiffs No.3 to 5 upon execution of the sale deeds. The agreement to sell does not confer title. Therefore, to say that possession would follow title and in absence of any other cogent or corroborative evidence lead in favour of the defendant may not be quite correct as a proposition.
123. However, since the contention of Hanuman Prasad was that he had been handed over possession in pursuance of the agreement to sell dated 13.01.1971, the same would have to be examined in light of the insintric evidence on the issue of possession. The parties had led oral evidence to establish their possession. The defendant Hanuman Prasad had examined himself as well as Ram Lakhan and Suraj Lal. Ram Lakhan is the attesting witness of the agreement to sell dated 13.01.1971 and Suraj Lal was examined to establish the possession of Hanuman Prasad. On the other hand, the plaintiffs examined Abdul Samad, Naseem Ahmad and Samim Ali. The issue of possession has not been considered by the two courts on the basis of core evidence available, rather it has been concluded that since the agreement in favour of Hanuman Prasad was proved which also stated that the possession was handed over to him, consequently the suit for injunction at the behest of the plaintiffs had been dismissed.
124. In view of the conflicting claims, the facts still remains that who is in possession of the property on the basis of evidence available on record. The oral evidence suggests that both the plaintiffs and the defendants witnesses had given conflicting evidence each claiming the possession to be with the parties on whose behalf they were examined. There is no clear evidence in this regard.
125. Now the Court would have to rely upon the documentary evidence in this context. Admittedly, mutation proceedings were initiated by the plaintiffs wherein their names were duly mutated. In this regard, Hanuman Prasad had relied upon two reports, one dated 13.12.2021 by the Kanoongo and the other by the Nayab Tehsildar dated 07.02.1972 and it is stated that the two reports were considered and it was found that Hanuman Prasad was in possession of Plots No.32, 33, 64 and 67. However, the matter was further assailed in a revision before the Additional Commissioner who by mans of order dated 09.12.1974 found that the order passed by the two courts on the basis of the aforesaid reports was not adequately considered and the revision of Hanuman Prasad was allowed and it was refereed to the Board of Revenue which was affirmed by means of order dated 31.01.1978 as a result the order dated 24.07.1973 was set aside for fresh decision after giving due notice to the parties.
126. Apparently, since thereafter none of the parties have brought anything on record in the instant second appeal which is pending since 1980 regarding the outcome of the mutation proceedings. On the other hand, the plaintiffs had filed documentary evidence which were marked as exhibits no.7 to 12, they are relating to Khasra of 1385 fasli, Khatauni for the year 1384 to 1388 fasli and irrigation receipts. It is now well settled that an entry in Khatauni establishes a title and the document of Khasra establishes the possession. These two documents are prepared in accordance with the provisions contained in the Land Revenue Act 1901.
127. Apparently, the record indicates that the sale deed were executed by Smt. Rampati in favour of the defendants no.3 to 5 and on the basis of the said sale deed the name of the defendants No.3 to 5 was recorded in the Khatuani. The name of Matloob Khan was recorded in the Khasra of 1385 fasli year and this relates to the year 1978 gregorian calendar. The irrigation receipts are also in the name of Matloob Khan and all these documents have been exhibited as exhibits No.7 to 12 and they relate to the disputed property in question. On the other hand, there is no documentary evidence filed on behalf of the Hanuman Prasad.
128. The factual situation as emerging from the record is, that Hanuman Prasad claims to be in possession on the basis of the averments made in the agreement to sell dated 13.01.1971 whereas the plaintiffs claim to be in possession on the basis of the sale deed. Their contention is supported by the mutation entries and also in respect of documents which are in the nature of irrigation receipts.
129. The said receipts are issued in name of the person who tills the land and in ordinary course of farming the irrigation charges are paid which indicates generally the name of person who is tilling the land. There is nothing on record to indicate that the said entries are incorrect or the said receipts are fraudulent in nature. So also in respect of exhibits no.9 and 10, the Khatuani and the Khasra entries they carry a presumption and there is nothing on record to indicate that they have been incorrectly or fraudulently prepared. Moreover the Khasra and Khatauni are public documents.
130. In the aforesaid backdrop, this Court finds that in light of the exhibits no.7 to 12 coupled with the statements of the witnesses and the fact that the sale deed has been executed in favour of plaintiffs no.3 to 5, their title as well as their possession was adequately established. On the other hand, the contention of Hanuman Prasad is based solely on the averments contained in the agreement dated 13.01.1971. Even though if the agreement stood proved yet for an right to be created in favour of Hanuman Prasad, he would first have to get the said agreement specifically enforced and once a decree is passed in his favour and a sale deed is executed, he would be then be a title holder of the said property coupled with the fact that he could be put in possession.
131. As far as his plea of having been put in possession in pursuance of the agreement to sell is concerned, the plea is in the nature of part performance and that has to be adequately proved. The level of evidence required to prove the possession in part performance has not been brought on record. In order to prove part performance it was sine qua non for the defendant to prove the following ingredient as held by the Apex Court in Nanjegowda v. Gangamma, (2011) 13 SCC 232 in paragraph nos. 8 and 9 which read as under:-
"8. We have bestowed our consideration to the rival submissions. Section 53-A of the Act which is relevant for the purpose reads as follows:
"53-A.Part-performance.--Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part-performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part-performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part-performance thereof."
9. From a plain reading of the aforesaid provision, it is evident that a party can take shelter behind this provision only when the following conditions are fulfilled. They are:
(i) The contract should have been in writing signed by or on behalf of the transferor;
(ii) The transferee should have got possession of the immovable property covered by the contract;
(iii) The transferee should have done some act in furtherance of the contract; and
(iv) The transferee has either performed his part of the contract or is willing to perform his part of the contract.
A party can take advantage of this provision only when it satisfies all the conditions aforesaid. All the postulates are sine qua non and a party cannot derive benefit by fulfilling one or more conditions."
132. Similar views were expressed by the Apex Court in Vasanthi v. Venugopal, (2017) 4 SCC 723 and the relevant portion of the said report read as under:-
"18. As would be patent from the above quotes, the protection of a prospective purchaser/transferee of his possession of the property involved, is available subject to the following prerequisites:
(a) There is a contract in writing by the transferor for transfer for consideration of any immovable property signed by him or on his behalf, from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(b) The transferee has, in part-performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part-performance of the contract;(c) The transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract.
19. In terms of this provision, if the above preconditions stand complied with, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person(s) claiming under him, any right in respect of the property of which the transferee has taken or continue in possession, other than a right expressly provided by the terms of the contract, notwithstanding the fact, that the transfer, as contemplated, had not been completed in the manner prescribed therefor by the law for the time being in force. Noticeably, an exception to this restraint is carved out qua a transferee for consideration, who has no notice of the contract or of the part-performance thereof."
133. In light of the aforesaid, it would be seen that even the parties were litigating before the revenue courts, in mutation proceeding, which is primarily decided on the basis of possession and apart from the order of the Board of Revenue remanding the matter dated 31.01.1978, nothing has been brought on record by either party as to its outcome. More than 40 years have lapsed and none of the parties have brought anything on record to indicate the outcome of the proceedings before the revenue court. In absence of any further material and on the basis of the material available on record, this Court finds that the lower appellate court was not justified in dismissing the suit for injunction. The reason of the lower appellate court presuming that the plaintiffs had been handed over the possession in pursuance of the agreement dated 13.01.1971 and unless it is shown that Hanuman Prasad was dispossessed and the possession was taken by the plaintiffs, they could not succeed and the documents filed by the plaintiffs are not going to come to their aid is not an appropriate inference drawn and the findings returned are also inappropriate in light of the documents Exhibit-7 to 12 filed by the plaintiffs.
134. This Court is of the clear opinion that in order to establish the possession either the parties could have led clear and cogent evidence which is not available and in absence thereto, the only other evidence which is on record supports the case of the appellants which have been brought on record as exhibits no.7 to 12, accordingly the lower appellate court had committed an error in ignoring the said documents and exhibits.
Conclusion
135. In light of the aforesaid, the second appeal is allowed. The judgment and decree passed by the lower appellate court dated 15.07.1981 passed in Civil Appeal No.75 of 1980 is set aside. The judgment and decree dated 11.02.1980 passed by the trial court in Regular Suit No.180 of 1971 is restored. In the facts and circumstances, there shall be no order as to costs. The record of lower court shall be returned expeditiously.
Order Date :- 18th September, 2023 Rakesh_Ank/-