Punjab-Haryana High Court
Rattan Lal vs Smt. Bharpal And Ors. on 20 July, 1998
Equivalent citations: (1998)120PLR525
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. The only argument vehemently advanced by the learned counsel for the appellant, in this Regular Second Appeal, is that the plaintiffs had made an alternative prayer in the suit for grant of liquidated damages/compensation for a sum of Rs. 26,000/- and thus, the learned courts below ought not to have granted the decree for specific performance. In support of his contention, he placed reliance on the judgment of Hon'ble Supreme Court in the case of S. Rangaraju Naidhu v. S. Thiruvarakkarsau, A.I.R. 1995 S.C. 1769.
2. In order to appreciate this contention, it is necessary to refer certain facts of this case.
3. A suit for specific performance of the agreement dated 7.11.1985 executed by the defendants in regard to the suit land was filed by the plaintiffs against the defendant, Rattan Lal. It was stated that the defendant had agreed to sell the land for the total sale consideration of Rs. 47,000/-. Out of which Rs. 13,000/- was paid to the defendant at the time of agreement and the balance was to be paid upon execution of the sale deed which was to be executed on 1.6.1986. The agreement also contains a clause that in the event of default on the part of the defendant, the plaintiffs would be entitled to recover Rs. 26,000/- double of the amount paid by them and if the plaintiffs fails to get the sale deed executed in their favour, the earnest money would be forfeited. The plaintiff, Smt. Bharpai, upon informing the defendants had gone to the Court Complex on 31st of May, 1986 alongwith balance consideration and other amount for the purpose of registration of the sale deed. She went there but the defendant did not turn up. The plaintiff went on 31st of May, 1986 since 1.6.1986 was holiday. When the plaintiff was leaving the Court Complex after inspecting the court record, she met defendant and the defendant requested her to get the date for execution of sale deed extended as he could not obtain necessary clearance and accordingly time for execution of the sale deed was extended upto 5.6.1986 for which again an agreement was executed which was duly thumb marked by the defendant. However, as the defendant failed to appear on that date, the plaintiff given a notice on 10th June, 1986 to execute the sale deed and without any loss of further time filed the present suit.
4. The suit was contested by the defendant, who denied the execution of the agreement dated 7.11.1985. Accordingly to the defendant a fraud had been played on him and the agreement was a result of mis-representation. He alleged that another agreement had been got executed from the defendant by the plaintiff in favour of one Dharam Pal without paying any consideration. According to him, he came to the Court Complex on 5.6.1986 but was made to sit with the deed writer and thus the sale deed could not be executed though his thumb impression were taken on the papeRs. He further submitted that since the plaintiffs failed to perform their part of agreement, the earnest money stood forfeited.
5. The learned trial court framed as many as six issues and after prolonged trial for about 10 years, decreed the suit for specific performance in favour of the plaintiffs and against the defendant vide judgment and decree dated 10.10.1996 passed by the Additional Civil Judge, Charkhi Dadri.
6. This judgment and decree was unsuccessfully assailed in appeal by the defendant before the learned Additional District Judge, Bhiwani. The learned Additional District vide judgment and decree dated 2.5.1998 dismissed the appeal the same being without merits, thus, giving rise to the present appeal.
7. Before, I advert to discuss the merit of the proposition propounded by the learned counsel for the appellant, in the light of the judgment of the Hon'ble Apex Court, it would be appropriate to make a reference to the concurrent findings of fact arrived at by the learned courts below.
8. While affirming the findings on all the issues the learned first Appellate Court held'as under:-
"... Defendant/appellant has denied the fact of execution of sale agreement dated 7.11.1985 as well as extension for time in his written statement and his allegations is that Deep Chand husband of plaintiff No. 1 has played fraud and mis-representation upon him, at the time of execution of sale agreement. So, obviously burden to establish the fact of fraud and mis-representation is upon him and he has to produce the cogent and conclusive evidence to establish this fact. In order to establish this fact he has failed to produce any evidence. Rather, in the first line of the his statement recorded before the lower Court he has stated that about 10 years back he agreed to sell his land measuring 13 kanals 7 marlas in favour of the plaintiffs by obtaining Rs. 13,000/- as earnest money. But plaintiffs failed to get the sale-deed executed in time though he (appellant) was ready and willing to perform his part of contract. From his statement inference can be drawn that Deep Chand husband of plaintiff No. 1 has not committed any fraud or mis-representation with defendant and he has taken a false ground so obviously, defendant/appellant shall not get any benefit from this contention.
Moreover, plaintiffs have produced sufficient evidence to prove the execution of sale agreement Ex. P.9 and writing Ex. P.10 for extension of time. Even defendant/appellant has also admitted the fact of execution of sale agreement and his stand is that he was ready and willing to perform his part of contract. So burden is upon him to establish that he was ready and willing to perform his part of contract. Defendant has produced the relevant witnesses in this respect. But after going through their statements I feel that plaintiffs are not at fault. In fact, at the instance of defendant/appellant sale-deed was not got executed in time.
9. It is clear from the above finding that no fault can be attributed to the plaintiffs. They never attempted to gain under advantage over the defendant. The plaintiffs were always willing and ready to perform their part of the agreement and had gone to the Court Complex with money on the appointed dates. The stand of the defendant is totally inconsistent. No averments of fraud have been pleaded. The defendant claims to have gone to the Court complex to perform the agreement. However, at no point of time he pleaded that plaintiffs had breached the terms of the agreement and as such the earnest money was liable to be forfeited.
10. Coming to the legal aspect of the matter in the case of S. Rangaraju Naidu v. S. Thiruvarakkarasu, the Supreme Court never intended to lay down as a principle of law that specific performance should be denied, if alternative relief is asked for. Keeping in view the special facts of that case, as there was undue delay on the part of the plaintiff, the Hon'ble Supreme Court had denied the specific performance. Their Lordships specifically observed that the order is being passed in view of the fact of that case.
11. This Court in a recent judgment in the case of Ram Dass v. Ram Lubhaya, (1998-2)119 P.L.R. 326, considered this aspect at a great length and observed as under:-
Coming to the second contention, the learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Kanshi Ram v. Om Parkash Jawal and Ors., J.T. 1996(4) S.C. 733 and Rangaraju Naidu v. S. Thiruvarakkasu, A.I.R. 1995 S.C. 176. The principles of law enunciated in these cases is the reiteration of settled principles of law. The principles of equity, good conscience and fairness being very foundation for grant of relief of specific performance is the concept not introduced by judicial pronouncement but explicitly indicated by the Legislature in the provision of Section 20 of the Specific Relief Act. The very language of Section 20 spells out and indicates the wide discretion that is vested in the Court of competent jurisdiction to grant or decline to grant a relief of specific performance for transfer of immovable property. The guiding principles for determination of such controversies have been consistently cogitated by various Courts but to a common end. The common weal sought to be achieved is to avoid resultant undue hardship to one party while avoiding undue gain to the other by mere lapse of time attributable to erring party.
An alternative prayer by a plaintiff in a suit cannot be construed as a waiver or abandonment of the main relief in the suit. An alternative prayer is a relief which is claimed by the party if the party is found to be not entitled to the principle of main relief claimed in the suit. The submission of the learned counsel appears to be totally contradictory to the well accepted concept of pleadings and cannot be accepted.
The jurisdiction vested in the court to decline specific performance and grant alternative relief is a jurisdiction of equity and good conscience and must be exercised in consonance of the settled principles of law. Even principles emerging from judicial verdicts which are to guide the Courts concerned while passing such a decree and which have been specifically acted upon, are still open to correction by the Court of appeal. The provisions indicate the intention of the Legislature to vest the Court with the wide discretion but still define the extent of caution with which such power should be exercised. Settled cannons of limitations on the discretion of the court have been well defined by various judicial pronouncements. Precept of equity are accepted good in law. Reliefs in equity are founded on the principle of good conscience and grant of effective relief. The maxim Actio de in rem verso appears to be the underlying feature under the provision of Section 20 of the Act. Exercise of judicial discretion does not admit a limitation extending to a prohibition for grant of relief of specific performance. It is only where the judicial conscience of the court is pricked to an extent that the Court first is able to see inequities, imbalances created against one party and in favour of other, that it would consider exercising its discretion under these provisions. The scheme of this Act clearly shows that where a contract is proved in accordance with law and party has acted without undue delay and has perused its remedy in accordance with law without infringing the settled cannon of equity the grant of specific relief by enforcing the contract would certainly be a relief which equity would demand. The Legislative intention behind Section 20 cannot be stated to be that a party first fails to perform its part of the agreement later contests litigation on frivolous basis then that party cannot be permitted to raise a plea in equity that value of the property has increased disproportionately resulting in an undue advantage to the plaintiff in a suit. Resultantly it would not be fair to deny specific performance against such a party.
A lawful agreement being proved and judicial conscience of the court being satisfied the equity would demand enforcement of an agreement rather than granting an alternative relief of damages to the plaintiff. It need not be reiterated that equity must give relief where equity demands. Equitas nuquam liti ancillatur ubi remedium protest dare is a clear illustration which has been duly accepted by the Indian Courts. The time taken by the courts in deciding suit or appeals would normally be not permitted to work to the disadvantage of the party to the lis. Acts of the courts shall cause prejudice to none was so stated by the Hon'ble apex Court in the case of Atma Ram Mittal v. Ishwar Singh Punia, A.I.R. 1988 S.C. 2031.
xx xx xx Further more the courts have also found that the respondent was always ready and willing to perform his part of the agreement. The litigation before the Courts has been prolonged for all this time by the appellant without any fruitful result. In these circumstances I am unable to see any equities in favour of the appellant and reliance placed upon the observations of the Hon'ble Supreme Court in the case of S. Rangaraju Naidu v. Thiruvarakkarasu (supra) is misplaced one. No facts and circumstances have been brought on the record nor any evidence has been adduced to show that the case of the appellant was covered under any of the exceptions carved under sub clause (a) to (c) of Sub-Section (2) of Section 20. The appellant has suffered no unfair disadvantage. No such hardship has been caused to the appellant which would justify non performance on his part. The appellant has also not been placed at any inequitable situation. Equities have to be balanced. It is only when totally unequitable and unjust and unfair advantage is given to one party that court has to consider such factors. The conduct of the appellant is certainly not worthy of claiming any special equities while conduct pi the respondent has been to the accepted standard demanded by the equity and he has pursued his remedy carefully and in the earliest point of time, while things are taken to be done in their normal course. Reference is made to Krishna Singh v. Krishna Devi, 1994(4) S.C.C. 18.
12. In view of the above settled principle of law, the contention raised on behalf of the defendant is without merit. The plaintiffs had at no point of time delayed the legal remedies available to them and acted with prudence and reasonable expectation.
13. This appeal has no merits and the same is dismissed in limine.