Punjab-Haryana High Court
Ram Kumar And Ors. vs Rattan Parkash And Ors. on 21 February, 2006
Equivalent citations: (2006)144PLR123
JUDGMENT M.M. Kumar, J.
1. This is defendants appeal filed Under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the agreement of sale set up by the defendant-appellants dated 8.7.1977 (Ex.D2) has not been proved on record and the agreement to sell Ex. P2, dated 17.7.1977 between the plaintiff-respondent No. 1 and defendant-respondent Nos. 2 to 7 has been proved. Accordingly, the suit of the plaintiff-respondent No. 1 has been decreed in his favour and against the defendant-appellants as well as defendant-respondent Nos. 2 to 7.
2. The case of the plaintiff-respondent No. 1 is that he owner of the house in question, namely, defendant-respondent Nos. 2 to 7 had entered into an agreement to sell with him for a total sale consideration of Rs. 25,000/- out of which Rs. 5,000/- had already been paid by him to the aforementioned defendant-respondents. An agreement was executed on 17.7.1977 (Ex. P-2) in favour of the plaintiff-respondent No. 1, which was recorded by Shri Ram Rattan (now represented by defendant-respondent Nos. 4 to 7.) with his own hands in the presence of Kali Ram and Om Parkash, defendant-respondent Nos. 2 and 3. An amount of Rs. 5,000/- was paid in cash and the balance payment of Rs. 20,000/- was to be paid at the time of registration of the sale deed. They promised to get the sale deed executed at Meham on 30.7.1977 but they failed to reach Meham from Delhi. The plaintiff-respondent No. 1 came to know that they were trying to sell the house to someone else and in order to defeat any such attempt he sent an application dated 20.7.1997 to the Registrar, Delhi, that no sale deed be registered in favour of any third party. He has always been ready and willing to perform his part of the contract, which is proved by the fact that he waited for defendant-respondent Nos. 2 to 7 in the office of Sub Registrar, Meham on 2.8.1977 and 3.8.1977. He made applications to the Registrar, Meham on the aforementioned dates. But defendant-respondent Nos. 2 to 7 failed to turn up. He served a legal notice upon the aforementioned defendant-respondents to get the sale deed executed at Meham on 9.8.1977 but they failed to turn up. A copy of the notice dated 4.8.1977 was also sent to the defendant-appellant. Another attempt was made calling upon the defendant-respondent Nos. 2 to 7 to come to the office of Sub Resistrar on 16.8.1977 but they failed to do so. A registered notice, was served on 24.8.1977 upon them requesting them to execute the sale deed on 5.9.1977, A reply was sent by the aforementioned defendant-respondents on 2.9.1977. However, the defendant-respondent Nos. 2 to 7 had executed the sale deed at Delhi on 26.8.1977 in favour of the defendant-appellants despite the existence of agreement to sell between plaintiff-respondent No. 1 and the defendant-respondent Nos. 2 to 7. The defendant-appellants were requested by the plaintiff-respondent No. 1 not to change the nature of the suit property by making any structural changes. He sent a notice by telegram to them on 1.10.1977.
3. The stand taken by defendant-respondent Nos. 2 to 7 in their written statement is that suit was not maintainable because the sale deed of the house in dispute had already been executed and registered in favour of defendant-appellants. They had pre-existing rights on account of agreement to sell dated 8.7.1977 (Ex. D-2). There was no negotiations with the plaintiff-respondent Nos. 2 to 7 had agreed to sell the house to defendant-appellants for a sum of Rs. 19,500/- and that an agreement to sell was executed on 4.7.1977 (8.7.1977?) (Ex. D-2), which was known to the plaintiff-respondent No. 1, who is stated to be a Draftsman by profession. He is next door neighbour of defendant-appellants, who had got prepared a site plan of the house in dispute from him by disclosing it to him that the defendant-respondent Nos. 2 to 7 and the agreement to sell in fact had been finalised. The plaintiff-respondent No. 1 came to know that the house in question was likely to be vacated by the Agricultural Department and he wanted to purchase the same for himself. He is alleged to have contacted defendant-respondent Nos. 2 to 7 at Delhi and allured them with high price. They told him that they were not to back out from the agreement to sell already entered with the defendant-appellants. However, the plaintiff-respondent No. 1 persuaded them that if a formal agreement is entered into with him then he would himself sort out the problem of any other written agreement said to be entered with the defendant-appellants by paying them Rs. 5,000/-, It was agreed that in case defendant-appellants withdraw from the agreement to sell then the sale deed was to be executed in favour of the plaintiff-respondent No. 1 and if the defendant-appellants pressed execution and registration of the sale deed then the plaintiff-respondent No. 1 was to loose Rs. 5,000/- paid as earnest money. Therefore, the plaintiff-respondent No. 1 was estopped by his act and conduct from filing the suit. The assertion of the plaintiff-respondent No. 1 that he contacted defendant-respondent Nos. 2 to 7 at Delhi on 24.7.1977 or 26.7.1977 has been denied nor they had ever promised to execute the sale deed in his favour on 30.7.1977 at Meham. Defendant-respondent Nos. 2 to 7 were not to reach at Meham on 2.8.1977, 3.8.1977 or on 9.8.1977 for execution of the sale deed in favour of the plaintiff-respondent No. 1. The defendant-appellants were in possession of the house in dispute in their own right as owner because they had purchased the same by virtue of registered sale deed in their favour executed at Delhi on 26.8.1977. The agreement to sell dated 17.7.1977 executed between plaintiff-respondent No. 1 and defendant-respondent Nos. 2 to 7 was only a formal document and become void and ineffective.
4. In their separate written statement, defendant-appellants took the stand that there was a valid agreement to sell between them and defendant-respondent Nos. 2 to 7 for the purchase of house in dispute for a sum of Rs. 19,500/-. An amount of Rs. 1,000/- was paid on 8.7.1977 when the agreement to sell was executed and the balance amount of Rs. 18,500/- was to be paid at the time of registration of sale deed. Accordingly, sale deed was executed on 4.8.1977 and it was registered in the office of the Registrar, Delhi on 26.8.1977. The delay in registration occurred because there was flood in Delhi and the Registrar was on flood duty. The balance sale consideration was paid before the Sub Registrar, Delhi. The agreement to sell, if any, entered into by defendant-respondent Nos. 2 to 7 in favour of the plaintiff-respondent No. 1 was null and void.
5. The trial Court after framing the issues proceeded to record detailed evidence. On the crucial issues 1, 2, 3 and 5 both the Courts below held that the agreement to sell dated 17.7.1977 (Ex.P-2) was not executed by defendant-respondent Nos. 2 to 7 under pressure or undue influence of plaintiff-respondent No. 1. They further failed to prove that a sum of Rs. 5,000/- was not paid by plaintiff-respondent No. 1 to them as earnest money or as advance sale price. It has been held that the sale of the house in dispute by defendant-respondent Nos. 2 to 7 in favour of the defendant-appellants vide agreement to sell dated 8.7.1977 (Ex. D-2) and sale deed dated 4.8.1977, registered on 26.8.1977 (Ex. D-3) has no effect on the rights of the plaintiff-respondent No. 1 because the defendant-appellants have not been held to be bona fide purchaser for valueable consideration without notice of the earlier agreement, Ex.P-2. Accordingly, a decree for specific performance of contract of sale, Ex, P-2, was passed in favour of the plaintiff-respondent No. 1 and against the defendant-respondent Nos. l to 3 in respect of the house in question on payment of balance sale consideration of Rs. 20,000/-. A further decree of possession of the house in dispute has also been passed against the defendant-appellants as well as defendant-respondent Nos. 2 to 7. The views of the learned lower appellate Court with regard to execution of the agreement to sell, Ex. D-2, dated 8.7.1977, are discernible from para 5, where whole evidence has been analysed. The learned lower Appellate Court considered the question whether agreement to sell Ex. D-2 was written on 8.7.1977 as it purports to be. It has been held that the agreement was ante-dated it was not executed on the date mentioned in the endorsement at point 'A' and 'B' at the back of the stamp paper of denomination of Rs. 2/- and Rs. 1/-. Learned lower Appellate Court has held that the stamp vendor was not produced and the stamp paper had not purchased with entry at Sr. No. 10436 (10436 A?), dated 4.7.1977. On this aspect it has been concluded as under:
...The defendants did not care to locate the stamp vendor from whom Des Raj had purchased the stamp. On the other hand, the plaintiff addressed a letter on 18th May, 78 to the Collector of Stamps 2 Battery Lane Rajpur Road Delhi, who replied to him vide Ex. PW-6/1 that there was no entry at serial No. 10436 dated 4 July, 99 for sale of non-judicial stamps of Rs. 3/- (Rs. 2 + Re. 1) in favour of Ram Rattan 4265 Gali Brahmin Delhi in the stamp sale registers of the stamp agents functioning at Civil Courts Tis Hazari Delhi on the aforesaid date. This was practically a clincher against the defendants that the stamp for execution of Ex. D-2 had been purchased on a subsequent date and not on the date mentioned in the endorsement at points A and B on the back of it.
Then the version of defendant-appellants that the sale deed could not be registered in the office of the Sub Registrar at Delhi from 4.8.1977 to 26.8.1977 due to floods has also not been believed. The analysis of the whole evidence is available in para 5 of the judgment of the learned lower Appellate Court where the second point was discussed. The view of the learned lower Appellate Court reads as under:
...The all-important question is as to why the defendant did not reply to the notices sent by the plaintiff to them from 1 to 24 August, 77 till after the registration of the sale deed in favour of defendants 4 to 6 Ex. D-3. It was for the first time that they budged from their static posture on 2 September, 77 vide their reply Ex. P-7 registered A.D. in reply to the last notice sent to them by the plaintiff through Shri H.R.Vatta Advocate, Rohtak. It was again for the first time that they took the position that the agreement to sell Ex. P.2 executed by them in favour of the plaintiff was the outcome of his cajoling and inducement. It was mentioned that the plaintiff had rushed to Delhi alongwith some of his relatives and taking advantage of their weakness induced them to sell the house to him for Rs. 2,50,000/-. The names of the relations of the plaintiff who had accompanied him to prevail upon defendants 1 to 3 to scribe Ex. P-2 in plaintiffs favour are not disclosed. One is left guessing even in the evidence adduced by defendants 1 to 3 in the case as to the relations of the plaintiff who had been able to exercise their influence on them to execute Ex. P-2 in the face of Ex. D-2 already executed by them at back of defendants 4 to 6 before agreeing to execute P-2 in plaintiffs favour. Defendants 4 to 6. It is not explained as to why defendants 1 to 3 did not contact defendants 4 to 6 before agreement to execute P-2 in plaintiffs favour. Defendants 4 to 6 were at hand. They resided at Meham. There was no time limit within which defendants 1 to 3 were required to execute Ex. P-2 in favour of the plaintiff. It, therefore, cannot be said that defendants 1 to 3 had no time and opportunity to establish their contract with defendants 4 to 6 at the time they agreed to execute Ex. P-2 in plaintiffs favour. The silence maintained by the defendants from 1 August to 2 September, 77 is enigmatic. There are moments when to restrain the tongue is not virtue. Though not a vice, yet it was an unpardonable lapse on the part of the defendants to have maintained icy silence to the plaintiffs protest made to them in writing that he was ready and willing to perform his part of the contract and they should desist from executing the sale-deed in respect of their house at Meham in favour of any third person.
XXX XXX XXX Envisioned from any angle, the appellants had no case as they have altogether failed to show that they had not executed the agreement to sell Ex. P-2 in favour of the plaintiff prior to Ex. D-2 in favour of defendants 34 (3?) to 6 in respect of their house at Meham and their conduct un-equivocally shows that they were not read (ready?) to perform their part of the contract. They produced wrong and false documents but the learned trial Court was too cute to be misled as is clear from the observations made by it in para 9 to 15 of its judgment.
Accordingly, a decree for possession by specific performance of the agreement was passed by the learned lower Appellate Court against all the defendant-respondents 2 to 7 and defendant-appellants and a decree of possession was passed against the defendant-appellants in respect of the house in dispute.
6. Mr. Arun Jain, learned Counsel for the appellants has argued that both the Courts below have rejected the agreement to sell Ex. D-2, dated 17.7.1977 on purely conjectures and surmises. Referring to the document Ex. D-2, learned Counsel has submitted that the stamp paper was purchased on 4.7.1977 and defendant-appellants approached the plaintiff-respondent No. 1 on 7.7.1977 for preparation of site plan as he had been a Draftsman. Learned Counsel has maintained that plaintiff-respondent No. 1 could not deny his signature on the site plan and on 8.7.1977 the agreement to sell has been executed which is on record as Ex. D-2. An amount of Rs. 1,000/- as earnest money was paid and the balance sale consideration of Rs. 18,500/- was to be paid before the Sub Registrar at the time of registration of the sale deed. Learned Counsel has further argued that the delay in execution of agreement to sell Ex. D-2 was caused on account of the fact that Shri P.C.Mittal, Advocate, was consulted (DW-6) as to whether signatures of all the members of coparcener of defendant-respondents 2 to 7 were required to be appended. Learned Counsel has then referred to portion of 'A' to 'B' of document dated 20.12.1977, which is copy of the site plan wherein plaintiff-respondent No. 1 has accepted that portion 'A' to 'B' on the top of the document has been recorded in his own handwriting. According to the learned Counsel, the aforementioned statement 'A' to 'B' shows the names of prospective vendees. He has then pointed out by referring to Ex. DW-2/A, dated 10.6.1977, that the house in question was on rent with the Agricultural Department and it were the defendant-appellants who had requested the Agricultural Department to vacate the house, which eventually resulted into execution of agreement to sell, dated 8.7.1977, Ex. D-2. The target date in the agreement to sell Ex. D-2 was to expire on 8.8.1977. It is on account of the aforementioned deadline, which was known to the plaintiff-respondent No. 1 that he started pressurising the vendor to execute the sale deed on and after 26/27.7.1977. Learned Counsel has referred to the statements of vendor, namely, Ram Rattan (DW-7), Kali Ram (DW-8) and their advocate Shri P.C.Mittal (DW-6). Detailed arguments have been addressed by referring to the statement of stamp vendor PW-6 and the so-called clinching evidence as referred to in para 5 of the judgment of the Additional District Judge. Learned Counsel has then made reference to paras 2 to 4 of the plaint and the statement of Rattan Parkash himself at page 130 of the record, who has denied the suggestion that he ever tried to allure the defendant-respondents 2 to 7 that the price has gone up and they should enter into an agreement to sell with him. On 2.9.1977, Ex. P-7, reply was sent to the plaintiff-respondent Nos. 2 to 7 in the whole case. He has then referred to the statements of DW-4 and DW-5, who are marginal witness on the sale deed dated 23.8.1977. On the basis of the aforementioned argument, learned Counsel has asserted that the following substantial question of law would arise:
(i) Whether the suit filed by plaintiff-respondent 1 could be decreed in his favour especially when there is an agreement to sell in favour of defendant-appellants which is prior in point of time?
(ii) Whether in the facts and circumstances of the instant case and in view of Section 20(2) of the Act, the suit for specific performance filed by the plaintiff-respondent could be decreed?
(iii) Whether the sale deed dated 4.8.1977 in favour of the defendant-appellants No. 2 to 3 is without notice of the agreement to sell dated 17.7.1977 (Ex. P-2) alleged by the plaintiff-respondent?
7. In support of his submission, learned Counsel has placed reliance on a judgment of the Supreme Court in the case of K. Narendra v. Riviera Apartments (P) Ltd. , and argued that in accordance with changed circumstances, discretionary relief of specific performance be not granted to plaintiff-respondent No. l. Learned Counsel has maintained that the relief of specific performance cannot be granted to a person like plaintiff-respondent No. 1 as he has committed a fraud. He has referred to the judgment of the Supreme Court in the case of Lourdu Mari David and Ors. v. Louis Chinnaya Arogiaswamy and Ors. . According to the learned Counsel the interference of this Court is a must in such like cases.
8. Mr. S.D. Sharma, learned Senior counsel for plaintiff-respondent No. 1 has drawn my attention to the observation made by the trial Court in para 12 of the impugned judgment wherein categorical findings have been recorded that the documents Ex. D-2 and D-3 have been ante-dated by showing the date of purchase of stamp paper to be 4.7.1977, execution of the agreement on 8.7.1977. The aforementioned conclusion has been drawn on the basis that the defendant-respondent Nos. 2 to 7 and defendant-appellant No. 1 Ram Kumar had already received registered notice Ex.P-3 from the plaintiff- respondent No. 1, which was sent on 4.8.1977. According to the learned Counsel there are categorical finding of fraud recorded by both the Courts below showing ante-dated agreement to sell and purchasing of stamp papers for the purposes of execution of sale deed and registration of the same. Learned Counsel has pointed out that fraud and justice do not dwell together and defendant-appellants do not deserve any sympathy. Learned Counsel has maintained that the points which have been raised by the counsel for the defendant-appellants were never raised before the Courts below and cannot be raised for the first time before this Court in an appeal Under Section 100 of the Code. He has placed reliance on the following judgments of this Court:
i. S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and Ors. ;
ii. SATYA - Support for Asian Trust and Youth Amity (Regd.) and Anr. v. State of Haryana and Ors. 2004(3) R.C.R. (Civil) 565 ;
iii. Jaspal Singh v. State of Haryana and Ors. 2003(1) P.L.J. 281 and iv. Balwant Rat Tayal v. Subhash Oil Co. 6 (Civil Revision No. 2728 of 2003, decided on 20.5.2003).
9. Learned Counsel has then argued that mentioning of wrong number of house is no ground to deny the relief to the plaintiff-respondent No. 1 as has been held by the Supreme Court in the case of Sheodhyan Singh and Ors. v. Mst. Sanichara Kuer and Ors. . He has also submitted that the District Judge is fully empowered to support the decree by modifying the relief under the provisions of Order XLI Rule 33 of the Code. In support of his submission, learned Counsel has placed reliance on a judgment of Calcutta High Court in the case of Kqfiladdin and Ors. v. Samiraddin and Ors. A.I.R. 1931 Cal. 67. He has then argued that this Court in exercise of jurisdiction Under Section 100 of the Code has no power to interfere in the concurrent findings of fact, however, erroneous they may be. In support of his submission, learned Counsel has placed reliance on a judgment of the Supreme Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. . Learned Counsel has then argued that in the prayer clause there is no defect as no prayer with regard to setting aside of the sale deed was required to be incorporated. In support of his submission, learned Counsel has placed reliance on a judgment of the Supreme Court in the case of Dwarka Prasad Singh v. Harikant Prasad Singh 10 , and a Single Bench judgment of the Bombay High Court in the case of Dilip Bastimal Jain v. Baban Bhanudas Kamble 2002(1) R.C.R. (Civil) 406.
10. I have thoughtfully considered the submissions made by learned Counsel for the parties and has minutely perused the record. A detailed examination of the evidence on record is available in para 12 of the judgment of the trial Court, which deals with falseness of the case projected by the defendant-appellants. It is categorically found by learned trial Court that the endorsement on the agreement to sell (Ex. D-2) in favour of the appellants made by some imaginary stamp vendor of Tis Hazari Civil Courts, Delhi is not a genuine endorsement. It has been found that no entry at Sr. No. 10436 on 4.7.1977 has been found as per the statement made by Rattan Singh (PW-6), an employee of the office of Collector Stamp, Delhi. He had categorically deposed that no such stamp paper was issued by any stamp vendor of Tis Hazari Courts, Delhi at Sr. No. 10436 dated 4.7.1977 and had proved letter Ex.PW-6/1 in that respect. Vide aforementioned letter, the Collector of Stamp, Delhi has intimated respondent No. 2 that no entry No. 10436 dated 4.7.1977, for sale of non-judicial stamp of Rs. 3/- in favour of Ram Rattan defendant-respondent No. 4 (now represented by his LRs), was ever made. The aforementioned information was based on the enquiry made from the Stamp Sale Registers of the stamp agents functioning at Tis Hazari Civil Courts, Delhi. Therefore, the recitals made in the sale deed that the stamp paper was purchased on 4.7.1977 from the stamp vendor, Tis Hazari Civil Courts, Delhi at Sr. No. 10436, have been found to be false. Moreover, the defendant-appellants or the defendant-respondents failed to produce the stamp vendor of Tis Hazari Civil Courts, Delhi to show that sale of stamp paper in question. Even Desraj, Clerk working with Sh. P.C. Mittal, Advocate who had purchased the stamp paper, on which agreement of sale (Ex.D-2) has been recorded, has not been produced. It has further been found that the sale-deed (Ex.D-3) was executed on 4.8.1977 but it was got registered on 26.8.1977. The theory of floods in Delhi and absence of Registrar on that account has not been believed and the conclusion reached by both the Courts below is 'that the document Exs.D-2 and D-3 have been ante dated by showing the date of purchase of stamp paper as 4.7.1977 and the execution of agreement as 8.7.1977. The aforementioned course is found to have been adopted as the plaintiff-respondent No. 1 had issued registered notice (copy Ex.P-3) on 4.8.1977, which has been duly received by defendant-appellant Ram Kumar. The exercise of ante dating the document had been undertaken to defeat the rights of plaintiff-respondent No. 1 and both the defendant-appellants and defendant-respondents have colluded to do so. Therefore, both the courts have recorded a categoric findings that the agreement to sell Ex.D-2 and the sale deed Ex.D-3 are ante dated documents which have been got prepared by. defendant-appellants in collusion with defendant-respondent Nos. 2 to 7 to defeat the rights of plaintiff-respondent No. 1.
11. The learned lower appellate Court has also dealt with the aforementioned issue in para 5 of its judgment and the findings of the trial Court have been accepted. It also came to the conclusion while slightly modifying the decree of the trial Court that the proper form of decree for specific performance which deserved to be passed would be against all the defendant-appellants as well as defendant-respondents, as per the judgment of Supreme Court in Ramesh Chander v. Chuni Lal .
12. The first question which requires determination in this appeal filed Under Section 100 of the Code is whether this Court is competent to interfere in the findings of fact with regard to ante dating the date of execution of the agreement to sell and sale deed Ex.D-2 and Ex.D-3 respectively. It is no doubt true that in the given cases where the findings are bald and are without any evidence this Court enjoys ample power to interfere in the findings of fact. It also enjoys power to interfere in the findings are such that no reasonable man, by considering the evidence available, would come to such a conclusion, which has been reached by the Courts below. In this regard reliance may be placed on paras 33 and 34 of the judgment of Hon'ble the Supreme Court in the case of Kul- want Kaur v. Gurdial Singh Mann , wherein it has been held that perversity in the findings itself would constitute a substantial question of law worth adjudication by this Court, as per the provisions of Section 103 of the Code.
13. In the instant case the findings have been recorded on the basis of detailed evidence, as discernible from paras 9 to 17 of the judgment of the trial court and para 5 of the judgment of the learned Lower Appellate Court. Therefore, the findings cannot be considered as perverse or bald so as to bring the case within the domain of interference of this Court Under Section 100 of the Code. It is equally well settled that this Court cannot re-appreciate evidence in order to substitute its own opinion for that of the Courts below unless it could found that the conclusions drawn by the lower Courts were erroneous being contrary to the mandatory provisions of law applicable to the facts of the case or contrary to the law, as pronounced by Hon'ble the Supreme Court or is based upon inadmissible evidence or no evidence. In this regard reliance may be placed on a judgment of Hon'ble the Supreme Court in the case of Kondiba Dagadu Kadam (supra). In para 5 of the aforementioned judgment, their Lordships have observed as under:
5. It is not within the domain of the High Court to investigate the founds (grounds ?) on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witness accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence.
Similar view has been expressed by Hon'ble the Supreme Court in the cases of Santosh Hazari v. Purshotam Tiwari (deceased) by L.Rs. , Hari Singh v. Kanhiaya Lal 1999(2) R.C.R. (Rent) 314 :1999(7) S.C.C. 288, Veerayee Animal v. Seeni Ammal and Govindaraju v. Mariamman .
14. In the light of the law laid down by Hon'ble the Supreme Court it needs to be considered whether the questions raised by the learned Counsel for the defendant-appellants would constitute substantial questions of law or those questions are far beyond the domain of this Court for exercise of jurisdiction Under Section 100 of the Code.
15. The first question raised by the defendant-appellant is-whether the suit of the plaintiff-respondent No. l could be decreed once the agreement to sell Ex.D-2 is prior in point of time than the agreement to sell Ex.P-2? It is obvious that aforementioned question proceeds on the assumption that the agreement to sell Ex.D-2 is not ante dated. Therefore, it completely goes against the findings recorded by both the Courts that the agreement to sell Ex.D-2 is ante dated. In view of the law laid down by Hon'ble the Supreme Court in the case of Kondiba Dagadu Kadam, 8 (supra), and other judgments referred to above, it cannot constitute as a substantial question of law and, therefore, the argument raised has to be necessarily rejected. Question (iii) framed by the learned Counsel, asserting that it would be a substantial question of law again would fall in the same prohibition. The question framed is whether the sale-deed dated 4.8.1977 (Ex.D-3) in favour of defendant-appellants was without notice of the agreement to sell dated 17,7.1977 (Ex.P-2) of the plaintiff-respondent No. l. Again the aforementioned question is within the domain of findings of fact. In the concluding para of its judgment, the trial Court has concluded as under:
... It is thus, apparent that the documents, Exs.D-2 and D-3 have been ante dated by showing the date of purchase of the stamp paper as 4.7,77 and execution of the agreement as 8.7.77 and the execution of the sale deed as 4,8.77 because defendants No. 1 to 3 and Ram Kumar defendant No. 4 had received the registered notice copy Ex.P-3 from the plaint if which was sent on 4.8.77 and had been received by defendant No. 4 on 8.7.77 vide A.D. receipt Ex.P-16. Defendants No. 4 to 5, therefore, came to know on 8.8.77 that the agreement of sale Ex.P-2 had already been executed by defendants No. 1 to 3 in favour of the plaintiff on 17.7.77 and in order to defeat the claim of the plaintiff the documents Ex.D-2 and D-3 were got prepared by defendants No. 1 to 3 in collusion with defendants No. 4 to 6.
It is, thus, obvious that the question framed has proceeded on the assumption that there was no finding in that regard, which is obviously erroneous. Therefore, this question again is hit by the prohibition laid down by Hon'ble the Supreme Court in the aforementioned judgments.
16. The only other question which survives for consideration is whether the suit for specific performance filed by plaintiff-respondent No. 1 could be decreed by exercise of discretion Under Section 20(2). It has been submitted that on account of changed circumstances including the delay in performance of the agreement to sell Ex.P-2 the alternative relief be granted to the plaintiff-respondent No. 1. Learned Counsel has also referred to the stay order dated 16.4.1982 passed by this Court in favour of the defendant-appellants. The judgment of Hon'ble the Supreme Court in K. Narendra's case (supra), categorically laid down the test of exercise of discretion Under Section 20(2). Placing reliance on a judgment of the Constitutional Bench in Chand Rani v. Kamal Rani , and Lourdu Mari David v. Louis Chinnaya Arogiaswamy , their Lordships have observed as under:
20. 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 ; 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. 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 under lying Section 20 has been summed up by this Court in Lourdu Mari David v. Louis Chinnaya Arogiaswamy (supra), 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.
17. If the aforementioned principles are followed then in the present case, there is no changed circumstance or a mitigating factor which may warrant the modification of the judgment and decree from specific performance to the grant of alternative relief. It is true that the appeal has been pending since 1982 but that by itself is no circumstances to decline the relief of specific performance. It is not shown that the agreement to sell in favour of plaintiff-respondent No. 1 (Ex.P-1) has become incapable of performance or it involves such a hardship which the defendant-appellants or defendant-respondents 2 to 7 did not foresee. Refusing the relief of specific performance would result into unfair advantage in favour of the defendant-appellants because they have made an attempt to defraud plaintiff-respondent 1 by execution of valuable document by ante dating those documents to defeat this rights. Once such findings have come then the discretionary relief has been rightly given by the Courts below. Hence it would not deserve to be interfered by this Court. Moreover, the discretion so exercised by the Courts below cannot be considered to have violated the dictum of Hon'ble the Supreme Court laid down in K.N. Narendra's case (supra). Therefore, I do not find any substance in the arguments raised on behalf of the defendant-appellants and have no hesitation to reject the same.
For the reasons stated above, this appeal fails and the same is dismissed. Plaintiff-respondent No. 1 shall be entitled to cost which is determined at Rs. 20,000/-.