RSA No. 3854 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3854 of 2008(O&M) Date of Decision: 26.03.2010 Veena Rani Walia ......Appellant versus Rajesh Dhawan ....... Respondent. Coram : Hon'ble Mr. Justice Ajay Tewari Present: Mr.Amit Jain, Advocate for the appellant. Mr.S.S.Salar, Advocate for the respondent. *** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment of the learned Lower Appellate Court where instead of ordering the alternate relief of refund of earnest money, the learned Lower Appellate Court has reversed the finding of the trial Court to this extent and ordered specific performance. The respondent had filed a suit for specific performance of an agreement to sell. The appellant had denied the same pleading that a blank signed paper used for obtaining loan had been misused. The trial Court held the agreement and receipt to be proved but ordered alternate relief of refund of earnest money. No appeal was filed against the said order. The respondent filed an appeal claiming specific performance. The learned Lower Appellate Court did not consider the plea of hardship sought RSA No. 3854 of 2008(O&M) 2 to be set up by the appellant since the appellant had not even stepped into the witness box. Consequently the learned Lower Appellate Court rightly held that no doubt the relief of specific performance is a discretionary relief but it could not be refused in the absence of any evidence. The following questions have been proposed:- a) Whether in the facts and circumstances of the instant case the approach of the learned first Appellate Court in granting decree of specific performance ignoring great hardship to the appellant,is not illegal and can be sustained in law? b) Whether the finding recorded by the learned Courts below in upholding the agreement to sell ignoring the material documentary as well as oral evidence on record, can be sustained in law? As regards question No. (b), as mentioned above, neither any appeal was filed by the appellant challenging the finding of the trial court (which has been upheld by the Lower Appellate Court) nor were any cross objections etc. filed. Consequently question No. (b) is answered against the appellant. The argument sought to be raised that the property in dispute is a residential house and, therefore, hardship would be caused cannot be accepted in such bald terms. Thus as regards question No.(a) also, no fault can be found with the finding of the learned lower Appellate Court since no evidence of hardship was led by the appellant. Consequently holding both the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. (AJAY TEWARI) JUDGE March 26, 2010 sunita