1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7053 OF 2008. 1) Laxman Rambhau Chaudhari Age:Major, occ.Agril. R/o Mahadevpura, Near Big Bridge, At post Dondaicha, Tq. Shindkheda, Dist.Dhule. 2) Madhukar Rambhau Choudhari, Age:Major, occu. Agril. R/o as above. 3) Vasant Rambhau Chaudhari, Age:Major, occu. Service, R/o Asaram Bapu Nagar, Near Mangwada, At Post Dondaicha, Tq. Shindkheda, District Dhule. 4) Late Pushpavati Digambar Choudhari, since deceased, through her L.R. Shri Digambar s/o Amrut Choudhari, Age:Major, occu. Pensioner, r/o Adarsh Nagar, Near Agrawal Hospital, At Post Shirpur,Tq.Shirpur, District Dhule. - PETITIONERS VERSUS 1) Sau. Ratnabai @ Ratnaprabha Jaideepsing Sisodiya, Age:Major, occu. Household, work r/o At post Bhorkheda, Tq. Shirpur, Dist. Dhule. 2) Shri Chhatrapalsing Premsing 2 Rajput, Age:Major. occu. Agril. & Business, R/o At post Dondaicha, Tq.Shindkheda, Dist.Dhule. - RESPONDENTS ***** Mr.M.S.Kulkarni, Advocate for Petitioners; Mr.S.G.Karlekar, Advocate for Respondents. ----- CORAM : K.U.CHANDIWAL,J. DATE : 25th October,2010. ORAL JUDGMENT : 1) Heard learned Counsel for the respective parties extensively. Rule was issued on 2nd December, 2008. 2) The controversy revolves to setting aside exparte decree in Special Civil Suit No. 49/2001 for specific performance of contract dated 30th August, 2003.. The learned Civil Judge, Senior Division, Dhule and also learned Additional District Judge, Dhule did not agree to sufficiency of grounds to set aside the decree, said application came to be rejected, which is subject of writ. 3) Both the learned Counsel extensively took me to the lapses of adversary in attending 3 the litigation. Insufficiency of the stamps of Agreement was criticized. Even in the writ, Counsel for petitioner invited to the Roznama of the case, to impress as to how the matter has travelled for a long duration. 4) The relief of specific performance is a discretionary relief and it is to be exercised in favour of one who comes with clean hands and cards too. The events highlighted hereinafter will illustrate that the writ petitioners have not come with clean hands. 5) The plaint was presented on 20th June, 2001. Writ Petitioner nos.1 to 3 filed Vakalatnama on 24.08.2001. The matter was dragged for service upon the defendant no.4 and ultimately on 7th October, 2002, the defendant no. 4 was served. However, she remained absent. The defendant no.4 allowed the situation to go on in the same manner while the defendants nos.1 to 3 did not bother to file Written Statement. No WS order was passed. On 25.6.2003 claim affidavit was filed by the plaintiff. Thereafter again since there was no cross-examination to the claim affidavit, the learned Judge passed an order observing “No cross-examination to such affidavit” and then the decree, referred to above, was passed on 30th August, 2003. 4 6) The requirement of law in terms of Order IX Rule 13 of CPC calls upon a party to illustrate sufficiency of grounds to seek action of exercising discretion for setting aside the decree. It is not that, as a matter of course and right, every decree passed exparte required to be set aside, if questioned. 7) Now, turning to the sufficiency of grounds, I find, deep slumber has been demonstrated by the defendant nos.1, 2 and 3. The defendant no.4 tried to avoid but was not in a position to succeed as everything is harped upon by the defendants to the credit of defendant no.3 – Vasant Choudhari. 8) In the application, allegations are made against the counsel representing the writ petitioners. Indeed, writ petitioners were conscious of on-going proceedings, deliberately allowed the situation to prevail. They waited till the decree is passed and recorded against them. 9) The finding recorded by the learned Judge in dismissing the application filed in terms of order IX Rule 13 of CPC, though at one level is short of discussion of illness of one of the defendants, however, that by itself will not 5 dilute merits of finding. Both learned Judges rightly, on evaluation of evidence,reached to the conclusion that sufficiency of grounds is not projected and demonstrated. Non-participation of Advocate need not be accepted, as the advocate who received instructions, was the same representing in the application. Case of snake- bite to defendant no.3 was mentioned in Notes, however, it does not figure in pleadings, or evidence of Defendant no.3. The defendant no.3 even did not specify of his illness. Even evidence of engaging Advocate is contrary by two witnesses. 10) Now, turning to the equities, the property was allegedly agreed to be sold in favour of the respondents for an amount of Rs. 10,12,000/- by an agreement of sale dated 18th December, 2000. The decree is dated 30.08.2003. The entire sale consideration is parted by the respondents/plaintiff in the suit so far. Though the prices are increased four-fold, as canvassed by the writ petitioners, however, lapses on the part of the writ petitioners are also writ-large. It cannot be taken as benefit by them. The writ petitioners wanted to kill time with sinister idea, as, they have negotiated with third party. 11) Since I have noticed that there is no 6 sufficiency of grounds mentioned by the writ petitioners to set aside the decree,now I am travelling to other area of the matter. 12) In a suit of specific performance of contract, The Hon’ble Supreme Court, in the matter of M.P.Mathur & Ors. Vs. D.T.C. and Ors. (AIR 2007 SC 414) have explained, in paragraph No.15 the term “equity” as under: “....The present suit is based on equity. The term "equity" has four different meanings, according to the context in which it is used. Usually it means "an equitable interest in property". Sometimes, it means "a mere equity", which is a procedural right ancillary to some right of property, for example, an equitable right to have a conveyance rectified. Thirdly, it may mean "floating equity", a term which may be used to describe the interest of a beneficiary under a will. Fourthly, "the right to obtain an injunction or other equitable remedy". In the present case, the plaintiffs have sought a remedy which is discretionary. They have instituted the suit under Section 34 of the 1963 Act. The discretion which the Court has to exercise is a judicial discretion. That discretion has to be exercised on well-settled principles. Therefore, the Court has to consider - the nature of 7 obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the of the Court granting the decree. In such cases, the Court has to look at the contract. The Court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the Court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the Court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the Court will not grant the relief prayed for [Snell's Equity, 31st Edn., page366]. 13) In the matter of Nirmala Anand Vs. Advent Corporation (P) Ltd. and Ors. -2003 (1) Mh.L.J. 468, the Hon’ble Lordships of the Apex Court have observed, - “... Phenomenal increase of price during the pendency of the litigation, as a general rule, cannot be considered. 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 the party is trying to take advantage over the other as also the hardship that may be caused to the defendant by directing specific performance.” 8 14) Incidentally, the Court in such eventualities, can reach to a situation of maintaining equities between the parties as the seller should not be flogged for the mistakes committed by him. The date of agreement; date of decree and the plaintiffs having not yet received the fruits of the decree, even if there is four- fold enhancement, make me to award additional price in favour of writ petitioners. It is not that the writ petitioner allowed the situation as a gullible litigant to go on, but they were purposefully dormant. The survey of events calls for to direct the plaintiffs (respondents in writ petition) to make additional payment to meet the equities. The sale price being Rs.10,12,000/-, the situation warrants that the plaintiffs (Respondent in Writ Petition) to pay an amount of Rs. 5,00,000/- (Rupees five lakhs) to the writ petitioners. Hence, order. 15) The writ petition dismissed. Rule discharged. The Respondents/original plaintiffs to pay an amount of Rs.5,00,000/- (Rupees five lakhs to the writ petitioners within a period of eight weeks, by depositing before the learned Civil Judge, Senior Division, Dhule in Special Civil Suit No.49/2001. Upon such deposition, and on notice to the defendants, the defendants to execute a sale-deed and handover possession of 9 the suit property in favour of the Respondents/plaintiffs within thirty days thereafter. sd/- (K.U.CHANDIWAL) JUDGE bdv/ Authenticated copy (BD VADNERE,PS)