‘\ WM M M $1m§m gencli IN THE HON'BLE HIGH wURT OF CHHATTISGARH RT BILASPUR Secogiggpeal No. i7 of 20g§ APPELLANT; :- /’Bharat Ram Sahu son of Santosh PPAxNT FF Sahu, aged about 50 years, Occupation - Service/Teacher R/o chhattisgarh Nagar, Jhanda Chowk, Tikrapara, Raipur (C‘GJ. RESPONDENTS :- 1): _‘. $alik son of Nakul Rawat, aged 3EFmDANTs if ? about 60‘ yaars, R/o village Ghot, Post Nawagaon, via- Nayapara Rajim, Tah._ &bhanpur, District Raipur (C¢Gv) o ‘ Er Munna Rawat son of Bihalik Rawat, aged about 27 years, R/o village Paudi, Post Chapajhar, District Raipur (c.G.). " Sahdev son oii Bésalik Rawat, a‘ged about 2'7 years, R/o. village Paudi, Post Chapajhar, District Raipur (C.G«)‘.’ Jagaev son of late Bisalik Rawat, aged about 22 years, R/o. village Paudi, Post chapajhar. District Raipur (C.G.). 5)" Lats Bai wife of Netu Rawat, R/o Binauri, Pest Basin, Via—l Ra'jim, District Raipur (c.G.). 6)v Savita wife ofNsrottam Rawat, R/o village Abhseoni, District R&ipur (CuGaL- I, Smt. Johni Bai widow of late (f Bisalik Rawat, aged about 48 years, R/o village Jodi, Distt. Reipur (CuGo); ' < a. Ku. Savitri D/o late Eisaiik, r?“ V” SECOND APPE$kUNDER §ECTION 10 pa: Mum/— ii r r r amwwm,lm‘ ageé abcut 14 years, R/o village Pauéi, District Raipur (C.G.) Thrcugh— Legal representative and next iiriend Johni Bai. Both R/o village Jaundi. Q OF CIVIL PROCEDUREIIOEE (3) A written statement was med denying the contentions 6f the plainti\ff. The factum Qf execution of the agreement was denied by the defendants. QB (4) " he learned trial Court framed various issues in this case and after recordina evidence of the parties dismissed the suit of the piaintiff on two arounds. It was heid that the piaintiff could not prove that such an agreement was executed by the defendants. lt was also held that the suit of the plaintiff: which was med for specific performance of an agreement dated 317/1 988 on 1419/1 997 was barred by limitation. (5) Against the aforesaid judgment and decree passed by the trial Court, the plaintiff filed an appeal before the Lower Appellate Court. The Lower Appellate Court also dismissed the appeal, confirming the iudoment and decree passed by the trial Court. \(6) Learned counsel for the appellant argues that the trial Court as well as the First Appellate Court erred in law in holding that that the plaintiff could not establish the valid execution of the agreement dated 3/7/1988 (EXP-1). He also argues that the finding in relation to limitation is not in accordance with law. frxi(/v Mk of Pomemy on Specific Performance of Contracts (3" m \‘l in thn n Edn.), (para 159), a quotation pertaining to the said subject is made as follows : “ a greater amount or degree of certainty is required in the terms of an agreement, which is to be specifically executed in euuitv. than is necessary in a contract which is to be the basis of an action at law for damages. An action at law is founded upon the mere non-performance by the defendant, and this negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is -wholly an affirmative proceeding. The mere fact of non- oerformance is not enough; its object is to procure a performance bv the defendant. and this demands a clear, definite and precise understandina of ali the terms; they must be exactly ascertained w uwv T before their performance can be enforced. This quality of \certainty can best be illustrated by examples sel%ted from the decided cases. . Reference be seen in (1998) 5 SCC 381 - Ganesh Shet - vs- Dr.C.S.G.K. Settv and others. (8) In JT 2006 (2) 3C 228 — H.P. Pyareian — vs- Dasanna (dead) by L.Rs. and others: it has been held by the Apex Court that the basic principle behind section 16 (c) read with Explanation (ii) is that anv person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specifrc relief. The provision imposes a personal bar. The Court is to grant retief on the basis of the conduct of the person seeking relief. lf the pleadings manifest that the conduct of the plaintiff entitles him to aet the relief on perusal of the plaint he should not be denied the relief. (9) lt is clear from the aforesaid judgments that the relief for specific performance is a discretionary relief and is not given merely because it is legal but it is governed by sound judicial principles. The circumstances referred to in sub-section (2) to (4) of Section 20 of the Specific Relief Act, in regard to exercise of discretion for granting a decree for specific performance are not exhaustive. In a suit for specific performance, the evidence and proof of the agreement must be established, clear and certain. While normally: it is permissible to grant relief on the basis of what emerges from evidence — even if not pleaded. provided there is no prejudice to the opposite party, such a principle is not applied in suits relating to specific performance. (Emphasis supplied). (10) ln the case on hand: it appears after perusal of the said agreement (Ex.-P-1) and also after perusal of the evidence of PW-3 ang PW-4) who are the witnesses to the agreement, that the agreement itself suffers with many legal deformities. The trial Court has pointed out that this agreement, which is written on a stamp paper and is endorsed to be purchased on 4/12/1987 has got manipulations in the column of endorsement to be made by the vendor. ln the last column'lafterv‘using x; \ whitener (eraser) in overwriting, the word — “Ekramama” has been mentigned. Net crdy th§s, a: pEace B :o B ef :he said document, “~39u5‘F1 7% % $‘rm‘ 3‘953'00 rrrh- §i @ 1’! I"I"I"l 'l'l‘l\l we a 1 a'su i A appears tr0 L4- ue an ingenion A -‘ afterwards and on this evidence: the trial Court and the First Appeilate Court have heid that the valid execution of the agreement was not oroved. (11) This finding of fact about the validity of the execution of the agreement has been recorded by the two Courts below. There aboears to no perversity in the aforesaid finding recorded by the said Courts and that cannot be disturbed in this appeal. (12) So far as the point of limitation is concerned, since the factum of execution of agreement has not been found to be established bv the two Courts below and l have also taken the view that the finding recorded by the two Courts, in this regard,are not required to be interfered with in this Second Appeal, l am not required to go into the question of limitation because such an exercise would be redundant in view of what has been stated above. (13) ln the opinion of this Court: the appeal involves no substantial question of law for consideration under Section 100 of the Code of Civil Procedure and the same is dismissed at the motion stage itself. Stil- _—/\ sunii Kamar Sinha Judge shyna