R.S.A. No. 3763 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3763 of 2008 (O&M) Date of Decision : 16.2.2009 Smt. Sardey & another .......... Appellants Versus Ishwar Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. N.S. Shekhawat, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree dated 24.8.2007 and 24.7.2008 passed by the learned Courts below vide which suit filed by the plaintiff-respondent for specific performance of agreement to sell stands decreed. The plaintiff / respondent brought a suit for enforcement of agreement to sell daed 31.10.2001 executed between the parties. The total sale consideration fixed was Rs. 1,00,000/- per acre and earnest money of Rs. 50,000/- was paid to the appellant-defendants. It was the case of the plaintiff-respondent that on the date fixed for the execution of the sale deed plaintiff-respondent appeared before the Sub Registrar along with the remaining amount, stamp duty, expenses and the witnesses but the defendant-appellant failed to appear. The learned Courts below on appreciation of evidence on R.S.A. No. 3763 of 2008 2 record have recorded a concurrent finding of fact that defendants-appellant had entered into agreement dated 7.5.2001 after receiving earnest money of Rs. 50,000/- and had agreed to execute the sale deed. The learned Courts also held that the evidence on record shows that the plaintiff was always and still ready and willing to perform her part of contract. The plea of the defendant-appellants that the agreement was forged and fabricated document was held to be not proved and decided against the defendants. The learned counsel for the appellant raised the following substantial question of law for consideration by this Court in this appeal :- Whether it was inequitable to have granted decree for specific performance of agreement to sell in view of the suspicious circumstances proved on record ? In support of the substantial question of law the learned counsel for the appellant contends that as per the provisions of Section 20 of the Specific Relief Act the Court has discretion to grant a decree for specific performance and is not always bound to grant such relief, even if inequitable. The discretion exercised should not be arbitrary, but based on sound and reasonable judicial principles which could be corrected in appeal. On consideration of the matter, I find that the substantial question of law as framed, does not arise for consideration in this appeal inasmuch as it was not the case before the learned Courts below that the decree for specific performance was not equitable, nor there was any material either pleaded or proved that defendants were likely to suffer great R.S.A. No. 3763 of 2008 3 injustice in case the contract was specifically enforced. The plea now sought to be raised, can not be permitted for the first time in regular second appeal, as in order to determine equities the Court is required to consider the pleadings and evidence brought on record. It is settled law that normally the contract for sale of immovable property is to be specifically enforced, as payment of damages can not be adequate compensation for breach. The substantial question of law framed is answered against the appellants. No merit. Dismissed in limine. 16.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE