1 SA 982.2004 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 982 OF 2004 Shankar Zangur Gujar .... APPELLANT V E R S U S Shevantabai W/o Narayan Gujar .... RESPONDENT Mr.H.A.Joshi ,Advocate holding for Mr. Pradeep Deshmukh, Advocate for the appellant. Mr.N.E.Deshmukh, Advocate for respondent. CORAM : S.V. GANGAPURWALA, J. DATE : 14/03/2011 ORAL ORDER : 1. Heard learned counsel for the respective parties. 2. This is plaintiff’s Second Appeal. The plaintiff had filed Suit for specific performance of contract in respect of agreement said to have been executed by the defendant in his favour on 15/7/1974. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court dismissed the Appeal and confirmed the Judgment and decree passed by the trial Court. The plaintiff has assailed the said Judgment and decree in the present Second Appeal. 3. Mr. H.A.Joshi, the learned counsel for the appellant vehemently 2 SA 982.2004 submits that the Court below have failed to exercise the discretion judiciously. Minor variance in the deposition of attesting witnesses would not negate the whole transaction. According to the learned counsel, the intention of the parties is relevant and it has been proved by the preponderance of probabilities that the defendant has executed agreement. The consideration amount was Rs. 8100/-. The plaintiff had paid the consideration amount of Rs. 4300/- at the time of agreement and remaining amount was paid to the creditors. The learned counsel further contends that Section 20 of the Specific Relief Act has not been properly concerned. When agreement of sale is on record and the plaintiff has proved the payment of consideration amount, the specific performance should have been granted as a rule. Denial can be an exception. 4. Per contra, Mr. N.E.Deshmukh, the learned counsel submits that both the Courts on consideration of the evidence, oral as well as documentary, have come to the conclusion that the plaintiff could not prove the payment of consideration amount nor could prove the due execution of the agreement, and have rightly dismissed the Suit. As such, no error is committed by the Court below. 5. With the assistance of the learned counsel, I have gone through 3 SA 982.2004 the Judgments delivered by both the Courts. 6. The relief of specific performance is a discretionary relief. If the Courts below have exercised their discretion in one way, the appellate Court has to be loath in interfering with the said discretion unless it is shown that the same is exercised in an arbitrary manner. In the present case, the lower appellate Court in para no. 16 of its Judgment has observed that the consideration of Rs. 8100/- was shown but apart from the same, the duty was cast on the plaintiff to pay all other debts. The plaintiff could not bring on record the details of the other debts or whether the same were paid. The consideration was vague one/it was uncertain. It is the cardinal and fundamental principle of civil jurisprudence, the plaintiff has to either stand or fall on his own and can not rely on the weakness of the defendants. The plaintiff having failed to prove the said factum of other debts, so also, the deposition of attesting witnesses, is not in tune with the recitals of the agreement, so also the fact that the plaintiff himself has admitted in his cross examination that the defendant is still in possession of the property though the possession receipt is executed in his favour. All these factors have been considered by the Courts below. 7. The view taken by the Courts below is a possible view. The 4 SA 982.2004 Second Appeal can not be entertained only on the ground that some other view is also possible. In that light of the matter, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 8. In view of dismissal of Second Appeal, Civil Application does not survive and is also dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 982.2004