1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Smt. Snehlata Mangal V/s. Ashok Kumar & Ors. (S.B. Civil First Appeal No.62/2010) S.B. Civil First Appeal Under Section 96 of Civil Procedure Code Date of Order :: August 05, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Prahlad Sharma for the appellant. Aggrieved by the judgment and decree dated 20.11.2009 passed by the Additional District Judge (Fast Track) No.2, Beawar, whereby the learned Judge has decreed the suit for specific performance, in favour of plaintiff-respondent, Ashok Kumar, the defendant-appellant has filed this First Appeal. The brief facts of the case are that a suit for specific performance of the contract dated 01.04.2003, declaration and permanent injunction was filed by the plaintiff against the appellant as well as against the respondent Nos. 2 to 4. In the suit, it was mentioned that defendant Nos. 1 to 3 have right to alienate the suit 2 property as they are owner of the said property. Therefore, they put a proposal to sell a shop to the plaintiff. The plaintiff had accepted the said proposal and agreed to purchase the said shop for a consideration of Rs.1,75,000/-. An agreement to sale dated 1st April, 2003 was executed by the defendant Nos. 1 to 3 in favour of the plaintiff. The amount of Rs.1,75,000/- has been paid to the defendant Nos. 1 to 3. In the agreement, it was settled that the registered sale deed will be executed according to the direction of the plaintiff. Defendant Nos. 1 to 3 have not performed their part and they have always avoided to execute the registered sale deed in favour of the plaintiff. Therefore, a legal notice was sent to defendant Nos. 1 to 3. In the suit, decree for specific performance of the contract dated 01.04.2003 along with decree for permanent injunction has been claimed, and in the alternative, a decree for recovery of Rs.1,75,000/- along with interest @ 24% per annum has also been claimed. The defendant Nos. 1 & 2 filed their written statement and stated that they have neither proposed any sale to the plaintiff, nor any transaction took place. In the written statement, it was also pleaded that the alleged agreement was neither executed in presence of any witnesses, nor it had been signed by 3 defendant Nos. 1 to 3. On the basis of the pleadings, the learned Court below framed as many as nine issues including issue of relief. On behalf of the plaintiff, Ashok Kumar and Suresh Kumar were examined as P.W.1 and P.W.2 and exhibited certain documents. On behalf of the defendant-appellant, Rajendra Mangal and defendant- appellant herself were examined as D.W.1 and D.W.2 as well as certain documents were got exhibited. The learned Judge, vide its judgment dated 20.11.2009, decreed the suit in favour of the plaintiff. Hence, this appeal before this Court. The learned counsel for the appellant has raised the following contentions before this Court: firstly, the learned Judge had framed nine issues, out of which, issue Nos.1 and 3 were cardinal to resolving the controversy between the parties. Issue No.1 was with regard to whether the plaintiff-respondent had paid a sum of Rs.1,75,000/- for buying the property through an agreement to sale, or not ? Issue No.3 was with regard to whether the plaintiff-respondent was entitled to a permanent injunction in his favour, or not ? According to the learned counsel, the learned Judge has failed to appreciate the first issue in proper perspective. For, the 4 plaintiff, in his cross-examination, had claimed that the agreement to sale was signed by three persons, namely, Smt. Snehlata Mangal (the appellant before this Court), Rajendra Prasad, and Smt. Sanjya Devi. However, the agreement to sale does not bear the signatures of Rajendra Prasad and Smt. Sanjya Devi. Thus, the plaintiff has not been able to prove his case. Yet, the learned Judge has held that the agreement to sale was a valid one. Moreover, while discussing the issue about granting of permanent injunction, the learned Judge has gone of on a tangent, and has directed that the amount of Rs.1,75,000/- should be paid by the defendant-appellant to the plaintiff-respondent. Hence, the judgment deserves to be quashed and set aside. Heard the learned counsel for the appellant, perused the impugned judgment and the testimony of plaintiff-respondent as submitted by the learned counsel for the appellant. A bare perusal of the impugned judgment clearly reveals that the learned Judge has dealt with Issue No.1 in great detail. The learned Judge has clearly noted the fact that the plaintiff himself had admitted that the agreement to sale was not signed by Rajendra Prasad and Smt. Sanjya Devi. Although the plaintiff had claimed that the appellant 5 had signed the said document as a power of attorney holder of Smt. Sanjya Devi. Even this fact could not be proved by the plaintiff. However, a bare perusal of the agreement to sale clearly reveals that the said agreement has been signed by the defendant-appellant. Moreover, the defendant-appellant has never pleaded that the agreement to sale is a forged document. During the entire trial, the appellant has, neither lodged a FIR before the police, nor requested the learned trial Court to send the agreement to sale to the Forensic Science Laboratory for its report. Since the appellant has not challenged the genuineness of the document, the learned Judge has rightly concluded that the document is genuine, relevant and admissible. As far as the discussion of the learned Judge with regard to issue No.3 is concerned, Section 20 of the Specific Relief Act bestows a discretionary power on the Court to consider if instead of directing the specific performance of a contract, whether a monetary compensation can be paid to the plaintiff, or not ? A bare perusal of the impugned judgment reveals that the learned Judge had invoked his power under Section 20 of the Act. The learned Judge had correctly concluded that since the property in dispute belong to a Trust, since the appellant 6 was not authorized by the Trust to sell the property, it would not be legally proper to direct the specific performance of the contract; instead, the consideration paid by the plaintiff-respondent to the defendant-appellant should be duly returned to the plaintiff-respondent. Therefore, rather than granting a permanent injunction, rather than directing specific performance of the agreement, the learned Judge was certainly justified in passing a decree for recovery of money. Hence, this Court does not find any merit in the first appeal; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.Asopa/-