RSA No.2527 of 2007 (O & M) :1: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2527 of 2007 (O & M) Date of decision: 05.03.2010 Kirpa Ram ..Appellant Versus Rishpal ..Respondent CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ? Yes b). To be referred to the Reporters or not ? Yes c). Whether the judgment should be reported in the Digest ? Yes Present:- Mr.S.K.Sud, Advocate for the appellant Ms. Amrita Nagpal, Advocate for Mr.Lokesh Sinhal, Advocate for the respondent . . . AJAY TEWARI. J. (ORAL) This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondent for specific performance of an agreement to sell dated 3.07.1995, whereby out of a total sale consideration of Rs.90,000/-, Rs.50,000/- were paid. In the written statement, the agreement to sell was admitted. It was, however, mentioned that the appellant had taken only Rs.17,000/- as earnest money but the same had been got inflated to Rs.50,000/- by the respondent. It was further pleaded that the appellant had been ready and willing to get the sale deed executed and had in fact gone to the Office of the Sub-Registrar on the due date. Both the Courts below had, on a conspectus of these facts, decreed the suit for specific performance. Following questions have been proposed:- RSA No.2527 of 2007 (O & M) :2: (a) Whether the suit for specific performance was not maintainable because of unexplained delay ? (b) Whether the plaintiff-respondent was not entitled to the relief of discretionary remedy of specific perofrmance ? (c) Whether the plea of waiver should have been allowed ? (d) Whether the impugned judgements are against the law laid down in judgements of the Apex Court ? (e) Whether the Courts below erred in not acting on oral agreement which was in supersession of earlier agreement ? (f) Whether the judgements of the courts below are against law and laible to be set aside ? As regards question No.(a), learned counsel has relied upon the judgment Veerayee Ammal Vs. Seeni Ammal, AIR 2001 SC 2920, wherein the reliance had been placed upon the case of K.S.Vidyanadam v. Vairavan (1997 (3) SCC 1), wherein this Court held as under:- “12. Even where time is not of the essence of the contract, the plaintiffs must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property.” “14. In the instant case the parties had agreed to complete the sale by 15-6-1980 despite the fact that the time was not the essence of the contract. The appellant-plaintiff is stated to have issued letters to the respondent-defendant calling upn to execute the sale deed and thereafter also issued notice. It was further alleged and held proved by the Courts of fact that the nature of the property was wet land which continued to be such during the trial. As the appellant-plaintiff had contracted to purchase the land with a view to RSA No.2527 of 2007 (O & M) :3: construct a residential house, the respondent- defendant had undertaken to remove the telegraph pole in one part of the property. The trial as well as the first appellate Court found that in pursuance of the agreement the said pole was got removed in the first week of November, 1980 and the appellant-plaintiff issued a notice (Exhibit A-4) on 11.11.1980 calling upon the respondent-defendant to execute the sale deed. The appellant-plaintiff also made a publication on 13.11.1980 in a daily newspaper intimating the people at large not to purchase the property of the respondent-defendant as the same was the subject- matter of agreement to sell executed in favour of the appellant-plaintiff. On the failure of respondent- defendant to comply with the conditions of the agreement, the demands made in the letters and the notice, the appellant-plaintiff filed O.S.No.1249 of 1980 in the month of November, 1980 itself. The legal action initiated by the appellant-plaintiff was rightly held by the trial Court and the first appellate Court to have been commenced without delay and definitely within a reasonable time. The High Court was not justified in disturbing the finding of fact arrived at on appreciation of the evidence, while disposing of the second appeal". In my opinion, no fault can be found with the finding of the Courts below that the suit does not suffer from unexplained delay. The learned Lower Appellate Court has given a detailed finding that the respondent had given a notice and had then filed the present suit within a period of two years and further that no plea of unjustified delay was taken in the written statement, which would have enabled the Trial Court to frame an issue thereon. The learned Lower Appellate Court relied upon the judgments of the Hon'ble Supreme Court in Ram Niwas Gupta Vs. Mumtaz Hasan & Ors., 2002(2) Apex Court Judgments 510 (SC). RSA No.2527 of 2007 (O & M) :4: With regard to question No.(b), learned counsel has vehemently argued that the appellant had stated in his cross-examination that his young son had died and that the responsibility of looking after his mad daughter-in-law and the children was on him and that he had no other residential house in his name. Learned counsel has relied upon Parakunnan Veetill Joseph's Son Mathew V. Nedumbara Kuruvila's son and others, AIR 1987 SC 2328, wherein the Hon'ble Supreme Court has stated that the Court should take care to see that litigation is not used as instrument of oppression to have unfair advantage to plaintiff. He has further relied upon A.C. Arulappan v. Smt. Ahalya Naik, AIR 2001 SC 2783, wherein the Hon'ble Supreme Court has held as mentioned following:- “The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the Court need not grant the order for specific relief, but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in S.20(2) of the Specific Relief Act, 1963 as to under what circumstances, the Court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff” To similar effect is a judgment rendered by the Hon'ble Supreme Court in case titled as V.Muthusami (dead) by LRs., v. RSA No.2527 of 2007 (O & M) :5: Angammal and others, AIR 2002 SC 1279, wherein also, the Hon'ble Supreme Court has laid down that where the performance of a contract involves some hardship on the defendant which he did not foresee, then the Court may properly exercise its discretion not to decree specific performance. The plea of hardship has been considered by the learned Lower Appellate Court in paragraph 15 of its judgment. The Court rejected the defence of undue hardship on the ground that no such plea was made in the written statement nor was there any such plea that he owned no other residential property. The learned Lower Appellate Court also noticed that property in dispute is a vacant plot and thus, it cannot be said that this was only the residential house of the appellant. Moreover, the Court has also noticed the fact that in his written statement, the appellant took the plea that he was ready to execute the sale deed. In the circumstances, the present case cannot be held to be that of undue hardship where at the time of entering into the contract the appellant did not foresee the hardship. As regards question No.(e), learned counsel has taken me through the finding of the learned lower Appellate Court recorded thereon but has not been able to persuade me that the said finding is either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. Questions No.(d) and (f) are are general questions. Once, the answers to questions No.(a), (b), (c) and (e) are against the appellant, these questions recede to the background. Consequently holding all the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. RSA No.2527 of 2007 (O & M) :6: Since the main appeal is decided, the Civil Miscellaneous Application, if any, stands disposed of. March 5, 2010 (AJAY TEWARI) Sukhpreet JUDGE