RSA No. 3666 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3666 of 2008 Date of decision: January 21,2009 Manga Singh son of Kapoor Singh ..Appellant. Versus Rulia Singh son of Karan Singh ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. R.S.Rangpuri, Advocate for the appellant. Mr. I.S. Brar, Advocate for the respondent. .... Rakesh Kumar Garg,J.(Oral) This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell dated 19.5.2000 in respect of the suit land with a consequential relief of permanent injunction has been decreed with costs. The plaintiff filed a suit for possession by way of specific performance of the agreement to sell dated 19.5.2000 and in the alternative suit for recovery of Rs. 4 lacs with consequential relief of permanent injunction restraining the defendant from alienating the suit land in any manner to any person except the plaintiff. As per the averments of the plaintiff, the defendant being owner in possession of the suit land, entered into an agreement to sell the land measuring 48 kanals with the plaintiff Rulia Singh vide agreement to sell dated 19.5.2000 for a total sale consideration of amount of Rs. 7.50,000/- i.e., Rs. 1,25,000/- per acre. The defendant received an amount of Rs. 2,00,000/- as earnest money. By virtue of the above said agreement, the contents of the agreement were read over and explained to the defendant and the defendant put his signature on the agreement in the presence of the attesting witnesses in token of the correctness RSA No. 3666 of 2008 2 of the contents of the agreement. It was agreed between the parties that the sale deed would be executed on or before 23.1.2001 on payment of balance sale consideration of Rs. 5,50,000/-. It was further agreed if the defendant failed to execute the registered sale deed on or before the stipulated date, then vendee/ plaintiff will be entitled to get the sale deed executed and registered through court or the plaintiff will be entitled to get the double of the earnest money. It was further agreed that if the plaintiff failed to get the sale deed executed and registered in his favour, the earnest money paid by him will be forfeited. On the stipulated date, the plaintiff was present with balance sale consideration along with expenses for registration of the sale deed in the office of Sub Registrar, Doda, however, the defendant did not turn up. It was further averred that the plaintiff had always been and was still ready and willing to perform his part of the contract. The defendant violated the terms and conditions of the contract as he had failed to perform his part of the contract. Repeated requests to the defendant did not make any head way. Hence, the cause of action and the suit. The defendant contested the suit by filing written statement taking preliminary objections to the effect that the suit is barred under Order 2 Rule 2 of CPC. On merits, it was stated that the defendant never entered into any agreement to sell the suit land with the plaintiff nor the defendant had any legal necessity to sell his suit land. The suit land is 'Nehri' land and its market value at the relevant time was 2,50,000/- per acre. The defendant further stated that he never received any alleged amount of earnest money. The alleged agreement was result of fraud and prepared in connivance with friends and relatives of the plaintiff. The defendant never got attested an agreement from the alleged witness at any point of time. When no such agreement was ever executed by the defendant so, there was no question of its performance on the alleged date. While denying the other averments in the plaint, the defendant prayed for dismissal of the suit with costs. On the pleadings of the parties, the following issues were framed: RSA No. 3666 of 2008 3 i) Whether the plaintiff is entitled to decree of possession by way of specific performance of agreement for sale dated 19.5.2000 ?OPP ii) Whether the plaintiff is entitled to an alternative relief of recovery of Rs. 4 lacs as refund of earnest money and stipulated damages as alleged ?OPP iii) Whether the plaintiff is entitled to permanent injunction as prayed for ?OPP iv) Whether the suit of the plaintiff is barred under Order 2 Rule 2 C.P.C. ?OPD v)Relief. Thereafter an additional issue was framed on 7.3.2006 which is as follows:- 1. Whether the plaintiff has already been ready and willing to perform his part of the contract ?OPP The courts below after hearing the counsel for the parties and considering the evidence on record decreed the suit of the plaintiff respondent for possession of the suit land by way of specific performance of the agreement to sell in question. Still not satisfied, the defendant has filed this appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that both the courts below have wrongly granted the relief of specific performance of the agreement to sell dated 19.5.2000 in favour of the plaintiff-respondent as the courts below have failed to appreciate the circumstances surrounding the alleged transaction which clearly indicate that the agreement to sell is tainted with fraud committed upon the appellant and in such a situation, the decree of specific performance amounts to giving an unfair advantage to the plaintiff-respondent as the performance of the agreement would involve hardship on the appellant because property in question is the only source of livelihood of the defendant and it would render such enforcement un-equitable. RSA No. 3666 of 2008 4 On the basis of the aforesaid arguments, learned counsel for the appellant argued that the following substantial question of law arises in this appeal:- “Whether the learned lower Courts below while exercising its discretion to grant the relief of specific performance had failed to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant and therefore, failed to discharge its obligatory duty casts by number of judgments of the Hon'ble Supreme Court of India and various Hon'ble High Courts ?” In support of his contention, the counsel for the appellant has relied upon a judgment of the Hon'ble Supreme Court in the case of Bal Krishna and another Versus Bhagwan Dass (Dead) & others 2008(2)RCR(Civil) 732. I have heard learned counsel for the appellant as well as the caveator. Admittedly, no such pleadings of hardship to the appellant have been made by the appellant in his written statement with regard to the argument which has been raised before this Court. Even the learned counsel for the appellant has very fairly conceded that this point was not raised before the courts below. The contention of the counsel is that it was the duty of the court to see such circumstances. The judgment in the case of Bal Krishna's case (supra) is not applicable in the facts and circumstances of the case. In the aforesaid judgment, the Hon'ble apex Court has held as under:- “It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests RSA No. 3666 of 2008 5 under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court’s discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.” The judgment was passed by the Hon'ble Supreme Court in the facts and circumstances of that case and it was held that the relief of specific performance of the contract is a discretionary relief and merely because it is lawful to do so, it should not be granted and the court while granting the decree may also see whether there is any unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant,the said decree may not be granted. Admittedly, no such circumstances have been shown by the appellant in the instant case. The contention of the counsel for the appellant that the circumstances surrounding the execution of the agreement are suspicious and therefore, this amounts to causing hardship to the appellant cannot be accepted. Moreover, the Hon'ble Supreme Court of India in the case of Bachhaj Nahar Versus Nilima Mandal and another JT 2008(13)SC 255 has held that the court cannot make out a case not pleaded and the court should confine its decision to the questions raised and pleaded, nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint. It has been further held in this judgment that a factual issue cannot be raised or considered for the first time in a second appeal. Admittedly, the point as raised before this Court was not raised by the appellant in the courts below. The courts below on appreciation of facts have recorded a concurrent finding of fact that agreement to sell in question was duly executed RSA No. 3666 of 2008 6 between the parties and the plaintiff-respondent was and is still ready for the performance of the contract of his part and in fact the counsel for the appellant has not challenged these findings of facts recorded by the courts below. No substantial question of law arises in this appeal. For the reasons recorded above, I find no merit in this appeal, the same is dismissed. No costs. January 21,2009 (RAKESH KUMAR GARG) nk JUDGE