HIGH COURT OF UTTARANKHAND AT NAINITAL SECOND APPEAL NO. 48/2004 Ashok Kumar …..Plaintiff -Appellant Vs. Darshan Singh and others ….Defendants –Respondents 9.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri Lok Pal Singh, counsel for the appellant and Shri Alok Singh, Sr. Advocate assisted by Shri D. Barthwal, counsel for the respondents. 2. By the present second appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 19.04.2004 passed by 2nd F.T.C./ Additional District Judge, Haridwar in civil appeal no. 57 of 1999. 3. Second appeal was admitted on following substantial question of law:- 1. Whether the certified copy of alleged agreement to sale dated 21.06.94, which is not a public document, is admissible in evidence without producing the original document and without proving by the attesting witnesses and without considering the aspects the judgment passed by the First Appellate Court based on the certified copy of a document is sustainable?” 2 4. Briefly stated, a suit being suit no. 53 of 1995 was filed for performance of specific contract and permanent injunction. According to the plaintiff Ashok Kumar, the defendant no. 1 was bhumidhar of land Khasra no. 243 area 0.4000 Hect., khasra no. 244/2 area 0.389 Hect., Khasra no. 355/2 area 0.256 Hect, Khasra no. 355/6 area 0.359 Hect., Khasra no. 356/1 area 0.265 Hect. and 0.881 Hect. out of Khasra no. 356/2 area 0.522, in village Jaspur, Ranjeet Pur, pargana Jwalapur, Tehsil Laksar, District Haridwar. The defendant no. 1 has executed an agreement for sale on 26.8.94 on a sum of Rs. 60,000/- in favour of the plaintiff. The defendant no. 1 has also received an amount of Rs. 30000/- towards the advance of the said agreement for sale and handed over the possession of the property in dispute to the plaintiff. It has been stated that the defendant nos. 2 and 3 are the residents of same village and have knowledge about the agreement for sale executed in favour of plaintiff with regard to the disputed property. The plaintiff was always willing to get the sale deed executed in his favour and he has also paid the half of the amount as per agreement for sale. The plaintiff has submitted that the defendant nos. 2 and 3 are interfering with his possession. The defendant no. 1, inspite of agreement with the plaintiff, has executed the sale deed in favour of the defendant nos. 2 and 3. The plaintiff has sent the notices dated 20.10.1994 and 29.11.1994 to the defendant no. 1 to execute the sale deed in his favour, but the defendant no. 1 has not done so. Therefore, the suit for 3 cancellation of sale deed and permanent injunction has been filed. 5. The defendant no. 1 did not appear in the case and, therefore, ex parte proceedings were drawn against him. 6. The defendant nos. 2 and 3 have admitted paragraph no. 1 of the plaint. However, they have denied the rest of the averments made in the plaint. It has been submitted that the defendant no. 1 has not executed any agreement for in favour of the plaintiff and he is not in possession of the disputed property. The defendants are the owners in possession of the disputed property. In paragraph 9 of the written statement, it has been stated as under:- “;g fd mRrjnkrk izfroknhx.k us izfroknh ua0 1 dks iz’uxr lEifRr dh ekdwy jde vadu 80 gtkj #i;s vnk djds fodz; i= jftLVMZ djk;s gSa A mRrjnkrk izfroknhx.k iz’uxr lEifRr ds ln~Hkkoh dzsrk gSa bl dkj.k /kkjk 41 Vh0ih0 ,DV dk ykHk izkIr djus ds vf/kdkjh gSa A” 7. The trial court has framed the following issues:- “D;k fnukad 26-8-94 dks #i;s 60 gtkj esa fookfnr lEifRr fodz; djus dk vuqcU/k izfroknh la[;k&1 us oknh ds gd esa izfroknh la[;k 2 o 3 ds Kku esa fu"ikfnr oknh ds gd esa izfroknh la[;k 2 o 3 ds Kku esa fu"ikfnr fd;k rFkk 30 gtkj #i;s vfxze /kujkf’k izkIr dh ,oa dCtk djk fn;k\ 4 2- D;k oknh fookfnr fodz; vuqcU/k dh 'krksZa ds vuqlkj vius gd esa fodz; i= fu"ikfnr djkus ds fy, ges’kk rS;kj o bPNqd jgk\ 3- D;k izfroknh la[;k 2 o 3 fookfnr lEifRr ds ln~Hkkoh dzsrk gSa rFkk /kkjk 41 Vh0ih0 ,DV ds rgr ykHk izkIr djus ds vf/kdkjh gSa\ 4- D;k izfroknhx.k us fnukad 21-6-94 dks fodz; vuqcU/k izfroknh la[;k 1 ls #i;s 80 gtkj esa fd;k Fkk rFkk mDr fodz; vuqcU/k ds vk/kkj ij fnukad 8-9-94 dks fodz; i= fu"ikfnr dj;k ,oa dCtk izkIr fd;k\ 5- D;k okn fof/kor /kk;Z ugha gS] D;ksafd le; ls iwoZ ;ksftr fd;k x;k gS\ ;fn gkWa rks izHkko\ 6- oknh fdl vuqrks"k dks izkIr djus dk vf/kdkjh gS\ 7- D;k okn dk ewY;kadu de fd;k x;k gS rFkk U;k;’kqYd vi;kZIr gS\ 8- D;k oknh vuqcU/k ds vk/kkj ij fookfnr lEifRr ij dkfct gS rFkk izfroknhx.k 2 o 3 us oknh ds fookfnr lEifRr ij dCts esa gLr{ski djus dh /kedh nh\ 8. While deciding issue no. 1, the trial court has recorded the finding that the plaintiff was in possession of the disputed property. 9. So far as issue no. 2 is concerned, the trial court has come to the conclusion that the plaintiff was always ready and willing to get the sale deed executed in his favour. 10. So far as issue no. 3 is concerned, the trial court has recorded the finding to the following effect:- 5 “/kkjk 41 lEifRr vUrj.k vf/kfu;e dk ykHk izfroknhx.k dks rHkh fn;k tk ldrk Fkk] tc okLrfod ekfyd ds vfrfjDr vU; fdlh O;fDr ds }kjk cSukek fu"ikfnr fd;k x;k gksrk A esjh jk; esa izLrqr oknh esa /kkjk &41 lEifRr vUrj.k vf/kfu;e dk dksbZ ykHk izfroknhx.k dks ugha fn;k tk ldrk gSA” 11. While deciding issue no. 4, the trial court has recorded the finding to the following effect:- “,slh fLFkfr esa eSa bl er dk gWwa fd u rks ;g ekuk tk ldrk gS fd izfroknh la[;k&1 us izfroknhx.k 2 o 3 ds i{k esa fnukad 21-6-94 dks dksbZ fodz; vuqcU/k fd;k vkSj u gh ;g ekuk tk ldrk gS fd mlds vk/kkj ij fnukad 8-9-94 dks dksbZ fodz; i= izfroknh la[;k&1 us izfroknh la[;k 2 o 3 ds i{k esa fu"ikfnr fd;kA izfroknh la[;k 1 us iwoZ esa gh fnukad 26-8-94 dks bdjkjukek egk;nk c; oknh ds i{k eesa djds mldks iz’uxr lEifRr ij dCtk djk fn;k Fkk A vr% iz’uxr lEifRr ds lUnHkZ esa nksckjk cSukek djus dk dksbZ vf/kdkj izfroknh la[;k 1 dks ugha Fkk vkSj bu ifjfLFkfr;ksa esa iz’uxr lEifRr ij izfroknh la[;k 2 o 3 dk dCtk gksuk Hkh ugha ekuk tk ldrk gSA” 12. With regard to issue no. 5 the trial court has held that the suit of the plaintiff is maintainable. 13. So far as issue no. 8 is concerned, the trial court has recorded the finding to the following effect:- 6 ßokn foUnq la[;k 1 dh foospuk ls Li"V gS fd iz’uxr lEifRr ij oknh dk dCtk gSA fnukad 8-9-94 dks izfroknh la[;k 1 us izfroknhx.k 2 o 3 ds i{k esa iz’uxr lEifRr dk cSukek fu"ikfnr fd;k A vr% Li"V gS fd izfroknh la[;k 2 o 3 us mDr cSukek gksus ds i'pkr~ iz’uxr lEifRr ij dCTkk izkIr djus dk iz;kl Hkh fd;k gksxk A Lo;a izfroknhx.k 2 ,oa 3 dk dFku gS fd iz’uxr lEifRr ij mudk dCTkk gS] ftls ekuus dk dksbZ vkSfpR; ugha gS D;kasafd iz’uxr lEifRr ij oknh dk dCtk ekuk x;k gSA vr% izfroknhx.k }kjk oknh ds dCtk n[ky esa Hkh gLr{ksi djus dk iz;kl fd;k tk jgk gksxk] ;g LokHkkfod gSAÞ 14. The trial court has decreed the suit and has passed an order that the defendant shall execute the sale deed in favour of the plaintiff after receiving the unpaid amount of Rs. 30,000/-. The defendants were also restrained to interfere in the peaceful possession of the plaintiff in the disputed property. 15. Aggrieved by the judgment and decree passed by the trial court, the defendants went in appeal. The appellate court has allowed the appeal and has set aside the judgment and decree passed by the trial court. The order passed by the appellate court is as under:- “vihy Lohdkj dh tkrh gS A voj U;k;ky; }kjk ikfjr fu.kZ; fnukad 18-8-99 dks vikLr fd;k tkrk gS ,oa vUrfuZfgr 'kfDRk;ksa dk iz;ksx djrs gq, vuqrks"k x ds rgr fodYi esa c;kuk dh /kujkf’k rhl gtkj #i;s e; 7 C;kt lkykuk lk/kkj.k 6 izfr’kr dh nj ls fu.kZ; dh rkjh[k ls vUnj rhu ekg izfroknh la[;k 2 o 3 }kjk v’kksd oknh dks nsus dk vkns’k fn;k tkrk gS A izfroknh la0 2 o 3 }kjk vnk dh x;h lEiw.kZ /kujkf’k dks /kkjk 69 Hkkjrh; lafonk vf/kfu;e ds rgr izfroknh la[;k 2 o 3 dks izfroknh la[;k 1 ls izkIr djus dk vf/kdkj jgsxk A ” 16. Feeling aggrieved, the plaintiff-appellant has preferred the second appeal being no.48 of 2004. The defendant nos. 2 and 3 have also preferred the second appeal being 49 of 2004. 17. It is well settled that grant of specific relief being discretionary in view of V. Muthusami (dead) by L.R.s v. Angammal & Ors. reported in JT 2002 (2) SC 410. The Apex Court has held as under:- “20. It is settled position of law that grant of a decree for specific performance is a discretionary one. This Court in K. Narendra v. Riviera Apartments (P) Ltd. [1999 (5) SCC 77] held that section 20 of the Specific Relief Act 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so, the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles. It was further held that if performance of a contract involve some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of 8 the circumstances in which the court may property exercise discretion not to decree specific performance and the doctrine of comparative hardship has been statutorily recognized in India. 21. In Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel and Others [2001 (5) SCC 101], a bench of three learned judges held as follows:- “The grant of decree for specific performance is a mater of discretion under section 20 of the Specific Relief Act, 1963. The Court is not bound to grant such relief merely because it is lawful to do so but the discretion is not required to be exercised arbitrarily. It is to be exercised on sound and settled judicial principles. One of the grounds on which the court may decline to decree specific performance is where it would be inequitable to enforce specific performance.” 18. In view of the above, no interference is required in the judgment and decree passed by the appellate court. I find no illegality in the judgment and decree passed by the appellate court while holding that the plaintiff-appellant will get Rs. 30,000/- (the earnest money) with 6 per cent interest. 19. However, it is made clear that the plaintiff-appellant shall get the said amount from the defendant no. 1 and not from the defendant nos. 2 and 3. Subject to modification to 9 this extent in the order passed by the appellate court, second appeal lacks merit and is liable to be dismissed. 20. In view of the aforesaid findings, substantial question of law involved in second appeal is decided against the appellant. 21. Consequently, second appeal is dismissed. No order as to costs. (Rajesh Tandon, J. ) 09.04.2008 Avneet