RSA No.1933 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1933 of 2010 (O&M) Date of decision: 7.10.2010 Sunita and others ......Appellant(s) Versus Ran Singh and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vijay Kumar Jindal, Advocate for the appellants. Mr. J.S. Dahiya, Advocate for the respondents. Rakesh Kumar Garg, J.(Oral) The appellants, who were defendants No.2 to 5 before the trial Court, have filed the instant appeal challenging the judgment and decrees of the Courts below whereby suit filed by plaintiff-respondents No.1 and 2 for possession by way of specific performance of the agreement to sell in question executed by respondent No.3 (defendant No.1) was decreed. Brief facts necessary for disposal of this appeal are that respondents No.1 and 2 filed the present suit for specific performance of the agreement to sell dated 13.2.2004 executed by respondent No.3 in respect of the suit land by declaring judgment and decree dated 30.10.2004 suffered in favour of the appellants by respondent No.3 as null and void and not binding upon their rights alleging that respondent No.3, who was owner of suit land, entered into an agreement to sell in question for the sale of the suit land @ Rs.4,25,000/- per acre (i.e. total amounting to Rs.21,32,969/-) and received an earnest money of Rs.7,00,000/- and executed the aforesaid agreement by putting his thumb impression on the same in the presence of witnesses. The remaining amount of sale RSA No.1933 of 2010 (O&M) 2 consideration was to be paid on 17.2.2004 i.e. on the date of execution and registration of sale deed. However, on 17.2.2004, the plaintiffs and defendant No.1 mutually agreed to extend the time of execution and registration of sale deed upto 1.4.2004 and a writing to this effect was also made on the backside of the agreement. On 4.3.2004, the plaintiffs tendered the balance sale consideration to defendant No.1/respondent No.3 and requested him to execute the sale deed in their favour. Thereafter, the plaintiffs and defendant No.1 got drafted a sale deed and after going through its contents, defendant No.1 put his thumb impression on the sale deed in the presence of witnesses. However, when the sale deed was produced for registration before the Registrar, he refused to register the same on the ground that the land was under attachment vide order dated 1.3.2004 on a petition under Section 127 of Cr.P.C. filed by the appellants and their mother. Due to the aforesaid reason, both the parties agreed to extend the time of registration of sale deed upto 30.11.2004 regarding which a writing was also made on the backside of the agreement to sell. On coming to know that the said land had been released from attachment, the plaintiffs requested defendant No.1 to get the sale deed executed and registered in their favour. However, defendant No.1 avoided the request of the plaintiffs by giving false assurance. On the other hand, defendant No.1 in collusion with his wife and the appellants got passed a decree dated 30.10.2004 in favour of the appellants in civil Suit No.243/1 on the basis of some compromise deed dated 26.8.2004. It was averred that the plaintiffs went to the Registrar's office on 30.11.2004 along with necessary expenses for registration of the sale deed as they had already paid the total sale consideration but defendant No.1 did not turn up. Thereafter, the plaintiffs met defendant No.1 and requested him to get the sale deed registered in their favour but he refused and told them that a RSA No.1933 of 2010 (O&M) 3 judgment and decree regarding the suit land has been passed in favour of the appellants. Defendant No.1 also refused to return the sale consideration. Thereafter, a legal notice was served upon the defendants. No reply to the said legal notice was sent. Hence, the suit. Upon notice, the defendants appeared and filed their separate written statements. Defendant No.1 (now respondent No.3) in his written statement raised various preliminary objections. On merits, it was pleaded that defendant No.1 was in dire need of Rs.7,00,000/- in February, 2004 which was arranged through his step brother Rameshwar and in good faith he put his thumb impression/signatures on several blank papers/stamp papers and took the said loan from the plaintiffs with the help of his step brother. Defendant No.1 never intended to sell his agricultural land nor he was legally competent to sell the same being under attachment in the month of February, 2004. It was further pleaded that agreement to sell was altogether false, fabricated and forged document. There was no privity of contract between the plaintiffs and defendant No.1 for sale of the suit land and he was in continuous and cultivating possession of the same. It was further averred that market value of the agricultural land was not less than Rs.8,00,000/- per acre and not Rs.4,25,000/- as alleged in the plaint. Drafting/execution of the sale deed on 4.3.2004 was also denied. Receipt of balance sale consideration was also denied. It was further pleaded that due to various litigations filed by his wife, he was compelled to enter into a compromise with his wife and consequently, the judgment and decree dated 30.10.2004 was passed in favour of the appellants. Receipt of the legal notice was denied. All other averments made in the plaint were also controverted and dismissal of the suit was prayed for. In their written statement, defendants No.2 to 5 (now appellants) submitted that defendant No.1 had deserted them and their RSA No.1933 of 2010 (O&M) 4 mother. The maintenance was allowed in their favour. However, defendant No.1 was not making the payment, therefore, the property in dispute was attached which was vacated on 26.2.2006. Thus, the said agreement was illegal as on 13.2.2004, defendant No.1 was not in a position to enter into any agreement. It was further pleaded that in Civil Suit No.243 of 2004, a compromise was submitted by defendant No.1 and a decree was passed in their favour and they were in possession of the land in dispute through their mother. It was further pleaded that everything was in the knowledge of the plaintiffs regarding the attachment of the property in dispute. The agreement dated 13.2.2004 was a sham transaction. All other averments made in the plaint were also controverted and dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiffs are entitled to a decree for possession by way of specific performance of agreement, as prayed for on the grounds as averred in the plaint? OPP 2. Whether the suit is not maintainable against defendants no. 2 to 5? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 5. Whether there is no privity of contract between the plaintiffs and defendant no. 1, if so, its effect? OPD 6. Whether the suit is bad for non joinder of necessary parties? RSA No.1933 of 2010 (O&M) 5 7. Whether the plaintiffs are estopped from filing the present suit by their own acts and conduct? OPD 8. Relief. After hearing learned counsel for the parties and appreciating the evidence led by the parties, all the issues were decided in favour of the plaintiffs and vide judgment and decree dated 27.1.2010, the suit of the plaintiff-respondents was decreed with costs. Aggrieved from the aforesaid judgment and decree of the trial Court, the appellants (i.e. defendants No.2 to 5) preferred an appeal before the Lower Appellate Court. Before the Lower Appellate Court, the appellants had contested the suit on the ground that the suit land was under attachment in a order passed under Section 127 Cr.P.C and therefore, defendant No.1 could not enter into an agreement to sell dated 13.2.2004. However, the aforesaid plea of the appellants was declined on the ground that the attachment order was passed on 1.3.2004 and thus, the suit land was not under attachment on 13.2.2004 i.e. the date on which the agreement to sell in question was executed and thus, defendant No.1 was fully competent to enter into the aforesaid agreement. The Lower Appellate Court also concurred with the findings of the trial Court on the question of execution of the agreement and the extensions of time for executing the sale deed while holding that the same stood duly proved from the evidence on record and therefore, the plaintiffs cannot be declined the relief due to the judgment and decree dated 30.10.2004, as the same was suffered by defendant No.1 in favour of the appellants after he entered into a valid agreement to sell dated 13.2.2004, in collusion with the appellants. It may also be noticed that before the Lower Appellate Court, the appellants have also raised an argument that the grant of decree for specific performance of the agreement to sell in question will cause a great RSA No.1933 of 2010 (O&M) 6 hardship to them which could not be foreseen earlier and therefore, the aforesaid relief should not have been granted by the Lower Appellate Court to the plaintiff-respondents. However, the aforesaid plea raised by the appellants was declined by the Lower Appellate Court on the ground that no such plea of hardship was taken by them in their written statement and in the absence of any such plea in the written statement, the argument raised by the appellants cannot be accepted. Still not satisfied, the appellants have filed the instant appeal challenging the judgment and decrees of the Courts below. To be fair to the counsel for the appellants, it is relevant to record that no argument has been raised regarding the valid execution of the agreement to sell in question or the competence of defendant No.1/respondent No.3 to execute the sale deed or that in view of the pendency of the maintenance suit/attachment order, the agreement could not have been performed. The only argument raised before this Court on behalf of the appellants is that the Courts are not bound to pass a decree for specific performance by directing to get the sale deed executed in spite of the fact that the execution of the agreement is not in dispute and such relief can be denied by using judicious discretion by looking into all the facts and circumstances of the case and the hardship caused to the appellants which they did not foresee. Elaborating further his argument, learned counsel for the appellants has vehemently argued that it has been established on record that defendant No.1/respondent No.3 had deserted the appellants and they were fighting litigation with him and have no other source of income except the land in question which was directly or indirectly under encumbrance and keeping in view the aforesaid facts, the plaintiff- respondents were not entitled to the discretionary relief of equity under RSA No.1933 of 2010 (O&M) 7 Section 20 of the Specific Relief Act. On the basis of the aforesaid argument, learned counsel for the appellants has vehemently argued that the following substantial question of law arises in this appeal: “(i) Whether the ld. both Courts below have wrongly exercised their judicious discretion under section 20 of the Specific Relief Act?” In support of his case, learned counsel for the appellants has also relied upon the judgments of the Hon'ble Supreme Court in Bal Krishan and another v. Bhagwan Dass (Dead) By LRs and others 2008 AIR SCW 2467 and Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's son and others AIR 1987 SC 2328. I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. There is no dispute with the proposition of law to the effect that the relief for specific performance lies in the discretion of the Court and the Court is not bound to grant such a relief merely because it is lawful to do so. It is well settled that while exercising the discretion, the Court would take into consideration the circumstances of the case, the conduct of the parties and their respective interests under the contract and no specific performance of the agreement 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 agreement would involve some hardship on the defendant, which he did not foresee. However, from the perusal of the impugned judgment and decrees, it is crystal clear that the entire case of the appellants is based upon a plea that defendant No.1 was not competent to execute the sale deed on the basis of the agreement to sell dated 13.2.2004 as the suit land was encumbered by way of RSA No.1933 of 2010 (O&M) 8 attachment on an application filed by the appellants and their mother under Section 127 Cr.P.C. There were no pleadings to the effect that the specific performance of the agreement to sell in question if granted shall cause any hardship to them which could not be foreseen earlier. It is not in dispute that the plea of hardship was not pleaded by the appellants in their written statement and the aforesaid plea was raised by them before the Lower Appellate Court without any pleadings. It may be further noticed that even from the evidence brought on record, there is nothing on the basis of which it can be held that the grant of decree for specific performance of the agreement in question will cause any hardship to the appellants. Even otherwise, the Hon'ble Supreme Court of India in the case of Bachhaj Nahar v. Nilima Mandal and another 2008 JT (13) SC 255 has authoritatively laid down that a plea raised in regular second appeal without any pleadings cannot be allowed to be raised. Thus, the substantial question of law as argued by the learned counsel for the appellants does not arise in this appeal. No merits. Dismissed. October 7, 2010 (RAKESH KUMAR GARG) ps JUDGE