Reserved judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 100 of 2008 (Old No. 3123 of 1983) 1. Ramesh Chand (since deceased) 1/1 Dhiraj Kumar 1/2. Gulla Both son of late Sri Ramesh Chand through natural guardian Smt. Kamlesh Devi Both residents of Behede Ki Saidabad, Pargana Bhagwanpur, Tehsil Roorkee, District Saharanpur. (Now part of District Haridwar) ...…………. Defendants / Appellants Versus Suresh Chand S/o Sri Begram resident of Behede Ki Saidabad, Pargana Bhagwanpur, Tehsil Roorkee, District Saharanpur. (Now part of District Haridwar) ...…………. Plaintiff / Respondent Mr. D. Barthwal, Advocate for the defendant / appellants. Mr. Sharad Sharma, Advocate for the plaintiff / respondent. Along with Cross Objection No. 5453 of 1984 filed by the respondent in this appeal 2 Hon’ble Prafulla C. Pant, J. This second appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 02.09.1983, passed by learned Civil Judge, Roorkee, in Civil Appeal No. 42 of 1982, whereby the judgment and decree dated 05.03.1982, passed by the trial court (Munsif, Roorkee) in Suit No. 39 of 1978, for specific performance of contract, is maintained with modification. 2) Heard learned counsel for the parties and perused of record. 3) Brief facts of the case, giving rise to this appeal are that the plaintiff / respondent Suresh Chand instituted Suit No. 39 of 1978, for specific performance of contract, alleging that the defendant / appellant Ramesh Chand agreed to sell the property in suit (plot No. 146, measuring 3 Bigha 5 Biswa and 15 Biswansi) situated in Village Behede Ki Saidabad, after accepting Rs. 2,300/- as an advance out of the agreed consideration. It is pleaded that a registered agreement of sale was executed by the defendant on 22.03.1977, in favour of the plaintiff, after receiving a further sum of Rs. 3,500/-. The total amount of consideration was Rs. 10,000/-, as such as per the contract, the defendant was required to execute sale deed by 21.03.1979, after accepting the remaining amount of Rs. 4,200/-. It is alleged in the plaint that the defendant failed to execute the sale deed even after being 3 asked through notice to honour the agreement. It is also pleaded that the plaintiff is always ready and willing to perform his part of contract. 4) The defendant contested the suit and filed his written statement. In the written statement, the story pleaded by defendant is that he took loan of Rs. 3,500/- on 22.03.1977, and the same was required to be repaid, within a period of two months. It is alleged by the defendant in the written statement that taking advantage of illiteracy of the defendant (appellant), some documents were got signed by the plaintiff, but the defendant had signed the same under the impression that the deed being signed was a loan paper. It is further stated in the written statement that the defendant did not execute the agreement of sale of the land, as pleaded in the plaint. However, receiving of notice from the plaintiff is admitted to the defendant. It is also pleaded that land in suit has a value of Rs. 70,000/- and not Rs. 10,000/- (as mentioned in the plaint). Lastly, it is pleaded that if the suit is decreed for specific performance, the defendant, a poor person, would be deprived of his source of livelihood, as such the suit is barred by Section 20 of the Specific Relief Act, 1963. 5) On the basis of the pleadings of the parties, the trial court framed following issues: 1. Whether, the defendant after receiving an amount of Rs. 5,800/-, agreed to sell his 4 land for Rs. 10,000/- on 22.03.1977, and executed the agreement? 2. Whether, the defendant received further Rs. 1,600/- after execution of the agreement of sale? 3. Whether, the plaintiff had always been ready and willing to perform his part of contract? 4. Whether, the defendant has taken a loan of Rs. 3,500/- on 22.03.1977, as pleaded by him? 5. Whether, the agreement dated 22.03.1977, was got executed by playing fraud on the defendant? 6. Whether, the suit is barred by Section 20 of the Specific Relief Act, 1963? 7. To what relief, if any, the plaintiff is entitled? 6) After recording the evidence and hearing the parties, the trial court decided all the issues in favour of the plaintiff, and decreed the suit for specific performance of contract. Aggrieved by said judgment and decree dated 05.03.1982, passed by the trial court (Munsif, Roorkee), the defendant preferred an appeal before the first appellate court, which was registered as Civil Appeal No. 42 of 1982. The first appellate court, after hearing the parties, concurred with the trial court that the defendant did execute agreement of sale in favour of the 5 plaintiff, after accepting Rs. 3,500/- as advance payment. But the payment of remaining Rs. 2,300/- was not found proved, and it modified the decree of specific performance of contract with the observation that the defendant shall execute the sale deed in terms of the agreement of sale only on payment of Rs. 6,500/-. Still dissatisfied by the judgment and decree dated 02.09.1983, passed by the Civil Judge, Roorkee, in Civil Appeal No. 42 of 1982, this second appeal was filed before the Allahabad High Court by the defendant on 19.12.1983. The appeal was admitted by Allahabad High Court on 17th February 1984. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. The Allahabad High Court while admitting the appeal, without formulating the substantial questions of law, has observed that the appeal is admitted on questions raised in the grounds No. 1 and 3 of the memorandum of appeal. The said two grounds gives rise to following two questions: 1. Whether, the court below erred in law in holding that the agreement in dispute was executed even after the finding that a payment of an amount of Rs. 2,300/- made by the plaintiff to the defendant was not proved? 2. Whether, the courts below should have dismissed the suit after finding that there 6 was no payment of Rs. 1,600/- on 17.06.1977? [ After receiving notice of second appeal, the plaintiff / respondent filed cross objection (No. 5453) on 20.03.1984 before the Allahabad High Court, under Order 41 Rule 22 of the Code of Civil Procedure, 1908, which are also received by this Court with this appeal. 7) Learned counsel for the defendant / appellant argued that after the trial court found that the payment of Rs. 2,300/- alleged by the plaintiff was not found proved by the first appellate court, it cannot be said that the plaintiff was always ready and willing to perform his part of contract and as such decree of specific performance is wrongly maintained. I have examined the record. The finding of the first appellate court relating to the fact that the plaintiff did not prove that Rs. 2,300/- was paid in advance before making further payment of Rs. 3,500/-, is perverse and against the record. Both the courts below have found proved that the defendant did execute agreement of sale on 22.03.1977, and on said date he did receive Rs. 3,500/- at the time of registration. As far as the payment of Rs. 2,300/- is concerned, in para 1 of the agreement of sale, it is specifically mentioned that the defendant had already received that sum (a sum of Rs. 2,300/-) before execution of the agreement of sale. That is exactly what has been pleaded and proved by the plaintiff not only by the registered agreement of sale, but 7 also by the oral evidence. In this connection, the cross objection raised by the plaintiff deserves to be allowed. 8) Learned counsel for the defendant / appellant drew attention of this Court to the principle of law laid down in Ajaib Singh and others Vs. Tulsi Devi (2000) 6 Supreme Court Cases 566, and it is contended that the lower appellate court has erred in law in passing decree of specific performance of contract after partly reversing the finding of the trial court. I am unable to accept the submission of learned counsel for the appellant for the reason that as discussed above, the finding of the lower appellate court to the extent that the plaintiff did not prove payment of Rs. 2,300/- is perverse and against the record, for in the first para of agreement of sale with regard to which there is concurrent finding of fact of the courts below that the same was executed by the defendant in favour of the plaintiff, itself contains the admission of defendant that he did receive Rs. 2,300/- before execution of agreement. As such, the oral testimony advanced on behalf of the plaintiff could not have been disbelieved. It is pertinent to mention here that the agreement of sale is a registered document, and the plaintiff has proved that he was ready and willing to perform his part of contract. The finding on this point is concurrent against the defendant. 9) Lastly, learned counsel for the defendant / appellant drew attention of this Court to Section 20 of the Specific Relief Act, 1963, and also referred to the cases of 8 Manohar Lal alias Manohar Singh Vs. Maya (2003) 9 Supreme Court Cases 478, and Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy And others, 1996 (0) AIR (SC) 2814, and it is contended that even if the plaintiff has proved that the agreement of sale was executed by the defendant, it is not necessary for the court to pass a decree of specific performance of contract as said relief is an equitable relief. Section 20 of the Specific Relief Act, 1963, reads as under: “20. Discretion as to decreeing specific performance. –(1) 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; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance: – (a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an 9 unfair advantage over the defendant; or (b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non- performance would involve no such hardship on the plaintiff; or (c) Where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.–Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2. –The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. 10 (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.” Explanation 1 to Section 20(2) of the Specific Relief Act, 1963, itself provides that mere inadequacy of consideration shall not be a ground to refuse the decree of specific performance. In the written statement the defendant has pleaded that the value of the land is more than the amount for which the defendant is said to have agreed to sell it. In my opinion, on that ground decree of specific performance could not have been refused and, as such the courts below have committed no error of law in decreeing the suit for specific performance of contract. Mr. D. Barthwal, learned counsel for the defendant / appellant submitted that the defendant is a poor person and he would be deprived of his livelihood, as such, considering the equity the decree of specific performance 11 should be set aside. In reply to this on behalf of the plaintiff / respondent attention of this Court is drawn to the statement of D.W. 1 Ramesh Chand, who has admitted that he had 20 bighas of land. He has further admitted that he sold 10 bighas of land for at the rate of Rs. 23,000/- per bigha, to other persons. In the circumstances, it cannot be said that land in suit, measuring only 3 bigha 5 biswa and 15 biswansi would deprive the defendant / appellant of his livelihood. Having gone through the statement of D.W. 1 Ramesh Chand, this Court finds no substance in the argument advanced on behalf of the defendant / appellant that the courts below have erred in law in decreeing the suit for specific performance of contract. The substantial questions of law stand answered, accordingly. 10) For the reasons as discussed above, this appeal is liable to be dismissed. The same is dismissed. The cross- objections stand allowed. The judgment and decree passed by the first appellate court is set aside to the extent decree of trial court is modified. The decree passed by the trial court is restored. However, costs easy. (Prafulla C. Pant, J.) [ Dt.: April 13, 2009 H.Negi