SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Sunday, July 23, 2023

Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

2003 SCC OnLine Raj 523 : (2004) 1 RLR 688 : (2004) 1 WLC 629 : (2004) 2
Civ LT 201

Rajasthan High Court

(Jaipur Bench)
(BEFORE A.C. GOYAL, J.)

Tej Singh
Versus
Prabhu Narayan Sharma & ors.—(135)
S.B. Civil First Appeal No. 148 of 2000
Decided on November 28, 2003

Page: 689

By The Court:
1. This civil first appeal by the defendant is directed against the judgment and
decree dated 30.3.2000 passed by learned Additional District Judge No. 1, Jaipur City,
Jaipur by which the civil suit No. 62/1995 for specific performance of the contract filed
by the plaintiff-respondent No. 1 has been decreed. The plaintiff-respondent Prabhu
Narain filed a civil suit on 26.3.1987 against 5 defendants-respondents including the
present appellant as defendant No. 2 with the averments that there is a Haweli of the
defendant No. 1 known as Bagavas House in Khajanewalon Ka Rasta, Jaipur. Since the
plaintiff was residing in rented house at Jaipur, he contacted the defendant No. 1 to
sell some vacant land. Thereupon, the defendant No. 1 agreed to sell land lying on
both the sides of 13 feet wide passage in front of the western gate of this Haweli. On
22.9.1974 the defendant No. 1 executed an agreement to sell the above land
measuring 63 ft × 63 ft lying in the middle of the aforesaid passage @ Rs. 100/- per
Sq. yards for a total consideration of Rs. 35,000/- with stipulation to give possession
of the above property after getting it vacated from the servants of Thikana i.e.
defendants No. 2 to 5 who were in possession of the aforesaid property on behalf of
the defendant No. 1. The plaintiff paid a sum of Rs. 4000/- as advance on the same
day and Rs. 893/- on 18.9.1977.
2. It was further alleged by the plaintiff that he approached the defendant No. 1 a
number of times for registration of sale deed and handing over possession of the land.
But the defendant extended the period of the aforesaid agreement from time to time
on the ground that the remaining defendants have not vacated this land. At last on
28.3.1983 the defendant No. 1 extended the period of this agreement for delivery of
vacant possession upto 31.3.1984 and for registration of sale deed upto 30.6.1984. It
was also pleased that the plaintiff was ready and willing to perform his part of the
contract to pay the balance amount, but the defendant No. 1 failed to perform his part
of the contract. The plaintiff served notices dated 2.2.1985 and 20.2.1987 upon the
defendant No. 1. But on account of escalation in price of the land, the defendant No. 1
is now not interested to perform his part of the contract.
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 2 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Page: 690

3. The defendant No. 1 in his written statement filed on 19.5.1988 while admitting
the execution of the agreement pleaded that it was agreed upon between him and the
plaintiff that the plaintiff would obtain written permission of Smt. Icharaj Kanwar for
sale of this property. Since the plaintiff did not obtain such permission, he failed to
fulfill the terms and conditions of the agreement. It was pleaded that since the
defendants No. 2 to 5 occupying this land with permission of Smt. Icharaj Kanwar did
not vacant the same, it was not possible for him to execute the sale deed and deliver
the possession. It was also pleaded that the plaintiff was neither ready and willing to
perform his part of the contract nor he offered the balance price. It was further
pleaded that the defendant No. 1 alone was not empowered to execute sale-deed and
the plaintiff himself failed to obtain written permission of Smt. Icharaj Kanwar as
agreed upon between them and as such the defendant No. 1 did not commit any
breach of this agreement. Objections with regard to limitation and non-joinder of Smt.
Icharaj Kanwar as necessary party were raised. The remaining defendants did not
appear.
4. Following issues on the basis of the pleadings of the parties were framed.

5. The plaintiff examined 4 witnesses including himself while the defendant No. 1
examined himself and 4 other witnesses. Learned trial Judge vide impugned
judgment, decided issue Nos. 2 to 6 and 8 in favour of the plaintiff. Issue No. 1 was
deleted vide order dated 1.6.1991 on the basis of the admission of the defendant.
Issue No. 7 was decided in the manner that now the defendants No. 2 to 5 are not in
possession of the disputed property. Consequently, decree for specific performance of
the contract was passed in favour of the plaintiff with a direction that the plaintiff
would deposit the balance amount of price within 30 days in the Court. The amount
has already been deposited by the plaintiff.
6. I have heard learned counsel for the parties. The first point for consideration
arises is that whether the plaintiff was and is ready and willing to perform his part of
the contract ?

Page: 691
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 3 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

7. In a suit for specific performance, it is well settled that the plaintiff has to plead
and prove that he was and is ready and willing to perform his part of the contract from
the date of agreement to the date of filing of the suit. Learned counsel for the parties
cited a number of cases during the course of arguments. In (1) Pushparani S.
Sundaram v. Pauline Manomani James (Deceased), (2002) 9 SCC 582, it was held that
mere filing suit for specific performance and taking the plea that he was ready and
willing by themselves are not sufficient to satisfy the requirements of Section 16(c) of
the Specific Relief Act, 1963. Similar view was taken in (2) N.P. Thirugnanam (D) by L.
Rs. v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115 : A.I.R. 1996 Supreme Court 116,
(3) Jugraj Singh v. Labh Singh, (1995) 2 SCC 31 : A.I.R. 1995 Supreme Court 945,
(4) Smt. Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488, (5) N.P. Thirugnanam
(Dead) by L. Rs. v. Dr. R. Jagan Mohan Rao, (1995) 5 SCC 115, (6) P.R. Deb and
Associates v. Sunanda Roy, (1996) 4 SCC 423, (7) Smt. Dhanbai v. Pherozshah,
R.L.W. 1970 page 59 and in one judgment of this Court delivered in (8) Dr. Sardar
Khan v. Shri Noor Mohammed, S.B. Civil Regular First Appeal No. 38/1978 decide on
3.12.1987 all relied upon by learned counsel for the defendant-appellant and in (9)
Pandurant Ganpat Tanwade v. Ganpat Bhairu Kadam, J.T. 1996 (9) S.C. 18, (10) Syed
Dastgir v. T.R. Gopalakrishnashetty, J.T. 1999 (5) S.C. 642, (11) Sukhbir Singh v. Brij
Pal Singh, J.T. 1996 (6) S.C. 389, (12) V. Pechimuthu v. Gowarammal, J.T. 2001 (6)
S.C. 162 relied upon by learned counsel for the plaintiff-respondent.
8. It was contended by learned counsel for the appellant-defendant that it was
neither pleaded nor proved that the plaintiff was and is ready and willing to perform
his part of the contract from the date of agreement till filing the suit; that the plaintiff
paid only a sum of Rs. 4000/- on the date of agreement and another sum of Rs. 893/-
on 18.9.1977 after a period of three years of the agreement and thereafter he did not
offer any payment; that he did not plead and prove that he had sufficient funds to pay
the balance amount of rupees more than 30,000/-; that the plaintiff prior to first
notice dated 2.2.1985 did not take any step to perform his part of the contract; that
the plaintiff was interested only in vacant possession of the land but he was never
interested in getting the sale deed executed for its registration; that the plaintiff
neither purchased necessary stamps nor presented any draft of the sale deed; that he
filed the suit after a period of about 13 years and all these facts clearly show that the
plaintiff was never ready and willing to perform his part of the contract. On the other
hand, learned counsel for the plaintiff-respondent submitted that the period of this
agreement was extended for eight times and all the writings are in the hand of the
defendant-appellant and not a single writing states that the plaintiff sought time to
pay the balance price or the plaintiff was having no means to pay, rather the time was
extended by the defendant-appellant himself stating that he could not get the vacant
possession of the land from the defendants No. 2 to 5 and there was no such
agreement between the parties that the plaintiff would get the draft of the sale deed
prepared for presentation to the defendant or he would purchase stamps in advance.
It was also contended that firstly there was no delay in filing the suit on the part of
the plaintiff and secondly only on this ground it cannot be said that the plaintiff was
not ready and willing to perform his part of the contract.
9. I have considered the rival submissions, pleadings and evidence of the par ties.
Ex. 2 dated 22.9.1974 is the agreement of sale. This agreement is in the hand writing
of the defendant. The main terms of the agreement are (i) that

Page: 692
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 4 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

the defendant agreed to sell the disputed land to the plaintiff at the rate of Rs. 100
per Sq. yard (ii) that the expenses of the registration would be borne by the purchaser
(iii) that Rs. 4,000/- had been received by the defendant at the time of execution of
this agreement on 22.9.1974 and the balance amount would be received from time to
time and thereafter registration of the sale deed would take place (iv) that servants of
Thikana are presently residing there and the defendant would hand over the vacant
possession of this land after getting the same vacated from servants of Thikana i.e.
defendants No. 2 to 5(v) that it would be the responsibility of the defendant to get
this land vacated from the servants of Thikana.

10. Learned counsel for the appellant-defendant put much stress upon two
judgments of this Court as reported in Smt. Dhanbai and Dr. Sardar Khan's case (both
supra). According to Smt. Dhanbai's case (supra) there was no averment in the plaint
that the plaintiff was and is ready and willing to perform his part of the contract and in
view of total absence of such pleadings, it was observed that since there was no
contract to the contrary, it was the duty of the buyer to tender a proper conveyance of
the property to the seller for execution at a proper time and place and so also it was
his duty to bear the expenses for the purchase of the proper stamp for the conveyance
and further it was the plaintiff's duty to make a general averment of his readiness and
willingness to perform his part of the contract or to plead specifically that he was
ready to tender the conveyance and pay the expenses for the purchase of the stamps.
In Dr. Sardar Khan's case (supra), one of the terms and conditions of the agreement
was that the purchaser within a period of four months will hand over the sale deed in
his own name or in the name of some other person and then the vendors would get
the same executed and produced for registration. In view of these specific term and
condition, this Court held that the pleading of the plaintiff that documents of the title
of the disputed property were not shown to him by the vendor was not acceptable and
thus the plaintiff failed to prove his readiness and willingness. In the instant case
there was no such term and condition in this agreement and the plaintiff specifically
pleaded in the plaint that he was always ready and willing and still ready to perform
his part of the contract by making the payment of the balance price and he
approached the defendant a number of times but the defendant extended the period
of the contract from time to time with a plea that he could not get the vacant
possession of this land. This plea of the plaintiff find corroboration from the writings
relating to extension or period for eight times. It is not in dispute that all the eight
writings extending the period of this agreement are in the hand of the defendant
himself. First entry tor extending the period of contract is dated 18.9.1977. By this
entry, the period of this agreement was extended upto 30.6.1978. The defendant
thereafter continued to extend the time of this agreement by writings dated 4.7.1978,
12.3.1979, 28.4.1979, 31.12.1979, 30.6.1980, 31.12.1981 and lastly 28.9.1983. All
these entries go to show that whenever the plaintiff approached the defendant, he
extended time of agreement only on the ground that he could not get the vacant
possession of the land. Only vide writing dated 31.12.1981, the defendant stated that
he would hand over the possession by 30.9.1983 and would get the sale deed
registered, otherwise he will refund the amount and as per last writing dated
28.9.1983, it was agreed by the defendant that he will hand over vacant possession to
the plaintiff by 31.3.1984 and would get the sale deed registered by 30.6.1984. At no
point of time, it was mentioned by the defendant that the plaintiff failed to make the
payment or he had no money to pay. In view of these writings, the submission made
by Mr. Kasliwal cannot be accepted that

Page: 693
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 5 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

since the plaintiff did not purchase the requisite stamps and failed to prepare draft
sale deed, it is proved that he was not ready and willing to perform his part of the
contract. Next contention with regard to delay in filing the present suit after about a
period of 13 years showing that he was never ready and willing to get the sale deed
executed, also appears to be without merit as the period of getting the sale deed
registered was extended by the defendant himself upto 30.6.1984. The plaintiff Sh.
Prabhu Narayan Sharma clearly explained this delay by stating before the trial court
that it was the defendant who continued to extend the period from time to time
whenever he approached the defendant for execution of the sale deed. After that, he
served two notices dated 2.2.1985 and 20.2.1987 upon the defendant No. 1. It is also
not in dispute now that the defendants No. 2 to 5 had already vacated the disputed
land. In view of these facts, firstly there seems to be no material delay on the part of
the plaintiff and secondly no such presumption can be drawn only on account of some
delay that the plaintiff was not ready and willing to perform his part of the contract.
Rather the defendant took a contrary plea from the terms of the agreement. The plea
that it was agreed that plaintiff would obtain the written permission of Maji Smt.
Icharaj Kanwar-step mother of the defendant No. 1 is without any basis. Likewise
other pleas that the defendants No. 2 to 5 were in possession of the disputed land on
behalf of Smt. Icharaj Kanwar, that it was not within the competence of the defendant
No. 1 to dispossess them, that the plaintiff never offered the balance price, that he
extended the period of agreement on pressure put by the plaintiff and that the
defendant No. 1 alone was not competent to execute the sale deed in favour of the
plaintiff are also found without merit. It is significant to say here that all these
objections raised in the written statement were not mentioned in the agreement to sell
Ex. 2 or in subsequent writings made from 1977 to 1983 by the defendant himself.
Thus the learned trial court rightly disbelieved the evidence of the defendant. Mr.
Farooq learned counsel for the respondent-plaintiff rightly contended on the basis of
evidence that the plaintiff was having means to pay the balance price. The plaintiff
stated that he was serving in Jaipur Metals on monthly salary of Rs. 1500/-. P.W. 3
Smt. Mridula Sharma-plaintiff's wife corroborated his statement. Minor discrepancies
in the evidence is no ground to discard their evidence. In examination-in-chief, the
defendant Tej Singh stated that the plaintiff never came to pay the balance price. In
cross-examination, a question was put to him that the plaintiff was and still ready to
pay the balance price, he evaded the answer by saying that he was not in a position to
execute the sale deed as this land did not belong to him. At the cost of repetition, it is
observed that at no point of time the defendant raised this objection or made any
reference in the writings extending the period of the agreement for eight times. The
defendant No. 1 did not even reply the notices given by the plaintiff. In view of the
entire discussion made hereinabove, this point was rightly decided by the trial court in
favour of the plaintiff-respondent.

11. The second point for consideration is as to whether the defendant No. 1 alone
was not the owner of the land in question, hence he was unable to execute the sale
deed? Learned counsel for the appellant-defendant contended that the defendant No.
1 not being the sole owner of this property was not competent to execute the
agreement of sale Ex. 2 and thus he was not empowered to get the sale deed
executed and registered and the plaintiff would not be in a position to have this
property if he gets the sale deed registered in his name. Learned counsel for the
plaintiff-respondent submitted that defect in title cannot be pleaded by the vendor
and he placed reliance upon (13) Netya Venkataramanna v. Mahankali Narasimhan,
A.I.R. 1994 A.P. 244,
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 6 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Page: 694

(14) Deenanath v. Chunnilal, A.I.R. 1975 Rajasthan 69, (15) Mir Abdul Hakeem Khan
v. Abdul Mannan Khadri, A.I.R. 1972 Andhra Pradesh 178, (16) Ram Karan v. Govind
Lai, 1999 (1) W.L.C. 120, (17) Deenanath v. Chunnilal, R.L.W. 1974 page 383.

12. I have considered the said submissions. In view of the judgments referred
hereinabove, it is true that vendor cannot be permitted to set up the defence that he
had no title or had defective title to the property which he had agreed to sell. Thus,
this point is decided accordingly.
13. Next submission made by learned counsel Mr. Kasliwal is that decree of specific
performance is discretionary and the Court is not bound to grant such a relief merely
because it is lawful to do so. Section 20 of the Specific Relief Act, 1963 (in short the
Act, 1963) is as under:—
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 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 case
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
contract.
(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.
14. Thus, Section 20 of the 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 and guided by judicial principles and capable of correction by a
Court of appeal. Certain circumstances have been mentioned in sub-section (2) of
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 7 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

Section 20 of the Act, 1963 that the Court may exercise such discretion not to decree
specific performance, if under the terms of the contract, the plaintiff gets unfair
advantage over the defendant, the Court may not

Page: 695

exercise its discretion in favour of the plaintiff. So also, decree of specific performance
may not be passed if the defendant would be put to undue hardship which he did not
foresee at the time of agreement. If it is equitable to grant specific relief, then also the
Court may refuse to grant decree of specific performance.

15. Mr. Kasliwal relying upon (18) K. Narendra v. Riviera Apartments (P) Ltd.,
(1999) 5 SCC 77, (19) Gobind Ram v. Gian Chand, (2000) 7 SCC 548 & (20) Kanshi
Ram v. Om Prakash Jawal, (1996) 4 SCC 593 contended that since decree of specific
performance is equitable relief in nature, therefore “Doctrine of comparative hardship”
is applicable. According to Mr. Kasliwal there are certain circumstances in this case
wherein decree of specific performance would not put the appellant to undue hardship
which he did not foresee at the time of this agreement and the same are that the
agreement Ex. 2 was executed way back in September, 1974 and thus a period of
more than 29 years has passed; that the present suit was filed more that after a
period of 12 years; that out of total sale price of Rs. 35,000/-, only a sum of Rs. 4893/
- has been paid by the plaintiff; that map for construction of multi-storeyed building
upon Haveli's land including the disputed land has already been got approved and the
disputed land is situated in front of Sadar gate of the Haveli and if the same is given
to the plaintiff, it will prove to be an eyesore and on the other hand the property which
the plaintiff is asking for is two separate strips of land measuring 25 × 63 feet which
independently cannot be used for construction of residential house and as such the
plaintiff can well be compensated by payment of money. Mr. Kasliwal made an offer of
Rs. 5 lacs with further submission that the Court may grant more and the appellant
would pay that amount within 15 days from the date of the order of this Court. On the
other hand learned counsel for the plaintiff-respondent submitted that the plaintiff had
no house of his own at Jaipur, hence he entered into an agreement with the appellant
for this peace of land and paid a sum of Rs. 4000/- on the very day as advance; that
the plaintiff was always ready and willing to pay the balance price but it was the
appellant-defendant who whenever approached by the plaintiff extended the period of
agreement for eight times; that the defendant-appellant did not make any plea/prayer
in written statement that the plaintiff may be compensated by way of compensation
and thus this Court cannot go beyond the pleadings/prayers. Mr. Paker Farooq counsel
for the plaintiff-respondent No. 1-also made an offer of Rs. 5 lacs or more amount as
may be considered reasonable by the Court for payment to the appellant in addition to
sale price agreed upon vide agreement Ex. 2. Relying upon Gobind Ram and Kanshi
Ram's case (both supra) Mr. Paker Farooq also relied upon (21) M.L. Devender Singh
v. Syed Khaja, (1973) 2 SCC 515 : A.I.R. 1973 Supreme Court 2457, (22) Smt.
Shakuntla Devi v. Mohanlal Amtrit Raj Jain Market, Pali, 1994 (2) RLR 81 : A.I.R. 1994
Rajasthan 259, (23) K.M. Madhavakrishnan v. S.R. Swami, A.I.R. 1995 Madras 318,
(24) Ram Dass v. Ram Lubhaya, A.I.R. 1998 Punjab and Haryana 233, V. Pechimuthu
v. Gowrammal, J.T. 2001 (6) SC 162 and (25) A. Maria Angelena (d) v. A.G. Balkis
Bee, J.T. 2001 (10) S.C. 262.
16. I have given my thoughtful consideration to the rival submission in the light of
the judgments referred hereinabove. In K. Narendra's case (supra) the appellant on
25.7.1972 entered into an agreement to sell a plot of land to respondent to construct
multi-storyed building in an area covered by master/zonal plan and requiring several
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 8 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

sanctions and clearances which were not within the power of the parties but the
parties knowingly depended on the

Page: 696

respondent for securing the requisite sanctions and clearances. Sanction of

construction of multi-storeyed building once granted by the competent authority was
subsequently withdrawn in June, 1993. It was also not in dispute that the land
forming subject matter of the agreement included an excess land as per the provisions
of the ULCR Act. On 26.4.1985 the competent authority passed an order exempting
the excess vacant land from the provisions of this Act subject to certain terms and
conditions. In view of the withdrawal of sanction of construction of multi-storeyed
building and terms and conditions No. 6 & 7 of exemption order dated 26.4.1985, the
Hon'ble Apex Court held that now this agreement dated 25.7.1972 has become
incapable of specific performance. It was also held that the present one is a case
where the discretionary jurisdiction to decree the specific performance ought not to be
exercised in favour of the respondents. The Hon'ble Supreme Court while dismissing
the suit for specific performance ordered the appellant to return the amount of
consideration with interest at the rate of 12% p.a. and also an amount of Rs.
3,25,000/- by way of compensation in lieu of the specific performance. But in the
instant case, the agreement Ex. 2 has not become incapable of specific performance.

17. In Gobind Ram's case (supra) the appellant agreed to sell the disputed
property for a consideration of Rs. 16,000/- to the respondent on 24.1.1973 and a
sum of Rs. 1,000/- was paid as earnest money to the appellant. The respondent-
plaintiff filed a suit for specific performance, which was decreed by the trial court. The
appeal filed by the appellant in the High Court was also dismissed. However, to
mitigate the hardship to the appellant and as the respondent agreed to pay more sum,
the High Court directed the respondent to deposit a further sum of Rs. 1 lac. The only
contention urged before the Hon'ble Supreme Court for the appellant was that instead
of decree of specific performance, compensation may be awarded. The Hon'ble
Supreme Court in para 7 of this judgment observed that it is the settled position of
law that grant of decree for specific performance of contract is not automatic and is
one of the discretions of the Court and the Court has to consider Whether it will be
fair, just and equitable. The Court is guided by principle of justice, equity and good
conscience. In para 9, the Hon'ble Supreme Court further observed that the High
Court was of the view that the appellant tried to wriggle of the contract because of
escalation in prices of real estate properties and thus the respondent is entitled to get
a decree as he has not taken any undue or unfair advantage over the appellant-
defendant. To mitigate the hardship to the appellant, the Hon'ble Supreme Court
directed the respondent to deposit a further sum of Rs. 3 lacs within four months for
payment to the appellant. In Kanshi Ram's case (supra), an agreement of sale dated
7.4.1969 was executed to convey the plot of land of 100 sq. yards for Rs. 16,000/-
and Rs. 2,500/- was paid as earnest money. The respondent filed suit for specific
performance and also claimed alternatively damages with interest. The courts below
granted decree for specific performance. Learned counsel for appellant contended
before the Hon'ble Supreme Court that the appellant is prepared to pay a sum of Rs.
10 lacs as alternative relief, though the respondent claimed Rs. 12,000/- instead of
specific performance. The Hon'ble Supreme Court observed that it is true that rise in
prices of the property during the pendency of the suit may not be the sole
consideration for refusing to decree the suit for specific performance but keeping in
view equity and good conscience held that the decree for specific performance is
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 9 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

inequitable and unjust to the appellant and according ordered that the plaintiff-
respondent will be paid a sum of Rs. 10 lacs within a period of three months with a
condition that the appellant shall not again sell the

Page: 697

property for five years. In M.L. Devender Singh case (supra) it was held by Hon'ble
Supreme Court in a case of specific performance that provision for damages or penalty
for breach is not sufficient to rebut the presumption as provided under Section 10 of
the Act, 1963. Similar view was taken by this Court in Smt. Shankuntla Devi's case
(supra). In K.M. Madhavakrishnan's case (supra) it was held by Madras High Court
that increase in price of properties cannot be ground for refusing decree for specific
performance. In Ram Dass's case (supra) Punjab & Haryana High Court held that the
defendant took false stand before the Court and failed to perform his part of the
contract inspite of notice from the plaintiff, decree for specific performance is justified.
In V. Pechimuthu's case (supra) Hon'ble Supreme Court held that High Court cannot
reverse concurrent findings of fact on construction of the plaint on-a point not raised
by the respondent at any stage of the proceedings. In A. Maria Angelena (d) case
(supra), the predecessor-in-interest of defendant-appellant No. 1 to 7 executed an
agreement for sale of a house.for a sum of Rs. 1,20,000/-. The plaintiff-respondent
paid a sum of Rs. 5,000/- as earnest money. The plaintiff brought the suit for specific
performance of agreement dated 6.4.1979. During the pendency of the suit the legal
representatives of the vendor sold the suit house to appellant No. 8 & 9. The
subsequent purchasers were also impleaded as defendants in the suit. The trial court
decreed the suit. Appeal preferred by the defendants was also dismissed by the High
Court. Learned counsel for the defendant-appellants submitted that in view of the
subsequent, events, the appellants No. 8 & 9 shall be put to a great hardship and
therefore it is a case where the plaintiff-respondent could be compensated in terms of
money. The Hon'ble Supreme Court held that in any event of the matter no hardship
as now stated was pleaded in the written statement. Further no issue was framed that
the plaintiff-respondent could be compensated in terms of money in lieu of the decree
for specific performance. In the absence of such a plea and issue, we are not inclined
to entertain the argument of the learned counsel for the appellants and since the
plaintiff was and is always ready and willing to perform his part of the contract, the
appeal was dismissed.

18. In the instant case, the appellant-defendant did not plead in the written
statement that any hardship would be caused to him or that the plaintiff took any
undue advantage over him, or that agreed price of the land in question was
inadquated or that the plaintiff could be compensated in terms of money in lieu of the
decree for specific performance. In the absence of such plea and issue, the offer made
by learned counsel for the appellant-defendant before this Court cannot be accepted in
view of the judgment of the Hon'ble Supreme Court delivered in A. Maria Angelena (d)
case (supra). However, to mitigate the hardship to the appellant-defendant and as
learned counsel for the plaintiff-respondent agreed to pay more sum i.e. Rs. 5 lacs or
more as may be directed by this Court and in view of the tremendous escalation of
prices of real estates properties, the respondent-plaintiff is directed to deposit a
further sum of Rs. 6 (six) lacs within a period of five months from today in the trial
court and the amount would be kept in short term deposit in a nationalised bank. This
amount along with the balance of the consideration already deposited in the trial court
is to be paid to the appellant on his giving possession of the suit property to the
respondent.
 SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 10 Sunday, July 23, 2023
Printed For: SKV Law Offices .
SCC Online Web Edition: http://www.scconline.com
© 2023 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------

19. With the above modification of the impugned judgment and decree, this appeal
is dismissed.
———
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.