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Judgment
Rajesh Tandon, J.—Heard Shri Lok Pal Singh, counsel for the appellant and Shri Alok Singh, counsel for the respondents in second appeal No. 48 of 2004 and Shri Alok Singh, counsel for the appellants and Shri Lok Pal Singh, counsel for the respondent in second appeal No. 49 of 2004.
By the present second appeal filed u/s 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 by which the decree of the trial court has been set aside.
Second appeal No. 48 of 2004 was admitted on following substantial question of law:
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?
Second appeal No. 49 of 2004 was admitted on following substantial question of law:
As to whether appellants can be directed to refund the earnest money to the plaintiff/respondent No. 2 herein which was never paid to the appellant and was in fact paid to the defendant No. i/respondent No. 1?
Both the second appeals have arisen from suit No. 53 of 1995. 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.
According to the plaintiff, he 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 cancellation of sale deed and permanent injunction has been filed.
The defendant No. 1 did not appear in the case and, therefore, ex parte proceedings were drawn against him.
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 gS A mRrjnkrk izfroknhx.k iz''uxr lEifRr ds ln~Hkkoh dzsrk gS bl dkj.k /kkjk 41 Vh0ih0 ,DV dk ykHk izkIr djus ds vf/kdkjh gS A
The trial court has framed the following issues:
D;k fnukad 26-8-94 dks :i;s 60 gtkj fookfnr lEifRr fodz; djus dk vuqcU/k izfroknh la[;k &1 us oknh ds gd es izfroknh la0&2 o 3 ds Kku es fu"ikfnr oknh ds gd es izfroknh la[; 2 o 3 ds Kku es fu"ikfnr fd;k rFkk 30 gtkj :i;s vfxze /kujkf''k izkIr dh ,oa dCtk djk fn;k A
2- D;k oknh fookfnr fodz; vuqcU/k dh ''krksZ ds vuqlkj vius gd es fodz; i= fu"ikfnr djku ds fy, ges''kk rS;kj o bPNqd jgk \\
3- D;k izfroknh la[;k 2 o 3 fookfnr lEifRr ds ln~Hkkoh dzsrk gS rFkk /kkjk 41 Vh0ih0 ,DV ds rgr ykHk izkIr djus ds vf/kdkjh gS \\
4- D;k izfroknhx.k us fnukad 21-6-94 dks fodz; vuqcU/k izfroknh la[;k 1 ls :i;s 80 gtkj es fd;k Fkk rFk mDr fodz; vuqcU/k ds vk/kkj ij fnukad 8-9-94 dks fodz; i= fu"ikfnr djk;k ,oa dCtk izkIr fd;k \\
5- D;k okn fof/kor /kk;Z ugh gS] D;ksfd le; ls iwoZ ;ksftr fd;k x;k gS\\ ;fn gkW 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 dkfCkt gS rFkk izfroknhx.k 2 o 3 us oknh ds fookfnr lEifRr ij dCts es gLr{ksi djus dh /kedh nh \\
While deciding issue No. 1, the trial court has recorded the finding that the plaintiff was in possession of the disputed property.
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.
So far as issue No. 3 is concerned, the trial court has recorded the finding to the following effect:
/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; es izLrqr oknh es /kkjk &41 lEifRr vUrj.k vf/kfu;e dks dksbZ ykHk izfroknhx.k dks ugh fn;k tk ldrk gS A
While deciding issue No. 4, the trial court has recorded the finding to the following effect:
,slh fLFkfr es eS bl er dk gwW fd u rks ;g ekuk tk ldrk gS fd izfroknh la[; &1 us izfroknhx.k 2 o 3 ds Ik{k es fnukad 21-6-94 dks dksbZ fodz; vuqca/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 es fu"ikfnr fd;k A
izfroknh la[;k 1 us iwoZ es gh fnukad 26-8-94 dks bdjkjukek egk;nk o; oknh ds i{k es djds mldsk iz''uxr lEifRr ij dCtk djk fn;k Fkk A vr% iz''uxr ds lUnHkZ es nksckjk cSukek djus dk dksbZ vf/kdkj izfroknh la[;k 1 dks ugh Fkk A vkSj bu ifjfLFkfr;ks es iz''uxr lEifRr ij izfroknh la[;k 2 o 3 dk dCtk gksuk Hkh ugh ekuk tk ldrk gS A
With regard to issue No. 5 the trial court has held that the suit of the plaintiff is maintainable.
So far as issue No. 8 is concerned, the trial court has recorded the finding to the following effect:
okn foUnq la[;k 1 dh foospuk Li"V gS fd iz''uxr lEifRr ij oknh dk dCtk gS A fnukad 8-9-94 dks izfroknh la[;k 1 us izfroknhx.k 2 o 3 ds i{k es 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 dCtk izkIr djus dk iz;kl Hkh fd;k gksxk A Loa; izfroknhx.k 2 o 3 dk dFku gS fd iz''uxr lEifRr ij mudk dCtk gS ftls ekuus dk dksbZ vkSfpR; ugh gS D;skfd iz''uxr lEifRr ij oknh dk dCtk ekuk x;k gS Avr% izfroknhx.k }kjk oknh ds dCtk n[ky es Hkh gLr{ksi djus dk iz;kl fd;k tk jgk gksxk] ;g LoHkkfod gS A
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.
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 ''kfDr;ks dk iz;ksx djrs gq, vuqrks"k x ds rgr fodYi es c;kuk dh /kujkf''k rhl gtkj :i;s e; C;kt lkykuk lk/kkj.k 6 izfr''kr dh nj ls fu.kZ; dh rjh[k ls vUnj rhu ekg izfroknh la[;k 2 o 3 v''kksd oknh dks nsus dk vkns''k fn;k tkrk gS A izfroknh la[;k 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 dk izfroknh la[;k 1 ls izkIr djus dk vf/kdkj jgsxk A
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.
It is well settled that grant of specific relief being discretionary in view of V. Muthusami by Lrs. Vs. Angammal and Others, . The Apex Court has held as under:
It is settled position of law that grant of a decree for specific performance is a discretionary one. This Court in K. Narendra Vs. Riviera Apartments (P) Ltd., 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 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.
In Her Highness Maharani Shantidevi P. Gaikwad Vs. Savjibai Haribai Patel and Others etc. etc., , a bench of three learned judges held as follows:
The grant of decree for specific performance is a mater of discretion u/s 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.
In view of the above, no interference is required so far as second appeal No. 48 of 2004 is concerned. I find no illegality in the judgment and decree passed by the appellate court holding that the plaintiff-appellant will get Rs. 30,000/- (the earnest money) with 6 per cent interest.
However, 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 this extent in the order passed by the appellate court, second appeal lacks merit and is liable to be dismissed.
So far as second appeal No. 49 of 2004 is concerned, I have already held that the plaintiff-appellant will get the amount as decreed by the appellate court from the defendant No. 1 and, as such, second appeal being No. 49 of 2004 is liable to be allowed.
In view of the aforesaid findings, substantial question of law involved in second appeal No. 48 of 2004 is decided against the appellant. However, substantial question of law involved in second appeal No. 49 of 2004 is decided in favour of the appellant.
Consequently, second appeal No. 48 of 2004 is dismissed and second appeal No. 49 of 2004 is allowed.