Shyam Sundar Chowkhani and Others vs Kajal Kanti Biswas and Others

J.N. Sarma, J.—This appeal has been filed against the judgment and decree dated 20.8.92 passed by the learned Assistant District Judge, Tinsukia in Title Suit No. 95 of 1986.

A suit was instituted by the Plaintiff-Respondent for specific performance of contract. The case of the Plaintiff is that the Defendant No. 1 Shri Shyam Sundar Chawkhani and his father, the original Defendant No. 2 Late H.P. Chawkhani jointly owned a plot of land measuring 10 Bighas-3Kathas-3Lechas at Digboi. They agreed to sell the suit land to the Plaintiff/Plaintiffs also agreed to purchase at the agreed value of Rs.1,01,501/- (Rupees One Lakh one thousand five hundred one). The Defendant No. 1 received an amount of Rs. 26,501/-(Rupees Twenty six thousand five hundred one) on 5.10.82. The Defendant No. 2 received an amount of Rs. 15,000/- (Rupees fifteens thousand) on 9.11.82 and the Defendant No. 1 received a further sum of Rs. 60,000/-(Rupees Sixty thousand) on 23.11.82. Thus the Defendants received the entire amount of full consideration for the sale of the aforesaid land and on 1.2.83 they agreed to execute the final registered sale deed, on return of the Defendant No. 1 from Calcutta. On his return on 1.6.83 both of them delivered possession of the land in favour of the Plaintiff. But a registered deed was executed only for 5Bighas of land out of total land of 10Bighas-3Kathas-3Lechas. They told the Plaintiff that they were not in a position to execute the sale deed for the entire land because of income tax problem. The Defendants were reminded to execute the sale deed for the balance of the land. A notice was also issued by the Advocate, but the Defendants instead of executing the sale deed filed an application u/s 144 of the Code of Criminal Procedure before the Executive Magistrate, Dibrugarh, which was however dropped. A proceeding u/s 145 of the Code of Criminal Procedure was also initiated through an employee of the Defendants and that was pending at the time of filing of the suit. Hence this suit for the specific performance of contract and/or refund of an amount of Rs. 81,501/- (Rupees eightyone thousand five hundred one) with interest at the rate of Rs. 12% Per Annum.

The original Defendant No. 2, Shri Hanuman Prasad Chawkhani died during the pendency of the suit and the heirs were brought on the record. The Defendants No. 1 and 2 filed a joint Written Statement. Their main plea was that they never executed any agreement to sell the land. Only Defendant No. 1, the son executed the agreement and he only received the entire amount of consideration money against a receipt dated 1.2.83. They also denied that possession of the land was delivered to the Plaintiff. It was admitted by them that as the son executed an agreement his share of land of 5Bighas was sold. It is, their further case that though Defendant No. 1 agreed to sell the entire land, the Defendant No. 2 never agreed to the sale of this land and accordingly the western part of the land measuring 5 Bighas was sold to the Plaintiff at a nominal/reduced price of Rupees Twenty thousand only on 2.6.83 and the balance amount of Rupees Eightyone thousand five hundred one was returned to the Plaintiff earlier on 1.6.83 after obtaining a receipt thereof. The sale of half of the land was at a price which is 40% of the agreed price and this was done as because the Plaintiff agreed to waive their demands for the balance of the land. The Plaintiffs forcibly entered into the land and dispossessed the Defendants and as such the necessity to file the proceeding u/s 144 Code of Criminal Procedure as well as u/s 145 Code of Criminal Procedure

The following issues were framed:

Whether the suit is maintainable ?

Whether there is cause of action ?

Not necessary.

Whether the Defendants returned the balance of Rupees Eighty one thousand five hundred one to the Plaintiff?

Whether the Plaintiffs are entitled to a decree as prayed for ?

The learned Judge in deciding issue No.4 found that Exhibit-1 is the receipt with regard to receipt of Rupees one lakh one thousand five hundred one and Exhibit-1(1) is the signature of Defendant No. 1. It was also found by the learned Judge that at that point of time the father, the Defendant No. 2 was away in Calcutta. It was further found by the learned Judge that Exhibit-KA is the receipt regarding return of the amount of Rupees Eightyone thousand five hundred one, wherein Exhibits- KA(1), KA-(2) and KA-(3) are the signatures of the Plaintiffs, Shri Kajal Biswas, Shri Subimal Das and Shri Mridul Biswas. The Plaintiffs denied the taking back of amount of Rupees Eightyone thousand five hundred one by executing Exhibit-KA and they also denied their signatures in Exhibit-KA. So the Defendants filed the petition No. 603/91 on 27.3.91 for sending the disputed signatures of the Plaintiffs to Hand-Writing Expert for comparison with the undisputed signatures, Exhibits-Kha(1), Kha-(2) and Kha-(3)on their plaint and that were sent to the Hand-Writing Expert on 16.5.91. The Expert opined that the signature of Kajal Biswas have been written by the same person though the signature of Q-l is disguised to some extent The Signature of Q-2 has not been written by the writer of the admitted signature. That the signature Q-3 is not comparable with the admitted signature due to difference of script and hence a definite opinion can not be expressed. The Plaintiffs refused to give signatures in Court for comparison and it was urged that because of such refusal a presumption should be drawn against the Plaintiffs and in favour of the Defendants u/s 114 of the Evidence Act. The learned Judge held by the earlier order that the Court can not compel a person to write his signature as he can not be compelled to become a witness against himself, and as such, the prayer of the Defendants was rejected by that order holding that it will be violative of Article-20(3) of the Constitution of India.

Before we proceed further let us see how far the finding of the learned Court below is correct. This matter came up for decision before the Apex Court in The State of Bombay Vs. Kathi Kalu Oghad and Others, where this aspect of the matter was considered by the Supreme Court in Paragaraph-10 of the majority judgment delivered by Sinha CJ, laid down the law as follows:

"To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statement, but not in the larger sense of the expression so as to include giving of thump impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that - though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers of being offenders to justice. Furthermore it must be assumed that the Constitution makes were aware of the existing law, for example Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purpose of any investigation or proceeding under the Code of Criminal Procedure to do so : ''Measurements'' include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, u/s 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by Section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly Section 73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison.

This is a judgment by the Constitutional Bench and it still holds the field.

The next case on this point is The State (Delhi Administration) Vs. Pali Ram, Appellant v. Pali Ram, Respondent), where the Court in Paragraph-24 and 25, laid down the law as follows:

A sample writing taken by the Court under the second paragraph of Section 73 is in substance and reality, the same thing as "admitted writing" within the purview of the first paragraph of Section 73 also. The first paragraph of the Section, as already seen, provides for comparison of signature writing etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Court The two paragraphs of the Section are not mutually exclusive. They are complementary to each other.

Section 73 is therefore to be read as a whole, in the light of Section 45. Thus read, it is clear that a Court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers u/s 73, if in the interest of justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the Court irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused''s) admitted writing, and to reach its own conclusion with the assistance of the expert.

So the finding of the learned Judge on this point is an erroneous one.

This aspect of the matter can also be looked at from another angle. Article-20(3) of the Constitution of India is an immunity of an accused from being compelled to be a witness against himself. This Clause gives protection:

(i) to a person, accused of an offence.

(ii) against compulsion to be a witness. (iii) against himself.

The word ''accused of an offence'' in Article 20(3) indicates that the protection of this Clause is confined to Criminal proceeding or proceeding of that nature before a Court of law or other Tribunal before whom a person may be accused of an offence as defined in Section 3(38) of the General Clauses Act, that is, an act punishable under the Penal Code or in special or local law (See Maqbool Hussain Vs. The State of Bombay, Raja Narayanlal Bansilal Vs. Maneck Phiroz Mistry and Another,

It would not therefore extend to parties and witnesses in civil proceeding or proceeding other than criminal-for example the proceeding for public examination of a Director etc. u/s 45(G) of the Banking Companies Act, 1949, a person examined u/s 171-A of the Sea Customs Act (See K. Joseph Augusthi and Others Vs. M.A. Narayanan, Official Liquidator, Palai Central Bank Ltd., Official Liquidator, Popular Bank Ltd. Vs. Madhava Naik and Others, In such a proceeding a person cannot refuse to give an answer on the plea that it might tend to subject him to a criminal prosecution at a future date.

Further as pointed out by the Supreme Court in Kathikalu (Supra) that this protection is available to a person against whom a formal accusation has been made though the actual trial may not have commenced as yet

It is needless to dilate on this point further as that is not necessary for the decision of this case as in this case we are concerned only with a Civil proceeding. The learned Judge rejected the opinion of the handwriting Expert and he held that the report cannot assist the Court in coming to a definite conclusion about the genuineness of the Defendants'' document Exhibit-KA. Thereafter the learned Judge by exercising the power u/s 73 of the Evidence Act compared the signature in Exhibit-KA and he held as follows:

So I can not believe that Plaintiff No. 1 Kazal Kanti Biswas gave the signature Exhibit-KA(1) in the disputed Money Receipt, Exhibit-KA. Similarly I find sufficient difference in the style in between Exhibit-KA(3) and Exhibit-KHA(1) in respect of the signature of the Plaintiff No. 2 Mrinal Kanti Biswas.... I find sufficient difference in the style of the inferable speed in writing between the signature in Exhibit-KA(3) and Exhibit-KHA-1. I find it very difficult to believe that the same person gave the signature.... The signature of Plaintiff No.3 may not be possible for comparing the signature of Plaintiff No. 3 Subimal Das due to difference in script, but the difference found in respect of the disputed and admitted signatures of the other two Defendants make the case of the Defendants more doubtful than that of the Plaintiffs.

Since the Science of identification of handwriting by comparison is not an infallable one, prudence demands that before acting on such opinion, the Court should be fully satisfied about the authorship of the admitted writing which is made the sole basis for comparison and the Courts should also be fully satisfied about the competence and credibility of the handwriting Expert. When there are conflicting opinions, it is necessary to exercise extra care and caution in evaluating their opinions before accepting the same. In no case can the Court base its finding solely on the opinion of the Handwriting Expert. It however does not mean that even if there exists numerous sticking similarities and mannerism which tend down to identify the writer, the Court will not act on the Expert''s evidence. It all depends on the character of the evidence of the Expert and the facts and circumstances of each case, the ordinary method of proving handwriting are:

(i) By calling as a witness a person who wrote the document or saw it written or with qualified expert opinion as to the handwriting by virtue of Section 47 of the Evidence Act.

(ii) By the admission of the person against whom the document is tendered.

(iii) By comparison of handwriting as provided in Section 73 of the Evidence Act It should also be borne in mind that only where other evidence is not available and the handwriting has not been proved by independent witness to be the handwriting of a particular person that it is necessary to have recourse to the provisions of Section 73 of the Evidence Act. The two paragraphs of Section 73 are not mutually exclusive. They are complementary to each other. Section 73 is therefore to be read as a whole in the light of Section 45 of the Evidence Act. (See The State (Delhi Administration) Vs. Pali Ram, Section 73 read as a whole in the light of Section 45 and Section 47 of the Evidence Act makes it clear that the Court does not exceed its power u/s 73 of the Evidence Act if in the interest of justice, it directs a person appearing before it whether it is Civil or Criminal Court to give a sample writing to enable me same to be compared by Handwriting Expert because even in adopting such course the purpose is to enable the Court to compare the disputed writing with the admitted writing and to reach its own conclusion with assistance of the Expert.

A Civil Court can give direction to a party to appear in person under the proviso to Order 3 Rule 1 of the CPC and to give signature, handwriting or thumb impression for comparison u/s 73 of the Evidence Act. The Court has jurisdiction to direct a party to give his signature or writing for the purpose of enabling the Court to compare them with the disputed writing or for sending it to the Handwriting Expert and the only consequence of noncompliance of a direction u/s 73 of the Evidence Act is that it is open to the Court to draw a presumption u/s 114 of the Evidence Act (See M. Narayanaswami Vs. V. Yangatanna, ; Sashi Bhusan Pati and Another Vs. State Bank of India and Another, . In the instant case inspite of prayer from the Defendants asking the Plaintiffs to give signatures for the purpose of sending them to the Handwriting Expert, that was not done. Whether adverse presumption against the Plaintiffs shall be available or not, that shall be discussed at a later stage.

First let us take up the legality of the finding arrived at by the Court regarding genuineness of the signatures of the Plaintiffs in Exhibit-KA. In order to decide it again we must go back to Section 73 of the Evidence Act Although Section 73 empowers the Court to compare the disputed writing with the specimen/admitted writing shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of comparison, more so, when the quality of evidence in respect of specimen/admitted writing, is not of high standard (See State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, Of course mat case before the Apex Court was a Criminal Case. As pointed out by Privy Council in 3 Indian Appeals 154 - A comparison of a hand-writing by the Court with the other document not challenged as fabricated upon its own initiative and without guidance of an Expert and even that it is at all times hazardous and recognizibly inconclusive. It is unsafe to arrive at a decision in a case where there is a conflict of testimony between the parties as to the general character of a signature on the correct determination of the genuineness of the signature by mere comparison with the admitted signatures specially without the aid in evidence of microscophic enlargement or any expert''s evidence (See AIR 1928 PC 277). Further a signature made for the occasion post-litem-motam merely for the use at the trial ought not to be taken as a standard, as it is likely to be simulated. It may however, be compared with any genuine writing for all, that is, worth. The criteria of comparison of signature can not be a safe guide and surely cannot be the sole guide. But that is, what has been done by the learned Judge in this particular case. The learned Judge did not discuss any other evidence on this point and based solely on his own comparison, he came to the finding that the signatures in Exhibit-KA are not the signatures of the Plaintiffs. This matter can be looked at from another angle. This document Exhibit-KA was filed by the Defendants. But it was introduced in evidence by the Plaintiffs himself. PW-1 Mridul Kanti Biswas deposed in examination-in-chief as follows:- "The paper Exhibit-KA does not bear my signature. The two Defendants themselves forged Exhibit-KA(1), KA(2) and KA(3)". P.W.2 Kajal Kanti Biswas also deposed as follows:- "Exhibit-KA(1) is a forged document. Exhibit-KA(1) is not my signature. Exhibits KA(2) and (3) are not the signatures of the other Plaintiffs. P.W.3 is Subimal Das. He deposed as follows:- "Exhibit-KA(1) is not my signature. Exhibit-KA is a forged document". On the other hand D. W-1 SS Chawkhani deposed as follows:- "Exhibit KA is the said receipt. The Plaintiffs wrote this in my presence. Exhibits-KA(1), (2) and (3) are the signatures of Kajal Biswas, Subimal Das and Mridul Biswas respectively." A suggestion was given to him that it is a forged document, but that was denied. This document Exhibit-KA was admitted in evidence without objection and as such later-on no objection can be taken regarding mode of proof that it is irregular or . insufficient. A notice was given by Defendant No. 1 to all the Plaintiffs by registered post, wherein it was specifically stated that his father Defendant No. 2 a co-owner of the land is the only competent person to sell the land and he having not agreed to sale of the land, the amount of entire consideration money received by the Defendant No. 1 alone should be taken back. It was also stated in that notice that this money was received by him alone. The last line of the notice reads as follows:

Please inform me when you take back the money which I am anxious to do." P.W.-l Mridul Kanti Biswas admitted the receipt of this notice. He deposed as follows:- "However a notice was received from Defendant No. 1. Exhibit-GA is the said notice. Exhibit-GA(1) is the signature of Defendant No. 1. An employee of our shop put his signature on behalf of Kajal Biswas and me. Subimal himself kept it by signing. Exhibit-GHA is the A/D. "P.W.-2 Kajal however deposed as follows:- "We did not receive Exhibit-GA. Exhibit-CHA(1) is not my signature." Subimal Das, PW-3 deposed as follows:- "It is not true that Shyam Sundar has informed us in writing to take back the money. It is not true that Exhibit-GA is the letter by Shyam Sundar. It is not true that Exhibit-GHA(1) is my signature." So these three Plaintiffs contradict each other with regard to even information, intimation given by the Defendant No. 1 to take back the money. Exhibit-KA, the money receipt is after this date. So this notice also leads credence to the assertion made by the Defendants that the money was taken back by the Plaintiffs.

I find that the Plaintiffs to be persons withholding truth at every stage inasmuch as a registered notice was sent to take back the money. One of the Plaintiffs admitted the receipt of the notice. But the other two Plaintiffs as indicated above even denied the same and even denied their signatures on A/D Card.

The finding of the leaned Judge in Issue No. 4 is that though the Defendants executed a registered sale deed in respect of only 5Bighas of land on 1.6.83 out of 10Bighas-3Kathas-3Lechas, the Defendants delivered possession over the entire area of land measuring 10Bighas-3Kathas-3Lechas to the Plaintiffs after receiving admittedly the total consideration. This finding has been arrived at by the learned Judge without considering any evidence on record with regard to the delivery of possession and this can not be a finding in the eye of law.

Regarding delivery of possession let us have a look at the deposition of PW-1, Mridul Kanti Biswas deposed that the two Defendants delivered possession over the total area of 10Bighas-3Kamas-3Lechas of land on 3.6.83 and at the time of delivery of possession Defendants'' employee Sri Dube, the Lot Mondal and Rajen Shah were present. Sri Dube has been examined as DW-2. He deposed mat only possession of 5 Bighas were handed over on the western side of the dag and the Mondal Dibakar by name measured the land and the remaining portion of the land remained under the possession of the Defendants and subsequently the Plaintiffs trespassed to this land. This Lot Mandal and Rajen Shah have not been examined by the Plaintiffs to establish the delivery of possession of the entire land. PW-2 Kajal Kanti Biswas regarding this delivery of possession deposed as follows:- "At the time of delivery of possession Defendants'' employee Shri Dube, the Lot Mondal, Rajen Shah and Prafulla Biswas were present" PW-3 Subimal Das deposed that "at the time of delivery of possession Plaintiff Mridul Kanti Biswas, father, employee Dube, the Lot Mondal and we, the Plaintiffs and Rajen Shah were present." Non-examination of the other witness save and except these Plaintiffs throws doubt regarding the delivery of possession of the entire land, and the further fact that there were proceedings u/s 144 of the Code of Criminal Procedure and u/s 145 of the Code of Criminal Procedure also belie the story of delivery of possession of the entire land. Accordingly the finding of the learned Judge that by executing registered sale deed for 5 Bighas of land the entire land was delivered can not be accepted and accordingly that finding is set aside. This is more so in view of the consistent evidence of DW-1 and DW-2 that possession was handed over only for 5 Bighas of land and not for 10Bighas-3Kathas-3Lechas of land

In view of the above discussion by setting aside the finding of the learned Judge on Issue No. 41 hold as follows:

(i) Exhibit-KA is a genuine document and it was duly signed by all the Plaintiffs on receipt of the balance of the consideration money.

(ii) No delivery of possession was given of the entire land, but only of 5 Bighas of land which is the subject matter of the sale deed.

ISSUE No. 5: In view of my finding in Issue No. 4, there is hardly any necessity to discuss Issue No. 5 in as much as the Plaintiff is not entitled to a decree for specific performance of contract in view of the finding arrived at earlier. Inspite of it in view of the argument advanced by the learned Counsel I decide this issue as follows:

(1) The Plaintiff is not entitled to a decree for specific performance of contract on the ground that Exhibit-1, the agreement for sale was executed only by Defendant No. 1, the son and not the father, Defendant No. 2. Though both of them were the owners of the land in equal shares. There is absolutely no evidence that Defendant No. 2 received any part of the consideration money and/or he agreed to the sale of the land rather from Exhibit-GA, the notice asking the Plaintiff to take back the advance, it was made clear that Defendant No. 2 was not willing to sell the land. So this agreement for sale executed only by one co-sharer for the entire land cannot be enforced.

The Plaintiffs took a stand that the first instalment was received by Defendant No. 1 on 5.10.82. The admitted position is that on the date the Defendant No. 2 was in Calcutta. It is the case of the Plaintiffs that a further: sum was received by Defendant No. 2 on 9.11.82. But there is no evidence with regard to that. The deed of agreement is dated 1.2.82 and that deed reads as follows:

Received with thanks a sum of Rs. 1,01,501/- (Rupees One lakh one thousand and five hundred one only) in connection with the sale of land of approx. 10Bs- 4K. 3L. Under new Patta No. 476 Dag No. 521 (OLD BEING P/P No. 251 Dag No. 316) jointly from:- (1) Shri Subimal Das, (S/o. Late Khirode Chandra Das) (2) Shri Kajal Kanti Biswas (S/o. Late Hirendralal Biswas) (3). Sri Mridul Kanti Biswas (S/o. Shri Prafulla Ranjan Biswas) all residing in Digboi.

The Final deed, however, will be executed by Shri Hanuman Prasad Chowkhani.

This so-called agreement for sale is absolutely a vague one. There is no mention of the place where the land is situated. Of course there is no dispute between the parties with regard to the identity of the land. Be that as it may, this Agreement was subject to a clause that the final deed however, will be executed by Shri Hanuman Prasad Chowkhani and he has refused to sell it. In the plaint, in paragraph-3 it is stated that the final registered deed of sale shall be executed on return of Defendant No. 2. There is nothing to show that there was any negotiation and/or agreement with Defendant No. 2. The payment by receipt dated 9.1.82 by Defendant No. 2 has not been established. Further the land is lOBighas-3Kathas-3Lechas, but it is mentioned in the Exbibit-1 as 10Bighas-4Kathas-4Lechas. The agreement as it will be evident from paragraph-3 was only with Defendant No. 1 and not with Defendant No. 2. So such an agreement cannot be specifically enforced both against the Defendant No. 1 and Defendant No. 2 inasmuch as the agreement with Defendant No. 2 has not been established at all.

(2) In Parakunnan Veetill Joseph''s Vs. Nedumbara Kuruvila''s and Ors, The Supreme Court in paragraph-14 pointed out as follows:

Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the Plaintiff.

The case in hand as will be seen the son agreed to sale the entire property and not the father. Thereafter in order to honour the agreement of the son 5 Bighas of land was sold at Rupees Twenty Thousand, a throw way price and having received this benefit the Plaintiffs wanted to grab the other property and trespassed to it and filed this suit. The Trial Court did not consider meticulously all facts and circumstances of the case. To the same effect is the decision in K.S. Vidyanadam and Others Vs. Vairavan, wherein the Court pointed out how to exercise the discretionary power with regard to a decree for specific performance and the circumstances to be considered in exercising discretion. The third decision on this point is Md. Mohar Ali Vs. Md. Mamud Ali and Others, Even examining the matter from that angle there can not be a decree for specific performance of the contract. Specific Performance is a discretionary remedy. The Court is not bound to decree specific performance, merely because it is lawful to do so. Even if a contract does not fall under any of the provisions of Section 21 the Court may refuse specific performance nor is the Court tied down by the Rules laid down in the contract in exercising the discretion. The Court can take into consideration the conduct of the parties to the agreement and the circumstances attending its execution and can refuse to order specific performance in their discretion. The discretion of the Court is no doubt not an arbitrary discretion, but one governed by Rules of Equity. The Court is to assign reasons for its action so that one can assess the soundness of the discretion. The well established Rule is a contract shall generally be enforced if it is without any fraud, mistake and/or otherwise appears to be a sound one. The relief being an equitable relief, the Plaintiff must come to the Court with clean hands. If it is found by the Court that a decree of specific performance would cause injury to others such a relief shall be refused. The contract in question must be a fair one. The Court may also refuse specific relief when undue hardship would be entailed on the Defendants by the specific enforcement of the contract. The law is that a specific performance could not be decreed if a part of the contract is susceptible of specific enforcement. Here is a case where there was no agreement with Defendant No. 2 and his part cannot be subject to specific enforcement. For all these reasons a decree for specific performance can not be granted.

Accordingly this appeal is allowed and the judgment and decree passed by the learned Assistant District Judge, Tinsukia in Title Suit No. 95 of 1986 shall stand set aside and quashed. The suit shall stand dismissed.

Before I part with the record there is another aspect of the matter which should be taken care of. Miscellaneous Case being Miscellaneous Case No. 53 of 1993 has been filed wherein it has been stated that during the pendency of the Appeal by order dated 7.5.93 passed by the Trial Court, the possession of the land was handed over to the Plaintiffs by the Sheristadar of the Court The order dated 7.5.93 is quoted below:

7.5.93:- The Plaintiffs are filing the petition No. 1058/93 supported by affidavit on the effect that the Hon''ble High Court has passed no stay order. The Defendants are absent without any (illegible). So the Plaintiffs petition supported by affidavit is allowed and the Stay Order of this Court dtd. 29.4.93 is vacated. Sheristadar can proceed for execution of the decree.

The orders dated 3.7.93 and 5.7.93 are quoted below:

3.7.93:- Seen the memo No. 2729 dtd. 23.6.93 of the Hon''ble Gauhati High Court calling for this record. Seen the enclosed order dtd. 5.5.93 in F.A. No. 118/93 of the Hon''ble High Court The execution of the decree is to be stayed if not yet executed. Send the case record timely.

5.7.93:- It is reported by the Sub-Registrar, Margherita vide his memo No. MSR/E-B/93/6 dtd. 12th May/93 that the sale deed has already been executed by this Court''s Sheristadar.

As the appeal has been allowed the possession of the land measuring 5 Bighas-3Kathas-10Lechas shall be handed over to the Defendants by way of restitution and the precept shall be issued to the Sub-Registrar, Margherita to cancel the deed of sale executed by Sheristadar of the Court

I have heard Shri A.K. Bhattacharjee, learned Advocate for the Appellants and Shri S.R. Bhattacharjee, teamed Advocate for the Respondents.