JUDGMENT
V.M. Jain, J.
1. This Regular Second Appeal has been filed by Kishan Lal plaintiff, challenging the judgments and decrees of the Courts below, whereby the suit for specific performance filed by the plaintiff was dismissed by the Trial Court but on appeal instead of granting the decree of specific performance, the Additional District Judge had decreed the suit of the plaintiff for payment of Rs. 14,000/- alongwith interest etc.
2. The facts in brief are that Kishan Lal plaintiff had filed a suit for specific performance of the agreement to sell dated 21,7.1984 executed by Smt. Chandro defendant, whereby she had agreed to sell her share in the suit land to the plaintiff for a sum of Rs. 10,000/- and had received Rs. 7000/- from the plaintiff at the time of the execution of the agreement to sell and the balance of Rs. 3000/- was to be paid at the time of the registration of the agreement to sell before the Sub Registrar, which was to be executed on or before 30.11.1984. It was further agreed that in case of default by the defendant to perform her part of the contract, the plaintiff would be entitled to get the agreement specifically performed through the Court. It was alleged that the plaintiff was always ready and willing to perform his part of the contract and to get the sale deed executed in his favour but the defendant had been avoiding to perform her part of the contract on the one pretext or the other. It was alleged that he was still ready and willing to perform his part of the contract but the defendant had been putting off the matter on one pretext or the other. It was alleged that the plaintiff had gone to the office of the Sub Registrar on 30.11.1984 for the purpose of performing his part of the contract but the defendant did not come present there and in this manner she failed to perform her part of the contract. It was accordingly prayed that a decree for specific performance of the agreement to sell dated 21.7.1984 be passed in favour of the plaintiff and against the defendant. The said suit was contested by the defendant controverting the allegations contained in the plaint and alleging therein that the defendant never agreed to sell the suit land and had not entered into the alleged agreement to sell in respect of the suit land with the plaintiff as alleged and that the writing if any in this regard was forged. It was alleged that the defendant had never signed/thumb marked any such agreement with the plaintiff and it was prayed that the suit be dismissed.
3. On the pleadings of the parties, the learned Trial Court framed various issues including issue No. 1 as to whether the defendant had entered into an agreement to sell the suit land to the plaintiff in respect of the suit land, on 21.7.1984. After hearing, both sides, the learned Trial Court, dismissed the suit of the plaintiff holding that the plaintiff had failed to prove the execution of the agreement to sell dated 21.7.1984 and since no agreement for sale has been executed and rather the agreement was forged, there was no question of defendant receiving Rs. 7000/- from the plaintiff at the time of the execution of the alleged agreement. Resultantly, the suit filed by the plaintiff was dismissed with costs. However, in appeal filed by Kishan Pal Plaintiff, the learned Additional District Judge, reversed the findings of the Trial Court on issue No. 1 and after considering the entire evidence, oral and documentary, it was found held by the learned Additional District Judge that the defendant had entered into an agreement to sell dated 21.7.1984 with the plaintiff. The findings on other issues were also reversed by the learned Additional District Judge and the same were also decided in favour of the plaintiff and against the defendant. However, the learned Additional District Judge, while considering the question as to whether it was a case for specific performance or a case for damages, decreed the suit of the plaintiff only for payment of Rs. 14,000/- (double the amount) with interest instead of specific performance of the agreement to sell only on the ground that the agreement to sell was dated 21.7.1984 whereas the suit was decided by the Trial Court on 21.3.1994 and that the specific performance of the contract at this stage would prove great hardship to the defendant. Reliance was placed on the law laid down by the Hon’ble Supreme Court in the case of Parakunnam Veetill Joseph’s Son Mathew v. Nedumbara Kuruvula’s Son and Ors., A.I.R. 1987 Supreme Court 2328 (wrongly mentioned in A.I.R. 1987 Supreme Court 340). Dissatisfied with the judgment and decree passed by the learned Additional District Judge passing money decree of Rs. 14,000/- instead of specific performance of the agreement to sell dated 21.7.1984 the plaintiff filed the present appeal in this Court.
4. I have heard the learned counsel, for the parties and have gone through the record carefully.
5. After hearing the learned counsel for the parties and perusing the record carefully, in my opinion, the following substantial question of law arises for determination in this appeal:-
“Whether the learned Additional District Judge, was justified in decreeing the suit of the plaintiff for the payment of Rs. 14,000/- (double the amount) instead of decreeing the suit for specific performance of the agreement to sell and whether the Additional District Judge, should have decreed the suit of the plaintiff for the specific performance of the agreement to sell dated 21.7.1984.”
6. The learned counsel appearing for the plaintiff-appellant submitted before me that since the defendant-respondent had failed to perform her part of the contract even though the plaintiff-appellant was always ready and willing to perform his part of the contract, the learned Additional District Judge, should have decreed the suit of the plaintiff-appellant for specific performance of the agreement to sell dated 21.7.1984. Reliance was placed on a Division Bench judgment of this Court in the case of Sarwan Singh v. Kankar Singh and Ors., (2001-2) 128 P.L.R. 645 and a Single Bench judgment of this Court in the case of Kishori Lal v. Jagmal, (2001-1)127 P.L.R. 304. On the other hand, the learned counsel appearing for the defendant-respondent placed reliance on the case of Kanshi Ram v. Om Prakash Jaswal and Ors., (1996-2) 113 P.L.R. 337.
7. After hearing the learned counsel for the parties and after perusing the record, in my opinion, the present appeal must succeed and the judgment and decree passed by the learned Additional District Judge, be modified and the suit of the plaintiff be decreed for specific performance of the agreement to sell dated 21.7.1983. As referred to above, the defendant in the written statement had denied the execution of the agreement to sell and had denied the receipt of Rs. 7000/- as earnest money. Furthermore, it was nor the case of the defendant that she was ready and willing to perform her part of the contract at any stage. On the other hand, as referred to above, it was a case of simple denial on the part of the defendant in all respects. On the other hand, the plaintiff had led evidence on the record to show that the defendant had entered into an agreement to sell dated 21.7.1984 with him and that the defendant had received Rs. 7000/- from the plaintiff as earnest money at the time of execution of the agreement to sell and the balance amount of Rs. 3000/- was to be paid before the Sub-Registrar at the time of the registration of the sale deed and that the sale deed was to be got executed and registered on or before 30.11.1984. The plaintiff also proved on the record that he had always been ready and willing to perform his part of the contract and that on 30.11.1984, he had gone to Sub-Registrar for the purpose whereas the defendant had not turned up before the Sub-Registrar for getting the sale deed executed and registered. The learned Additional District Judge after considering the entire evidence had found it as a fact that the defendant had entered into an agreement to sell dated 21.7.1984 and had received Rs. 7000/- from the plaintiff as earnest money and had failed to perform her part of the contract. However, the learned Additional District Judge, instead of decreeing the suit for specific performance of the agreement to sell, had ordered the refund of Rs. 14,000/- alongwith interest etc. on the ground that sufficient time has elapsed between the date of agreement and the date on which the suit was decided by the Trial Court. In my opinion, the learned Additional District Judge, failed to take into consideration the fact that out of Rs. 10,000/-, which was the agreed price for the suit land, the plaintiff had already paid Rs. 7000/- as earnest money and only Rs. 3,000/- were to paid by the plaintiff to the defendant before the Sub Registrar at the time of the registration of the sale deed by the defendants in favour of the plaintiff. The defendant having failed to get the sale deed executed and registered in favour of the plaintiff by the due date, the plaintiff filed the suit for specific performance of the agreement to sell. If the said suit remained pending in the Trial Court for about 7 years, in my opinion, the plaintiff should not suffer for the same, especially when it has come on the record that the plaintiff had always been ready and willing to perform his part of the contract whereas the defendant was not willing to perform her part of the contract and in fact the defendant had not only denied the execution of the agreement to sell dated 21.7.1984 but had also denied having received Rs. 7000/- from the plaintiff as earnest money. Furthermore, it was not the case of the defendant that she was at any time ready and willing to perform her part of the contract. That being so, in my opinion, there was absolutely no equity in favour of the defendant and on the facts and circumstances of the present case, in my opinion, no case was made out for refusing to decree the suit of the plaintiff for specific performance of the agreement to sell and instead decreeing the suit for the payment of Rs. 14,000/-.
8. In Sarwan Singh v. Kankar Singh, (2001-2) 128 P.L.R. 645 (supra), a Division Bench of this Court, after considering various judgments of this Court and that of the Hon’ble Supreme Court, had held that it would be a case of hardship, if at all any, which has resulted from the act of the defendants themselves and further that one has to see the circumstances as they were available at the time of the contract. It was further held that if the circumstances existing at the time of the contract alone have to be looked into, the time lag between the filing of the suit and passing of decree for specific performance would become totally meaningless. Resultantly, the Division Bench of this court in the aforesaid case, had held that the plaintiff deserved decree for possession of land by way of specific performance of agreement to sell dated March, 1971 (the judgment of the Division Bench is dated 28.7.2000). Consequently, the appeal filed by the plaintiff was allowed and the defendants were directed to execute the said deed in favour of the plaintiff and get the same registered. Similar view was taken by a Single Bench of this Court, in the case reported as Kishori Lal v. Jagmal, (2001-1)127 P.L.R. 304 (supra), after considering various judgments of this Court and of the Hon’ble Supreme Court, in my opinion, the present case is fully covered by the law laid down by the Division Bench of this Court in Sarwan Singh’s case (supra). In my opinion, the law laid down by the Hon’ble Supreme Court in Parakunnan Veetill Joseph’s Son Mathew v. Nedumbara Kuruvula’s Son, A.I.R. 1987 Supreme Court 2328 (supra), relied upon by the learned Additional District Judge, would have no application to the facts of the present case. In the said authority, it was held by the Hon’ble Supreme Court that the Court should meticulously consider all facts and circumstances of the case and that the Court is not bound to grant specific performance merely because it is lawful to do so. It was further held that the motive behind the litigation should also enter into the judicial verdict and 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. In Kanshi Ram v. Om Parkash Jaswal, (1996-2)113 P.L.R. 337 (supra), it was held by the Hon’ble Supreme Court that the 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 it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It was further held that it is one of discretion to be exercised on sound principles and when the Courts get into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties. In the reported case, it was found by the Hon’ble Supreme Court that the Courts below were justified in granting alternative decree for damages instead of ordering specific performance which would be unrealistic and unfair and resultantly, it was held that the decree for specific performance was inequitable and unjust to the defendant. In my opinion, the law laid down by the Hon’ble Supreme Court in the afore-mentioned authorities would have no application to the facts of the present case. As referred to above, the decree for specific performance of the agreement to sell could be refused if it would be unrealistic and unfair or inequitable and unjust to the defendant.
9. In the present case, on the fact and circumstances available on the record, it could not be said that the decree for specific performance would be unrealistic and unfair or would be inequitable and unjust to the defendant-respondent considering that in the present case, the defendant-respondent had totally denied the execution of the agreement to sell and had also denied the receipt of Rs. 7000/- from the plaintiff as earnest money out of Rs. 10,000/- being the total sale consideration. Similarly, it could not be said that the present suit was being used by the plaintiff as an instrument of oppression to have an unfair advantage to the plaintiff, on the facts and circumstances of the present case. In this view of the matter, in my opinion, the learned Additional District Judge, had erred in law in refusing to grant the relief of specific performance to the plaintiff-appellant. The substantial question of law framed above is thus decided in favour of the plaintiff appellant and against the defendant-respondent.
10. For the reasons recorded above, the present appeal is allowed. The judgment and decree dated 13.11.1998 passed by the Additional District Judge, are modified and instead the suit of the plaintiff is decreed for specific performance of the agreement to sell dated 21.7.1984. It is directed that the plaintiff shall deposit the balance amount of Rs. 3000/- alongwith stamp and registration charges with the Trial Court within three months from today. It is further directed that the defendant-respondent would be entitled to withdraw Rs. 3000/- whereas the remaining amount would be utilized for the purchase of the stamp papers and for the registration of the sale deed. It is further directed that on deposit of aforesaid amount within the stipulated period, the defendant-respondent shall execute the sale deed in favour of the plaintiff and shall get the same registered within
one month of the deposit of the amount in question, ft is further directed that in case the
defendant fails to execute the sale deed and get the same registered in favour of the
plaintiff within the stipulated period, the plaintiff would be entitled to get the sale deed
executed and registered from the Court in execution proceedings in accordance with
law. There shall be no orders as to costs in this appeal.