PETITIONER: PIRTHI @ SANSI ETC. Vs. RESPONDENT: JATI RAM & ORS. ETC. DATE OF JUDGMENT: 30/07/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J) CITATION: 1996 SCALE (5)804 ACT: HEADNOTE: JUDGMENT:
AND
SPECIAL LEAVE PETITION (CIVIL) NO. 14275 OF 1996
O R D E R
The petitioner, Pirthi @ Sansi admittedly had entered
into an agreement or May 6, 1988 to sell 16 kanal 16 marlas
of agricultural land for a consideration of Rs.50,000/- per
killa and received a sum of Rs.24,000/- as earnest money.
The respondent filed a suit for specific performance in
April 1993 against the petitioner. It was his plea and
accepted by all courts that he was always ready and willing
to perform his part of the contract and was willing and
ready to pay the balance consideration or Rs. 81,000/-.
Accepting the case of the respondent, the trial Court
decreed the suit. On appeal, the Additional District Judge
by his judgment dated November 15, 1994 reversed the decree
holding that Ramesh and others had come into possession of
the land. They were in possession of the land and the
agreement came to be executed in their favour on December 5,
1994 after the judgment of the appellate Court. Therefore,
the decree for specific performance was not proper and
instead the alternative relief of recovery and compensation
was held appropriate remedy. In second appeal, the High
Court reversed the decree by the impugned judgment dated May
15, 1996 in R.S.A. NO.425/95 and restored the judgment of
the trial Court.
Shri Mahabir Singh, learned counsel for the petitioner,
contended that consideration of granting for specific
performance is a discretion of the court and the courts
granting the decree for specific performance should exercise
the discretion on sound principles of law. The Court should
grant alternative relief instead of granting decree for
specific performance. In view of the facts that the
petitioner had already inducted third party in possession
and they remained in possession and also taking possession
involves further litigation, the first appellate court
rightly refused to grant specific performance. The High
Court committed an error of law in reversing the decree of
the first appellate Court. We rind no force in the
contention. It is an admitted fact that Ramesh and Shashi
Kapoor, respondent Nos.2 and 3 had come into possession
after the suit was instituted and agreement to sell was
entered into. Therefore, the High Court rightly allowed the
appeal holding them to be not a bona fide purchasers and
directed decree for specific performance in pursuance of
agreement to sell dated 6.5.1988. If the contention of the
respondents is given acceptance, no contract can be enforced
and the party will seek to avoid contract by inducting third
party into possession. Therefore the view taken by the first
appellate Court in that behalf is clearly illegal. Having
regard to the fact that respondent Nos.2 and 3 are not bona
fide purchaser and admittedly came into possession after the
suit was instituted and the agreement was entered into the
High Court has rightly rejected their contention. The
contention since have come into possession the suit for
specific performance will be an impediment in that behalf,
bears no force
The special leave petitions are accordingly dismissed.