Charan Singh & Ors. v. Ashok Kumar & Ors.

CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. G.S.Nagra, Advocate for the appellants. Mr. Ashok Sharma Nabhewala, Advocate for L.Rs of respondent No.8. Mr.R.S.Ghuman, Advocate for respondents No.9 and 15. ***

Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) C.M No.5401 C of 2005 For the reasons recorded, C.M is allowed and delay of 81 days in re-filing the appeal is condoned. R.S.A No.2023 of 2005 This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the appellants for specific performance R.S.A No. 2023 of 2005 (O&M) ::2:: while granting alternative relief of recovery of double the earnest money. The following questions have been proposed :-

(i) Whether, during the subsistence of a valid agreement to sell between the parties, the seller can execute a second agreement with regard to the same property with some other party and whether such second agreement would have any validity in the eyes of law ? (ii) Whether, a decree obtained on the basis of an agreement, which was executed by the seller during the subsistence of the earlier agreement in respect of the same property, without impleading the purchasers of the earlier agreement as party, can be enforced against those persons ? (iii) Whether, any decree obtained by a subsequent purchaser would be binding on the original purchaser despite the fact that he was not impleaded as a party to the suit by the subsequent purchaser ? (iv) Whether, despite having proved the execution of an agreement to sell between the parties, the execution of sale deed can be denied in favour of the purchaser on the ground of increase in prices of the land ?

Counsel for the appellants has argued question No. (i). He states that once the agreement to sell was proved there was no reason for the Courts below to decline the relief of specific performance. I, however, find that the reasons advanced by the Courts below for declining specific relief cannot be said to be extraneous. The Courts R.S.A No. 2023 of 2005 (O&M) ::3:: below noticed the fact that against the agreement which was executed on

6.9.1980, the suit was filed after 14 years and that during this entire time, the sons of the plaintiff were shown to be in possession and the suit was filed only after the possession was taken from them. It was for this reason that both the Courts below came to a conclusion that allowing specific performance would cause undue hardship because then the appellants would be able to get the property at the price which had been pegged in 1980. In my opinion, it cannot be denied that enforcing the agreement to sell would cause hardship to the respondents. In A.C.Arulappan v. Smt. Ahalya Naik, AIR 2001 SC 2783, the Hon'ble Supreme Court has held as follows :- “ The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the Court need not grant the order for specific relief, but this discretion shall not be exercised in an arbitrary or unreasonable manner.

Certain circumstances have been mentioned in S.20(2) of the Specific Relief Act, 1963 as to under what circumstances, the Court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is R.S.A No. 2023 of 2005 (O&M) ::4:: inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff.” To the similar effect is another judgment of Hon'ble Supreme Court in V.Muthusami(dead) by L.Rs v. Angammal and others, AIR 2002 SC 1279, wherein it has been laid down that where the performance of a contract involves some hardship on the defendant which he did not foresee, then the Court may properly exercise its discretion not to decree specific performance.

Counsel for the respondents has further relied upon Smt. Chand Rani (dead) by L.Rs v. Smt. Kamal Rani (dead) by L.Rs wherein the Hon'ble Supreme Court has held as follows :- “ 24. From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are :-

1. from the express terms of the contract;

from the nature of the property; and