2012 Supreme(SC) 320

2012 (3) Supreme 204
SUPREME COURT OF INDIA
G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, JJ.
Prakash Chandra — Appellant
versus
Narayan — Respondent
Civil Appeal No. 8102 of 2011
(arising out of SLP(C) No.21139 of 2007
Decided on : 23-04-2012

IMPORTANT POINT
In a case of Specific performance, hardship is a good defence provided such defence is taken by defendant and evidence in support of such defence is brought on record.

Headnote:Specific Relief Act, 1963-Section 20(2)(b)-Suit for specific performance-Allowed by Trial Court-Appeal-Allowed by First Appellate Court reversing judgment of Trial Court-Second Appeal-Dismissed by High Court-Appeal-The question as to whether grant of relief for specific performance would cause hardship to defendant within meaning of Clause (b) of sub-section (2) of Section 20 of Act, 1963, being a question of fact, first appellate court without framing such an issue ought not to have reversed the finding of trial court while concurring with it on all other issues with regard to appellant’s entitlement to relief for specific performance of contract- High Court in second appeal failed to notice that the respondent had not taken any defence of hardship and no such issue was framed and in absence of any such evidence on record, first appellate court held that he would be landless should the decree for specific performance be granted-Impugned orders of High Court and first appellate court set aside-Appeal allowed. (Paras 15, 16)

       Facts of the Case :

        A.Suit in question was filed by appellant herein in the instant case against respondent for specific performance of agreement for sale in respect of agricultural land. On appreciation of the material on record, the trial court held that the appellant had proved that the respondent agreed to sell the suit land for consideration of Rs.51,000/- by executing an agreement for sale. On appeal, first appellate court on hearing the parties and on appreciation of the material on record answered all the issues in favour of appellant but reversed the judgment and decree thereby allowing discretion in favour of the respondent by directing him to pay the earnest money with interest.

        B. When the matter was taken up in the second appeal, Single Judge vide impugned judgment dismissed the second appeal on the ground that the first appellate court had factually found that respondent would be landless as against the appellant who was having various businesses as well.

        C. Present Appeal has been filed against said order of High Court.

       Findings of the Court :

        A. The appellant had specifically pleaded that the respondent possessed agricultural land admeasuring 5 H. 76.R. in Gat No. ½, which had not been denied by the respondent. The appellant proved that an agreement was reached between the parties to sell southern portion of land admeasuring 1.61 H. by making an east-west boundary for the consideration of Rs. 51,000/- for which appellant had paid Rs.39,000/- to the respondent as earnest money. The appellant also proved that he was always ready and willing to perform his part of the contract. These issues were decided in favour of the appellant. During cross-examination the respondent stated that he sold only 4 acres of land during the pendency of the case, thereby remaining 2.25 H cultivable and 0.88 H uncultivable land was still available with the respondent.

        B. The question as to whether the grant of relief for specific performance will cause hardship to the defendant within the meaning of Clause (b) of sub-section (2) of Section 20 of the Specific Relief Act, 1963, being a question of fact, the first appellate court without framing such an issue ought not to have reversed the finding of the trial court while concurring with it on all other issues with regard to the appellant’s entitlement to relief for specific performance of contract. The High Court in the second appeal failed to notice that the respondent had not taken any defence of hardship and no such issue was framed and in absence of any such evidence on record, the first appellate court held that he would be landless should the decree for specific performance be granted.

        C. The order passed by the High Court in the second appeal and the judgment and decree passed by the first appellate court were set aside. The judgment and decree passed by the Trial Court was affirmed. Appeal was allowed.