Important Point – Grant of decree of specific performance is a rule whereas refusal is exception.

1. By this second appeal filed under section 100 of the Code of Civil Procedure, 1908, the appellants (legal heirs of the original defendant) have impugned the order and judgment dated 14th March, 2014 delivered by the learned District Judge-16, Pune dismissing Civil Appeal No.970 of 2012 filed by the appellants herein and upholding the order and judgment delivered by the learned trial Judge passing a decree for specific performance in favour of the respondent (original plaintiff. Some of the relevant facts for the purpose of deciding this second appeal are as under :

2. It is the case of the appellants that their father Krishynarao Hampanna Lokray had acquired one of the property on tenancy from one Rajopadhye. The said tenancy was in the name of the father of the appellants (original defendant). On 14th October, 1982, there was a tripartite agreement entered into between the original defendant, the said Rajopadhye and the developer. Under the said tripartite agreement, the developer agreed to allot two flats to the original defendant and the additional area on payment of additional consideration of Rs.1,31,000/-. The said original defendant surrendered the said tenancy to the landlord and acquired two flats.

3. On 5th January, 1985, the original defendant addressed a letter to the developer informing him that certain amounts were paid by the sons of the original defendant and thus the sale deed in respect of those flats shall be executed in favour of his sons.

4. On 28th November, 1985, the original defendant entered into an agreement for sale in respect of the suit property with the respondent (original plaintiff). On 5th June, 1986, the original defendant agreed to sell the flats to the respondent herein.

5. It was the case of the respondent (original plaintiff) that since the original defendant did not comply with his part of obligation under the said agreement, the original plaintiff filed a suit for specific performance in the Court of the learned Joint Civil Judge, Senior Judge, Pune against the original defendant inter-alia praying for specific performance. The said suit was resisted by the original defendant by filing the written statement. It was one of the plea raised in the written statement that the tenancy rights acquired by the original defendant in respect of one of the suit properties was for the benefit of the joint family. It was urged that the original defendant alone was not the owner. Some part of the consideration was paid by the sons of the original defendant. It was pleaded that the suit is required to be dismissed for mis-joinder of necessary party. When the agreement was entered into with the original plaintiff, the original defendant was staying away from the family at other place.

6. The original plaintiff examined four witnesses i.e. an advocate, a tax consultant, Mr.Balu B. Kamble and himself.

7. When the said tax consultant was examined by the original plaintiff to prove that there was no undue influence on the original defendant for execution of the agreement for sale in favour of the original plaintiff, the original defendant raised an objection about the examination of the said tax consultant by the original plaintiff as a witness on the ground that the advice given to the original defendant by the said tax consultant could not have been disclosed in evidence and the same would be in breach of the professional ethics. The learned trial Judge agreed to decide the said objection later on.

8. By an order and judgment dated 15th June, 1992, the learned Joint Civil Judge, Senior Judge, Pune passed a decree for specific performance of the suit agreement in favour of the original plaintiff and against the original defendant and directed the original defendant to hand over and deliver vacant and peaceful possession of the suit premises to the plaintiff and to execute the sale deed in favour of the plaintiff by accepting the balance consideration in pursuance to the terms and conditions of the de