JUDGMENT :

1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff is as under :-

“Whether Lower Appellate Court has committed an illegality by not affirming the finding of the trial Court and has denied for grant of discretionary relief in arbitrary manner ?”

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

2. The suit property bearing Khasra No.111/3 area 0.238 hectare situated at village Parsahi, Tahsil and District Bilaspur was originally held by original defendant No.1-Juglal, who died during pendency of the suit. It is the case of the plaintiff that original defendant No.1 on 28.4.1996 agreed to sell his suit land at the rate of Rs.50,000/-per acre and also obtained Rs.6,000/- and executed agreement to sell in favour of the plaintiff vide Ex.P-1, but thereafter defendant No.1 failed to perform his part of contract leading issuance of notice dated 13.11.2001, to which defendant No.1 refused to execute and served reply in December, 2001 and again fresh notice was issued on 23.7.2002 as original Advocate Mr. Dande has died. It has also been pleaded that the plaintiff is ready and willing to perform his part of contract and decree for specific performance of contract be granted in favour of the plaintiff.

3. Resisting the suit, original defendant No.1 filed his written statement and denied the averments made in the plaint stating that agreement to sell is fabricated document and the suit be dismissed with cost(s).

4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 15.2.2010, decreed the suit holding that agreement to sell has been entered into with the plaintiff and defendant No.1 for sale of the suit land, defendant No.1 has also obtained Rs.6,000/- and the suit is not barred by limitation and the plaintiff is ready and willing to perform his part of contract. On appeal being preferred by legal representatives of original defendant No.1, the first appellate Court concurred with findings of the trial Court with regard to valid agreement to sell by defendant No.1 in favour of the plaintiff and plaintiff is ready and willing to perform his part of contract and also that the suit is within limitation, but interfered on the ground that the plaintiff is not entitled for relief of decree for specific performance of contract and by partly granting appeal, granted decree for return/refund of earnest money, against which, this second appeal under Section 100 of the CPC has been filed, in which one substantial question of law has been formulated, which has been set-out in the opening paragraph of this judgment for sake of completeness.

5. Mr. Somnath Verma, learned counsel for the appellant/plaintiff, would submit that the first appellate Court having concurred with all findings of the trial Court with regard to valid agreement to sell, readiness and willingness on the part of the plaintiff and the suit being within limitation could not have interfered with relief of specific performance by holding that it would cause hardship to defendant No.1 as there is no specific plea in terms of Section 20 (2) (b) of the Specific Relief Act, 1963 (hereinafter called as 'the Act of 1963') and therefore, in absence of that, no relief could have been granted to defendant No.1, as such, the judgment and decree of the first appellate Court to that extent deserve to the set aside.

6. On the other hand, Mr. Ravish Verma, learned counsel for the respondents/defendants, would support the impugned judgment and decree and submit that the agreement is admittedly said to be of 28.4.1996 (Ex.P-1) and after considering the delay on the part of the plaintiff in serving notice and filing suit, the first appellate Court has rightly interfered with the judgment and decree of the trial Court particularly only granted relie