IMPORTANT POINT
Equitable conduct and admissions in the written statement are significant in cases seeking relief under the Specific Relief Act.

JUDGMENT :

The instant second appeal is preferred under Section 100 of the Code of Criminal Procedure, 1908 against a judgment and decree dated 30.03.2013 passed by the learned District Judge, Nalbari in Title Appeal No. 17/2007 upon dismissing the appeal and upholding the judgment and decree dated 06.07.2007 passed by the learned Civil Judge, (Senior Division), Nalbari in Title Suit No. 34/2004. The appellant was the defendant in the suit which was instituted for specific performance of a contract.

2. The projected case of the plaintiff was that an agreement was entered into by the plaintiff with the defendant dated 29.07.2003 for sale of 1 Katha 10 Lechas of land with two rooms. As per the agreement, the total consideration was Rs.3,40,000/- (Rupees Three Lakhs Forty Thousand) only, out of which the plaintiff had paid an amount of Rs. 2,20,000/-(Rupees Two Lakhs Twenty Thousand) only and the possession of the suit premises was already with the plaintiff. It is also stated that the son of the plaintiff was a tenant in the suit premises.

3. The appellant/defendant had filed the written statement in which a defence was stated that owing to certain monetary transaction, the plaintiff were in custody of three signed stamp papers. It was however admitted that the appellant/defendant was ready and willing to discharge his part of the agreement provided the three stamp papers were returned to him.

4. The learned Trial Court after consideration of the facts and circumstances and considering the materials on record and the evidence of the parties had decreed the suit which was also affirmed by the First Appellate Court.

5. This Court vide the order dated 29.08.2013 had formulated the following substantial questions of law:-

(i) Whether the learned first appellate court was justified in holding that the oral evidence, in view of Section 92 of the Evidence Act, 1972, is completely excluded by ignoring the proviso to Section 92 of the said Act?

(ii) Whether the court below was justified in decreeing the suit without weighing the parameters set forth in sub section 2 of Section 20 of the Specific Relief Act, 1963?”

6. I have heard Shri B. D. Deka, learned counsel for the appellant whereas the respondent is represented by Shri D. Choudhury, learned counsel. The LCRs which have been requisitioned have also been perused.

7. Shri Deka, the learned counsel for the appellant has submitted that prior to the legal notice issued on behalf of the petitioner on 27.02.2004, a similar legal notice was also issued on behalf of the son of the plaintiff, namely, Nirmal Talukdar pertaining to an agreement dated 13.02.2002. The learned counsel has also referred to another legal notice issued by the same advocate on behalf of another individual, Shri Bipul Dutta making certain claims. It is contended that all the aforesaid three legal notices clearly are based on the stamp papers which were in the custody of the plaintiff owing to certain monetary transaction as mentioned above. It is submitted that the relief claimed under the Specific Relief Act is an equitable relief wherein the conduct of the plaintiff is of immense importance. In the instant case, the conduct of the plaintiff being doubtful, the learned Court below ought not to have passed the impugned judgments decreeing the suit.

8. Shri Deka, learned counsel has however fairly submitted that in the written statement there is an admission regarding the willingness and readiness of the defendant to discharge his obligations as per the agreement dated 29.07.2003 which however is qualified by the condition that the three signed stamp papers are to be returned to the defendant.

9. It is submitted that while discussing the Issue Nos. 3 & 5, though the learned Court had made an observation regarding the requirement to return the stamp papers, the said aspect was lost sight of while decreeing the suit. The learned counsel accordingly submits that intervention by this Court is required.

10. Percontra, Shri Chou