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1997 Supreme(Raj) 1207
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Y.R.Meena, V.K.Singhal, JJ.
Nanna - Appellant
Versus
Hafiz Abdul Saleem - Respondent
D.B. Civil Special Appeal No. 53 of 1988.
Decided On : 09-06-1997
The discretion for specific performance of contract under section 20 of the Specific Relief Act, 1963 is discretionary and the Court is not bound to grant such relief merely it is lawful to do so.
Headnote:
SPECIFIC PERFORMANCE - CONTRACT OF SALE - EVIDENCE - HANDWRITING EXPERT - REGISTER MAINTAINED BY PETITION WRITER - DISCRETION FOR SPECIFIC PERFORMANCE - SECTION 20 OF THE SPECIFIC RELIEF ACT, 1963.
Fact of the Case:
Plaintiff filed a suit for specific performance of a contract of sale, alleging that the defendant borrowed Rs. 1,500/- interest-free from him and executed a pro-note and receipt, and subsequently entered into an agreement to sell the suit property for a total consideration of Rs. 3,000/-. The defendant denied execution of the documents and alleged that they were forged.
Finding of the Court:
The trial court found that the plaintiff had failed to prove the steps taken for registering the sale-deed and dismissed the plea of specific performance of contract. On appeal, the High Court allowed the plaintiff to lead additional evidence and directed the trial court to re-hear and decide the case in accordance with law. The trial court found that the plaintiff was ready and willing to perform his part of the contract and decreed the suit for specific performance.
Issues: 1. Whether the defendant had borrowed a sum of Rs. 1,500/- from the plaintiff and executed a pro-note and receipt in favour of the plaintiff for the above sung of Rs. 1,500/-?. 2. Whether having failed to pay hack the aforesaid amount to the plaintiff, the defendant executed an agreement on 3.10.1967 in favour of the plain- tiff, and promised to sell the suit property i.e. a shop to the plaintiff by agreeing to accept a further sum of Rs. 1,500/- and to execute and register a sale- deed for Rs. 3,000/- as mentioned in para 3 of the plaint? 3. Whether the plaintiff is entitled to get a refund of Rs. 1,500/- from the defendant in case issue No. 1 is decided in favour of the plaintiff and a decree for specific performance of contract is not passed in his favour? 4. Relief ?
Ratio Decidendi: 1. The High Court held that the trial court was justified in giving direction for framing of an additional issue and allowing the plaintiff to lead additional evidence for the same, as it was essential to the right decision of the suit upon merit. 2. The High Court found that the trial court's reliance on the evidence of the handwriting expert was not justified, as the expert's opinion was not conclusive and was contradicted by the statement of eye-witnesses. 3. The High Court found that the register maintained by the petition writer was not a bound register and was not maintained in the regular course of business, and therefore could not be relied upon as corroborative evidence of the pro-note or receipt. 4. The High Court found that the evidence of the plaintiff's witnesses was contradictory and that the independent witnesses were not reliable. 5. The High Court found that the plaintiff had not done anything or suffered any loss in consequence of the contract, and therefore the discretion for specific performance of contract under section 20 of the Specific Relief Act, 1963 should not have been exercised in his favour.
Final Decision: The High Court allowed the appeal and set aside the decree and judgment of the trial court and the first appellate court.
1. Whether the defendant had borrowed a sum of Rs. 1,500/- from the plaintiff on 6.8.1965 and executed a pro-note and receipt in favour of the plaintiff for the above sung of Rs. 1,500/-?.
2. Whether having failed to pay hack the aforesaid amount to the plaintiff, the defendant executed an agreement on 3.10.1967 in favour of the plain- tiff, and promised to sell the suit property i.e. a shop to the plaintiff by agreeing to accept a further sum of Rs. 1,500/- and to execute and register a sale- deed for Rs. 3,000/- as mentioned in para 3 of the plaint?
3. Whether the plaintiff is entitled to get a refund of Rs. 1,500/- from the defendant in case issue No. 1 is decided in favour of the plaintiff and a decree for specific performance of contract is not passed in his favour?
4. Relief ?
"The defendant has already taken a plea in the original written statement that the agreement in suit was not executed by him and it is a forged document. The fresh plea, which he wants to take by amendment refers only to a relevant and ancillary fact, which the defendant is entitled to prove by cross- examination as well as by leading evidence and it is not necessary for him to incorporate such a plea in the written statement itself. With these observations the revision petition is dismissed."
5-A. By order dated 29.1.1985 in appeal this Court allowed the appeal and set-aside the order of the Additional District Judge dated 16.2.1974. The defendant was allowed to get the document Ex. I, 2 & 3 re-examined by another expert and then produce the expert in witness box and was further allowed to produce Deenanath Overseer or Engineer for proving the valuation. After the defendant closed his evidence of expert and Overseer or Engineer, the plaintiff was permitted to lead his evidence in rebuttal again if he so desires and the trial Court was directed to re-hear and decide the case in accordance with law.
