IMPORTANT POINT
Agreement to sell—The fact that the defendant and his family members are residing in the house, is not a hardship, which may permit the defendant to avoid the specific performance of the contract.

Hemant Gupta, J.:- The defendant is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the suit for specific performance of agreement of sale dated 12.7.2000, in respect of the land measuring 3 marlas, was decreed.

2. The plaintiff filed the suit for specific performance of the aforesaid agreement on 15.6.2001, on the ground that out of the total sale consideration of Rs.42,000/-, a sum of Rs.38,900/- was paid as earnest money. The sale deed was to be registered on 11.1.2001 and that the plaintiff was ready and willing to perform his part of the contract, but the defendant did not get the sale deed executed. The plaintiff was present in the Tehsil Office, but the defendant did not appear. After serving a notice to the defendant calling upon him to get the sale deed registered on 1.6.2001, the plaintiff filed the present suit for specific performance.

3. The learned trial Court, returned a finding that the agreement of sale is proved to be executed as well as the fact that the earnest money of Rs.38,900/- was paid by the plaintiff. However, the relief of specific performance of the agreement was declined for the reason that the possession was not delivered to the plaintiff by the defendant, who along with his family members is residing in the house in question. It was held that the ends of justice would be met if the amount paid by the plaintiff as earnest money is refunded to the plaintiff with interest. The appeal against the said judgment and decree by the plaintiff, was accepted holding that failure to deliver possession is of no consequence as the possession can be taken by the plaintiff in execution of the decree and consequently the learned first Appellate Court, granted a decree for specific performance of the agreement.

4. When the appeal came up for hearing before this Court on 9.2.2007, the defendant raised an argument regarding validity of the agreement itself. The appeal was admitted on the following substantial question of law, while granting stay of the execution of the decree:-

“Whether the findings recorded by the Courts below in respect of execution of agreement of sale dated 12.7.2000 are sustainable in law?”

Subsequently, the plaintiff-respondent moved an application for vacation of stay pointing out that it is not open to the appellant to dispute the execution of the agreement in second appeal as the trial Court itself has recorded a finding that the agreement stands proved. The defendant has not filed any appeal against the said judgment and decree. Therefore, the defendant is precluded from disputing the finding regarding due execution of the agreement. Therefore, the only argument available to the appellant is whether the decree for specific performance could be passed by the learned first Appellate Court. In view of the fact that the dispute between the parties lies in a narrow compass, both the sides have addressed arguments on the main appeal itself while addressing arguments on such application.

5. Having heard learned counsel for the parties, I am of the opinion that the judgment and decree passed by the learned first Appellate Court, cannot be said to be suffering from any patent illegality or irregularity raising any substantial question of law in the present second appeal.

6. The learned trial Court has decreed the suit when the execution of the agreement and payment of earnest money of Rs.38,900/- was found to be proved. The only reasoning given by the learned trial Court to decline the relief of specific performance of the agreement is that the possession was not delivered and the defendant is residing in the house in dispute.

7. Learned counsel for the appellant has relied upon Skinner, R.H. v. Veronica Skinner, AIR 1930 Lahore 1004 and Devendra Basappa Doddannavar v. Smt. Sonubai Tuljansa Kosandal and others, AIR 1971 Mysore 217, to contend that the learned trial Court, having exercised the discretion in not granting a decree