Section 12(1) of the Specific Relief Act, 1963 prohibits the specific performance of a part of a contract.

ANIL KSHETARPAL, J.

C.M.No.8997-C of 2017

Prayer in this application is for condonation of delay of 84 days in re-filing the appeal.

For the reasons given in the application, which is supported by an affidavit, the same is allowed and delay of 84 days in re-filing the appeal is condoned.

C.M.No.8998-C of 2017

Prayer in this application is for condonation of delay of 13 days in filing the appeal.

For the reasons given in the application, which is supported by an affidavit, the same is allowed and delay of 13 days in filing the appeal is condoned.

Main case

By this common judgment, the above referred appeals are being disposed of as both the appeals arise out of a suit.

1. Plaintiffs are in regular second appeal. Regular Second Appeal No.3697 of 2017, has been filed by Narender Kumar, plaintiff no.3, whereas Regular Second Appeal No.3505 of 2017, has been filed by plaintiffs no.1 and 2.

2. Plaintiffs had filed a suit for specific performance of the agreement to sell with respect to 3/5th share i.e. 19 kanals 17 marlas out of land measuring 29 kanals 16 marlas agreed to be sold, as per agreement to sell dated 02.07.2004.

3. It may be significant to note here that three plaintiffs and two defendants i.e., defendants no.2 and 3 are alleged to have entered into an agreement to sell with defendant no.1 with regard to land measuring 29 kanals 16 marlas. However, defendants no.2 and 3 did not file the suit for specific performance. Three plaintiffs filed the suit only with respect to 3/5th share out of the total land agreed to be sold (29 kanals 16 marlas).

4. In the written statement, defendant no.1 took a stand that plaintiff no.1, namely, Shiv Ram is his nephew, who had played fraud not only with defendant no.1 but also with sons of defendant no.1, who are defendants no.2 and 3. It was asserted that plaintiffs no.2 and 3 are close associates of plaintiff no.1, who managed to copy the signatures of answering respondent and sons of plaintiffs on the alleged agreement to sell. It was further asserted that defendant no.1 has sold some part of the suit lands to different persons and it was to the knowledge of the plaintiffs. However, plaintiffs never objected to the same. The readiness and willingness of the plaintiffs was also disputed. It was also asserted that the plaintiffs have no capacity to pay the balance sale consideration. The defendant no.1 further asserted that the suit filed by the plaintiffs for part of the land agreed to be sold, is not maintainable in view of Section 12 of the Specific Relief Act, 1963.

5. Learned trial Court after appreciating the evidence available on the file, dismissed the suit filed by the plaintiffs.

6. Two separate appeals were filed, one by plaintiffs no. 1 and 2 and other by plaintiff no.3. Learned First Appellate Court after re-appreciating the evidence available on the file, directed refund of the earnest money to the plaintiffs and proforma defendants.

7. Learned counsel for the appellants has challenged the aforesaid judgment passed by the learned first appellate Court.

8. In my opinion, two issues arise for consideration in the present case:-

(i) Whether a suit for specific performance of part of contract is maintainable?

(ii) Whether the judgment passed by the learned first appellate Court ordering refund of the earnest money is correct in law?

Section 12 of the Specific Relief Act, 1963 (hereinafter referred to as 'the Act') deals with specific performance of a part of the contract. Section 12 of the Act is extracted as under:-

“12. Specific performance of part of contract

(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much