The main legal point established in the judgment is the interpretation of Section 23 of the Specific Relief Act, 1963 and its application to an agreement to sell containing a clause of liquidated damages.

JUDGMENT

Amit Rawal, J. (Oral) - The present regular second appeal is directed against the concurrent findings of fact, whereby the suit of the appellants-plaintiffs, instead of granting discretionary relief, has been confined to alternative relief of refund of Rs. 15,000/- by the trial Court and affirmed in appeal.

2. The appellants-plaintiffs sought the specific performance of agreement to sell dated 02.02.1977, in respect of suit land with alternative prayer of recovery of Rs. 15,000/-. It was alleged that there was a some litigation in Civil Suit No.74 of 1970, filed by the defendants against the plaintiffs for declaration and joint possession, including the land measuring 152 kanals 13 marals. In the aforesaid suit, the parties arrived at a compromise and the suit was decreed and the second suit titled as "Jai DeviV/s Mam Chand etc." filed by the plaintiffs, was dismissed as withdrawn. The defendants, as per the aforementioned compromise, were to be give, 16 kanals of land and in this process, entered into agreement to sell, in question. Since there was a dispute with regard to mutation and time was also not the essence of the agreement and it was stated that as and when mutation would be effected, the sale deed would be executed within a period of one year. The mutation was effected on 13.01.1977. However, the defendants, according to the averments in the plaint, did not come forward, resultantly, the suit was filed on 16.07.1977.

3. Since the parties were at variance, the trial Court framed the following issues:-

1. Whether a compromise was arrived at whereby the defendants were to give 16 kanals of the land to the plaintiff out of the land involved in suit No.70/74 "Jai Devi V/s Mam Chand etc." according to their choice? OPP

2. If issue No.l is proved whether it was further agreed that in case of default by the defendant, they would be liable to pay Rs. I5,000/- to the plaintiffs ? OPP

3. Whether the plaintiffs have no locus standi to file the present suit? OPD

4. Whether the suit is not maintainable against the answering defendants? OPD

5. Whether the suit is barred by limitation? ODP

6. Whether the suit does not lie in the present form? OPD

7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

8. Whether any notice of the suit was given by the plaintiff to the answering defendant, if so to what effect? OPD

9. Whether the suit is pre-mature? OPD

10. Whether the agreement dated 2.2.1972 is void, vague,illegal and unlawful, if so to what effect ? OPD

11. Relief

4. In order to prove the case, the plaintiff examined himself as PW4, R.K. Bindlish, Gian Parkash Sharma, Handwriting and Finger Print Expert as PW1, Deed Writer as PW2, Y.K. Mangal, Advocate as PW3 and tendered in evidence many documents. On the other hand, the defendants examined Naranjan Lai as DW1. Though the defendants denied the agreement to sell, but did not lead any evidence to belie its contents, correctness or intention.

5. On the preponderance of evidence, the trial Court found that the agreement to sell was proved and it was not vague, but confined the decree to alternative relief of Rs. 15,000/-, so did the lower Appellate Court.

6. Mr. Arun Jain, learned Senior Counsel assisted by Mr. Rajinder Goyal, learned counsel appearing on behalf of the appellants-plaintiffs submitted that both the Courts below have committed illegality and perversity in not interpreting the provisions of Section 23 of the Specific Relief Act, 1963 (in short 'the 1963 Act') in correct perspective. Every agreement to sell contains the clause of liquidated damages. It is not necessary that once the agreement to sell has been proved, the Court could confine to the liquid damages. The judgment on this point i.e. Dadarao vs. Ramrao, (1999) 8 SCC 416 . remained no longer good law owing to the decision rendered in P.D'Souza vs. Shondrilo Naidu, 2004 (3) RCR (Civil) 668, 2004 (6) SCC 649. wherein, ratio decidendi culled out in "Dadarao's case (supra) has