The court emphasized the discretionary nature of decreeing specific performance under section 20 of the Specific Relief Act and considered the sufferance of the plaintiff and the change in circumstances over time.

Pramod Kumar Srivastava, J. –

Heard learned counsel for the parties and perused the records.

2. In original suit no. 168/1977 (Sobaran Singh v. Raghubir Singh) the plaint case in brief was that the defendants had executed the registered agreement to sell dated 16.06.1975 for selling his land for a consideration of Rs. 20,000/-, and received Rs. 5,000/- as advance consideration. It was admitted between the parties that within two year defendant will receive remaining consideration of Rs. 15,000/- from plaintiff and execute sale-deed of his property in question. When he had not executed sale-deed, then the plaintiff had served legal notice dated 25.04.1977 to him and after receiving its incorrect reply, he had filed suit for specific performance of contract for sale.

3. In written-statement, the defendant pleaded that he had taken loan from plaintiff, but the transaction was written in form of registered agreement to sell. In fact, it was admitted between the parties that when defendants will return the loan amount of Rs. 5,000/- then that deed will be cancelled; and the said registered deed will be only for security of said loan. Defendants had already returned the amount of loan. Intention of the parties was not to execute sale deed. Plaintiff was never ready and willing to get sale-deed executed. Suit is liable to be dismissed.

4. After affording opportunity of hearing to parties, 3rd Additional Civil Judge, Agra had decreed the suit by its judgment dated 28.02.1979 directed the defendant to execute sale-deed after receiving remaining part of consideration of Rs. 15,000/- from plaintiff.

5. Against the judgment of trial court, Civil Appeal No. 129/1995 (Raghubir Singh v. Sobaran Singh) was preferred by the defendant of the original suit. This appeal was heard and partly allowed by the 7th Addl. District Judge, by which judgment dated 15.05.1998 of trial court was set aside and defendant-appellant was directed to return Rs. 5,000/- to plaintiff with interest at the rate of 12% per annum w.e.f. 28.02.1979. Aggrieved by this judgment of first appellate court, present second appeal has been preferred by the plaintiff of the original suit.

6. Learned counsel for the appellant contended that no sufficient ground for granting alternative relief was given by first appellate court, therefore, its judgment for refund of advance consideration should be set aside and judgment of trial court for specific performance of contract should be restored.

7. Learned counsel for the respondent contended that the reasons given for alternative discretionary relief of refund of advance consideration by first appellate court are based on proper reasonings and the court was competent to grant discretionary relief of refund of money, so there is no error in judgment of first appellate court, which should be confirmed.

8. A perusal of the impugned judgment of first appellate court reveals that it has mentioned the reason for exercise of discretionary relief instead of relief of specific performance of contract. It has given finding that plaintiff had not been able to prove that he had sufficient income to pay remaining sale consideration of Rs. 15,000/- so his readiness is not properly proved.

9. Section 20 of Specific Relief Act provides that "the jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a court of appeal”.

10. In present matter, the trial court had also appreciated the point of grant of discretionary relief in form of disposal of issue no. 4 and said point was again reconsidered by the first appellate court. The finding of the trial court in this regard is detailed which appear proper and correct. The trial court had properly discussed the provisions of section 20 of the Specific Relief Act, and then gave reasons as t