Point of law; Court cannot refuse the relief of specific performance of contract without assigning good and cogent reasons there for

JUDGMENT :

1. The moot question involved in this second appeal is : Can specific performance of contract relating to immovable property be arbitrarily refused by the Court?

2. The late Balji Dubey, father of the defendant-respondents, executed a registered agreement to sell, covenanting to transfer by sale land comprising Arazi No. 204 (M), admeasuring 14 biswa and 15 dhur, out of the total area of the plot admeasuring 3 bigha 5 biswa 15 dhur, situate at Mauza Gothaura, Pargana Bhuili, Tehsil Chunar, District Mirzapur, in favour of the plaintiff for a total sale consideration of Rs.30,000/-. An earnest of Rs.15,000/- was paid at the time of contract. The land contracted to be sold as aforesaid, shall hereinafter be referred to as “the suit property”. The contract was executed and registered on 29.06.1994. It was covenanted in the suit agreement that the plaintiff would be entitled to call upon the vendor, whenever she wanted the sale deed to be executed in her favour, in terms of the agreement. The plaintiff appears to have called upon Balji a number of times over to execute the sale deed, but he did not discharge his obligations. Pending the unfulfilled promise under the suit agreement, Balji Dubey passed away, leaving behind him, his widow and his sons, Arun Kumar Dubey and Sanjay Kumar Dubey. The plaintiff got a notice served upon the heirs of the late Balji Dubey on 31.12.1996, calling them to come forward and execute a sale deed in terms of the suit agreement. Since that was not done, she instituted Original Suit no.10 of 1997 before the Court of the Civil Judge (Sr. Div.), Mirzapur, praying that a decree for specific performance in terms of the suit agreement be passed in her favour and against the defendant-respondents. In the alternate, relief of refund of the earnest of Rs.15,000/-together with interest at the rate of 2% per month was claimed.

3. The defendant-respondents entered appearance and filed a joint written statement, traversing the plaint allegation. They took the defence that Balji had never executed the suit agreement. The agreement did not bear the signatures or thumb marks of the defendants. The plaintiff had set up an imposter to execute the agreement. Their predecessor-in-title, Balji had not received a penny towards the earnest, mentioned in the suit agreement. The plaintiff was neither ready nor willing to get a sale deed executed in terms of the agreement. The suit is barred by Section 16 of the Specific Relief Act, 1963 (for short “the Act of 1963”) as well as the provisions of the U.P. Land Development and Mortgage Act. The plaintiff never served upon the defendants any notice, and, therefore, all allegations regarding service of the notice are baseless. The defendants asked the suit to be dismissed with costs.

4. The Trial Court, upon the pleadings of parties, struck the following issues (translated into English from Hindi vernacular):

(i) Whether the defendants' father, Balji Dubey, had executed the registered agreement to sell dated 29.06.1994 in favour of the plaintiff, covenanting to sell the property in dispute for a sum of Rs.30,000/- and received an earnest of Rs.15,000/- before the Registrar?

(ii) Whether the plaintiff was ever ready and willing to get a sale deed executed and is still ready and willing?

(iii) Whether the suit is barred by Section 20 of the U.P. Land Development and Mortgage Act?

(iv) Relief?

5. The parties went to trial, leading both documentary and oral evidence. The learned Civil Judge (Senior Division), who tried the suit, held that the suit agreement was forged and did not bear Balji Dubey's signatures. It was also held that the suit agreement, being not proved, the question of readiness and willingness was also to be answered against the plaintiff. Issue no.3 was answered in the affirmative in favour of the defendant, holding the suit to be barred by Section 20 of the U.P. Land Development and Mortgage Act. In consequence of the findings recorded on the various issues, the