IMPORTANT POINT
Grant of decree for specific performance of contract is not automatic and is one of discretion of Court.

Siddharth, J.—Heard Sri Arun Kumar Mishra, learned counsel for the appellant and Sri Y.K. Sinha, Sri Sudhanshu Pandey and Sri Sanjay Maurya, learned counsel for the respondents.

This is plaintiffs’ Second Appeal against the Judgment and Decree dated 21.11.2000, passed by Sri Kripa Shankar, Ist Additional District Judge (Court No.1), Gorakhpur in Civil Appeal No.17/1999, whereby appeal has been allowed and Judgment and Decree dated 12.02.1999, passed by Sri Alakh Narain, IInd Additional Civil Judge (Senior Division), Gorakhpur has been set aside and Original Suit No.477 of 1991 (Smt. Shanti Mishra Vs. Samuel) has been dismissed with costs.

2. The plaintiff instituted an Original Suit No.477 of 1991, praying for a decree of specific performance of contract of sale.

3. Plaintiff’s case is that arazi no.1143, area 83 decimal, situated in Mohalla Basaratpur, Tappa, Kasba, Pargana Haveli, District Gorakhpur was owned by defendant; that defendant had incurred some loan and for repaying the same, he entered into an agreement to sell for total consideration of Rs.10,000/- and paid Rs.3,000/- in advance to the plaintiff; that remaining amount of Rs.2,000/- was to be paid at the time of registration of agreement before the Registrar and it was agreed that after the permission from the competent authority, to be obtained by the defendant, plaintiff will execute sale deed within 3 years after taking the balance sale consideration; that plaintiff regularly enquired from defendant about permission of competent authority for sale, but defendant stated that he will himself intimate her about the same; that plaintiff came to know that defendant is trying to sell the land for higher price and therefore she increased the sale consideration to Rs.45,000/- and paid Rs.22,696/-; that plaintiff paid further amount of Rs.8,000/- on 18.04.1987 of which defendant executed a receipt in presence of witnesses; that defendant was to get Rs.15,000/- only from plaintiff and after stating his problem for payment of fees of her daughter, he further took amount of Rs.11,000/- from plaintiff ; that plaintiff had been ready and willing to execute the sale deed but defendant was unwilling for the same and on account of not refunding of excess amount of Rs.11,696/- by defendant, suit was instituted by plaintiff.

Defendant filed written statement denying plaint averments and stated that he used to be ill; that he went to cancer hospital for treatment, where he met Chandra Bhan Mishra and he helped defendant in getting appointment with doctor and medicines; that Chandra Bhan Mishra brought him to Kutchery for getting agreement to sell of arazi no.150 in favour of his wife and defendant executed sale deed of the same in her favour; that he does not knows Shanti Mishra wife of Pateshwari Prasad and only knows Smt. Kanti Devi wife of Chandra Bhan Mishra; that Smt. Shanti Devi wants to purchase the disputed land by fraud; that he never executed any agreement to sell in favour of Shanti Devi nor he affixed any thumb impression on the agreement to sell; that disputed agreement to sell is based on impersonation and is fraudulent document; that a distant relative of plaintiff, Digvijay Nath, Lekhpal in order to grab arazi no.1143, area 83 decimal filed a case under Section 229-B of U.P.Z.A. & L.R. Act before the Parganadhikari and when he lost the case, he has got the suit instituted for harassing the defendant, which deserves to be dismissed.

Plaintiff filed her replication stating that defendant has executed different agreements to sell in favour of plaintiff and Kanti Devi on different dates regarding different plot numbers. The signature of the defendant is on the agreement to sell executed in her favour and Digvijay Nath Mishra is neither her relative nor she knows him.

On the basis of pleadings of parties, learned trial court framed following issues,

(1) Whether plaintiff is entitled to get sale deed executed from defendant after taking balance sale consideratio