Allowed

Sanjit Kumar Vishwakarma v. Rupesh Kumar Sahu

Chhattisgarh HC7 Oct 2025FA/408/2019

Case brief

AI extract

What is this about?

In this first appeal regarding a suit for specific performance, the High Court set aside the trial Court's refusal to grant specific performance. The High Court held that the plea of hardship was not pleaded or proved by defendants under Section 20(2)(b) of the Specific Relief Act, and the trial Court incorrectly relied on future potential disputes. The appeal was allowed with a direction to execu

What did the court decide?

Impugned judgment refusing specific performance and decree for refund set aside. Directs defendants to execute sale deed on payment of balance consideration.

Sanjit Kumar Vishwakarma Vs Rupesh Kumar Sahu — Specific Performance | Chhattisgarh HC (2025)

¶1

¶2

 2025:CGHC:50046-DB

¶3

Digitally signed by HARNEET HARNEET KAUR KAUR Date: 2025.10.08 17:43:16 +0530

¶4

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

AFR

¶6

First Appeal No. 408 of 2019
Judgment reserved on 08.09.2025
Judgment delivered on 08.10.2025
Judgment uploaded on 08.10.2025

¶7

Sanjit Kumar Vishwakarma S/o Shri R D
Vishwakarma Aged About 35 Years R/o Station
Maroda, Utai Road, Maroda, Tehsil And District
Durg Chhattisgarh.

¶8

… Appellant/Plaintiff

¶9

versus

¶10

1.Rupesh Kumar Sahu S/o Pusauram Sahu Aged About 31 Years Resident Of Village Pitora, Tehsil Patan, District Durg Chhattisgarh, District : Durg, Chhattisgarh

¶11

2.Pusauram Sahu S/o Late Mangluram Sahu Aged About 61 Years Resident Of Village Pitora, Tehsil Patan, District Durg Chhattisgarh, District : Durg, Chhattisgarh

¶12

3.Smt. Surja Bai (Since Dead) Through Legal Representatives W/o Late Mangluram Sahu

¶13

¶14

(a) Smt. Chinta Bai D/o Mangluram Sahu Resident
Of Village Pitora, Tehsil Patan, District Durg
Chhattisgarh, District : Durg, Chhattisgarh

¶15

(b) Smt. Rukmani D/o Mangluram Sahu Resident Of
Village Pitora, Tehsil Patan, District Durg
Chhattisgarh, District : Durg, Chhattisgarh

¶16

(c) Smt. Kusma D/o Mangluram Sahu Resident Of
Village Pitora, Tehsil Patan, District Durg
Chhattisgarh, District : Durg, Chhattisgarh

¶17

(d) Smt. Dashri D/o Mangluram Sahu Resident Of
Village Pitora, Tehsil Patan, District Durg
Chhattisgarh, District : Durg, Chhattisgarh

¶18

4.State Of Chhattisgarh Through Collector, Durg Chhattisgarh, District : Durg, Chhattisgarh

¶19

 … Respondents/Defendants

¶20

`For`	`Appellant`	`:Mr.`	`Kshitij Sharma, Advocate`
`For`	`Respondent 1`	`:None`	`though served`
`For`	`Respondents 2`	`:Mr.`	`Parth Shrivastava, Advocate`
`and`	`3`
`For`	`Respondent 4`	`:Mr.`	`Ratan Pusty, G.A.`

¶21

DB- Hon'ble Shri Justice Sanjay K. Agrawal
Hon’ble Shri Justice Sanjay Kumar Jaiswal
C.A.V. Judgment

¶22

Sanjay K. Agrawal, J.

¶23

1. Appellant/Plaintiff has preferred this first appeal under Section 96 of the Code of Civil Procedure calling in question the legality,

¶24

¶25

validity and correctness of impugned judgment
and decree dated 13/08/2019 passed by the 8th
Additional District Judge, District Durg in
Civil Suit No. 28-A/2013 whereby plaintiff’s
suit for specific performance of contract and
permanent injunction has been dismissed,
however, the trial Court has granted decree for
refund of sale consideration of Rs. 7,00,000/-
along with interest of 6% per annum in favour of
the plaintiff.

¶26

(For the sake of convenience, the parties will
hereinafter be referred to as per their status
and ranking given in the plaint before the trial
Court.)

¶27

Facts of the Case

¶28

2. Plaintiff filed a civil suit stating inter alia that defendant No. 1 is the son of defendant No. 2 and grandson of defendant No. 3 (who died during the pendency of the suit on 22/11/2013 and four legal heirs of hers were substituted and brought on record) and the suit land bearing Khasra No. 492 area 1.23 hectares situated at Village Patora, Tahsil Patan, District Durg was originally owned by defendants No. 2 and 3,

¶29

¶30

however, defendant No. 1 showed a copy of
registered power of attorney executed by
defendants No. 2 and 3 in his favour on

¶31

18/09/2012 to the plaintiff and entered into an
agreement of sale on 27/11/2012 with regard to
the suit land for a sale consideration of

¶32

Rs. 10,30,000/-, out of which, Rs. 7,00,000/-
was paid by the plaintiff to defendant No. 2 as
advance amount and it was agreed that defendant
No. 1 will get the sale deed registered in
favour of the plaintiff within three months.
Thereafter, defendant No. 1 lodged a report
regarding missing original rin pustika and a
notice was published by the plaintiff in local

¶33

newspaper, however, defendants No. 2 and 3
published an objection to the said notice and
plaintiff was constrained to issue legal notice

¶34

on defendants No. 1 to 3 for specific
performance of contract and that the plaintiff
was ready and willing to perform his part of the
contract which was replied by defendants No. 1
to 3 and it appeared that they wanted to evade
performance of their part of the contract and
also wanted to grab the advance amount.
Therefore, plaintiff brought a suit for specific

¶35

¶36

performance of contract dated 27/11/2012 and
permanent injunction.

¶37

3. Defendant No. 1 filed his written statement opposing the plaint averments stating thereby that plaintiff and his friends had coerced defendant No. 1 to prepare a forged and fraudulent power of attorney on the basis of which the agreement to sale dated 27/11/2012 was entered into and registered. He has further stated that plaintiff has not paid any advance amount to either of the defendants.

¶38

4. Defendants No. 2 and 3 filed joint written statement and took a similar stand as defendant No. 1 stating that they did not know anything about the agreement to sale dated 27/11/2012 and even got to know about the forged power of attorney on 13/12/2012 and got it cancelled thereafter and further stated that they have not received any money from the plaintiff in the form of earnest money/sale consideration for the suit land.

¶39

5. Learned trial Court framed as many as 8 issues and answered them as stated below :-

¶40

¶41

वादप्रश्न नि�ष्कर्ष� 1) क्याप्रति�वादीक्र .-1 द्वाराप्रति�वादीक्र .- 2 " हाँ " व 3 केमुख्त्यारकीहैसि�य��ेउ�केस्वानिमत्व कीग्रामप�ोरास्थिस्$�भूनिमख . � .-492 रकबा 1.23 हे . में �े एक एकड़ भूनिम ₹ 10,30,000 मेंवादीकोबेच�ेका�ंनिवदाकर कोपंजीकृ�इकरार�ामा�ैयारनिकया ? 2) क्याप्रति�वादीक्र -1 व 2 �े 27/11/12 " हाँ " कोवादी�े ₹ 7,00,000 �गदबया�ाप्राप्त निकया ? 3) क्याप्रति�वादीगणक्र 1 �े 3 �ंनिवदाकेअप�े " हाँ” भागकापाल��हींकररहेहैं ? 4) क्याप्रति�वादीक्र 1 �े 3 कोवादी�ेशेर्ष " कंति@का 43 केअ�ु�ार ” प्रति�फलकीराशिशप्राप्तकरवादीकेपक्षमें�ौदाकृ� भूनिमकापंजीकृ�बै�ामानि�ष्पानिद�कर�ेहे�ु नि�द?शिश�निकयाजा�ाचानिहए ? 5) क्याप्रति�वादीक्र 1 �े 3 कोनिववानिद� " �हीं” �ंपत्तिB कोनिक�ीअन्यकोनिवक्रयकर�े�ेस्$ायी व्यादेशद्वारारोकाजा�ाचानिहए ?? 6) क्या मुख्त्यार�ामा निद�ांक 18/09/12 " प्रमाशिण��हीं " कूटरतिच�वफजF है ? 7) क्याप्रति�वादीक्र -1 द्वारावादीकेभयव " प्रमाशिण��हीं " दबावमेंआकरइकरार�ामाकानि�ष्पाद�कराया गयाहै ? 8) �हाय�ाएवंवादव्यय ? " कंति@का 44 केअ�ु�ार "

¶42

6. In sum and substance, the trial Court, though recorded findings and answered issues No. 1, 2

¶43

¶44

and 3, with respect to execution of agreement
dated 27/11/2012 for sale of suit land and
payment of advance amount of Rs. 7,00,000/- in
favour of the plaintiff, but declined to grant
decree for specific performance of contract in
his favour and only granted decree for refund of
sale consideration of Rs. 7,00,000/- with
interest of 6% per annum to the plaintiff,
however, the said relief was not sought by him.

¶45

Submission of the Parties

¶46

7. Mr. Kshitij Sharma, learned counsel for the appellant/plaintiff, would make the following submissions :-

¶47

(i) that, the trial Court has committed grave

¶48

legal error in not granting decree for specific
performance of contract in favour of plaintiff
and further erred in granting decree for refund
of sale consideration amount of Rs. 7,00,000/-
as the discretion conferred upon the trial Court

¶49

by virtue of unamended Section 20 of the
Specific Relief Act, 1963 (hereinafter, “the Act
of 1963”) should be exercised reasonably, based
on judicial principles and it cannot be
exercised arbitrarily as the conduct of the

¶50

¶51

defendants ought to have been considered while
exercising discretion under unamended Section 20
of the Act of 1963. He would rely upon the
decision rendered by the Supreme Court in the
matter of P. Devsingamani v. S. Sambandan1 to
buttress this submission.

¶52

(ii) that, the ground of hardship, on passing of
the decree of specific performance of contract,
has to be specifically pleaded by the defendants
in light of the decision rendered by the Supreme

¶53

Court in the matter of Narinderjit Singh v.
North Star Estate Promoters Limited2 and the
same must also be proved by leading evidence,
but the defendants have neither pleaded the
ground of hardship nor they have adduced any
evidence in this regard. The defendants have
only and only denied the execution of the
agreement to sale dated 27/11/2012 and have
alleged that the said agreement was forged and
fraudulent, however, there is no averment in
their written statements about any hardship in
case the decree of specific performance of
contract is granted by the trial Court, which

1 (2022) 14 SCC 793

2 (2012) 5 SCC 712

they did not foresee at the time of entering
into agreement to sale.

¶58

(iii) that, since the defendants did not plead
about the ground of hardship and did not lead
any evidence to prove the factum of hardship,
the trial Court also did not frame any specific
issue in this regard. Therefore, the finding
recorded by the trial Court, that plaintiff is
not entitled for decree of specific performance
of contract on the ground that since during the

¶59

pendency of the suit, defendant No. 3 had died
and four of her legal heirs have been brought on
record, dispute may arise in future with regard

¶60

to allotment of the property amongst the
shareholders, is perverse and unsustainable, as
the death of defendant No. 3 occurred on
22/11/2013 i.e. during the pendency of the suit
and it would not have any impact on the
agreement to sale which was entered into between

¶61

the parties prior to that on 27/11/2012. He
would rely upon the decision rendered by the
Supreme Court in the matters of Parswanath Saha

¶62

v. Bandhana Modak3 and Prakash Chandra v.
Angadlal4 in this regard.

¶63

4 (1979) 4 SCC 393

¶64

3 2024 SCC Online 3834

¶65

¶66

(iv) that, the finding recorded by the trial
Court that since defendant No. 3 has died and
her legal heirs have been brought on record,
they would also have a share in the suit land
and as such, dispute is likely to occur in
future with regard to identification of the suit
land is perverse as the particulars of the suit
land have clearly been recorded in the agreement
to sale and further the objection with regard to
insufficient description and identification of
suit land has not been taken in the written
statement, which ought to have been pleaded and
proved by the defendants before the trial Court,
as has also been held by their Lordships of the

¶67

Supreme Court in the matters ofAngadlal
(supra).

¶68

(v) that, the trial Court has legally erred in
exercising discretion against the plaintiff
holding that during the course of final
argument, plaintiff has sought alternative
relief of refund of sale consideration amount as
the said alternative relief claiming refund of
sale consideration amount would not create a bar
in granting relief of specific performance of
contract in view of the decision rendered by the

¶69

¶70

Supreme Court in the matter of R.C. Chandiok v.
Chuni Lal5, as such, the impugned judgment and
decree passed by the trial Court is liable to be
set aside.

¶71

8. None appeared on behalf of respondent/defendant No. 1, though served.

¶72

9. Mr. Parth Shrivastava, learned counsel for respondents/defendants No. 2 and 3 (now, his legal heirs) would submit that considering the fact that defendant No. 3, who was one of the owners of the suit land, has died on 22/11/2013 i.e. during the pendency of the civil suit and now, four of her legal heirs have been substituted in her place, the trial Court has rightly declined to grant decree for specific performance of contract in favour of the plaintiff holding that grant of decree of specific performance of contract in his favour would cause hardship to the defendants. He would rely upon the decisions rendered by the Supreme Court in the matters of K. Nanjappa v. R.A. Hameed 6, K. Prakash v. B.R. Sampath Kumar 7 and

¶73

5 (1970) 3 SCC 140

¶74

6 (2016) 1 SCC 762

¶75

7 (2015) 1 SCC 597

¶76

¶77

Parswanath Saha(supra) and submit that the
instant appeal is liable to be dismissed.

¶78

10. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the record with utmost circumspection.

¶79

Point for determination

¶80

11. The point for determination involved in this first appeal preferred by the

¶81

appellant/plaintiff is as follows :-

¶82

“Whether the trial Court has rightly exercised
discretion conferred by virtue of unamended
Section 20(2)(b) of the Act of 1963 and thereby,
refused to grant decree for specific performance
of contract in favour of the plaintiff, as the
same would cause hardship to the defendants ?”

¶83

Discussion and Analysis

¶84

12. In order to consider the aforesaid point for determination, it would be appropriate to notice the decision rendered by the Supreme Court in the matter of Kamal Kumar v. Premlata Joshi 8

¶85

wherein their Lordships have laid down five
material questions that are required to be gone

¶86

8 (2019) 3 SCC 704

¶87

¶88

into for grant of relief of specific

¶89

performance, which state as under :-

¶90

“7. It is a settled principle of law that
the grant of relief of specific
performance is a discretionary and
equitable relief. The material questions,
which are required to be gone into for
grant of the relief of specific
performance, are:

¶91

7.1. First, whether there exists a valid
and concluded contract between the
parties for sale/purchase of the suit
property.

¶92

7.2. Second, whether the plaintiff has
been ready and willing to perform his
part of contract and whether he is still
ready and willing to perform his part as
mentioned in the contract.

¶93

7.3. Third, whether the plaintiff has, in
fact, performed his part of the contract
and, if so, how and to what extent and in
what manner he has performed and whether
such performance was in conformity with
the terms of the contract.

¶94

7.4. Fourth, whether it will be equitable
to grant the relief of specific
performance to the plaintiff against the
defendant in relation to suit property or
it will cause any kind of hardship to the
defendant and, if so, how and in what
manner and the extent if such relief is
eventually granted to the plaintiff;

¶95

7.5. Lastly, whether the plaintiff is
entitled for grant of any other
alternative relief, namely, refund of
earnest money, etc. and, if so, on what
grounds.”

¶96

Findings of the trial Court

¶97

13. In the instant case, the trial Court has framed 8 issues for determination where issues No. 1, 2

¶98

¶99

and 3, with respect to execution of the
agreement dated 27/11/2012 for sale of suit land
and payment of advance money of Rs. 7,00,000/-,

¶100

have been decided in favour of the plaintiff.
Similarly, in issue No. 3, the trial Court has
categorically held that defendants No. 1 to 3
have committed breach in performing their part
of the contract. The trial Court also decided
issues No. 6 and 7 against the defendants and
has held that defendants have failed to prove
that the power of attorney dated 18/09/2012 was
forged and they have also failed to prove that

¶101

the subject agreement was executed under fear
and coercion. However, the trial Court has
exercised discretion as conferred under Section
20 of the unamended Act of 1963 and declined to
grant decree for specific performance of
contract in favour of plaintiff and in
alternative has granted decree for refund of
earnest money (though that was not claimed by
the plaintiff) by recording the following
findings in paragraphs 38 and 39 of the impugned
judgment :-

¶102

“38. प्रकरण के अवलोक� �े प्रकरण में प्रति�वादी क्र. - 2 मृ� प्रति�वादी क्र. - 3 के �ाम पर �ंयुक्त�ः एक �े अतिOक भूनिम राजस्व

¶103

¶104

अशिभलेख में दज� है और उ�में �े कौ� �ी भूनिम निक�के निहस्�े में आयेगी, उक्त निहस्�ेदारी को लेकर भी भनिवष्य में कनिR�ाईया/निववाद उत्पन्न हो �क�ी है �$ा स्वयं वादी की ओर �े भी अप�े अंति�म �क� के दौरा� यह भी नि�वेद� निकया गया है निक हालांनिक उन्हों�े अप�े दावे में �ंनिवदा के निवनि�र् द िष्ट पाल� के निवकल्प में अनिग्रम राशिश वाप�ी का मांग �हीं निकया है निकन्�ु यनिद वादभूनिम के निवक्रय इकरार�ामा के �ंबंO में �ंनिवदा के निवनि�र् द िष्ट पाल� के बदले उ�के द्वारा प्रदाय की गयी अनिग्रम राशिश उ�े वाप� निकया जावे �ब भी उ�े कोई आपत्तिB �हीं हैं |

¶105

इ� परिरस्थिस्$ति�यों में �ंनिवदा का निवनि�र् द िष्ट अ�ुपाल� हे�ु प्रति�वादीगण क्र. - 1 �े 3 को शेर्ष प्रति�फल की राशिश निदया जाकर वादी के पक्ष में �ौदाकृ� वादभूनिम का पंजीय� बय�ामा नि�ष्पाद� निकये जा�े बाब� आदेश निकया जा�ा �$ा उक्त वादभूनिम को प्रति�वादीगण को निक�ी अन्य व्यनिक्त को निवक्रय कर�े �े स्$ायी नि�र्षेOाज्ञा द्वारा रोका जा�ा न्यायोतिच� प्र�ी� �हीं हो�ा है | वर� उपर वर् ण ि� उपरोक्त परिरस्थिस्$ति�यों अ�ु�ार वादी को वादभूनिम के �ंबंO में प्रति�वादीग� क्र. - 1 �े 3 को निदये गये अनिग्रम राशिश को वाप� कर�े का आदेश पारिर� निकया जा�ा �ाम्या के सि�द्धां� के अ�ु�ार अन्य और कनिR�ाइयों �े बचाव में न्यायोतिच� होगा| ”

¶106

14. A careful perusal of the aforesaid findings recorded by the trial Court would show that though the trial Court has held that since defendant No. 3 died during the pendency of the civil suit and she has been substituted with

¶107

four legal heirs, dispute with regard to their
share would likely to arise and it may create
future difficulty and while the trial Court
refused to grant decree for specific performance

¶108

of contract in favour of the plaintiff but
proceeded to hold that during the course of the
final argument, plaintiff has prayed that even
though he has not claimed relief of refund of
sale consideration in his plaint but in

¶109

¶110

alternative, he would have no objection if he is
granted decree for refund of sale consideration.

¶111

Discretion exercised by the trial Court under
Section 20 of the unamended Act of 1963

¶112

15. It is evident from the record that the trial Court refused to grant the relief of specific performance of contract in favour of the plaintiff by exercising its discretion conferred under unamended Section 20(2)(b) of the Act of 1963, which provides as under :-

¶113

“20. Discretion as to decreeing specific
performance – (1) XXXXXX

¶114

(2) The following are cases in which the
court may properly exercise discretion
not to decree specific performance:-

¶115

(a) XXX XXXXXX

¶116

(b) where the performance of the contract
would involve some hardship on the
defendant which he did not foresee,
whereas its non-performance would involve
no such hardship on the plaintiff, or

¶117

(c) XXX XXXXXX”

¶118

16. Section 20(1) of the Act of 1963 (unamended)

¶119

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

¶120

¶121

reasonable, guided by judicial principles and
capable of correction by a Court of appeal.
Therefore, before exercising its judicial
discretion and refusing to grant specific
performance of contract, the trial Court ought
to have considered whether the performance of

¶122

the contract would involve hardship upon the
defendants, which they did not foresee, and
whether its non-performance would involve no
such hardship on the plaintiff, as provided
under unamended Section 20(2)(b) of the Act of
1963.

¶123

17. At this stage, it would be pertinent to note that the Act of 1963 has been substantially amended with effect from 01/10/2018 and the effect of amendment to Section 20 has changed the substratum of the Act and the Courts under

¶124

the amended provisions are bound to enforce the
specific performance of a contract as a rule,
subject to limited exceptions. However, the
Supreme Court in the matter of Katta Sujatha
Reddy v. Siddamsetty Infra Projects (P) Ltd.9
has held that the said amendment shall have

¶125

9 (2023) 1 SCC 355

¶126

¶127

prospective effect and shall not apply to the
transaction which took place prior to coming
into force of the amendment w.e.f. 01/10/2018.
In the instant case, since defendants No. 2 and
3 executed power of attorney in favour of
defendant No. 1 with respect to suit land on
18/09/2012 and the agreement to sale was entered
into between the parties on 27/11/2012,
therefore, the provision contained under
unamended Section 20 of the Act of 1963 would
apply.

¶128

Factum of hardship

¶129

18. It is the case of the plaintiff that no plea of hardship has been taken by the defendants in their written statement stating that specific performance of contract would involve hardship for the defendants, which they did not foresee at the time of entering into agreement to sale, whereas they were required to plead and establish the said factum of hardship by leading evidence.

¶130

19. In this regard, the decision rendered by the Supreme Court in the matter of Narinderjit Singh (supra) may be noticed herein profitably wherein

¶131

¶132

their Lordships have emphasized the need for
pleading of hardship and producing evidence to
prove the said plea and have held as under :-

¶133

“26. In the present case, the appellant
had neither pleaded hardship nor produced
any evidence to show that it will be
inequitable to order specific performance
of the agreement. Rather, the important
plea taken by the appellant was that the
agreement was fictitious and fabricated
and his father had neither executed the
same nor received the earnest money and,
as mentioned above, all the courts have
found this plea to be wholly untenable.”

¶134

20. Similarly, in the matter of Beemaneni Mahalaxmi

¶135

v. Gangumalla Appa10, their Lordships of the

¶136

Supreme Court have held as under :-

¶137

“15. Now so far as the submission on
behalf of the appellant that if the
decree for specific performance of the
contract is passed after number of
years, it would cause undue hardship to
the defendant – vendor and the reliance
placed upon the decision of this Court
in the case of P.R.Deb11 is concerned,
it is required to be noted that in the
written statement the defendant has not
pleaded any hardship to be caused if the
decree of specific performance of the
contract is passed against the defendant
vendor.

¶138

16. At this stage, the decision of this
Court in the case of A. Maria Angelena
v. A.G. Balkis Bee12, is required to be
referred to. In the aforesaid case, the
vendor sought to raise the plea of
hardship for the first time before this

¶139

10 (2019) 6 SCC 233

¶140

11 P.R. Deb and Associates v. Sunanda Roy, (1996) 4 SCC 423

¶141

12 (2002) 9 SCC 597

¶142

¶143

Court and this Court did not permit the
vendor to raise such a plea of hardship
by observing that as no plea as to
hardship if relief for specific
performance is granted was raised by the
defendant vendor in written statement
nor any issue was framed that the
plaintiff purchaser could be compensated
in terms of the money in lieu of decree
for specific performance, such plea
cannot be entertained for the first time
in appeal by way of SLP, more so, when
there are concurrent findings that the
plaintiff was ready and willing to
perform his part of the contract has
been recorded by the lower courts.
Therefore, the plea raised on behalf of
the vendor on hardship cannot be
permitted to be raised now, more
particularly when no such plea was
raised/taken in the written statement.”

¶144

21. In the instant case, defendants have only

¶145

pleaded that the agreement to sale was forged

¶146

and fraudulent, however, there is no pleading in
their written statement whatsoever with regard

¶147

to hardship suffered by them, if the relief of
specific performance is granted in favour of
plaintiff, which they did not foresee at the

¶148

time of entering into the agreement of sale and
further, the plea of hardship ought to have been
proved by the defendants by leading evidence,
which they have failed to do before the trial
Court and have taken the express plea at

¶149

this stage of the appeal after the trial Court
has declined to grant decree for specific

¶150

¶151

performance of contract in favour of plaintiff
holding that it would cause hardship on the
defendants and as such, it cannot be accepted at
this stage, when it was neither pleaded before
the trial Court nor any evidence was led by the
defendants to prove the same.

¶152

Non-framing of issue by the trial Court

¶153

22. Since the defendants did not take any plea in their written statement that if decree for specific performance is granted in favour of plaintiff, it would cause hardship to the defendants and neither they have led any evidence to prove the said fact of hardship, as such, the trial Court also did not frame any issue in this regard and simply by recording the finding that since defendant No. 3 died during the pendency of the suit and four of her legal heirs have been brought on record, dispute is likely to occur in future and that would involve hardship for the defendants, refused to grant decree for specific performance in favour of the plaintiff.

¶154

23. In the matter of Beemaneni Mahalaxmi (Supra), their Lordships of the Supreme Court have

¶155

¶156

highlighted the point of framing of issue based
on the pleading of the parties. Similarly, in
the matter of Parswanath Saha (supra), their
Lordships of the Supreme Court, relying upon the
decision rendered in the matters of Ferrodous
Estates (Pvt.) Ltd. v. P. Gopirathnam (Dead)13
and Prakash Chandra v. Narayan14, have held as
under :-

¶157

“12. In Ferrodous Estates (Pvt.) Ltd. v.
P. Gopirathnam (Dead) & Ors., 2020 INSC
586, this Court held as under:

¶158

“28. … Section 20, as it then stood,
makes it clear that the jurisdiction
to decree specific performance is
discretionary;butthatthis
discretion is not arbitrary but has
to be exercised soundly and
reasonably, guided by judicial
principles, and capable of correction
by a court of appeal - see section
20(1). Section 20(2) speaks of cases
in which the court may properly
exercise discretion not to decree
specific performance. Significantly,
under clause (a) of sub-section (2),
what is to be seen is the terms of
the contract or the conduct of the
parties at the time of entering into
thecontract.Even“other
circumstancesunderwhichthe
contract was entered into” refers
only to circumstances that prevailed
at the time of entering into the
contract. It is only then that this
exception kicks in - and this is when
the plaintiff gets an unfair
advantageoverthedefendant.
Equally, under clause (b) of

¶159

13 2020 INSC 586 14 (2012) 5 SCC 403

¶160

¶161

subsection (2), the hardship involved
is again at the time of entering into
the contract which is clear from the
expression “which he did not
foresee”. This is made clear beyond
doubt by Explanation II of section 20
which states that the only exception
to the hardship principle contained
in clause (b) of sub-section (2) is
where hardship results from an act of
the plaintiff subsequent to the
contract. In this case also, the act
cannot be an act of a third party or
of the court - the act must only be
the act of the plaintiff. Clause (c)
of sub-section (2) again refers to
the defendant entering into the
contract under circumstances which
makes it inequitable to enforce
specific performance. Here again, the
point of time at which this is to be
judged is the time of entering into
the contract.”

¶162

 (Emphasis supplied)

¶163

30. The High Court seems to have been
carried away by the fact that in the
written statement the defendants did
plead that hardship would be caused if
they would be asked to execute the Sale
Deed of the suit property.

¶164

31. The Trial Court had not framed any
issue as regards hardship that may be
caused to the defendants. It is also
pertinent to note that the High Court
concurred with the Trial Court on all
other issues but thought fit to reverse
the decree only on the ground that if
the defendants are asked to execute the
Sale Deed of the suit property, i.e.,
the residential house they would be
rendered shelterless.

¶165

32. In the aforesaid context, we may
refer to a decision of this Court in
Prakash Chandra v. Narayan, (2012) 5 SCC
403, wherein para 17 of the report, it
has been held:

¶166

¶167

“17. The question as to whether the
grant of relief for specific
performance will cause hardship to
the defendant within the meaning of
clause (b) of sub-section (2) of
Section 20 of the Specific Relief
Act, 1963, being a question of fact,
the first appellate court without
framing such an issue ought not to
have reversed the finding of the
trial court while concurring with it
on all other issues with regard to
the appellant's entitlement to
relief for specific performance of
contract.”

¶168

33. Thus, in view of the aforesaid the
High Court committed an error in taking
the view that the plaintiff is not
entitled to the decree for specific
performance as the same would cause
hardship to the defendants.

¶169

34. The High Court seems to have
overlooked the fact that the question of
hardship in terms of Section 20(2)(b) of
the Act, 1963 read with explanation (2)
bears reference to hardship, which the
defendant did not foresee at the time of
entering into the contract. In other
words, the issue of hardship would come
into play only if it is established by
cogent evidence that Late Prabha Ranjan
Das who executed the Agreement of Sale
was unable to foresee the hardship at
the time of entering into the contract.

¶170

35. The explanation elucidates the point
of time at which the hardship has to be
determined with reference to the
circumstances existing at the time of
the contract, except where the hardship
has been caused from an act of the
plaintiff subsequent to the contract.”

¶171

24. In the instant case, since it was nowhere pleaded by the defendants in their written statement that grant of specific performance to

¶172

¶173

the plaintiff would cause hardship to them as
covered under unamended Section 20(2)(b) of the
Act of 1963, therefore, no such issue was framed
by the trial Court and further the defendants
also did not lead any evidence in this regard to
prove the fact of hardship.

¶174

Issue of Identification

¶175

25. It has been held by the trial Court that since defendant No. 3 has died during the pendency of the civil suit and thereafter, four of her legal heirs have been impleaded as a party/defendant in the suit and since the suit land including other lands which were originally owned by defendants No. 2 and 3 jointly, would now be shared between defendant No. 2 as well as legal heirs of defendant No. 3, therefore, the issue of identification would arise in future and it will cause great hardship to the defendants.

¶176

26. In this regard, the decision rendered by the Supreme Court in the matter of Angadlal (supra) may be noticed herein profitably wherein it has been held that since objection with regard to identification of the suit property was not raised in the pleadings, it cannot be allowed to

¶177

¶178

be raised at this stage and proceeded to grant
relief of specific performance. It has been
observed by their Lordships as under :-

¶179

“11. It is then urged on behalf of the
respondents that the land is not
sufficiently defined in the plaint and
cannot be identified, and, therefore, no
relief can be granted to the appellant.
That objection was not raised in the
pleadings, and we see no reason why it
should be allowed to be raised at this
stage. On the contrary, it appears that
the parties were never in doubt as to the
identity of the land over which they were
in dispute.”

¶180

27. As such, in view of the decision rendered by the Supreme Court in Angadlal (supra), since in the instant case, no such pleading of dispute with regard to identification of suit land was taken by the defendants in their written statement, the trial Court also could not have recorded the finding that dispute with regard to

¶181

identification may arise in future and that
would cause hardship to the defendants. The said
finding recorded by the trial Court is perverse
and bad in law.

¶182

Relief of refund of sale consideration

¶183

28. The trial Court, though declined to grant the decree for specific performance of contract in

¶184

¶185

favour of plaintiff, but held that during the
course of final argument, plaintiff had stated
that he would not have any objection if he would
be granted the alternative relief of refund of
sale consideration, and proceeded to grant
decree of refund of sale consideration of
Rs. 7,00,000/- along with 6% interest in favour
of the plaintiff.

¶186

29. It is appropriate to mention here that plaintiff did not claim the relief of refund of sale consideration in his plaint and Section 22(2) of the unamended Act of 1963 mandates that no relief under clause (a) or clause (b) of subsection (1) of Section 22 shall be granted by the Court unless it has been specifically claimed and it is well settled that merely because plaintiff has prayed for alternate relief during the course of argument, that would not bar him from claiming the main relief of specific performance of contract, which he had originally claimed for and particularly for the reason that he has objected to the decree of refund of sale consideration passed by the trial Court by filing this appeal, which would show his genuine conduct.

¶187

¶188

30. In this regard, the decision of the Supreme Court in the matter of R.C. Chandiok (supra) may

¶189

be noticed wherein it has been held as under :-

¶190

“7. …. This illustrates the rule that a
party cannot approbate and reprobate at
the same time. These propositions are
so well known that no possible
exception can be taken to them. In the
present case, however, the above rule
cannot apply because the appellants
had, by Consistent and unequivocal
conduct, made it clear that they were
not willing to accept the judgment of
the trial court as correct. It has
already been mentioned at a previous
stage that after the decision of the
trial court the appellants had even
applied on March 31, 1958 for an
injunction restraining the respondents
from selling or otherwise disposing of
the plot as it was apprehended that
they were trying to do so. It was
stated in this application that the
plaintiffs would be preferring an
appeal but it would take time to secure
certified copies. An appeal was in fact
preferred and seriously pressed before
the High Court on the relief relating
to specific performance.

¶191

8. This relief is discretionary but not
arbitrary and discretion must be
exercised in accordance with the sound
and reasonable judicial principles. We
are unable to hold that the conduct of
the appellants, which is always an
important element for consideration,
was such that it precluded them from
obtaining a decree for specific
performance.”

¶192

Conclusion

¶193

31. In view of the aforesaid discussions, we have reached to the following conclusions :-

¶194

¶195

(i) That, there exists a valid and concluded
contract between the parties for sale/purchase
of the suit land bearing Khasra No. 492 area

¶196

1.23 hectares situated at Village Patora, Tahsil
Patan, District Durg for consideration of Rs.
10,30,000/- out of which Rs. 7,00,000/- has
already been paid by the plaintiff and the
remaining amount of Rs. 3,30,000/- has to be
paid after preparation of new rin pustika (title
deed) by the defendants, which has to be paid at
the time of registration of sale deed.

¶197

(ii) That, plaintiff has performed his part of
the contract and paid sale consideration of
Rs. 7,00,000/- to the defendants and the
remaining amount of Rs. 3,30,000/- has to be
paid at the time of registration of sale deed as
the original rin pustika (title deed) has been
lost as per the sale agreement (Ex. P/1).

¶198

(iii) That, though there is not a specific
finding by the trial Court with regard to the
readiness and willingness on the part of the
plaintiff to perform his part of the contract

¶199

but as per paragraph 10 of the plaint read with
paragraph 12 of the affidavit filed by the

¶200

¶201

plaintiff under Section 18(4) of the CPC along
with his cross-examination as well as legal
notice filed by him (Ex. P/4), there is
sufficient evidence available on record to hold
that plaintiff was ready and willing to perform
his part of the contract and he is still ready
and willing to perform his part of the contract.

¶202

(iv) That, the trial Court has ignored the
mandate of Section 20(2)(b) of the Act of 1963
which clearly provides that in the case where

¶203

the performance of the contract would involve
some hardship on the defendant, which he did not
foresee at the time of entering into the
contract, whereas its non-performance would
involve no such hardship on the plaintiff, the
Court may properly exercise discretion not to
decree specific performance. In the matter of
Ferrodous Estates(supra), the Supreme Court has
clearly held that under clause (b) of subsection
(2) of unamended Section 2 of the Act of 1963,
the hardship involved is again at the time of
entering into the contract which is clear from
the expression “which he did not foresee”, and
is also clear from Explanation 2 of Section
20(2) of the Act of 1963 which clearly states

¶204

¶205

that the question whether the performance of a
contract would involve hardship on the defendant
within the meaning of clause (b) shall, except

¶206

in cases where the hardship has resulted from
any act of the plaintiff subsequent to the
contract, be determined with reference to the
circumstances existing at the time of the
contract. It is not the case of the defendants
herein that hardship has been caused to them
because of the act of the plaintiff and the only
hardship which has been assumed and explained by
the trial Court is that since defendant No. 3

¶207

died during the pendency of the civil suit,
therefore, on account of other legal heirs

¶208

substituted on her behalf would also have a
share in the suit land and due to that, dispute
is likely to occur in the future, however, that
cannot be a ground to invoke jurisdiction under
unamended Section 20(2)(b) of the Act of 1963.
As such, we are of the considered opinion that

¶209

the plea of hardship provided under unamended
Section 20(2)(b) of the Act of 1963 has neither

¶210

been taken by the defendants in their written
statement nor any issue has been framed by the
trial Court in this regard and further no

¶211

¶212

evidence has been led by the defendants to prove
the factum of hardship. Moreover, the
particulars of the suit land and khasra number
have clearly been stated in the agreement to
sale, thus, there was no dispute with regard to
identification of the suit land as has been
assumed by the trial Court. Furthermore,
plaintiff did not pray for the relief of refund
of sale consideration in the plaint and even
otherwise, claiming alternate relief of refund
would not bar him from getting the main relief
which he is otherwise entitled to. Therefore,
the trial Court is absolutely unjustified in
refusing to grant the decree of specific
performance of contract in favour of the
plaintiff on the ground that it would cause
hardship to the defendants in future.

¶213

32. The discretion exercised by the trial Court in refusing to grant relief of specific performance of contract in favour of the plaintiff and granting alternative relief of refund of sale consideration cannot be said to be reasonable and based on judicial principles rather it has been exercised arbitrarily and perversely. Accordingly, the impugned judgment and decree

¶214

¶215

dated 13/08/2019 passed by the trial Court, only
to the extent of refusing specific performance
of contract and granting relief of refund of
sale consideration amount of Rs. 7,00,000/- to
the plaintiff, is hereby set aside, keeping the
other findings intact. The plaintiff is held
entitled for specific performance of contract
and it is also directed that on payment of
remaining sale consideration amount of
Rs. 3,30,000/-, defendants will execute the sale
deed of suit land bearing Khasra No. 492 area
1.23 hectares situated at Village Patora, Tahsil

¶216

Patan, District Durg in favour of the plaintiff
within 30 days from the date of drawing of
decree failing which, upon deposit of the
aforesaid balance sale consideration amount in
civil court deposit, the trial Court will
execute the sale deed in favour of the plaintiff
within the next 30 days.

¶217

33. Accordingly, this first appeal is allowed to the extent indicated herein-above. No cost(s).

¶218

34. A decree be drawn-up accordingly. Sd/-

¶219

Sd/- Sd/-
(Sanjay K. Agrawal)(Sanjay Kumar Jaiswal)
Judge Judge

Sanjit Kumar Vishwakarma v. Rupesh Kumar Sahu

Case brief

What is this about?

What did the court decide?

Sanjit Kumar Vishwakarma v. Rupesh Kumar Sahu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sunil Kumar Jain Shrishrimal Vs the Chief Commissioner of Income Tax

Umedi Rana Vs State of Chhattisgarh

Smt. Rukhmani Singh Vs Jamuna Prasad Sinha

Pusauram Sahu Vs Sanjeet Vishwakarma

Jagriti Sonant @ Deepa Vs Ramesh Kumar Sonant

Shailesh Bajpai Vs Smt. Poonam Kumari Bajpai