Defendants' second appeal against specific performance decree dismissed. Court held undue hardship plea barred as not pleaded in written statement; appeal lacks merit given execution status.
Respondent's application allowed; defendants' second appeal dismissed with costs.
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RSA No.4506 of 2004(O&M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4506 of 2004(O&M) Date of decision: 22.1.2010
Sheela and ors.
......Appellant(s)
Versus
Kasturi Lal ......Respondent(s)
CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr. Arvind Singh, Advocate for the appellants. Mr. D.R. Mahajan, Advocate for the LRs of the respondent.
Rakesh Kumar Garg, J.
CM No.11858-CII of 2009
Application is allowed subject to all just exceptions.
RSA No.4506 of 2004(O&M)
This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for possession by way of specific performance of the agreement to sell in question was decreed.
As per the facts pleaded in the plaint, the defendant-Inder (predecessor-in-interest of the appellants) was owner in possession of the land measuring 5 kanals 16 marlas and he agreed to sell the same in favour of the plaintiff (predecessor-in-interest of the respondents) by executing agreement to sell dated 15.5.2000 (Ex.P1) @ Rs.3,25,000/- per acre and received a sum of Rs.1,60,000/- by way of earnest money. The aforesaid sale deed was to be executed and registered upto 5.1.2001. The defendant refused to perform his part of agreement to sell. Hence, the plaintiff filed the present suit for possession of the land in dispute by way of
RSA No.4506 of 2004(O&M)
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specific performance of the agreement to sell in question.
Upon notice, the defendant contested the claim of the plaintiff denying the execution of the agreement to sell in question regarding the land in dispute in favour of the plaintiff. It was further submitted by the defendant that he was a petty land owner having holding of 13 kanals 16 marlas of agriculture land and that land in dispute also forms part of the same. The land measuring 8 kanals owed by him was already under mortgage with the plaintiff and the remaining land measuring 5 kanals 16 marlas owned by him was the land in dispute in present proceedings. It was further submitted that the agreement in question was a forged document. The plaintiff was a clever person. He had obtained thumb impressions of the defendant on the pretext that the same were required for certain documentation of mortgage etc. regarding the mortgage land. He had made a complaint against him before the police but no action was taken. The defendant never executed any agreement dated 15.5.2000 in favour of the plaintiff and therefore, question of receiving of any earnest money of Rs.1,60,000/- does not arise. Dismissal of the suit was prayed for.
On appreciation of evidence and after hearing learned counsel for the parties, the trial Court held that the plaintiff was entitled to a decree for possession regarding the land in dispute through specific performance of agreement to sell dated 15.5.2000 on payment of balance sale consideration.
Feeling aggrieved from the aforesaid judgment and decree passed by the trial Court, the defendants filed an appeal which was dismissed by the District Judge, Kurukshetra vide impugned judgment and decree dated 11.11.2004.
Still not satisfied, the defendants have filed the instant appeal
RSA No.4506 of 2004(O&M)
3
challenging the judgment and decrees of the Courts below.
At the outset, it is relevant to point out that in para No.1 of the grounds of appeal, the learned counsel for the appellants has framed 6 substantial questions of law said to be arisen out of the present appeal. However, learned counsel for the appellants has argued only on the following substantial question of law as framed by him:
“Whether the discretion exercised by the Courts below in granting the decree of specific performance of 5 kanals out of total 13 kanals is against the equity and causing great hardship to appellant?”
Learned counsel for the appellants has vehemently argued that the Courts below have failed to consider that by granting a decree for specific performance of the agreement to sell in question, undue hardship has been caused to the appellants as the defendant was a petty land owner having only land measuring 13 kanals 16 marlas out of which land measuring 8 kanals was already mortgaged with the plaintiff-respondent and the defendant had no other source of income except the income from the aforesaid land and thus, the impugned judgment and decrees for grant of possession by way of specific performance of the agreement to sell is liable to be modified holding that the plaintiff-respondent is entitled to a decree for an alternative relief. In support of his case, learned counsel for the appellants has relied upon the judgments of the Hon'ble Supreme Court reported as Bal Krishna & anr. v. Bhagwan Dass (Dead) & Ors . 2008(2) RCR (Civil) 732 and Nirmala Anand v. Advent Corporation (P) Ltd., and another 203(2) RCR (Civil) 765 and a judgment of this Court passed in RSA No.2108 of 2002 ( Narain Kaur and others v. Sat Pal (deceased) & Ors. ) decided on 20.7.2006 and has submitted that no specific performance of a contract, though it is not vitiated by fraud or
RSA No.4506 of 2004(O&M)
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misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void.
On the other hand, learned counsel appearing on behalf of the respondents has argued that the argument raised by the learned counsel for the appellants is without any merit. The execution of the agreement in question stands duly proved and the plaintiff-respondent is entitled to relief of specific performance of the execution of the agreement. Learned counsel has pointed out that in para No.21 of the Lower Appellate Court, it has been noticed by the District Judge, Kurukshetra that during the pendency of the appeal, the plaintiff-respondent had obtained sale deed of the suit land through court in execution of the impugned decree of the trial Court.
Though the argument of undue hardship to the appellants, if sale deed is ordered to be executed on the basis of agreement to sell in question, was raised by the appellants before the Courts below, however, no specific plea of hardship was raised in their written statement. Thus, the plea raised by the appellants is in fact beyond pleadings. In fact the defence taken by the appellants was of total denial of the execution of the agreement to sell in question and a specific stand was taken that there was no question of executing any sale deed.
No doubt it is true that execution of the sale deed in pursuance of the impugned decree of the trial Court, would have no effect on the merits of the appeal and the relief, if, available in law could be granted to the appellants, if found entitled to irrespective of the said sale deed. However, in the facts and circumstances of the case, the appellant is not
RSA No.4506 of 2004(O&M)
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entitled to the relief as claimed by him in this appeal. Moreover, while raising the argument of undue hardship being caused to the appellants by the impugned judgment and decree, learned counsel for the appellants has failed to point out as to how the appellants were still entitled to the relief as prayed in this appeal keeping in view the fact that the judgment and decree of the trial Court stands executed.
No other point was argued.
No substantial question of law, as argued by the learned counsel for the appellants, arises in this appeal.
Thus, I find no merit in this appeal.
Dismissed.
January 22, 2010 (RAKESH KUMAR GARG) ps JUDGE
3 issues framed by the court
Whether the discretion exercised by the Courts below in granting specific performance causes undue hardship under equity?
Whether the plea of undue hardship was maintainable when it was not pleaded in the written statement?
Whether the appeal succeeds on total denial of execution and undue hardship grounds?
Colour shows how this judgement treated each authority
Bal Krishna & anr. v. Bhagwan Dass (Dead) & OrsReferred¶30
Bal Krishna & anr. v. Bhagwan Dass (Dead) & Ors 2008(2) RCR (Civil) 732
Nirmala Anand v. Advent Corporation (P) Ltd., and anotherReferred¶30
Nirmala Anand v. Advent Corporation (P) Ltd., and another 203(2) RCR (Civil) 765
Narain Kaur and others v. Sat Pal (deceased) & Ors.Referred¶30
Narain Kaur and others v. Sat Pal (deceased) & Ors. RSA No.2108 of 2002
Sheela and ors.
Kasturi Lal
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
