Suit for specific performance - Sec.20 of Specific Relief Act - Sec.13 of Indian Evidence Act - whether criminal court finding is binding on civil court - Apex court held that when it is quater white paper and when the original agreement of sale mentioned in it not produced - Court has to exercise it's discretion under sec.20 of Specific Relief Act - Court can not come to a conclusion on criminal court findings as it is not final conclusion one , with out giving an independent finding. - High court committed wrong - suit is dismissed as held by trial court - 2015 S.C. MSKLAWREPORTS
High Court partly allowed the appeal, set aside the judgment of
the trial court and decreed the suit of the plaintiff-respondents herein
for specific performance as well as for recovery of possession of suit
items I, II and III.
The children of late Jambusab could not agree to divide
the properties of late Jambusab. They litigated and ultimately in R.A.
133/49-50 on the file of the High Court, a final decree was passed and the
properties described in the Schedule to the plaint fell to the joint share
of the first plaintiff and his younger brother R.A. Rasheed. The date of
the decree is 22.08.1950.
The first plaintiff and his younger brother thus
became the exclusive joint owners of the suit schedule property and from
the date of the High Court decree namely 22.08.1950.
The first item of the
suit schedule which was designed as a Cinema building was leased jointly by
the first plaintiff and his younger brother R.A. Rasheed to late N.K.
Subbaiah Shetty and one Rattanhalli Ramappa jointly by means of a
registered lease deed dated 26.02.1951 specifying therein a period of 15
years for the running of the lease.
The said lease by the terms provided
inter alia for a monthly rent of Rs. 400/- to be paid in equal halves to
the first plaintiff and R.A. Rasheed.
The lessees had to advance
Rs.10,000/- which will be treated as a charge on item no. 1 of suit
Schedule.
All the equipments such as cinema projector, electric generator,
furniture and other accessories were purchased by the said lessees which
they had to provide under the contract and the theatre was equipped for
showing films. It was also a term under the lease that these equipments
projector, generator etc., should become the property of the first
plaintiff and his brother R.A. Rasheed on the termination of the lease.
While only Rs. 5,000/- was given as advance, the expenses of the balance of
Rs. 5,000/- which was retained by N.K. Subbaiah Shetty and Rattanhalli
Ramappa has been accounted for and thus only Rs. 5000/- is the actual
amount of advance.
1) Whether the 1st defendant was the Power of Attorney Holder of the 2nd
Defendant?
2) Whether the 1st defendant for himself and as Power of Attorney Holder of
2nd defendant executed an agreement of sale dated 2.9.1967 agreeing to
convey the plaint schedule properties in favour of the plaintiff?
3) Whether under the said agreement the plaintiff paid the amount to the
1st defendant as mentioned in para 11(a) (b) (c) (d) of the plaint?
4) Whether the plaintiffs are entitled to the specific performance of the
agreement of the sale and for possession of the schedule properties?
for specific performance of contract of sale of immoveable property on the
basis of an oral agreement or a written contract, heavy burden lies on the
plaintiff to prove that there was consensus ad idem between the parties for
the concluded agreement for sale of immoveable property.
Whether there was
such a concluded contract or not would be a question of fact to be
determined in the facts and circumstances of each individual case. It has
to be established by the plaintiffs that vital and fundamental terms for
sale of immoveable property were concluded between the parties.
In a suit for specific performance of a contract, the Court has to
keep in mind Section 20 of the Specific Reliefs Act. This Section
preserves judicial discretion to grant decree for Specific performance.
However, the Court is not bound to grant specific performance merely
because it is lawful to do so. The Court should meticulously consider all
facts and circumstances of the case and to see that it is not used as an
instrument of oppression to have an unfair advantage not only to the
plaintiff but also to the defendant
produced on record, we are of the definite opinion that it is not a fit
case where the discretionary relief for specific performance is to be
granted in favour of the plaintiff-respondent.
The High Court in the
impugned judgment has failed to consider the scope of Section 20 of the
Specific Relief Act and the law laid down by this Court.
For all these reasons, this appeal is allowed and the impugned
judgment passed by the High Court is set aside. Consequently, the judgment
of the learned trial court is restored. Hence, the suit is liable to be
dismissed.
2015 http://judis.nic.in/supremecourt/imgst.aspx?filename=42911
High Court partly allowed the appeal, set aside the judgment of
the trial court and decreed the suit of the plaintiff-respondents herein
for specific performance as well as for recovery of possession of suit
items I, II and III.
The children of late Jambusab could not agree to divide
the properties of late Jambusab. They litigated and ultimately in R.A.
133/49-50 on the file of the High Court, a final decree was passed and the
properties described in the Schedule to the plaint fell to the joint share
of the first plaintiff and his younger brother R.A. Rasheed. The date of
the decree is 22.08.1950.
The first plaintiff and his younger brother thus
became the exclusive joint owners of the suit schedule property and from
the date of the High Court decree namely 22.08.1950.
The first item of the
suit schedule which was designed as a Cinema building was leased jointly by
the first plaintiff and his younger brother R.A. Rasheed to late N.K.
Subbaiah Shetty and one Rattanhalli Ramappa jointly by means of a
registered lease deed dated 26.02.1951 specifying therein a period of 15
years for the running of the lease.
The said lease by the terms provided
inter alia for a monthly rent of Rs. 400/- to be paid in equal halves to
the first plaintiff and R.A. Rasheed.
The lessees had to advance
Rs.10,000/- which will be treated as a charge on item no. 1 of suit
Schedule.
All the equipments such as cinema projector, electric generator,
furniture and other accessories were purchased by the said lessees which
they had to provide under the contract and the theatre was equipped for
showing films. It was also a term under the lease that these equipments
projector, generator etc., should become the property of the first
plaintiff and his brother R.A. Rasheed on the termination of the lease.
While only Rs. 5,000/- was given as advance, the expenses of the balance of
Rs. 5,000/- which was retained by N.K. Subbaiah Shetty and Rattanhalli
Ramappa has been accounted for and thus only Rs. 5000/- is the actual
amount of advance.
1) Whether the 1st defendant was the Power of Attorney Holder of the 2nd
Defendant?
2) Whether the 1st defendant for himself and as Power of Attorney Holder of
2nd defendant executed an agreement of sale dated 2.9.1967 agreeing to
convey the plaint schedule properties in favour of the plaintiff?
3) Whether under the said agreement the plaintiff paid the amount to the
1st defendant as mentioned in para 11(a) (b) (c) (d) of the plaint?
4) Whether the plaintiffs are entitled to the specific performance of the
agreement of the sale and for possession of the schedule properties?
While deciding issue Nos. 2-4 together, the trial court came to the
conclusion that the plaintiff-respondent failed to prove that the agreement
of sale dated 2.9.1967 was executed by the defendants-appellants and,
therefore, got entitled to the specific performance of agreement to sell.
The reasoning given in deciding the issues inter alia are that the alleged
agreement was executed in a quarter sheet of paper written in small
letters. No reason has been attributed as to why a small piece of paper
was used for writing the agreement ExP-1.
The relevant portion of the
finding arrived at by the trial court can be extracted hereunder :-
“If we carefully go through the document at Ex. P.4 it is clearly stated
that the defendant 1 as the power of attorney of the 2nd defendant and
Subramanya Shetty as executed Ex.P.1 in favour of the first and the 2nd
plaintiff, after taking Rs.4,500/- this documents has been written on very
old quarter sheet piece of paper which is written in very small letters.
Ex.P.1 is not at all written in usual course. No reasons are assigned in
the evidence of the PW.1,2 and 5 as to why a small piece of paper is used
for writing Ex.P.1. Ex.P.1 is written in a city like Mysore. It is not
written in a remote small village, wherein the scarcity of paper can be
expected. It is further pertinent to note here that the shop premises of
the first defendant was situate admittedly in Santhepete which is very near
to Devaraja Market and Srirampet, which are heart of business centers of
Mysore. Further, Ex.P.1 is admitted written before Noon. ….. time P.W.1
has stated that between 9 a.m. to 1 p.m. he has written Ex.P.1. Further
P.W.5 has stated by about 2-30 p.m. Ex. P.1 is written, P.W.2 has stated by
about 12 noon Ex.P.1 is written, that means Ex.P.1 is written in a broad
day light. If the handwriting contained in Ex.P.1 in small letters reduced
to writing atleast the same will cover 2 full sheets of papers meaning
thereby it may go to cover 4 pages of hill size papers. No reasons are
assigned as to why Ex.P.1 is written in such a congested manner. Non
availability of the paper to write Ex.P.1 cannot at all be expected nor
anticipated in a city of Mysore, that too near the first defendants shop
which is in the business centre of Mysore City. It is admitted by all the
witnesses that there are several shops of stamps vendors and advocates
offices. If that be the case, that would not have been any difficulty to
secure the required paper to write Ex.P.1. Further, if we carefully go
through the contents of Ex.P.1, it goes to show that all the suit
properties are agreed to have been sold for Rs.25,000/- and the amount of
Rs.20,500/- has been paid to the defendant earlier to 02-09-67. Further,
it is also clear that the amount of Rs.4,500/- was also paid to the
defendant 1. That means only the stamp papers to get the registered sale
deed were required to be obtained. No reasons are assigned the any of the
plaintiffs witnesses as to what was the difficulty in purchasing the stamp
paper to execute the reg. Sale deed regarding the sale mentioned in Ex.P.1.
It is not the case of the plaintiff, that they were unable to purchase
required stamp papers on the date of Ex.P.1 due to paucity of the funds.
If it was really a genuine sale or tried to be depicted before Court,
definitely the reg. Sale deed itself would have been got executed since
except appearing before the sub-registrar the first defendant is not
required to do anything else but to sign the reg. Sale deed and if the sale
was really a genuine sale nothing prevented the plaintiff to take the first
defendant to the office of the Sub-Registrar and to get executed the reg.
Document in the office of the concerned/Sub-registrar Pandavapura but no
reasons assigned as to why the reg. Sale deed is not got executed from the
1st defendant who is admittedly the holder of the general power of attorney
from the 1st defendant and Subramanya Shetty, who were the owners of the
suit schedule properties on 02-09-67. Further, it is pertinent to note
here that though it is mentioned in Ex.P.1 that the plaintiffs were
required to make some arrangements regarding the amount to purchase the
stamp papers and the registration fees etc. but none of the witnesses P.Ws.
1,2 and 5 speak about this aspect of the case.”
On the question of payment of the consideration amount, the trial
court gave finding against the respondents.
Finally, the trial court held
that since issue nos. 2 to 4 have been decided against the plaintiffs, the
relief for specific performance cannot be granted.
High Court
being the first appellate court, re-appreciated the
evidence and came to the conclusion that the findings recorded by the trial
court are perverse in law.
The Appellate Court dealt with the relevancy of the evidence and the
judgment recorded by the Criminal Court and held as under:
“17. The conclusion drawn by the Criminal Court with regard to the
document – Ex.P.1 in regard to its execution etc. are certainly relevant
and it can be relied upon as a piece of evidence by the plaintiffs in
support of their case. The observations made by the Criminal Court
regarding execution of agreement – Ex.P.1 in its judgment – Ex. P.4 are
certainly admissible U/s 13 of the Indian Evidence Act in support of the
claim of the plaintiffs regarding execution of the document – Ex.P.1 by
defendant No.1. Therefore, the Trial Court was not at all justified in
ignoring such evidence on the ground that the judgment of the Criminal
Court is not binding on the Civil Court. May be, that the judgment of the
Criminal Court is not binding on the Civil Court. But, the observations
made by a competent Court with reference to certain document would
certainly be relevant even in a civil case, where the very same document
was a subject matter of challenge.
In the instant case, it is not in dispute that the very same document
– Ex.P.1 was produced before the Criminal Court wherein, plaintiff No.1 was
prosecuted on the charge of trespass and the Criminal Court having examined
the said document has made certain observations with reference to such
document and that being so, when the very same document sought to be
questioned in a civil case, the observations by a Criminal Court will
certainly have relevance. In fact, the learned counsel for the respondents
had advanced a contention that this document was created/concocted for the
purpose of defence in the criminal case
The observations made by the Criminal
Court in its judgment – Ex.P.4 regarding the execution of the document –
Ex.P.1 lends credence to the evidence of PWs 1,2 & 5. There could be no
serious dispute that the plaintiffs were the original owners of the suit
properties and that the same were lost in a series of litigation and
ultimately the said properties which were once lost to the plaintiffs were
sought to be reconveyed to the plaintiffs by virtue of this agreement –
Ex.P.1, executed in their favour by defendant No.1. Under the
circumstances, there is no reason to disbelieve the execution of the
document – Ex.P.1 in favour of plaintiffs. No doubt it was executed on a
quarter sheet of paper and not on a proper stamp paper and that further the
contents of the document – Ex.P.1 have been written in small letters. But
then it cannot be said, that is not a document. It has to point out that
the document is defined under the Indian Evidence Act and it means, “any
matter expressed or described upon any substance by means of letters,
figures or marks or by more than one of those means intended to be used or
which may be used for the purpose of recording that matter”. A writing is
a document, whether writing is made on a quarter sheet or paper or a full
sheet, it is a document within the meaning of the Evidence Act and that
merely because the writing is on a quarter sheet of paper, it does not
cease to be a document. The only requirement is that the party relying
upon a document must prove the same in accordance with law. The mode of
proving the contents of a document has been dealt with, in Sections 61 to
66 of the Indian Evidence Act. The contents of a document may be proved
either by the primary or secondary evidence. Primary evidence means, the
document itself produced for the inspection of the Court. In the instant
case, it is not in dispute that the original agreement itself was produced
for the inspection of the Court as per Ex. P.1. The document in question
being an agreement of sale or a reconveyance agreement, it does not require
attestation. Section 67 of the Evidence Act refers to document other the
document required by Law to be attested. It shows that the signature of
the person alleged to have signed a document i.e. execution must be proved
by the evidence with the signature purporting to be that of the executants
is in his handwriting and the other matter in the document i.e. its body
must also be proved by proof of handwriting of a person purporting to have
written the document. In the instant case, the agreement – Ex.P.1 was
stated to have been written by its scribe – PW.1 at the instructions of
defendant No.1 and after the document was written, it was signed by
defendant No.1. Therefore, what was required to be proved in the instant
case by the plaintiffs to prove the execution of document – Ex.P.1 was that
it contains the signature of defendant No.1.”
Apex court
There is no dispute that even a decree for specific performance can
be granted on the basis of oral contract. Lord Du Parcq in a case (AIR
1946 Privy Council) observed, while deciding a suit for specific
performance, that an oral contract is valid, binding and enforceable. A
decree for specific performance could be passed on the basis of oral
agreement.
This view of a Privy Council was followed by this Court in the
case of Koillipara Sriramulu vs. T. Aswatha Narayana, AIR 1968 SC 1028, and
held that an oral agreement with a reference to a future formal contract
will not prevent a binding bargain between the parties.
The appellant court discussed the evidence of
PW-1, the scribe of the document, who deposed that the agreement was
written as per instructions given by appellant No.1
However, in a case where the plaintiff come forward to seek a decreeconclusion that the plaintiff-respondent failed to prove that the agreement
of sale dated 2.9.1967 was executed by the defendants-appellants and,
therefore, got entitled to the specific performance of agreement to sell.
The reasoning given in deciding the issues inter alia are that the alleged
agreement was executed in a quarter sheet of paper written in small
letters. No reason has been attributed as to why a small piece of paper
was used for writing the agreement ExP-1.
The relevant portion of the
finding arrived at by the trial court can be extracted hereunder :-
“If we carefully go through the document at Ex. P.4 it is clearly stated
that the defendant 1 as the power of attorney of the 2nd defendant and
Subramanya Shetty as executed Ex.P.1 in favour of the first and the 2nd
plaintiff, after taking Rs.4,500/- this documents has been written on very
old quarter sheet piece of paper which is written in very small letters.
Ex.P.1 is not at all written in usual course. No reasons are assigned in
the evidence of the PW.1,2 and 5 as to why a small piece of paper is used
for writing Ex.P.1. Ex.P.1 is written in a city like Mysore. It is not
written in a remote small village, wherein the scarcity of paper can be
expected. It is further pertinent to note here that the shop premises of
the first defendant was situate admittedly in Santhepete which is very near
to Devaraja Market and Srirampet, which are heart of business centers of
Mysore. Further, Ex.P.1 is admitted written before Noon. ….. time P.W.1
has stated that between 9 a.m. to 1 p.m. he has written Ex.P.1. Further
P.W.5 has stated by about 2-30 p.m. Ex. P.1 is written, P.W.2 has stated by
about 12 noon Ex.P.1 is written, that means Ex.P.1 is written in a broad
day light. If the handwriting contained in Ex.P.1 in small letters reduced
to writing atleast the same will cover 2 full sheets of papers meaning
thereby it may go to cover 4 pages of hill size papers. No reasons are
assigned as to why Ex.P.1 is written in such a congested manner. Non
availability of the paper to write Ex.P.1 cannot at all be expected nor
anticipated in a city of Mysore, that too near the first defendants shop
which is in the business centre of Mysore City. It is admitted by all the
witnesses that there are several shops of stamps vendors and advocates
offices. If that be the case, that would not have been any difficulty to
secure the required paper to write Ex.P.1. Further, if we carefully go
through the contents of Ex.P.1, it goes to show that all the suit
properties are agreed to have been sold for Rs.25,000/- and the amount of
Rs.20,500/- has been paid to the defendant earlier to 02-09-67. Further,
it is also clear that the amount of Rs.4,500/- was also paid to the
defendant 1. That means only the stamp papers to get the registered sale
deed were required to be obtained. No reasons are assigned the any of the
plaintiffs witnesses as to what was the difficulty in purchasing the stamp
paper to execute the reg. Sale deed regarding the sale mentioned in Ex.P.1.
It is not the case of the plaintiff, that they were unable to purchase
required stamp papers on the date of Ex.P.1 due to paucity of the funds.
If it was really a genuine sale or tried to be depicted before Court,
definitely the reg. Sale deed itself would have been got executed since
except appearing before the sub-registrar the first defendant is not
required to do anything else but to sign the reg. Sale deed and if the sale
was really a genuine sale nothing prevented the plaintiff to take the first
defendant to the office of the Sub-Registrar and to get executed the reg.
Document in the office of the concerned/Sub-registrar Pandavapura but no
reasons assigned as to why the reg. Sale deed is not got executed from the
1st defendant who is admittedly the holder of the general power of attorney
from the 1st defendant and Subramanya Shetty, who were the owners of the
suit schedule properties on 02-09-67. Further, it is pertinent to note
here that though it is mentioned in Ex.P.1 that the plaintiffs were
required to make some arrangements regarding the amount to purchase the
stamp papers and the registration fees etc. but none of the witnesses P.Ws.
1,2 and 5 speak about this aspect of the case.”
On the question of payment of the consideration amount, the trial
court gave finding against the respondents.
Finally, the trial court held
that since issue nos. 2 to 4 have been decided against the plaintiffs, the
relief for specific performance cannot be granted.
High Court
being the first appellate court, re-appreciated the
evidence and came to the conclusion that the findings recorded by the trial
court are perverse in law.
The Appellate Court dealt with the relevancy of the evidence and the
judgment recorded by the Criminal Court and held as under:
“17. The conclusion drawn by the Criminal Court with regard to the
document – Ex.P.1 in regard to its execution etc. are certainly relevant
and it can be relied upon as a piece of evidence by the plaintiffs in
support of their case. The observations made by the Criminal Court
regarding execution of agreement – Ex.P.1 in its judgment – Ex. P.4 are
certainly admissible U/s 13 of the Indian Evidence Act in support of the
claim of the plaintiffs regarding execution of the document – Ex.P.1 by
defendant No.1. Therefore, the Trial Court was not at all justified in
ignoring such evidence on the ground that the judgment of the Criminal
Court is not binding on the Civil Court. May be, that the judgment of the
Criminal Court is not binding on the Civil Court. But, the observations
made by a competent Court with reference to certain document would
certainly be relevant even in a civil case, where the very same document
was a subject matter of challenge.
In the instant case, it is not in dispute that the very same document
– Ex.P.1 was produced before the Criminal Court wherein, plaintiff No.1 was
prosecuted on the charge of trespass and the Criminal Court having examined
the said document has made certain observations with reference to such
document and that being so, when the very same document sought to be
questioned in a civil case, the observations by a Criminal Court will
certainly have relevance. In fact, the learned counsel for the respondents
had advanced a contention that this document was created/concocted for the
purpose of defence in the criminal case
The observations made by the Criminal
Court in its judgment – Ex.P.4 regarding the execution of the document –
Ex.P.1 lends credence to the evidence of PWs 1,2 & 5. There could be no
serious dispute that the plaintiffs were the original owners of the suit
properties and that the same were lost in a series of litigation and
ultimately the said properties which were once lost to the plaintiffs were
sought to be reconveyed to the plaintiffs by virtue of this agreement –
Ex.P.1, executed in their favour by defendant No.1. Under the
circumstances, there is no reason to disbelieve the execution of the
document – Ex.P.1 in favour of plaintiffs. No doubt it was executed on a
quarter sheet of paper and not on a proper stamp paper and that further the
contents of the document – Ex.P.1 have been written in small letters. But
then it cannot be said, that is not a document. It has to point out that
the document is defined under the Indian Evidence Act and it means, “any
matter expressed or described upon any substance by means of letters,
figures or marks or by more than one of those means intended to be used or
which may be used for the purpose of recording that matter”. A writing is
a document, whether writing is made on a quarter sheet or paper or a full
sheet, it is a document within the meaning of the Evidence Act and that
merely because the writing is on a quarter sheet of paper, it does not
cease to be a document. The only requirement is that the party relying
upon a document must prove the same in accordance with law. The mode of
proving the contents of a document has been dealt with, in Sections 61 to
66 of the Indian Evidence Act. The contents of a document may be proved
either by the primary or secondary evidence. Primary evidence means, the
document itself produced for the inspection of the Court. In the instant
case, it is not in dispute that the original agreement itself was produced
for the inspection of the Court as per Ex. P.1. The document in question
being an agreement of sale or a reconveyance agreement, it does not require
attestation. Section 67 of the Evidence Act refers to document other the
document required by Law to be attested. It shows that the signature of
the person alleged to have signed a document i.e. execution must be proved
by the evidence with the signature purporting to be that of the executants
is in his handwriting and the other matter in the document i.e. its body
must also be proved by proof of handwriting of a person purporting to have
written the document. In the instant case, the agreement – Ex.P.1 was
stated to have been written by its scribe – PW.1 at the instructions of
defendant No.1 and after the document was written, it was signed by
defendant No.1. Therefore, what was required to be proved in the instant
case by the plaintiffs to prove the execution of document – Ex.P.1 was that
it contains the signature of defendant No.1.”
Apex court
There is no dispute that even a decree for specific performance can
be granted on the basis of oral contract. Lord Du Parcq in a case (AIR
1946 Privy Council) observed, while deciding a suit for specific
performance, that an oral contract is valid, binding and enforceable. A
decree for specific performance could be passed on the basis of oral
agreement.
This view of a Privy Council was followed by this Court in the
case of Koillipara Sriramulu vs. T. Aswatha Narayana, AIR 1968 SC 1028, and
held that an oral agreement with a reference to a future formal contract
will not prevent a binding bargain between the parties.
The appellant court discussed the evidence of
PW-1, the scribe of the document, who deposed that the agreement was
written as per instructions given by appellant No.1
for specific performance of contract of sale of immoveable property on the
basis of an oral agreement or a written contract, heavy burden lies on the
plaintiff to prove that there was consensus ad idem between the parties for
the concluded agreement for sale of immoveable property.
Whether there was
such a concluded contract or not would be a question of fact to be
determined in the facts and circumstances of each individual case. It has
to be established by the plaintiffs that vital and fundamental terms for
sale of immoveable property were concluded between the parties.
In a suit for specific performance of a contract, the Court has to
keep in mind Section 20 of the Specific Reliefs Act. This Section
preserves judicial discretion to grant decree for Specific performance.
However, the Court is not bound to grant specific performance merely
because it is lawful to do so. The Court should meticulously consider all
facts and circumstances of the case and to see that it is not used as an
instrument of oppression to have an unfair advantage not only to the
plaintiff but also to the defendant
“8. In a case of specific performance it is settled law, and indeed it
cannot be doubted, that the jurisdiction to order specific performance of a
contract is based on the existence of a valid and enforceable contract. The
Law of Contract is based on the ideal of freedom of contract and it
provides the limiting principles within which the parties are free to make
their own contracts. Where a valid and enforceable contract has not been
made, the court will not make a contract for them. Specific performance
will not be ordered if the contract itself suffers from some defect which
makes the contract invalid or unenforceable. The discretion of the court
will be there even though the contract is otherwise valid and enforceable
and it can pass a decree of specific performance even before there has been
any breach of the contract. It is, therefore, necessary first to see
whether there has been a valid and enforceable contract and then to see the
nature and obligation arising out of it. The contract being the foundation
of the obligation the order of specific performance is to enforce that
obligation.”
“33. The equitable discretion to grant or not to grant a relief for
specific performance also depends upon the conduct of the parties. The
necessary ingredient has to be proved and established by the plaintiff so
that discretion would be exercised judiciously in favour of the plaintiff.
At the same time, if the defendant does not come with clean hands and
suppresses material facts and evidence and misleads the court then such
discretion should not be exercised by refusing to grant specific
performance.”
In the instant case while deciding the issue as to whether the
agreement of 1967, allegedly executed by the defendants, can be enforced,
the Court had to consider various discrepancies and series of legal
proceedings before the agreement alleged to have been executed. In the
agreement dated 2.9.1967, there is reference of earlier agreement dated
29.11.1965 where under Rs. 18,000/- was paid to the defendant-appellant
which was denied and disputed.
Curiously enough that agreement dated
29.11.1965 was neither filed nor exhibited to substantiate the case of the
plaintiff.
The High Court put reliance on the agreement dated 2.9.1967
written in a quarter sheet of paper merely because of the fact that said
quarter sheet of paper was produced before the Magistrate in a criminal
proceeding.
Indisputably, various documents including order-sheets in the earlier
proceedings including execution case were filed to nullify the claim of the
plaintiff regarding possession of the suit property but these documents
have not been considered by the High Court.
In our considered opinion the
evidence and the finding recorded by the criminal courts in a criminal
proceeding cannot be the conclusive proof of existence of any fact,
particularly, the existence of agreement to grant a decree for specific
performance without independent finding recorded by the Civil Court.
In our view, the High Court is not correct in holding that
there is no reason to disbelieve the execution of the document although it
was executed on a quarter sheet of paper and not on a proper stamp and also
written in a small letter.
The High Court also misdirected itself in law
in holding that there was no need of the plaintiff to have sought for the
opinion of an expert regarding the execution of the document.
After examining the entire facts of the case and the evidencecannot be doubted, that the jurisdiction to order specific performance of a
contract is based on the existence of a valid and enforceable contract. The
Law of Contract is based on the ideal of freedom of contract and it
provides the limiting principles within which the parties are free to make
their own contracts. Where a valid and enforceable contract has not been
made, the court will not make a contract for them. Specific performance
will not be ordered if the contract itself suffers from some defect which
makes the contract invalid or unenforceable. The discretion of the court
will be there even though the contract is otherwise valid and enforceable
and it can pass a decree of specific performance even before there has been
any breach of the contract. It is, therefore, necessary first to see
whether there has been a valid and enforceable contract and then to see the
nature and obligation arising out of it. The contract being the foundation
of the obligation the order of specific performance is to enforce that
obligation.”
“33. The equitable discretion to grant or not to grant a relief for
specific performance also depends upon the conduct of the parties. The
necessary ingredient has to be proved and established by the plaintiff so
that discretion would be exercised judiciously in favour of the plaintiff.
At the same time, if the defendant does not come with clean hands and
suppresses material facts and evidence and misleads the court then such
discretion should not be exercised by refusing to grant specific
performance.”
In the instant case while deciding the issue as to whether the
agreement of 1967, allegedly executed by the defendants, can be enforced,
the Court had to consider various discrepancies and series of legal
proceedings before the agreement alleged to have been executed. In the
agreement dated 2.9.1967, there is reference of earlier agreement dated
29.11.1965 where under Rs. 18,000/- was paid to the defendant-appellant
which was denied and disputed.
Curiously enough that agreement dated
29.11.1965 was neither filed nor exhibited to substantiate the case of the
plaintiff.
The High Court put reliance on the agreement dated 2.9.1967
written in a quarter sheet of paper merely because of the fact that said
quarter sheet of paper was produced before the Magistrate in a criminal
proceeding.
Indisputably, various documents including order-sheets in the earlier
proceedings including execution case were filed to nullify the claim of the
plaintiff regarding possession of the suit property but these documents
have not been considered by the High Court.
In our considered opinion the
evidence and the finding recorded by the criminal courts in a criminal
proceeding cannot be the conclusive proof of existence of any fact,
particularly, the existence of agreement to grant a decree for specific
performance without independent finding recorded by the Civil Court.
In our view, the High Court is not correct in holding that
there is no reason to disbelieve the execution of the document although it
was executed on a quarter sheet of paper and not on a proper stamp and also
written in a small letter.
The High Court also misdirected itself in law
in holding that there was no need of the plaintiff to have sought for the
opinion of an expert regarding the execution of the document.
produced on record, we are of the definite opinion that it is not a fit
case where the discretionary relief for specific performance is to be
granted in favour of the plaintiff-respondent.
The High Court in the
impugned judgment has failed to consider the scope of Section 20 of the
Specific Relief Act and the law laid down by this Court.
For all these reasons, this appeal is allowed and the impugned
judgment passed by the High Court is set aside. Consequently, the judgment
of the learned trial court is restored. Hence, the suit is liable to be
dismissed.
