Hon'ble Prakash Krishna,J Hon'ble A.K. Tripathi (II),J (Delivered by Prakash Krishna,J) Questioning the legality, validity and propriety of the judgment and decree dated 10th October, 2007 passed by the Additional Civil Judge (Senior Division), Ghaziabad in Original Suit No. 1213 of 2004, the present appeal is at the instance of the defendant.
Three storied house measuring 200.67 square meter situate at R-86 Pratap Vihar, Ghaziabad is the property in dispute. The defendant who is appellant herein (hereinafter referred to as 'the defendant') is the owner and in possession thereof. He, on 24th July, 2002 entered into a registered agreement to sell in favour of two plaintiffs, namely, Ram Avtar and Jogendra Singh, respondents herein (hereinafter referred to as 'the plaintiffs') for a sum of Rs.7,50,000/- out of which a sum of Rs.5,00,000/- was given before Sub Registrar at the time of registration of the agreement in question as advance money. It was agreed upon that the plaintiffs will get the sale-deed executed after paying the balance sale consideration amounting to Rs.2,50,000/- on or before 21st July, 2004.
The suit giving rise to the present appeal was instituted for specific performance of the aforesaid contract to sell. Also an alternative relief for refund of the advance money together with interest as may deem, fit and proper by the court was claimed.
The suit was instituted on the allegations that the plaintiffs gave a notice dated 3rd February, 2004 to the defendant to execute the sale-deed and be present for the said purpose before Sub Registrar on 24th February, 2004 for execution of sale-deed and receipt of balance amount. The defendant replied the notice on 9th February, 2004 with incorrect and wrong allegations that amount of Rs.5,00,000/- was taken by him as loan amount. The plaintiffs were present on aforesaid date before Sub Registrar from morning till evening but the defendant failed to appear to execute the sale-deed. The plaintiffs have alway been ready and willing to perform their part of contract and are still ready and willing for the same.
The defendant contested the suit by filing written statement on the pleas inter alia that he took Rs.5,00,000/- as loan and lieu thereof the agreement to sell in question was executed. He took the amount for the purposes of treatment of his daughter Km. Ritu, who is polio patient. It was agreed upon that the defendant will pay interest at the rate of 1% per month. He has paid Rs.15,000/- per month from August, 2002 to July, 2004, total sum of Rs.3,60,000/- and had handed over three cheques of Rs.40,000/- each to the plaintiffs. They refused to accept the cheques, cheque amount was paid in cash. The market value of property in dispute is Rs.50,00,000/- and that is the reason, the plaintiffs have become dishonest and want to grab it. It was also pleaded that the defendant was present in the office of Sub Registrar on 21st July, 2004, the date fixed in the agreement for the purpose of re-payment of loan amount but the plaintiffs failed to appear. Other pleas such as court fee paid is not sufficient etc. were also raised.
In replication, the plaintiffs denied theory of loan as was set out by the defendant in written statement.
On the basis of pleadings of the parties, the following issues were struck by the trial court :-
(1)Whether the defendant executed an agreement to sell in respect of three storied house measuring 200.67 square meter situate at R-86 Pratap Bihar, Ghaziabad with the plaintiffs, for a sum of Rs.7,50,000/-?
(2)Whether the suit has been under valued and the court fee paid is insufficient?
(3)Whether the court has jurisdiction to hear and decide the suit?
(4)Whether the agreement to sell dated 24th July, 2002 in respect of property in dispute was executed and registered and a sum of Rs.5,00,000/- was given by the plaintiffs to the defendant as advance money?
(5)Whether the defendant failed to execute sale-deed in respect of the property in dispute in favour of the plaintiffs within stipulated period?
(6)Whether the plaintiffs are ready and willing and are still ready and willing to get the sale-deed executed?
(7)Whether the defendant received a sum of Rs.5,00,000/- from the plaintiffs as loan amount and the agreement in question was executed as a security and no agreement to sell was executed in favour of the plaintiffs?
(8)Whether the defendant has made part payment of the loan amount of Rs.5,00,000/- and is ready to pay balance amount?
(9)To what relief, the plaintiffs are entitled to?
The parties led evidence, oral and documentary in support of their respective cases as find mention in the judgment. The trial court has decided issues no. 1, 4, 5, 6, 7 & 8 together. It reached to the conclusion that the defendant has failed to prove the oral agreement that the amount of Rs.5,00,000/- was given as loan amount. The execution of the agreement in question and payment of Rs.5,00,000/- thereunder is admitted to the defendant. The plaintiffs have always been ready and willing to perform their part of contract and are still ready and willing. The defendant has failed to prove any re-payment of the loan amount. The other issues were decided in favour of the plaintiffs holding that the court fee paid is sufficient as it is paid on the value of the sale-agreement and there is no material to show that the house in dispute is valued as Rs.50,00,000/-. The trial court discarded and disbelieved oral evidence led by the defendant. The defendant besides examining himself as DW-1, examined one Ranjeet Srivastava as DW-2. The suit for specific performance of contract to sell having been decreed, the present appeal under Section 96 of the C.P.C. is before us.
Heard Shri H.R. Mishra, learned Senior Counsel along with Shri M.P. Yadav, learned counsel for the defendant-appellant and Shri Some Narain Mishra, learned counsel for the plaintiffs-respondents.
It may be placed on record that in the memo of appeal as many as ten grounds have been set out but learned counsel for the appellant has confined his arguments only to the following points.
1- There being discrepancies in the plaintiff's deposition (namely Ram Avtar PW-1), his testimony is not reliable and is liable to be rejected.
2- The return of part of loan amount is established from testimonies of defendant DW-1 and Ranjeet Srivastava DW-2.
3- The present market value of house in dispute is Rs.50,00,000/- and in this view of the matter, the court should exercise its discretion under Section 20 of the Specific Relief Act not to grant a decree for specific performance of contract to sell.
In reply, learned counsel for the plaintiffs submits that the defendant is an advocate by profession and he willingly executed the contract of sale dated 24th July, 2002. One of the attesting witnesses namely, Abhay Singh happens to be son of defendant. The execution of agreement in question is not denied nor in issue in the suit. This being position, even if, there is some minor contradiction in statement of plaintiffs, it is of no avail to the defendant. The defendant has utterly failed to establish that the transaction in question in substance was a loan transaction or he received a sum of Rs.5,00,000/- as loan instead of advance money in pursuance of registered agreement dated 24th July, 2002. He further submits that there is voluminous evidence on record to show that the defendant has not re-paid even a single shell and is taking undue advantage of the situation being a practicing advocate at Ghaziabad.
Considered the respective submissions of the learned counsel for the parties.
The registered agreement dated 24th July,2002, on its face is an agreement for sale of the property in dispute for a sum of Rs.7,50,000/-. It recites payment of Rs.5,00,000/- as advance money. It is also not in dispute that Shri Abhay Singh attesting witness no. 1 happens to be son of the defendant. The terms and condition as mentioned in the agreement fixes time limit for execution of the sale-deed as 21st July, 2004, has also not been disputed. On these admitted facts, the question arises as to whether the discrepancies, if any, in the statement of the plaintiffs are sufficient to discard the said agreement which is otherwise a registered document and its execution is not in question.
In the case of Vimal Chand Ghevarchand Jain and others v. Ramakant Eknath Jajoo, JT 2009(6) SC 570, the Apex Court has laid down in para-19, as follows:
"19. A document, as is well known, must be construed in its entirety. Reading the said in its entirety, there cannot be any doubt whatsoever that it was a deed of sale. It satisfies all the requirements of a conveyance of sale as envisaged under Section 54 of the Transfer of Property Act."
In Bishwanath Prasad Singh v. Rejendra Prasad & Anr. JT 2006 (2) SC 221 : 2006 (4) SCC 432, the Apex Court has held as follows:
"16. A deed as is well known must be construed having regard to the language used therein. We have noticed hereinbefore that by reason of the said deed of sale, the right, title and interest of the respondents herein was conveyed absolutely in favour of the appellant. The sale deed does not recite any other transaction of advance of any sum by the appellant to the respondents which was entered into by and between the parties. In fact, the recitals made in the sale-deed categorically show that the respondents expressed their intention to convey the property to the appellant herein as they had incurred debts by taking loans from various other creditors."
In the document in question, the parties have been described as vendor and vendee and the sale consideration. These terms have definite legal connotation and the defendant being an advocate supposed to understand their implications.
Viewed as above, now we proceed to consider the matter in issue.
Learned counsel for the appellant invited attention of the Court towards that part of the cross-examination of Ram Avtar PW-1 wherein he could not state the name of stamp vendor or whether the stamp papers were purchased from one vendor or more than one. The stamp papers were purchased for the purpose of scribing the agreement in question. This witness has stated that stamp papers were purchased by Jogendra Singh along with him. He has denied suggestion that all the stamp papers were purchased in the name of Jogendra Singh. We do not find any contradiction or discrepancy in the said portion of statement of PW-1. And even if, there is any such supposed discrepancy it is of inconsequential nature. A man of ordinary prudence is not supposed to remember after four years, whether the stamp papers were purchased from one vendor or more than one. The stamp papers are generally purchased in the name of party by clerk or the person of the scribe in the name/names of the persons concerned. The agreement in question being an admitted document, no benefit, if any, can be derived by the defendant from the said part of statement of PW-1. Learned counsel for the appellant could not point out any other discrepancy or defect in other portion of deposition of PW-1. We therefore find that the defendant cannot make any capital out of the cross-examination of PW-1 and point no. 1 is decided accordingly.
Basic point urged by the learned counsel for the appellant is that the defendant had taken a sum of Rs.5,00,000/- by way of loan and agreement in question was executed as a security for re-payment of loan amount and as such the plaintiffs cannot claim decree for specific performance of contract to sell. Plea of loan has been set out by the defendant and burden lay upon him to establish it. He came out with the case that his daughter Km. Ritu is a polio patient and the money was urgently needed for her operation. To prove the said fact, it may be stated at the very outset that no documentary evidence whatsoever has been placed on record to show either Km. Ritu was a polio patient or any amount was spent out of the amount for her treatment, if any. The defendant being an advocate understands the importance of documentary evidence. The plaintiffs in their deposition have stated that they were never told that the defendant is in need of money for medical treatment of his daughter.
The defendant has been grilled on the question of medical treatment of his daughter in cross-examination. He has deposed that his daughter Km. Ritu is polio patient since 1987 and when he took loan she was being provided treatment in a charitable hospital at Visakhapatnam and was getting treatment since February/March, 2001 and she is still under treatment. He used to make the payment against receipts. He further states that he has not filed any such receipt. In further cross-examination, he states that he has given only Rs.10,000/- to Rs.15,000/- against receipt and has made payment to the doctor without obtaining any receipt. According to him, all these payment were made to the doctor and the medical expenses were incurred in the month of February/March, 2001 i.e. before the execution of agreement in question which is dated 24th July, 2002. This is all what he could state in his deposition. The defendant has failed to produce any reliable or cogent evidence to show that his daughter was suffering at the material time with polio and he badly needed the financial assistance for her treatment in the year 2002 when agreement in question was admittedly executed. Noticeably, there is no reliable evidence on record to prove the alleged illness of daughter and in any case, dire need of money for her treatment. On analysis of evidence, the court below has rightly reached to the conclusion on the above issue that the theory as propounded by the defendant that he needed money for medical treatment is not established. We ourselves scrutinized the evidence and find no reason to differ with the finding of the trial court on the above point.
The agreement in question is a registered document and a presumption about its due execution is attached to such documents. A heavy burden to prove that it was executed in lieu of loan lay on the defendant, which he failed to discharge.
No oral evidence to contradict the terms of any such contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document under Section 91 of the Evidence Act could be given in view of Section 92 thereof. Section 92 of the Evidence Act provides specifically exclusion of evidence of oral agreement for the purposes of contradicting, varying, adding to, or subtracting from, its terms. It contains as many as six proviso. Learned counsel for the defendant could not point out that under which proviso his case falls. However, he placed reliance on the following two judgments of the Hon'ble Apex Court :-
1.Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434; and
2.Smt. Gangabai v. Smt. Chhabubai, AIR 1982 SC 20.
In the case of Ishwar Dass Jain v. Sohan Lal (supra), it was pleaded by the defendant in written statement that the mortgage deed though true was a sham document not intended to be acted upon. The mortgage deed was executed to circumvent the law and the plaintiff was a rich man and there was no occasion for him to mortgage his property. It was held that inspite of Section 92(1) of the Evidence Act; it is permissible for a party to a deed to contend that the deed was not intended to be acted upon but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted.
The another relied upon case is, Smt. Gangabai v. Smt. Chhabubai (supra) wherein it has been laid down that the bar of, as to adducing of oral evidence is attracted only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purposes of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. (See: Tyagaraja Mudaliyar and another v. Vedathanni, AIR 1936 PC 70).
Viewed as above, even if, we take oral evidence, the defendant has utterly failed to prove that it was a loan transaction between the parties. The defendant is an advocate and he very well understands the niceties of law and is supposed to know the importance of execution of a registered document vis. a vis, an oral agreement. He could not lead any cogent and reliable evidence to prove the alleged loan transaction. As stated herein above, the theory of medical treatment propounded by him in the absence of any convincing evidence, has been negated by us. He has taken oscillating stand, in his reply to the notice, in the written statement and in the evidence with regard to the re-payment of the loan amount. In the reply dated 9th February, 2004 (paper no. 39-ka), there is no mention for what purpose he needed the loan. He states that presently there is an increase in the value of house in dispute to Rs.50,00,000/- and therefore, it is not possible to transfer it. He further states that it was agreed upon that if at the time of return of money i.e. 21st July, 2004 if any of his family member has any objection for the sale of house then the plaintiffs will not compel him to execute the sale-deed and will accept a sum of Rs.5,00,000/- only. For the sake of convenience, the said portion of the reply is reproduced below:
**esjs O;ogkjh us ftl le; vkils vuqca/k fd;k Fkk rks ml le; esjs O;ogkjh vkSj vkids e/; ;g 'krZ r; ikbZ Fkh fd ;fn esjs O;ogkjh ;k esjs O;ogkjh ds ifjokj ds fdlh Hkh lnL; dks edku dks cspus esa bdjkjukek ds }kjk vkifRr gksxh rks esjk O;ogkjh vkidks edku dks cspus ds fy;s ck/; ugha gksxkA** He further recites that there is still time to return money upto 21st July, 2004 and he has given three cheques each of Rs.40,000/- and these cheques should not be encashed by the plaintiffs failing which if they are dishonoured, he will not be liable in any manner. In the written statement, the defendant became wiser took a plea for the first time that he has been re-paying partial payments monthly amounting to Rs.15,000/- per month since August, 2002 to July, 2004 and thus, has paid a sum of Rs.3,60,000/-. With regard to three cheques, he pleads that the said cheques were returned by the plaintiffs and lieu thereof he gave Rs.1,20,000/- in cash but without obtaining any receipt. The evidence of defendant suffers with inherent discrepancies and cannot be relied upon.
Ranjeet Srivastava DW-2 states that he was present when talk in between the plaintiffs and defendant took place in the year 2002. It was in the month of May/June the defendant handed over document of title in his presence to the plaintiffs on 24th July, 2002 and a sum of Rs.5,00,000/- was given to the defendant. He further states that the document of title, sanctioned map by the Ghaziabad Development Authority along with other documents were given as mortgage (Girvi). The relevant portion from his cross-examination is reproduced below:-
"jke vkSrkj us tqykbZ 24] lu 2002 esa :i;s 5 yk[k Jh fnfXot; flag ?kj ds dkxt fxjoh j[kdj fn;s FksA ?kj ds dkxtks esa ?kj dh jftLVªh uD'kk th0Mh0,0 ds dqN dkxt fxjoh j[ks FksA tc dkxt fxjoh j[ks x;s rc eSa ekStwn FkkA fy[kk i<+h jftLVªkj vkWfQl esa gqbZ FkhA eS jftLVªkj vkWfQl esa fy[kk i<+h ds le; ugha x;k FkkA eq>s ;g irk gS fd jsgu esa j[ks x;s dkxtksa dh ckor fy[kk i<+h gqbZ FkhA"
The above statement of the witness would show that he is a got up witness and has gone a step further to support the defendant. He has gone to the extent of saying that loan agreement was arrived between the parties in his presence and document of title etc. were given by the defendant as mortgage, a case not even pleaded by the defendant. This shows that he is procured witness being friend of the defendant, a fact which has been admitted by him. Besides the above statements of DW-1 and DW-2, there is no evidence worth the name to show that the defendant took loan and the sale agreement was not intended to be acted upon.
It is interesting to note that DW-2 in his examination-in-chief states that on 24th July, 2002 a loan agreement was executed in writing wherein it was agreed upon that the defendant will return the loan amount in installments along with interest and get the writing cancelled, a case not even set out by the defendant. It has not even pleaded that on 24th July, 2002, any such loan agreement was executed in writing. This is indicative of the interested testimony of defendant no. 2 in favour of the defendant.
The statements of DW-1 and DW-2 are untrustworthy and cannot be relied upon specially when the defendant is an advocate and fully understands the implications of execution of a registered document. The evidence led by the defendant in support of his plea of loan transaction is scanty, untrustworthy. The ultimate finding recorded by the trial court disbelieving the version of defendant on the above issue is perfectly justified and we endorse the same. The stand taken by the defendant is incredible and implausible.
Lastly, it was urged that this Court should exercise its discretion as available under Section 20 of the Specific Relief Act by setting aside the decree for specific performance of contract to sell and lieu thereof grant a decree for refund of the amount to the plaintiffs. There has been manifold increase in prices of immovable properties and presently the property in dispute is around Rs.50,00,000/- submits the defendant. Repeatedly, we asked the counsel to show evidence, if any, to establish that the house in dispute can or could fetch at Rs.50,00,000/- but he failed. Except making a bald statement that the house was valued at Rs.50,00,000/-, there is no evidence to support the above plea. The defendant could have placed very easily some material in support of his plea but he failed to discharge the burden. The plea that the house is valued at Rs.50,00,000/- deserves rejection and we do so.
Much was argued with the help of Section 20 of the Specific Relief Act. It was rightly pointed out by the learned counsel for the respondents that no such plea was ever forwarded before the trial court either in the pleadings or in issue or in evidence. He submits that grant of any such relief to the defendant would amount premium to a person who wants to wriggle out of a registered agreement and will promote dishonesty in the society. He further submits that a bare perusal of the agreement in question would show that the defendant has at least two houses. Besides the house in question, he has got one house situate at K.M.-96, Kavi Nagar, Ghaziabad. This finds mention against his particulars in the agreement itself. In short, the defendant does not deserve any sympathy of the Court. Had this issue been raised before the trial court, the plaintiffs would have given evidence in this regard. He relied upon recent decision of Apex Court in Prakash Chandra v. Narayan, 2012 (2) ARC 213. Paragraph-15 of the said judgment is reproduced below:
"15. 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. The High Court in the second appeal failed to notice that the respondent had not taken any defence of hardship and no such issue was framed and in absence of any such evidence on record, the first appellate court held that he would be landless should the decree for specific performance be granted."
In the above case case, the Apex Court reversed the judgment of High Court and it decreed the suit and granted the relief for specific performance of contract to sell, as was decreed by the trial court.
As against above, the appellant has relied upon K. Narendra v. Riviera Apartments (P) Ltd. (1999) 5 SCC 77 and Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others, AIR 1996 SC 2814. It was also submitted that in the plaint, an alternative relief for return of earnest money along with interest and damages as may be determined by the Court, has been claimed and the same has been asserted in deposition by the plaintiffs in cross-examination also.
It is an acknowledged legal proposition that a plaintiff can claim more than one relief on the same cause of action. He must claim all; he will otherwise entitle to bring a new suit for omitted relief, unless the omission is for the first time was with leave of the Court. The claim of alternative relief of refund of earnest money along with interest etc. is a usual relief claimed in such suits. The defendant cannot compel a plaintiff to be satisfied by the alternative relief, relief for specific performance of contract to sell instead. It will be travesty of justice if relief for contract to sell is denied on this ground. It is true that discretion has been given to the Court under Section 20 of the Specific Relief Act but the specific performance relief should not be refused arbitrarily. The discretion should be exercised on sound principles of law capable of correction by an appellate court, as laid down by the Apex Court in the case of Lourdu Mari David (supra). It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the Court with clean hands. Here is a case where it was neither found by the trial court nor any material was placed before us by the defendant to show that the plaintiffs has not come to the court with clean hands or they have based their claim on some falsehood. As a matter of fact, the position is otherwise. The defendant has not come to the court with clean hands and has come forward with untrue facts. Refusal of decree for specific performance of contract to sell in such situation would not promote honesty in society.
In the first relied upon the case by the defendant i.e. K. Narendra v. Riviera Apartments (P) Ltd. (supra), the decree for specific performance of contract to sell was refused on account of peculiar facts of that case. The vendee was a building contractor who proposed to purchase the land for the purpose of raising multistoried building. There the suit for specific performance was filed after about eight years which was not treated a reasonable period and part of land was declared surplus within meaning of Urban Land Ceiling & Regulation Act, 1976. The agreement contemplated several sanctions and clearances which were certainly not within the power of the parties. Both the parties knew it well that the vendor was depended on such clearance. Part of the land was acquired by the State and to that extent the agreement was rendered incapable of performance. Having it found that the builder shall not be able to raise construction as desired and will not be able to give the delivery of possession of the agreed constructed portion to the vendor, the decree for specific performance of contract to sell was refused. The said case was decided on peculiar facts of that case. It should be read and understood in the factual scenario as existed therein. It has not been laid down as a rule of universal application that the discretion should be exercised to refuse the decree for specific performance of contract to sell whenever the defendant pleads so.
In another case i.e. Lourdu Mari David (supra), the case of the plaintiff was belied with regard to taking of possession on the date of agreement. The court also found that in paras-7 & 9 of the plaint of that suit, the plea set out therein is false. The third circumstance with regard to payment made by the plaintiff was also found to be incorrect. These were circumstances which were taken cumulatively to deny the relief. Here, on the case on hand, not even a single circumstance could be pointed out by the defendant to disentitle the plaintiff to get a decree for specific performance of contract to sell. The decree for specific performance of contract to sell cannot be denied when execution of deed is proved, on whims of a court. On the facts of the case, there is no rational not to confirm the decree for specific performance of contract to sell. Besides the fact that no such plea was put forward before the court below, we find that even in the memo of appeal no circumstance has been mentioned which may tilt the fulcrum of balance in favour of the defendant. On the contrary, if a party has to be blamed, then it would be the defendant who has come with untrue and wrong allegations. He has come forward with frivolous defence and frivolous litigation.
No material was placed before us to show that the case of the defendants falls in any of clauses (a), (b) or (c) of Section 20(2) of the Specific Relief Act. The defendant entered into the contract with wide open eyes and the contract has been witnessed and attested by his son. In the absence of any material, it would be inequitable to refuse specific performance of contract to sell dated 24th July, 2002, having found that there is nothing on record to show that price of the house in question has been increased manifold and the theory of loan amount having not been found to be proved. We are of the view that the defendant is not entitled to get any discretionary relief, envisaged under Section 20 of the Specific Relief Act.
In Laxman Tatyaba Kankate & another v. Taramati Harishchandra Dhatrak, 2010 (3) ARC 189, a case relied upon by the plaintiffs it has been held that discretion of court has to be exercised as per the settled judicial principles. In that case, a sum of Rs.10,000/- was given as earnest money. The Court while confirming the decree for specific performance took note of the fact that there is no circumstance not to grant specific performance of contract which is discretionary. Role of the plaintiff is one of the most important factors is to be taken into consideration. The Court is expected to take care to see that the process of the Court is not used as an instrument of oppression giving an unfair advantage to the plaintiff as opposed to the defendant in the suit. There being no circumstance, the defendant enjoyed the earnest money of Rs.10,000/- as also the possession. It is not only lawful but even equity and facts of the case demand that a decree for specific performance should be granted in favour of the respondent therein. The ratio laid down in the above case is fully applicable to the facts of the present case.
At this juncture, we may re-produce some observations of the Supreme Court made in respect of such kinds of litigation. In the case of Indian Council for Enviro-Legal Action v. Union of India & others JT 2011 (8) SC 375, the Apex Court has observed as follows:-
"197. In Padmawati vs Harijan Sewak Sangh - CM (Main) No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the court held as under:-
"The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person."
198. We approve the findings of the High Court of Delhi in the aforementioned case.
199. The Court also stated: "Before parting with this case, we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts."
Against this judgment, Special Leave to Appeal (Civil) No 29197/2008 was preferred to the this Court. The Court passed the following order:
"We have heard learned counsel appearing for the parties. We find no ground to interfere with the well-considered judgment passed by the High Court. The Special Leave Petition is, accordingly, dismissed." "
More or less, similar observations have been reiterated in Maria Margarida Sequeria Fernandes and others v. Erasmo Jack de Sequeria, JT 2012 (3) SC 451.
Any other point was not pressed.
The appeal merits dismissal.
We find no merit in the appeal. Judgment and decree of the court below is on terra firma and needs no interference. The appeal is dismissed with costs.