JUDGMENT A.K. Banerji, J.
1. This second appeal by defendant Leela is directed against the Judgment and decree passed by the two courts below decreeing the plaintiffs suit for specific performance of an agreement to sell against the defendant.
2. The relevant facts in brief are that the plaintiff Chhotey Lal filed Suit No. 62 of 1981 against the defendant for specific performance of an agreement to sell dated 3.10.1979 by which the said defendant had agreed to sell Khasra plot No. 685 area 3 Bighas 1 Biswa 10 Biswansi situate in village Mansurpur, Pargana Khatauli, district Muzaffarnagar to the plaintiff for a consideration of Rs. 19,000, the said agreement was registered. The plaintiff paid Rs. 1,000 to the defendant before the execution of the agreement and Rs. 7,000 at the time of the execution of the agreement. Subsequently, on 16.4.1980, he paid a further sum of Rs. 2,500 to the defendant. Thus, a total sum of Rs. 10,500 was paid to the defendant as part of the sale consideration. It was agreed between the parties that the last date for executing the sale deed would be 31st March. 1981. Despite the plaintiffs request to the defendant several times to execute the sale deed, the same was not executed, hence the plaintiff served notices on the defendant on different dates to appear before the Sub-Registrar and to execute the sale deed. Since, this was not complied with, hence the suit.
3. The defendant filed a written statement denying that there was any agreement of sale between the parties in respect of the land in question. The defence was that a sum of Rs. 10,500 was taken as a loan and for the satisfaction of the plaintiff he had executed a document in plaintiffs favour who taking advantage of the defendants illiteracy fraudulently got an agreement of sale executed. This fact came to the knowledge of the defendant in April, 1980. However, on the advice of certain persons, he asked the plaintiff to come to the office of the Sub-Registrar on 31.3.1981 with the sale consideration. He waited in the office of the Sub-Registrar on the said date but the plaintiff did not appear as he was not ready and willing to execute the sale deed. The defendant further pleaded that out of the amount of Rs. 10,500 received by him as loan he has already paid off a sum of Rs. 8,000 with interest and is ready to pay the balance amount. It was further pleaded that the land in question was the only source of livelihood and if the defendant is compelled to execute the sale deed he will become landless and suffer great hardship, therefore, no decree for specific performance should be passed. It was also pleaded that the suit was barred by Section 157A of the U.P.Z.A, and L.R. Act.
4. During the pendency of the suit, the plaintiff Chhotey Lal died and his heirs being widow, sons and daughters were substituted in his place.
5. The trial court framed the necessary issues and held that the agreement of sale of the disputed plot in favour of the plaintiff was duly executed by the defendant for which he had received in part sale consideration amounting to Rs. 10,500 on different dates. The defendant's case regarding loan and the payment made by him to the plaintiff was disbelieved. It was also held that the plaintiff had been ready and willing to perform his part of the contract, further the defendant will not suffer any hardship if the decree for specific performance is passed in favour of the plaintiff. It was also held that Section 157A of the U.P.Z.A. and L.R. Act will not operate as a bar to the present suit because the transfer was by a Harijan in favour of another Harijan. Consequently, the trial court decreed the plaintiffs suit. The appeal filed by the defendant before the lower appellate court was dismissed by the said court which concurred with the findings of the trial court. Aggrieved, the defendant has filed the instant second appeal before this Court.
6. 1 have heard Shri B. D. Mandhyan and S. C. Mandhyan, learned counsel for the appellant and Shri R. B. D. Mishra, learned counsel for the plaintiffs. I have also perused the record of this case.
7. It was firstly contended on behalf of the appellant that the due execution of the deed of agreement of sale has not been proved. The learned counsel urged that out of the two attesting witnesses, one was alive and consequently, the plaintiff ought to have examined the said witness for proving execution of the document in question. Similar contention was raised before the courts below. It was held that one of the attesting witnesses Bhartu was dead and the other namely. Baldeva it was alleged by the plaintiff was related to the defendant. As the defendant had admitted his signature on the deed executed on 3.10.1979 which was a registered deed and the due execution was proved by Om Prakash P.W. 2 and Rakesh Kumar P.W, 1 scribe of the deed, both of whom has stated that the document was read over to the defendant and he had signed the said deed after fully understanding Its contents. The evidence of the said witnesses have been believed by the court below. That apart, the deed acknowledges that a sum of Rs. 1,000 was paid to the defendant in advance and Rs. 7,000 was being paid to him on the date of the execution of the deed. The defendant had not denied the receipt of the said sum nor denied his signature on the agreement deed. If the defendant was alleging fraud and misrepresentation, the burden was upon him to prove the same which he has miserably failed to discharge. Besides, the defendant had also admitted the receipt of Rs. 2,500 from the plaintiff on 16.4.1980. The receipt for the same bearing the signature of the defendant, which has not been denied, is on the record as Exhibit-1. The receipt also mentioned about the registered agreement dated 3.10.1979 and acknowledges that a total sum of Rs. 10,500 has been received by the defendant as per the registered deed. The case set up by the defendant that this money was taken as loan and paid back has been disbelieved by both the courts below. Having perused the reasons given by the courts below regarding the due execution of the deed of agreement. I do not find any reason to differ from the same. I, therefore, find no substance in'the first submission made by the learned counsel for the appellant.
8. I was next urged that the plaintiff was not ready and willing to execute the sale deed as he waited for the execution thereof till the last date stipulated in the deed. Besides, had the plaintiff been ready with his money, he would not have paid the amount in installments. Having considered the said submission, I do not find any force in the same. It is noteworthy that in the deed of agreement of sale (Exhibit-2) which was executed by the defendant, it has been stated in the recitals that the defendant who was the first party to the said agreement had proposed that only an agreement to sell may be entered presently and the sale deed be executed by the 31st March. 1981. It also mentioned that an advance of Rs. 1.000 has already been received by the defendant and a sum of Rs. 7.000 has been received at the time of the execution of the registered deed of agreement. It is apparent, therefore, that the defendant himself proposed that the sale deed was to be executed latest by 31st March, 1981. He had further agreed to accept Rs. 7.000 at the time of registration of the deed having received Rs. 1,000 prior to the execution thereof. Having agreed to the said mode of payment, and having fixed the time by which the sale deed was to be executed, it is not open to the defendant to submit that the plaintiff did not have ready money and therefore, paid the amount in instalments. Besides, the defendant had not taken this plea in his written statement and this contention was being raised for the first time before this Court. The plaintiff on the other hand has asserted in the plaint that he was possessed of the means and was always ready and willing to pay the balance amount and get the sale deed registered and had also been giving notices to the defendant, the first one hearing the date 7.2.1981 to attend the office of the Sub-Registrar on 16.2.1981 and to execute the sale deed. Subsequently also he had given notices to the defendant on 23.2.1981 and 16.3.1981 calling upon the defendant to execute the sale deed. But he never reached the office of the Sub-Registrar on the date fixed by the plaintiff. Both the courts below have believed the plaintiffs evidence and have recorded a concurrent finding of fact that the plaintiff was ready and willing to perform his part of the contract but the breach was on the part of the defendant. The said concurrent finding of fact based upon a proper appreciation of evidence needs no interference by this Court.
9. It was then strongly contented by Shri Mandhyan 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. Learned counsel has invited the court's attention to the provisions of clauses (a) and (fa) of sub-section (2) of Section 20 of the Specific Relief Act and contends that the decree for specific performance should have been refused on these grounds. Section 20 of the said Act lays down that the court is not bound to grant the relief of specific performance which is a discretionary relief merely because it is lawful to do so. But the discretion to be exercised by the court was a judicial discretion guided by judicial principle. Sub-section (2) of Section 20 reads as follows :
"(2) The following are cases in which the court may properly exercise discretion not to decree specific performance :
(a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, ough not voidable, gives the plaintiff and unfair advantage, over the defendant; or
(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance which would involve no such hardship on the plaintiff;
(c) .....
10. In the light of the aforesaid provisions, the learned counsel has contended that the defendant was simple ignorant Illiterate, and a needy person and taking advantage thereof, the plaintiff has got the deed of agreement with respect to the entire land holding which the defendant had got executed for a pittance and the defendant is left with no other land, consequently will suffer immense hardship.
11. I have carefully considered the said submission. The said contention was also made before the two courts below. The finding recorded by the said courts are that the defendant was not solely dependant upon the land which is subject-matter of dispute. He was employed at the time when the suit was filed in sugarcane crusher as a fireman. Besides, I do not agree with the submission of the learned counsel that the defendant was simple Ignorant and Illiterate. The deed of agreement (Exhibit-2) has been signed by the defendant. Similarly, the receipt for Rs. 2.500 dated 16.4.1980 has also been signed by the said defendant, on the other hand the plaintiff has put his thumb impression. This shows that it is the plaintiff who is the Illiterate rather than the defendant. That the defendant is not so simple or ignorant is also evident from the fact that the defendant had taken the stand in the written statement that he had taken loan of Rs. 10.5OO and has paid a sum of Rs. 8.000 to the plaintiff. He has also denied the execution of any deed of agreement to sell whereas in the same written statement, a contradictory plea has been taken by him that he was ready and willing to execute the sale deed and was present in the office of the Sub-Registrar on 31.3.1981. Both the courts below have rightly refused to believe the case of the defendant regarding loan as well as the plea that a sum of Rs. 8.000 was paid back to the plaintiff.
12. So far as the clauses (a) and (b) of sub-section (2) of Section 20 of the Act are concerned, it is well-settled that the question of hardship must be judged as on the date of transaction or when the transaction was entered into. The defendant knew at the time when he entered into the agreement to sell that he was disposing of his land which is his sole source of livelihood. He has, therefore, knowingly executed the said deed after obtaining a substantial amount as consideration from the plaintiff. Subsequently, when the suit for specific performance was filed by the plaintiff, the defendant had first denied the execution of the deed and subsequently by means of an amendment had got incorporated the vague plea that he shall b? suffering hardship in case he has to execute the sale deed in respect of the land in question.
13. There is another aspect of the matter. During the pendency of this second appeal on 30.11.1988. this Court had stayed the operation of the decree for specific performance, and noted the undertaking of the defendant undertakes that he will not sell the property in dispute. Subsequently before the appeal was heard, the respondent Smt. Mukunda brought on record additional evidence by annexing a photostat copy of the sale deed executed by the defendant on 24.4.1992 in favour of Smt. Kamla Devi wife of Raghubir Singh and Smt. Suman Devi wife of Raj Slngh, residents of village Mansoorpur, pargana Khatauli for a sum of Rs. 1,20.000. The sale deed was registered by the Sub-Registrar, Jansath on 30.4.1992. This fact was admitted in the counter-affidavit by the defendant but it was stated that he was not aware of the undertaking given on his behalf by his counsel. On 16.1.1997, the learned Judge before whom the matter was put up for hearing was prima facie satisfied that the defendant was guilty of contempt of court and, therefore. Issued notice to the said defendant to appear personally before this Court to answer the charge of contempt of court and to face appropriate punishment including exemplary cost by way of damages on that account. Notices were also directed to issue to the vendees Smt. Kamla Devi and Smt. Suman Devi, in view of these subsequent developments which can be taken notice by this Court, the plea of hardship naturally crumbles and looses its significance. The learned counsel for the appellant has cited the following decisions in support of his submissions regarding the question of hardship :
1. Smt Ranga Nayakamma v. N. Govinda Narayan. AIR 1982 Kar 264.
2. Kuluwa v. Mst. Punia, 1994 All CJ 485.
3. S. Ranga Rqju Naidu v. S. Tbiru Varak Karasu. AIR 1995 SC 1769.
4. Kanshi Ram v. Om Jawat, AIR 1996SC 2150.
5. Chand Rani v. Kamal Rani, JT 1993 (1) SC 74.
6. K. S. Vidya Nadam and others v. Voi Ravan, JT 1977 (2) SC 375.
14. I have carefully examined the said cases. Each of them were decided in the peculiar facts and circumstances of the said cases, there cannot be any dispute that the relief for specific performance is a discretionary relief and it is always open for the court upon a fair and just consideration of the attendant circumstance not to pass a decree for its enforcement, in some cases, the court might come to a conclusion that instead of granting the decree for specific performance, the other party could be compensated by money, in some cases.
the court taking into consideration the hardship caused to the parry may refuse specific performance. However, there cannot be strait-Jacket formula and every case has to be decided on its own facts.
15. The aforesaid cases are all distinguishable on facts and in view of what has been held above by me, will not apply to the facts of the present case.
16. Shri Mandhyan has next argued that a land of over 3 Bighas in the district of Muzaffamagar is of a much higher value than Rs. 19,000 for which the agreement was got entered, consequently, this Court would refuse to grant a decree for specific performance and could direct the defendant to return the money to the plaintiff along with Interest at the rate fixed by the court. So far as this contention is concerned, the agreement was executed by the defendant in the year 1979. The price of agricultural land at that time is not known, in any view of the matter, the learned counsel seems to have overlooked Explanation I to Section 20(2) of the Act which shows that mere Inadequacy of consideration would not constitute an unfair advantage or come within the meaning of hardship, It is well-settled that rise in prices of property cannot be a consideration to refuse specific performance. Explanation (I) to Section 10 of the Act says that unless and until contrary is proved, the court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation of money. It is a question to be determined on the facts of each case whether a breach of contract can be adequately compensated in terms of money and if that be so, it is absolutely necessary that not only a pleading to the said effect must be set out by the contesting defendant but also that he must furnish adequacy of compensation (see Rom Varan v. Chhangur, 1983 AWC 988), in the present case, there is absolutely no such pleading on behalf of the defendant. Consequently, 1 do not find any force in this submission of the learned counsel either.
17. As a result, I do not find any merits in the aforesaid second appeal and consequently the same is dismissed. However, it appears that despite giving an undertaking before this Court not to transfer the property, the defendant had, subsequently on 24.4.1992, executed a sale deed for a sum of Rs. 1.20.000 in favour of Smt. Kamla Devi and Smt. Suman Devi, residents of the same village. Though the appellant has taken the plea that the undertaking was given by his counsel and not conveyed to him but It is difficult to believe the said explanation. However, taking a lenient view of the matter specially as Leela was present in court and has tendered unqualified apology, while dismissing this second appeal it is further ordered that the defendant-appellant will pay a special cost of Rs. 5,000 to the plaintiff-respondent within three weeks from today and shall hand over possession of the disputed land to the plaintiff-respondent within the said period. I further order that any sale deed executed in favour of Smt. Kamla Devi and Smt. Suman Devi is lis pendens and in breach of undertaking given before this Court, therefore, the same shall be treated to be void and the said transferees shall not claim any rights over, the land in question.