Research › Browse › Judgment

Patna High Court · body

1984 DIGILAW 300 (PAT)

Gangajal Tewari v. Brijnandan Tewari

1984-08-10

L.M.SHARMA, S.S.SANDHAWALIA

body1984
JUDGMENT : Lalit Mohan Sharma, J. - The defendant no. 2 in the suit filed by the sole respondent has preferred this appeal. The plaintiff prayed fur a decree for specific performance of a contract of sale between himself and the defendant no. 1, since dead. According to his case, the defendant no. 1 on 3.10.1965 agreed to execute a sale deed with respect to the suit land for a sum of Rs. 5000/-, out of which a sum of Rs. 3900/- was paid and a document of agreement, Ext. 2, was executed. The remaining amount of Rs. 1100/- was to be paid at the time of exchange of the equivalents after registration of the sale deed. The plaintiff and the defendant no. 2 are close agnatic relations of defendant no. 1 and, according to the further case of the plaintiff, with a view to defeat the agreement, the defendant no. 2 got a deed of gift executed by the defendant no. 1 in his favour on 3.1.1966. When the plaintiff learnt about it, he asked both the defendants to execute the sale deed in his favour and on their refusal to do so, the suit was filed. 2. The parties led evidence and the trial court dismissed the suit. The plaintiff filed an appeal before the District Judge which was transferred to the court of the 6th Additional District Judge, Arrah, and was registered as T. A. 178 of 1979 and was dismissed on 6.9.1973. The appellant came to this Court in S.A.52 of 1974, which was allowed on 7.12.1976 and the case was remitted to the lower appellate court for fresh decision after reconsideration of the evidence. By the impugned JUDGMENT :, the learned Additional District Judge allowed the appeal and decreed the suit. The defendant no. 2 who is the surviving defendant now, has preferred the present second appeal, which was referred by a learned Single Judge to be heard by a Division Bench. 3. Mr. R. S. Chatterji, the learned counsel for the appellant, contended that the decision in S.A. 52 of 1974 was illegal in as much as the findings of fact recorded by the lower-appellate court which concluded the matter in the defendant's favour were binding on the High Court and the learned Judge had no jurisdiction to interfere with the same. Mr. R. S. Chatterji, the learned counsel for the appellant, contended that the decision in S.A. 52 of 1974 was illegal in as much as the findings of fact recorded by the lower-appellate court which concluded the matter in the defendant's favour were binding on the High Court and the learned Judge had no jurisdiction to interfere with the same. The learned counsel strenuously urged that the earlier decision of the High Court must, therefore, be set aside or ignored and the decision of the lower appellate court dated 6.9.1973 be restored. Reliance was placed on the decisions in State of Tamil Nadu v. S. Kumaraswami (A.I.R. 1977 S.C., 2026), Kshitish Chandra Bose v. Commissioner of Ranchi (A.I.R. 1981 S.C., 707 : 1982 PLJR 69 (SC)) Prabhu Halwai v. Fulchand Khandelwal (A.I.R. 1969 Patna, 16). 4. It has been argued that since the present second appeal is being heard by two Judges constituting the Division Bench, the Bench has got full jurisdiction to examine the correctness of the JUDGMENT : of the learned single Judge allowing S.A. 52 of 1974. I do not find myself in a position to accept the contention. The present second appeal is being heard by this Court in exercise of its second appellate jurisdiction and cannot, therefore, examine the correctness of its earlier decision given in exercise of a similar jurisdiction. It has to be remembered that this Bench is not exercising its Letters Patent jurisdiction and must, therefore, be held as exercising co-ordinate jurisdiction. None of the decisions cited by Mr. Chatterji is of any help. The case of the State of Tamil Nadu was by way of a direct appeal to the Supreme Court from the High Court JUDGMENT : and does not deal with the High Court's JUDGMENT : and does not deal with the High Court's power to set aside its own earlier decision. In Kshitish Chandra Bose v. Commissioner of Ranchi (A.I.R. 1981 S.C., 707 : 1982 PLJR 69 (SC)) again it was the Supreme Court which was interfering with the High Court's JUDGMENT :, of course in an appeal from a subsequent decision. In Kshitish Chandra Bose v. Commissioner of Ranchi (A.I.R. 1981 S.C., 707 : 1982 PLJR 69 (SC)) again it was the Supreme Court which was interfering with the High Court's JUDGMENT :, of course in an appeal from a subsequent decision. The case of Prabhu Halwai v. Folchand Khendelwal (A.I.R. 1969 Patna, 16) is also clearly distinguishable in as much as the question of maintainability of the claim for eviction of the tenant in that case had not been decided by the remand ORDER :of the High Court and, consequently, it was held that when the case came on the second occasion, the High Court could examine the question. I, therefore, over-rule the argument of the appellant and hold that the JUDGMENT : in S. A. 52 of 1974 is not open to scrutiny in the present appeal. 5. Mr. Chatterji next urged that in view of the decision in Bishwanath Mahto v. Smt. Janki Devi (A.I.R. 1978 Patna, 190 : 1978 PLJR 378 ) the plaintiff is not entitled to a decree for specific performance of the contract of sale as he has not pleaded and proved that he was ready and willing to perform his part of the contract continuously between the contract and the date of hearing of the suit. Mr. S. C. Ghose pointed out that necessary assertions in this regard were included in the plaint in express term. The question as to whether the plaintiff led reliable evidence on this plea cannot now be examined at this stage as the point was not pressed by the defendant in either of the two courts nor was it taken in the memorandum of this appeal. 6. Mr. Chatterji next urged that a reading of the agreement, Ext. 2, leads to the conclusion that the parties to it were under a mistake in regard to the payment of the consideration money which renders the agreement void by reason of section 20 of the Indian Contract Act. The learned counsel referred to the endorsement portion signed by the defendant no. 1 on the top of the agreement and the recitals in the body of the deed for the purpose of applying section 20 of the Act. The learned counsel referred to the endorsement portion signed by the defendant no. 1 on the top of the agreement and the recitals in the body of the deed for the purpose of applying section 20 of the Act. It is true that there is some discrepancy in the endorsement of the document, referred to the learned counsel, but the deed read as a whole does not leave any scope of controversy that a sum of Rs. 3900/- was paid and the remaining amount of Rs. 1100/- was to be paid at the time of the exchange of the equivalents. This aspect has been considered at some length by the court below and I fully agree with the findings. The question was debated by the defendant in the court below as a circumstance for disbelieving the plaintiff's case and it was not suggested, and according to me rightly, that the parties were under any mistake as to the consideration money. The attempt on the part of the appellant to place section 20 at the Act in service is, therefore, completely futile. 7. Lastly, it was urged that since an area of about 8 acres of land was under the agreement in question to be sold for a sum of Rs. 5000/- only, the contract must be held to be inequitable and the Court should in its discretion refuse the relief claimed in the suit. Reliance was placed on clause (a) of section 20(2) of the Specific Relief Act, 1963, which is in the following terms: "20. Discretion as to decreeing specific performance. (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, though not voidable, gives the plaintiff an unfair advantage over the defendant;" This point again was not taken in the two courts below nor in the memorandum of appeal in this Court and was urged for the first time at the hearing of this appeal. It is true that the Court is not bound to grant a decree for specific performance merely because it is lawful to do so and the jurisdiction in this regard is discretionary, but the discretion of the Court is not arbitrary, as has been clarified in section 20(1). It is not simply a question of what an individual thinks is fair and reasonable. Ordinarily if a contract is valid in form and has been made between competent parties and is objectionable in its nature and circumstances, relief is granted as a matter of course. A mere bad bargain or inadequacy of price, all by itself does not necessarily disentitle the plaintiff from obtaining specific performance. The Explanation I to section 20(2) is relevant in this connection. In the present case, there is no suggestion that the plaintiff gained an unfair advantage or that there existed any circumstance which could lead the Court to refuse its discretion for dismissing the suit. Even the plea of inadequate consideration was not raised and the learned counsel could not point out any material on the records indicating that the true value of the land in 1965 was higher. The argument, therefore, cannot be entertained at this late stage. 8. In the result, none of the points raised on behalf of the appellant has any merit. The appeal is, therefore, dismissed; but in the circumstances without costs.