JUDGMENT 1. - By this special appeal the order of learned Single Judge dated 31.8.1988 has been challenged. The District Judge, Tonk passed the judgment and decree on 24.7.1986 in a suit for specific performance of contract of sale. The suit was filed on the ground that the defendant borrowed a sum of Rs. 1,500/- interest free from the plaintiff on 6.8.1965 and executed a pro-note and receipt and did not pay the amount. Subsequently, an agreement dated 3.10.1967 was entered into contemplating that the defendant would return the amount within seven months and if the amount is not returned then the defendant agreed to sell the shop for total consideration of Rs. 3,000/-. The amount was not paid upto 3.5.1968 and therefore, the balance amount of Rs. 1,500/- was offered to get the sale- deed executed of the shop in which the plaintiff was tenant at the rate of Rs. 20/- per month. A notice dated 18.5.1968 termination Tenancy was issued. The suit was filed on 1.6.1968. The defendant denied execution of the pro-note or the agreement for sale and the documents were alleged to be forged and signatures were denied.The following issues were framed on 3.1.1969. 1. Whether the defendant had borrowed a sum of Rs. 1,500/- from the plaintiff on 6.8.1965 and executed a pro-note and receipt in favour of the plaintiff for the above sung of Rs. 1,500/-?. 2. Whether having failed to pay hack the aforesaid amount to the plaintiff, the defendant executed an agreement on 3.10.1967 in favour of the plain- tiff, and promised to sell the suit property i.e. a shop to the plaintiff by agreeing to accept a further sum of Rs. 1,500/- and to execute and register a sale- deed for Rs. 3,000/- as mentioned in para 3 of the plaint? 3. Whether the plaintiff is entitled to get a refund of Rs. 1,500/- from the defendant in case issue No. 1 is decided in favour of the plaintiff and a decree for specific performance of contract is not passed in his favour? 4. Relief ? 2. 3,000/- as mentioned in para 3 of the plaint? 3. Whether the plaintiff is entitled to get a refund of Rs. 1,500/- from the defendant in case issue No. 1 is decided in favour of the plaintiff and a decree for specific performance of contract is not passed in his favour? 4. Relief ? 2. An application for amendment of written statement was moved about the valuation of property which was dismissed and in revision this Court observed while dismissing the revision on 2.7.1973 : "The defendant has already taken a plea in the original written statement that the agreement in suit was not executed by him and it is a forged document. The fresh plea, which he wants to take by amendment refers only to a relevant and ancillary fact, which the defendant is entitled to prove by cross- examination as well as by leading evidence and it is not necessary for him to incorporate such a plea in the written statement itself. With these observations the revision petition is dismissed." 3. Plaintiff produced seven documents and beside himself produced five witnesses while the defendant produced notice dated 18.5.1968 and besides him two witnesses were examined. . 4. An application for transfer was moved which was dismissed by the District Judge, however opportunity to produce three witnesses on one more date was given on 27.4.1973. 5. All the issues were decided on 16.2.1974 in favour of the plaintiff and it was held that the plaintiff was entitled to a decree for specific performance of contract of sale evidenced by Ex. 3. 5-A. By order dated 29.1.1985 in appeal this Court allowed the appeal and set-aside the order of the Additional District Judge dated 16.2.1974. The defendant was allowed to get the document Ex. I, 2 & 3 re-examined by another expert and then produce the expert in witness box and was further allowed to produce Deenanath Overseer or Engineer for proving the valuation. After the defendant closed his evidence of expert and Overseer or Engineer, the plaintiff was permitted to lead his evidence in rebuttal again if he so desires and the trial Court was directed to re-hear and decide the case in accordance with law. 6. The fresh order was passed on 24.7.1986 by which the suit for recovery of Rs. 1,500/- was decreed. 6. The fresh order was passed on 24.7.1986 by which the suit for recovery of Rs. 1,500/- was decreed. Since, the plaintiff failed to prove the steps taken for registering the sale-deed the plea of specific performance of contract was not accepted and it was found that neither he has purchased the stamps nor any notice was given. This order was challenged by the plaintiff in this Court and it was contended that since issue Nos. I & 2 were decided in his favour, issue No. 3 should have been decided in his favour and the fact that the plaintiff was ready and willing to perform his part of contract was duly stated in para 5 of the plaint for which there was no specific denial and the trial Court should have drawn inference that the plaintiff is ready to perform the part of his contract. 7. On 15.7.1987 an argument was raised that non-framing of necessary issue whether in the facts and circumstances of the.case as placed in the pleadings the plaintiff was ready and willing to perform his part of contract has caused prejudice to the plaintiff, accordingly directions were given to frame the following issue "Whether the plaintiff was ready and willing to perform his part of contract which is alleged to have entered into between the parties." 8. The trial Court was directed to record evidence of both the parties. An objection was taken to behalf of the defendant that such plea was not raised in the memo of appeal and before the Court below and even after the remand by the High Court no such issue was framed. 9. After the remand order dated 15.7.1987 the plaintiff has examined himself and statement of Mohd. Ishaq PW 7 and Abdul Mazeed PW 8 were recorded. On behalf of defendant his statement and statement of DW 6 Ramzani were recorded. It was found that from the evidence of plaintiff and PW 7 Mohd. Ishaq and PW 8 Abdul Mazeed, the plaintiff had gone to the shop of the defendant on 3.5.1968 and had demanded the amount of Rs. 1,500/-. The defendant refused to make the payment and when the plaintiff asked the defendant to make the registration of the sale-deed of the shop, then the defendant proposed to do so after returning back from Bara and Mangral. 10. 1,500/-. The defendant refused to make the payment and when the plaintiff asked the defendant to make the registration of the sale-deed of the shop, then the defendant proposed to do so after returning back from Bara and Mangral. 10. 'Abdul Mazeed PW 8 stated that the plaintiff had come to the shop of defendant and said-that the period of seven months is over and hence you return my money and take your papers back. On showing the inability by the defendant the plaintiff said that you take the money and purchase the stamp and had shown Rs. 1,500/-. This witness even does not remember the name of his grand father (which is impossible) when it was pointed out that he is related to plaintiff. After taking into consideration the evidence which has come on record, the issue for ready and willing to perform his part of contract was decided in favour of plaintiff on 22.9.1987. 11. Learned Single Judge found that the register maintained by Mohd. Yakub (independent witness), petition writer is not a bound register, but there are several other entries which support the genuineness of the entry No. 189. Abdul Shakur, another independent witness also proved that Rs. 1,500/- were borrowed from the plaintiff and pro-note was executed. In the presence of eye-witness the statement of expert witness was not relied. The evidence of defendant and his witness Kifatullah and Hamiduddin was disbelieved. The execution of agreement was also considered to have been proved. On the question of ready and willingness to perform his part of contract by the plaintiff the preponderance of probability was found in favour of the plaintiff. The execution of the agreement was held proved and even the contention of valuation was not accepted. The suit of the plaintiff was decreed for specific performance. 12. The contention on behalf of the learned counsel for the appellant is that the learned Single Judge has erred in framing an additional issue and allowing the plaintiff to lead additional evidence for the 1 tuna originally left by him. The finding that the plaintiff was ready and willing to perform his part of contract was not justified and it was for the plaintiff to prove that he was ready and willing to perform his part of contract in accordance with the provisions of Section 16(1)(c) of the Specific Relief Act, 1963. The finding that the plaintiff was ready and willing to perform his part of contract was not justified and it was for the plaintiff to prove that he was ready and willing to perform his part of contract in accordance with the provisions of Section 16(1)(c) of the Specific Relief Act, 1963. Not placing reliance on the evidence of hand-writing expert was not justified and that the plaintiff has not deducted the amount of rent from the alleged loan of Rs. 1,500/- and was regularly paying the monthly rent which is highly improbable and the valuation of the suit property was Rs. 26,200/- as is given by way of testimony of Khalilurrahman. No reliance could have been placed on the statement of Mohd. Ishaq as he has worked on the shop for 20-23 years earlier. The evidence has not properly been appreciated and the decree passed is contrary to the evidence on record. 13. It is stated that the discretion for grant of decree for specific relief should be exercised on sound and reasonable grounds guided by judicial principles and capable of correction by a Court of appeal. 14. The first contention which has been raised before us is that the learned Single Judge is not justified in giving direction for framing of issue and taking evidence in respect thereof at such a late stage. Under Section 16(c) of Specific Relief Act, it was for the plaintiff to aver and prove that he has performed or has always been ready or willing to perform essential terms of contract which are to be performed by him. In this regard the provisions of 0.41 R. 25 CPC are relevant where it is provided that where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the `merits' the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required. According to this provision, the omission to frame an issue which is considered by the appellate Court essential to the right decision of the suit upon merit, direction for framing such an issue can be given. According to this provision, the omission to frame an issue which is considered by the appellate Court essential to the right decision of the suit upon merit, direction for framing such an issue can be given. This is a discretionary power which was been given and has to be exercised when the appellate Court is satisfied that framing of such an issue is essential to the right decision of the suit upon merit. There may not be any specific prayer in appeal and still this power could be exercised by the appellate Court. Besides this the order dated 15.7.1987 was not further challenged. 15. In view of this provision, we feel that the first appellate Court has the jurisdiction for giving direction to frame the issue. The contention to this effect has no force. 16. In respect of issue No. I & 2 findings have been recorded in favour of the plaintiff and it was found that the pro-note for Rs. 1,500/- was executed on 6.8.1965 and the agreement for sale of the suit property was also executed by the defendant on 3.10.1967. 17. The learned Single Judge found that expert evidence of B.B. Kashyap with regard to hand-writing is not to be relied in view of the statement of eye-witness. It is no doubt true that the evidence of expert is the opinion and is not the conclusive evidence binding on the Court to come to the conclusion as to whether the document alleged to be executed is having signature of the person alleged. The defendant filed the cross objection u/0. 41 R. 22 in this Court in the appeal and while disposing of the appeal, the objections were not considered and disposed earlier. 18. The reasons which have been given by the trial Court and the expert evidence in this regard are to be considered in the light of the facts of the present case. The trial Court has not relied the evidence of DW 4 B.B. Kashyap, hand-writing expert on the ground that all the signatures are not by one pen or ink. The expert report was not relied by the trial Court because curves in Ex. A-3, 4, 5 & 6 of `Noon' and 'alif' is different and stroke in the word `alif' in admitted signature was increased subsequently while in the report this fact was not stated and only one stroke has been shown. The expert report was not relied by the trial Court because curves in Ex. A-3, 4, 5 & 6 of `Noon' and 'alif' is different and stroke in the word `alif' in admitted signature was increased subsequently while in the report this fact was not stated and only one stroke has been shown. The size of 'alif' was found different in all admitted signatures. Filter was not used in preparing photograph. Dot of Ex. A-7 & 8 was not mentioned by another person in the report and that some difference arises if the signatures are on ticket. It was also found that admitted signatures are of Hafiz Nanna and disputed signatures are of Nanna only and even proper comparison of word 'Nanna' could not he made. Learned counsel for the appellant submitted that the characteristic feature of genuine signatures are missing. The mode of writing is not unconscious automatic and of independent mental monition and muscular corduation. The signatures are disguised superficially and undue care has been taken to details, hesitation, unnecessary repairs arc found on Ex. 1, 2 & 3. They have been written in constrained unnatural manner. Relative sizing of letters, curves of 'Noon', descending and ascending formation of letter 'Alif' and the spacing, pen presentation, alignment, pictorial effect, arrangement of letters, dotting of 'Noon' are irregular and different than genuine signatures. It was also found that the disputed signatures are on ticket which bring some difference which fact was not stated in report and comparison have been made of the word 'Hafiz Nanna' with the word 'Nanna' and the word 'Hafiz' was not taken into consideration and there was no sufficient material for comparison. 19. The observations that since the same pen was not used nor the paper was similar, it cannot be considered that the trial Court has taken the proper approach. Different ink may bring superficial difference. There are difference of location, position, size and formation of dots of 'Noon' and dots are not available on D-2 and D-4 while they were found on admitted signatures. Unnatural typing of pen lifting after first Noon was found in D- I to D-7. Even there was a difference in the first 'Noon' portion in all the disputed signatures and the size of first 'Noon' and second 'Noon' is merely different. But while on the admitted signatures it is I x 2 or 1 x 3. Unnatural typing of pen lifting after first Noon was found in D- I to D-7. Even there was a difference in the first 'Noon' portion in all the disputed signatures and the size of first 'Noon' and second 'Noon' is merely different. But while on the admitted signatures it is I x 2 or 1 x 3. The pressure was found heavy on the disputed signatures, but pen position was also found different alignments of letter 'Noon' was also found different. The movement used in disputed signature is finger action while in the admitted signature it was wrist action. Start shows fundamental difference. Writing quality also shows difference in admitted signatures of unnatural pen lifting were found in the middle portion of all the disputed signatures. Simply because the dot pen has been used, it cannot negative the opinion of expert with all the definite findings which he has given in the report. Even on hare perusal of the word 'Nanna' it would be evident that the slant of 'Alif' is more towards outside than natural signatures. The notice dated 18.5.1968 was recorded by the plaintiff and the signatures were only of 'Nanna' (Ex. A-1). This signature of the pro-note and the agreement have rightly been found different by the hand writing expert. 20. The plaintiff in his statement after remand has made the improvement that the draft of sale-deed was prepared which fact itself is at variance from the pleadings and his earlier statements. PW 6 Ismail is the brother-in-law of the plaintiff and PW 5 is labour in the factory of PW 6. The statement of expert eye-witnesses were not relied on account of statement of eye-witnesses. The plaintiff has not produced the copy of draft sale-deed which he has stated in his statement. Shafiullah from which the draft of sale-deed is alleged to be prepared was not produced and these facts were not mentioned in the plaint nor moved an application for recovery of the document from the defendant. Ex-3 agreement was executed in presence of Shafiullah and Mohd. Ismail. Shafiullah has not been produced and Mohd. Ismail is the brother-in-law of the plaintiff. 21. Ex. 5 is the register in which the entry of executing the pro-note for Rs. 1,500/- have been made. This register is in a very shabby form. PW 3 Mohd. Ex-3 agreement was executed in presence of Shafiullah and Mohd. Ismail. Shafiullah has not been produced and Mohd. Ismail is the brother-in-law of the plaintiff. 21. Ex. 5 is the register in which the entry of executing the pro-note for Rs. 1,500/- have been made. This register is in a very shabby form. PW 3 Mohd. Yakub admitted in cross-examination that the register did not carry any page number, it was not a bound one and commence with Sr. No. 181. The other pages of the register were lost. The trial Court in the order dated 16.2.1974 found the register in Shabby and suspicious but relied on the ground that there are the signature of defendant. Earlier pages of the register have not been produced on the ground that they have been eaten by the white ants. The witness was given opportunity to show the impression of white ants by the trial Court. but no such impression was shown and exhibit which is lying in the file do not show that any of the pages were eaten by white ants. Had it been the fact, part of the impression would have come on.the pages where entry No. 189 is made. It may also he noted that below entry No. 189 there is entry No. 184 which has been struck off and made an entry No. 190. The register was not maintained in the regular course. It was only the statement of DW 2 Kifatuallh on the basis of which this register was relied. Mere perusal of the certificate can give an impression that the signatures are of the persons whose names are not written. DW 2 was not the hand-writing expert. The defendant has denied the signature. Shafiullah Khan PW 2 shows that the register has been eaten by white ants. It was submitted from 64. There is no entry after 23.3.1968 and number of pages are lying blank. He admitted that no symptoms were found of damaging the signature by white ants. The register is not maintained in the normal course of business and, therefore, cannot be relied upon. 22. The other factors which are relevant and have not properly been considered are the plaintiff Abdul Saleem is not money-lender and that no notice was given by him for repayment before the execution of the alleged agreement for sale or even thereafter. The register is not maintained in the normal course of business and, therefore, cannot be relied upon. 22. The other factors which are relevant and have not properly been considered are the plaintiff Abdul Saleem is not money-lender and that no notice was given by him for repayment before the execution of the alleged agreement for sale or even thereafter. The money if was given, it is not understandable that the plaintiff was making the payment of rent regularly and that too was sent by Money Order. The trial Court casted a doubt on the conduct of the plaintiff in not demanding money for two years, but that was considered on account of relations with the tenants and on account of non-applicability of principles of criminal jurisprudence in civil matters this fact was ignored. The conduct of the plaintiff was unnatural and when the rent was remitted by the Money Order and was paid regularly to the defendant without deducting the same from the money advance, it cannot be considered on account of relations. It has also not come on record that when he went to the defendant on 3.10.1967 for recovery of the amount he immediately agreed on that very day for execution of the agreement for sale and why the period of seven months was given. The notice was sent by the defendant on 18.5.1968 and the period of seven months from 3.10.1967 expires on 2.5.1968. The period of seven months in the agreement as a link of the notice shows that the document prepared after receipt of the notice dated 18.5.1968 for terminating of tenancy. 23. Now coming to the question of witness of the plaintiff it maybe observed that the plaintiff Abdul Saleem is not the money lender. PW 4 Abdul Shakur is friend of Ismail. PW 5 Mohd. Yakub is employed in the factory while Ismail is Manager and PW 6 Ismail is the brother-in-law of the plaintiff. 24. PW 3 Yakub Khan and PW 4 Abdul Shakur were considered independent witnesses. PW 3 Yakub Khan who is witness of Ex. I and 2 stated that the money was given in his presence while Abdul Shakur PW 4 stated that money was given to Yakub Khan. It was given through Yakub Khan and was handed over to Yakub Khan. PW 3 Yakub Khan and PW 4 Abdul Shakur were considered independent witnesses. PW 3 Yakub Khan who is witness of Ex. I and 2 stated that the money was given in his presence while Abdul Shakur PW 4 stated that money was given to Yakub Khan. It was given through Yakub Khan and was handed over to Yakub Khan. The other witness also said that the money was given through Yakub Khan and have not stated that it was given by the plaintiff to the defendant. There is a material contradiction in this regard. PW 4 Abdul Shakur states that he reached at the time when the plaintiff was giving money to the defendant while PW 3 Mohd. Yakub states that the plaintiff, defendant and the witnesses came together and that pro-note was executed before giving money. He cannot be considered even the witness for writing Ex. 1 & 2. He stated that money was given to the petition writer who has handed over to Nanna. PW 6 Ismail said that he goes to the factory at 11.00/11.30 a.m. while in the cross-examination he states that his duty starts from 5.00 p.m. and comes to an end at 7.00 p.m. It was not the holiday and that he was making the bidi which apparently is incorrect because he was the Manager. He does not know which is pro-note and which is receipt. 25. PW 2 Shafiullah has stated that the register is checked by the Inspector, but in 1967 there was no checking and that he was usually writing the papers of Nanna. From the register he could not show any such paper entered in his register. He is witness for execution of the agreement for sale dated 3.10.1967. The register which was produce dentary was made at Sr.No. 176 Ex-4. It was stated that he does not know the name of the defendant and the register is not having page numbers and have been eaten by white ants. He was asked to show from the register produced any symptoms. The register started from 1964 and last entry was made on 23.3.1968. 100's of pages were found blank, but no entry was made after 23.3.1968. The register was opened by this witness and it was found that there was no impression of eating of the register by white ants. He was asked to show from the register produced any symptoms. The register started from 1964 and last entry was made on 23.3.1968. 100's of pages were found blank, but no entry was made after 23.3.1968. The register was opened by this witness and it was found that there was no impression of eating of the register by white ants. The register cannot be said to have been maintained in the regular course of business as neither it was having the signature of the Inspector and the evidence of this witness cannot be relied and he has stated that he used to get the papers/documents prepared for Nanna but could not show from the register. 26. PW 3 Mohd. Yakub is witness for the register Ex.-5. This register is in very shabby form. 27. The evidence of various witnesses of the plaintiff shows material contradiction and it is not the minor contradiction. This is besides the fact that the most of the witnesses are related to the plaintiff and are not independent witnesses. The independent witness Mohd. Yakub PW 3 is a petition writer has not been able to establish that the register Ex. 5 was maintained in the regular course of business. It was neither in the form of bound register and the pages earlier to entry No. 189 were not produced. The entry in Ex. 5 cannot be said to be corroborative piece of evidence in respect of pro-note or the receipt only on the basis of statement of DW 2 Kifatullah. Since, the register itself is found in a very shabby form, the evidence of this witness cannot be relied upon. 28. In respect of execution of agreement Ex. 3 the evidence was of Mohd.'Yakuh PW 5 and Ismail PW 6 Mohd. Yakub is the employee in the factory where Ismail is Manager and PW 6 Ismail is the brother in law of the plaintiff. The petition writer PW 2 Shafiullah has not produced the draft of the agreement which is alleged to have been read over to the defendant and that where it was got typed. He could not show the entry in the register of any earlier agreement written for Nanna. The register was not a bound book and was not having any signature of the inspector. 29. Regarding issue framed in accordance with the direction of this Court on 15.7.1987 Mohd. He could not show the entry in the register of any earlier agreement written for Nanna. The register was not a bound book and was not having any signature of the inspector. 29. Regarding issue framed in accordance with the direction of this Court on 15.7.1987 Mohd. Ishaq PW 7 has stated that he has worked in the shop of the defendant 22-23 years ago which falls in the year 1964-65 and at that time there was no occasion for the plaintiff to offer money to the defendant. He is related to the plaintiff and as such this witness cannot be relied upon. Abdul Mazeed PW 8, does not know the name of his grand father when a question was asked to him that he is cousin brother of the plaintiff. He is otherwise a chance witness. This shows that he was related to the plaintiff and has given a false evidence. 30. Learned Single Judge also found that the defendant has not come with the case that the plaintiff had not brought any sale-deed executed on stamps. This finding is also not supported by any evidence on record. Even the draft agreement was not brought on record. 31. The finding which has been relied on all the issues have not correctly been arrived at and suffers from apparent mistake. 32. Though on merit it is found that various issues which have been decided in favour of the plaintiff are not in accordance with law, yet the question of exercise of discretion for specific performance is examined independent to that. 33. The discretion for specific performance decree under section 20 of the Specific Relied Act is discretionary and the Court is not bound to grant such relief merely it is lawful to do so. The circumstances which have been given under sub-sec. (2) of Section 20 are only illustrative where such a relief can be given, but for granting the relief under section 20(3) if the plaintiff has done substantial act or suffered loss in consequence of the contract discretion for specific performance of contract can be exercised. The plaintiff has done nothing nor has suffered any loss. The amount is alleged to have been given by the plaintiff to the defendant interest free. The various conditions as to how the discretion is to be exercised under section 20 has not been considered by the learned Single Judge. The plaintiff has done nothing nor has suffered any loss. The amount is alleged to have been given by the plaintiff to the defendant interest free. The various conditions as to how the discretion is to be exercised under section 20 has not been considered by the learned Single Judge. The discretion has to be exercised on sound and reasonable principles. 34. The Apex Court in the case of Lourdu Chinnaya Arogiaswamy & Ors. v. Louis Chinnaya Arogiaswamy & Ors.. JT 1996 (7) SC 499 observed that 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. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief. 35. In the case of S. Rangaraju Naidu v. S. Thiruvarakkarasu, AIR 1995 SC 1769 a promissory note was executed of the decreetal amount and an agreement for sale was also executed on that very day for discharge of promissory note debt. It was observed by the Apex Court that the agreement to sale the property was entered into because the appellant was not in a position to pay the amount due under promissory note. The predominant object was for recovery of dues with interest. He who demands equity must do equity. The Court has discretion. Court is not bound to grant specific performance. The decree for refund of money with interest was granted. 36. In Parakunnan Veetill Joseph's Son Methew v. Nedumbara Kuruvila's Son & Ors., AIR 1987 SC 2328 it was observed that Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court,should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. 37. Madras High Court in the case of Manickathmmal & Ors. v. Nallasami Pillai & Ors., AIR 1977 Mad. The motive behind the litigation should also enter into the judicial verdict. The Court,should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. 37. Madras High Court in the case of Manickathmmal & Ors. v. Nallasami Pillai & Ors., AIR 1977 Mad. 83 has also taken the view that the relief of specific performance either under the common law or under the Specific Relief Act is always is discretionary relief. 38. In Mst. Suraj Bai v. Nawab Mohd. Muklarram Ali Khan, 1969 ILR (Raj.) 508 it was observed by this Court `all that the defendant was required to do under the terms of agreement was to present the sale-deed for registration and accept the balance of sale price and deliver possession of the property to the vendee. But this part of contract by the defendant could be performed only if the plaintiff had prepared a draft of the sale-deed, got it written on a stamp-paper and handed it over to the defendant for signature and presentation to the Registration Department and had also made arrangements for payment of the balance of the sale price.' 39. Even if the obligation to purchase the stamp paper was on defendant at least the plaintiff should have prepared the draft or could have given notice. 40. In the light of the decision given by the Apex Court if the fact of present case are examined, it is evident that initially the amount is alleged to be given interest free loan and subsequent execution of alleged agreement is also to enforce recovery and not sale of property. The domain object was to recover the loan which was given and not to enter into agreement for sale of property. It was the option of the defendant after 7 months to return the money. It could be at the most a matter of alternate contract. 41. In view of the observations of the Apex Court in S. Rangaraju Naidu we feel that it was not the proper case where the discretion should have been exercised for decreeing the suit for specific performance. 42. A plea was also raised by the defendant that the value of the shop was much more i.e. Rs. 26,200/- as per the statement of Khalilurrahman. 42. A plea was also raised by the defendant that the value of the shop was much more i.e. Rs. 26,200/- as per the statement of Khalilurrahman. This contention was not relied by the learned Single Judge on the ground that he is only a draftsman and the report was prepared on the basis of rates of public works department. In the order of remand dated 29.1.1985 permission was given to examine Deenanath Overseer or Engineer. It appears that draftman Overseer was produced, Engineer was not produced for proving the valuation. The direction given by this Court were substantially complied but we do not wish to go to that controversy about the valuation of the property in view of our decision on the above point. 43. The appeal is accordingly allowed and the decree and judgment of the trial Court and first appellate Court is set-aside.Appeal allowed. *******