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2002 DIGILAW 32 (KAR)

SHIDDAPPA ADIVEPPA JADI v. RAMANNA

2002-01-15

V.GOPALA GOWDA

body2002
V. GOPALA GOWDA, J. ( 1 ) THIS is defendant's Regular Second Appeal, question the correctness of the Judgment and decree passed by the first appellate Court in RA 30/85 dated 27-2-1989 in affirming the Judgment of the J. Addl. Judge, Gadag in OS 55/83 dated 23-3-1985 urging various legal contentions and raising the substantial question of law in the memorandum of Appeal. ( 2 ) THIS Court on 2-1-1990 at the time of admission of this appeal framed the following substantial questions of law for its consideration and answer the same :"1. Whether the Courts below were justified in decreeing the suit of the plaintiff and directing the defendant to execute the sale deed after receiving Rs. 3,200/- in the absence of a clear finding to the effect that a sum of Rs. 4,800/- had been paid by the plaintiff to the defendant? 2. Whether in the light of the findings recorded by the Court below, the decree for specific performance of the contract could be passed in favour of the plaintiff"? ( 3 ) AT an earlier point of time, this Appeal was allowed by this Court vide its Judgment and Decree dated 19-9-1997. The said Judgment and Decree was challenged by the plaintiff in Civil Appeal No. 2060/2000 before the Apex Court. The Apex Court by its order dated 10-3-2000 set aside the Judgment and Decree of this Court and remanded the matter to this Court for fresh disposal of the same expeditiously holding that this Court without taking into consideration the limits of its jurisdiction in second appeal has gone into the question of validity of the Judgment impugned therein. ( 4 ) THE rank of the parties is referred to in this judgment as has been referred to in the plaint copy presented before the trial court for the sake of convenience. ( 5 ) DURING the course of the arguments submitted by the learned counsel for the defendant on the substantial questions of law framed in this appeal, two more substantial questions of law are raised by him by filing a memo on 19-1-2001 after serving the same upon the learned counsel for the plaintiff, which reads thus :1. Whether the Courts below erred in law granting the decree of Specific performance merely on the ground that the agreement of sale is proved. 2. Whether the Courts below erred in law granting the decree of Specific performance merely on the ground that the agreement of sale is proved. 2. Whether on the facts and circumstances on record the plaintiff is entitled for the relief of specific performance under S. 20 (2) of the Specific Relief Act 1963. ( 6 ) THE learned counsel for the parties are heard at length on the substantial questions of law. I have perused the impugned judgments and the record of the trial court to answer the substantial questions of law framed in this appeal. ( 7 ) THE brief facts of this case for consideration and to answer the substantial questions of law framed by this Court are stated as hereunder : ( 8 ) THE Original Suit was filed by the plaintiff before, the I Addl. Munsiff and JMFC, Gadag in OS 55/83 for grant of Judgment and Decree of specific performance to execute the sale deed in his favour in respect of the suit schedule property placing reliance upon the suit document Ex. P1 the agreement of sale. The case of the plaintiff is that, the defendant has agreed to sell the suit property by executing the agreement of sale for consideration of Rs. 8,000/- and he has accepted part consideration amount of Rs. 4,800/- on 26-5-1980 for his family necessity to repay all his hand loans and further agreed to receive the balance consideration amount at the time of execution and Registration of the sale deed in respect of the suit schedule property in favour of the plaintiff. It is the case of the plaintiff that the defendant has failed to perform his part of contract in terms of agreement of sale despite the fact that he has been ready and willing to perform his part of contract of the agreement of sale. Therefore he was constrained to file the Original Suit against the defendant after issuing lawyers notice on 7-3-1983 demanding the defendant to perform his part of contract which was not performed by him as agreed by him. ( 9 ) THE defendant filed a detailed written statement traversing the plaint averments inter alia contended that he has not executed the agreement of sale in favour of the plaintiff agreeing to sell the suit schedule property. He has pleaded that plaintiff and defendant are good friends since long time. ( 9 ) THE defendant filed a detailed written statement traversing the plaint averments inter alia contended that he has not executed the agreement of sale in favour of the plaintiff agreeing to sell the suit schedule property. He has pleaded that plaintiff and defendant are good friends since long time. The plaintiff was running a Tea Shop where the defendant is residing and he was taking his meals in the said shop from 1979 for about 2 years. He was keeping his money with him he had asked the defendant to execute the sale deed as he was to pay Rs. 700 to 800. The defendant has stated that he being an illiterate person he only knows to sign, exploiting his innocence, the agreement of sale as per P1 got executed by the plaintiff from him and he has not refused to receive the legal notice further pleaded that he has received the notice and further stated that frivolous suit was filed by the plaintiff against him and further stated that plaintiff has to pay Rs. 3000/- towards rent in respect of the schedule premises and there is no cause of action for institution of the original suit against him. The defendant was earning Rs. 600 to 700 per month and therefore, he had no need of money as pleaded by the plaintiff and he also owns 9 acres of land and gets Rs. 3000/- annual income from the same. It is stated that the market value of the suit schedule property as on the date of the alleged execution of the agreement of sale was Rs. 50,000/- and he had never wanted to sell the suit schedule property for a sum of Rs. 8,000/- to the plaintiff and further stated that plaintiff is not entitled for Judgment and Decree as prayed both on facts and in law and therefore he has prayed for dismissal of the original suit. ( 10 ) ON the basis of pleadings, the Trial Court framed seven issues for its consideration and determination of the rights of the parties. In support of the claim and counter claim of the parties, they have examined their witness and produced the documentary evidence. The plaintiff examined PW1 to PW4 including himself and marked Ex. P1-P4 on behalf of the defendant himself and another witness as DW1 and DW2 were examined and marked Ex. D1 to D5 respectively. In support of the claim and counter claim of the parties, they have examined their witness and produced the documentary evidence. The plaintiff examined PW1 to PW4 including himself and marked Ex. P1-P4 on behalf of the defendant himself and another witness as DW1 and DW2 were examined and marked Ex. D1 to D5 respectively. The Trial Court has answered the Issue Nos. 1, 2 and 5 in the affirmative in favour of plaintiff and Issue Nos. 3 and 4 were held against the defendant. Accordingly, Issue No. 6 has been answered in favour of plaintiff by the trial Court and granted the Judgment and Decree in his favour by recording its findings on appreciation of material evidence on record by assigning its reasons. ( 11 ) AGGRIEVED of the said Judgment and Decree, the defendant filed Regular Appeal, before the Civil Judge, Gadag in RA 30/85 urging various legal contentions. The first appellate Court on the basis of rival contentions, formulated three points for its consideration. First and third point have been answered in the negative and second point is answered in the affirmative holding that no interference is required by the first Appellate Court in the impugned Judgment and Decree passed by the Trial Court and concurred with the Judgment passed by the Trial Court by recording its reasons on reappreciation of facts and evidence on record. ( 12 ) THE correctness of the said Judgment and Decree passed by the first appellate Court is questioned in this second appeal by framing substantial questions of law as extracted above in this judgment. Having regard to the concurrent findings recorded by the Courts below on Issues Nos. 1 and 3 and Point No. 1 (i) and (ii) which are based on facts and on proper appreciation of evidence on record and therefore it is contended by the learned counsel for the plaintiff that the learned counsel for defendant has not shown to this Court that the findings recorded by the Courts below in the impugned judgments are either erroneous in law or suffer from error in law which warrant interference with the same by this Court to exercise this Court's jurisdiction and power under S. 100 CPC. ( 13 ) BOTH the Trial Court as well as the first appellate Court with regard to execution of agreement of sale at Ex. ( 13 ) BOTH the Trial Court as well as the first appellate Court with regard to execution of agreement of sale at Ex. P1 dated 26-5-1980 have held that the defendant has executed an agreement of sale in favour of plaintiff to sell the property in his favour after appreciation of evidence on record by assigning valid reasons by them. The learned counsel appearing on behalf of defendant in support of substantial question No. 1 contended that the findings recorded by the Courts below in the impugned Judgment are erroneous in law and the same are not supported with valid and cogent reasons. The learned Sr. Counsel Mr. Padmanabha Mahale appearing on behalf of plaintiff sought to justify the impugned Judgment contending that the Courts below on proper appreciation of facts and evidence on record have correctly recorded a finding of fact regarding the execution of agreement of sale in favour of the plaintiff by the defendant in respect of the suit schedule property agreeing to sell the same in his favour. ( 14 ) TO find out the correctness of the said submissions made on behalf of the parties, I have carefully examined the finding recorded by the Courts below in the impugned judgments. The Trial Court while answering the Issue Nos. 1 and 3 have considered the evidence of PW. 2 the scribe and PWs 3 and 4 the attesting witnesses to Ex. P1 and also the evidence of the defendant and recorded a finding of fact at paragraph-16 of its judgment holding that Ex. P1 is executed by the defendant in favour of the plaintiff by assigning its reasons. After appreciation of evidence on record, the Trial Court has not accepted the evidence of defendant though he has denied execution of Ex. P1 however, the trial Court has recorded a finding of fact stating that he has not disputed the signatures found at Ex. P1. ( 15 ) THE correctness of the said findings are challenged in the Regular Appeal filed by the defendant. The first appellate Court in answer to the Points 1 (i) and (ii) framed by it has concurred with the findings of the Trial Judge by recording its reasons at paragraph-3 of the impugned judgment stating that, defendant has not denied his signature on the agreement of sale vide Ex. The first appellate Court in answer to the Points 1 (i) and (ii) framed by it has concurred with the findings of the Trial Judge by recording its reasons at paragraph-3 of the impugned judgment stating that, defendant has not denied his signature on the agreement of sale vide Ex. P1 and further he had not denied that he purchased the stamp paper for execution of Ex. P1 and further finding of fact is recorded that PW. 2 the scribe was examined by the plaintiff to show that the defendant has executed the agreement of sale as per Ex. P1 agreeing to sell the suit schedule property to him. Further finding is recorded by the Appellate Court stating that plaintiff has examined PW3 and PW4 as attesting witnesses to the said document that the defendant has executed the same in favour of the plaintiff. Further with reference to the defence and evidence adduced on record by the defendant contending that his signatures were taken on blank paper for the purpose of repayment of amount of Rs. 700/- to Rs. 800/- alleged to have been due towards the meals he had taken in the Hotel. With reference to the said defence, the first appellate Court at paragraph-9 of the impugned judgment has recorded a finding of fact holding that writings on each page of Ex. P1 do not find any unusual writing so as to come to the conclusion that after obtaining the signature of defendants on blank stamp paper Ex. P1 was written. ( 16 ) FURTHER the learned trial Judge has recorded a finding of fact holding that plaintiff has sent a registered notice to the defendant calling upon him to execute the sale deed in respect of the suit schedule property which was returned unserved. Further the case of the plaintiff that he had sent a copy of the said notice under certificate of posting to the defendant. With reference to the notice referred to above the learned Judge has recorded a finding of fact stating that the defendant has not sent any reply notice by disputing the execution of Ex. P-1 at the earliest point of time. With reference to the notice referred to above the learned Judge has recorded a finding of fact stating that the defendant has not sent any reply notice by disputing the execution of Ex. P-1 at the earliest point of time. ( 17 ) FURTHER the learned appellate Judge has held that the findings recorded by the trial Judge is based on legal evidence on record and he has concurred with the same, stating that he has no reason to believe that the findings recorded in the Judgment of the trial Court are either erroneous or error in law. ( 18 ) IN view of concurrent findings recorded by the Courts below in respect of agreement of sale at Ex. P-1 executed by defendant in favour of plaintiff for sale of suit schedule property, this Court cannot interfere with the same for the reason that the learned counsel for the defendant has neither shown to this Court that the findings recorded by the Courts below in the impugned judgment are erroneous in law with regard to the contentious issue regarding the execution of agreement of sale at Ex. P-1 in favour of the plaintiff in respect of the suit schedule property. Therefore, the substantial question of law No. 1 framed by this Court is required to be answered against the defendant. Accordingly, the same is answered. Answer to substantial question of law No. 2 and additional substantial question of law Nos. 1 and 2 : ( 19 ) THE Courts below have not properly exercised their jurisdiction and power in this case as required under the provision of Sec. 20, sub-sec. (2) Clause (a) and (b) of the Specific Relief Act, 1963 (in short 'the Act') while passing the judgments and decrees and they have not referred to and considered the law laid down by the Supreme Court in the case reported in (2001) 5 Supreme 730 : (2001 AIR Kant HCR 2886) at paragraphs 7, 8 and 9 with reference to the above said provisions of the Act. The trial Court while answering the Issue No. 5 has not answered the said issue as to whether the plaintiff is entitled for the relief of specific performance of contract in respect of the suit schedule property or not, but on the other hand, it has held while answering the other issues stating that the plaintiff is entitled for the decree for specific performance of contract of sale of the suit schedule property. The said finding recorded in the impugned judgment of the trial Court was questioned in the Regular Appeal filed by the defendant on various grounds. It is the greviance of the defendant that the legal contention urged before the first Appellate Court has not been considered and answered by it while answering the Point No. I (i) and (ii) framed by it for its consideration eventhough the defendant has stated that he is having only one house in which he has been staying. In that view of the matter, the grant of impugned judgment and decree for specific performance of contract of sale of the property in favour of the plaintiff after concurring with the findings of the judgment of the trial Court, greater hardship would be caused to him is the relevant aspect of the matter which fell for its consideration while exercising its power under Sec. 20, sub-sec. (2) of Clauses (a) and (b) of the Act. The first appellate Court and the trial Court while answering the said point have made an observation in the impugned judgment holding that defendant is not entitled for any claim under Sec. 20 (2), Clauses (a) and (b) of the Act without appreciating either the facts and evidence on record and assigned valid and cogent reasons in support of their findings, they have neither referred to and considered the law on this question. Therefore, this Court has to hold that the Courts below have not properly considered and exercised their power under Sec. 20 (2), Clauses (a) and (b) of the Act while granting the judgment and decree in favour of the plaintiff. Therefore, this Court has to hold that the Courts below have not properly considered and exercised their power under Sec. 20 (2), Clauses (a) and (b) of the Act while granting the judgment and decree in favour of the plaintiff. ( 20 ) THE Courts below were required to consider the law laid down by the Apex Court in the judgment reported in (2001) 5 Supreme 730 : (2001 AIR Kant HCR 2886) in the case of Arulappan v. Smt. Ahalya Naik wherein the Supreme Court has extensively referred to its earlier judgments reported in AIR 1987 SC 1641 , AIR 1987 SC 2328 and AIR 1996 SC 2814 and interpreted the provisions of Sec. 20 (2), Clauses (a) and (b) of the Act and law has been succintly laid down at paragraphs 7, 8 and 9 of the judgment referred to supra. The said paragraphs are extracted hereunder for proper appreciation of the case of the parties and to answer the substantial and additional substantial question of law referred to above. 7. The jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. Certain circumstances have been mentioned in Section 20 (2) of the Specific Relief Act, 1963 as to under the circumstances the Court shall exercise such discretion. If under the terms of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the plaintiff. So also, specific relief may not be granted if the defendant would be put to undue hardship which he did not foresee at the time of agreement. If it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the plaintiff. 8. In. Anjaneyulu v. Damacherla Venkata Seshaiah, ( AIR 1987 SC 1641 ) the High Court declined to grant a decree for specific performance in favour of the plaintiff, even though the defendant was guilty of breach of agreement. That was a case where the defendant had constructed costly structures and if a decree for specific performance was granted, the defendant would have been put to special hardship. This Court directed the defendant to pay compensation to the plaintiff. That was a case where the defendant had constructed costly structures and if a decree for specific performance was granted, the defendant would have been put to special hardship. This Court directed the defendant to pay compensation to the plaintiff. 9. In Parakunnan Veetill Joseph's son Mathew v. Nedumbara Kuruvilla's Son, ( AIR 1987 SC 2328 ) this Court cautioned and observed as under : (Para 14)"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 in 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. " ( 21 ) IN view of the law laid down by the Apex Court in the said case, the Courts below should have meticulously examined, considered and answered the contentious issue with reference to facts and circumstances of the case and they should have recorded a finding of fact as to whether the plaintiff is entitled for a decree for specific performance or not in exercise of their discretionary power under the abovesaid provision of the Act. The non-consideration of statutory provisions of the Act referred to supra by the Courts below, they have failed to discharge their duty while exercising their power in granting the relief of specific performance of contract of sale of the suit schedule property in favour of the plaintiff by passing the impugned judgment and Decree, therefore, the impugned Judgments and Decrees are vitiated in law for the reason that, in the case of Arulappan referred to supra the Apex Court has clearly laid down the law stating that the Courts shall exercise their discretionary power under Sec. 20 (2), Clause (b) of the Act. The Courts below keeping in view the law on this question should have properly appreciated the evidence on record and considered the value of the property as pleaded by the defendant as on the date of execution of Ex. P-1, which property was valued as Rs. 50,000/ -. The Courts below keeping in view the law on this question should have properly appreciated the evidence on record and considered the value of the property as pleaded by the defendant as on the date of execution of Ex. P-1, which property was valued as Rs. 50,000/ -. Further, the Courts below should have taken into consideration regarding the nature of transaction between the parties particularly the evidence of DW-1 and DW-2. The Courts below should have further taken note of another important aspect of the matter namely that the plaintiff has not paid rent to the defendant at Rs. 100/- per month from the date of execution of Ex. P-1 dated 26-5-1980 till this date in respect of suit schedule property on the alleged ground that there is a part performance of the contract under the provision Sec. 53-A of the Transfer of Property Act pursuant to Ex. P-1 as plaintiff has been in possession of the property as a tenant and therefore he is not liable to pay rent towards the premises. The defendant filed OS 627/79 for judgment and decree for recovery of sum of Rs. 6,200/- towards the arrears of rent due from the plaintiff to the defendant in respect of suit schedule property. Further, the Courts below have erred in dismissing the suit holding that the suit filed by the defendant before the Addl. Munsiff and JMFC, Gadag vide its judgment and decree dated 15-4-1985 has answered the additional issue regarding maintainability of the suit against the defendant. This Court has to record a finding on this aspect of the case namely that the trial Court in that case has wrongly answered the additional issue by assigning erroneous reasons that Judgment and Decree passed by the trial Court in the said original suit stating that the provisions of Sec. 53-A of the Transfer of Property Act and also for the reason that in OS 55/83 filed by the plaintiff for grant of Judgment and Decree of specific performance of contract of sale is passed in his favour. The trial Court placed reliance upon the judgment of Andhra Pradesh High Court reported in AIR 1957 Andh Pra 37 it has considered and interpreted the provisions of Sec. 55 (4) of the Transfer of Property Act and wrongly held that said provisions has no application to the facts of that case. The trial Court placed reliance upon the judgment of Andhra Pradesh High Court reported in AIR 1957 Andh Pra 37 it has considered and interpreted the provisions of Sec. 55 (4) of the Transfer of Property Act and wrongly held that said provisions has no application to the facts of that case. ( 22 ) THE learned counsel for the defendant has questioned the correctness of the said judgment and the finding recorded on the above said issue placing reliance upon the judgment of Division Bench of this Court reported in 1992 (3) Kant LJ 207 : (AIR 1993 Kant 257) in the case of B. R. Mulani v. Dr. A. B. Aswathanarayana wherein this Court, after interpretation of Sec. 55 (4) of the Transfer of Property Act has laid down the law holding that it is the right of owner of the property to receive the profits of the property owned by such person as his right would continue until the title or ownership is lost. In view of the said judgment, agreement of sale does not confer any title or transfer title or interest to the plaintiff in respect of suit schedule property as the defendant had agreed to sell the property and therefore, the title of the property continues and vests with him even after the execution of the agreement of sale as per Ex. P-1 by him to the plaintiff as the same is governed by Sec. 55 (4), Clauses (a) of the Transfer of Property Act. ( 23 ) AT Paragraph-35. 1 of the Division Bench judgment of the Division Bench of this Court referred to supra, law has been succinctly laid down in this regard, relevant portion of the said paragraph is extracted hereunder for appreciation of the case of the parties : 35. 1. However, it is contended that Section 55 (4) (a) of the Transfer of Property Act is not attracted because, it is a case in which the plaintiff had paid the entire amount of consideration before filing the suit and as such equity demanded that he should be entitled to continue in possession without paying rent as otherwise the payment of consideration by the plaintiff would have gone without any benefit or interest. In this regard a decision of this Court in Malikajappa Bhimappa Bennur v. Bhimappa Kashappa Parasannavar, AIR 1966 Mys 86 was relied upon. In this regard a decision of this Court in Malikajappa Bhimappa Bennur v. Bhimappa Kashappa Parasannavar, AIR 1966 Mys 86 was relied upon. We may point out here that Sec. 55 (4) (a) of the Transfer of Property Act is clear in its terms. It specifically provides that :"in the absence of a contract to the contrary the buyer and seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold : (4) The seller is entitled- (a) to the rents and profits of the property till the ownership thereof passes to the buyer. . . . . . . . . . " ( 24 ) THE above said judgment has been affirmed by the Supreme Court reported in AIR 1993 SC 1313 , the Apex Court in the said case after interpreting Sec. 25 of the Specific Relief Act it has clearly held that specific performance of contract on the basis of an agreement of sale cannot be ordered however repayment of amount with accrued interest thereon by way of compensation can be granted in lieu of granting relief of specific performance was awarded in favour of the plaintiff in that case. ( 25 ) THE law laid down in the aforesaid judgments of this Court and the Apex Court with all fours applicable to the facts of the present case. Therefore, finding recorded by the Courts below on the contentious issues and the points referred to supra while answering the same in holding that the plaintiff is entitled for discretionary relief under Sec. 20 (2) (b) of the Act even though he is not entitled for the same, in view of undisputed fact that plaintiff did not pay arrears of rent towards the property in question to the defendant which has put him in a disadvantageous position is the relevant aspect of the case should have been examined and considered by them at the time of passing the impugned judgments and decrees. The said important aspect of the case of the defendant is not considered by the Courts below for the reasons recorded in the earlier paragraphs of this judgment which reasoning assigned in the impugned judgments by the Courts below are contrary to the provisions of Sec. 55 (4) of TP Act and law laid down in the aforesaid cases by the Apex Court and this Court and therefore the substantial and additional substantial questions referred to above are required to be answered in favour of the defendant. ( 26 ) IN this regard, the trial Court has framed the Issue No. 4 as to whether the defendant proves that plaintiff had not paid the rent at the rate of Rs. 100/- per month towards the premises in question if so, what is its effect on the suit ? The trial Court has recorded a finding of fact holding that answer to the said issue has got bearing on the Issue No. 5 and therefore the said issue is not answered for the reasons recorded by it at paragraph-21 of its judgment stating that the learned Advocate for the defendant has made submission that it is not necessary for it to consider that issue. Therefore, the trial Judge has not answered the said issue. ( 27 ) THE non-consideration and not answering the said issue by the trial Court for the reasons recorded in the impugned judgments are the relevant consideration for this court to exercise its jurisdiction in view of Sec. 20 (2) (a) and (b) of the Act and the law laid down by the Apex Court in the cases referred to in the earlier paragraph of this judgment in favour of defendant. Therefore the trial Court should not have declined to exercise its discretionary power under the abovesaid provisions of the Act at the time of passing its judgment as the plaintiff is not entitled for equitable and discretionary relief at its hands for the reasons recorded by me in the preceding paragraphs of this judgment. Therefore the trial Court should not have declined to exercise its discretionary power under the abovesaid provisions of the Act at the time of passing its judgment as the plaintiff is not entitled for equitable and discretionary relief at its hands for the reasons recorded by me in the preceding paragraphs of this judgment. The first appellate Court has also further erred in recording a finding in its judgment on the contentious issue holding that the provisions of Sec. 20 of the Specific Relief Act, 1963 need not be taken into consideration by it for the reasons recorded in its judgment at paragraph-4, which reasons are erroneous in law and therefore the same are liable to be set-aside. ( 28 ) IN my considered view, the findings and reasons recorded on the said relevant and important contentious issues by the Courts below are wholly untenable in law and therefore the same were required to be answered by them before granting the relief in favour of the plaintiff, as it was mandatory statutory duty on the part of the Courts below as held by the Supreme Court in the case reported in AIR 1987 SC 2328 wherein it has clearly held that Sec. 20 of the Act preserves judicial discretion of the Courts whether to grant decree of specific performance or not when it is the power of the Court to consider the facts and circumstances of the case meticulously, and they should examine while discharging their statutory duty as to whether the plaintiff is entitled for discretionary relief or not. Therefore the Courts are not bound to grant the relief of specific performance in every original suit. ( 29 ) THE non-payment of rent by the plaintiff in respect of the property in question and the market value of the property as on the date of execution of the agreement of sale and at the time of passing judgment and decree for specific performance and its registration of the document, in favour of the plaintiff are relevant aspect of the case in favour of the defendant for declining to grant the relief in favour of the plaintiff by exercising their power coupled with duty and they should not have passed decree in favour of the plaintiff. Further the social status of the defendant which is also one of the relevant factors should have been taken into consideration by the Courts below at the time of passing the decree and should have exercised their discretionary power under Sec. 20 (2), Clauses (a) and (b) of the Act. Keeping in view the facts, circumstances of the case and evidence on record on the above said relevant facts they should have refused to grant the relief of specific performance in favour of plaintiff, non-consideration of the abovesaid facts has vitiated the findings recorded in the impugned judgments. Therefore, the same are liable to be set-aside. ( 30 ) THE Courts below have also failed to take into consideration of another relevant aspect of the matter namely the law laid down by the Supreme Court in the case of K. Narendra v. Reviera Apartments (P.) Ltd. , reported in 1999 AIR SCW 2378 : ( AIR 1999 SC 2309 ) wherein it has held that the Courts below need not grant the relief of specific performance in favour of plaintiff in exercise of their discretionary power as the escalation of the prices and astronomical value of the property at the time of granting the judgment and decree is relevant aspect of the case should have been considered by the Courts below and they should have exercised their discretionary power in favour of the defendant at the time of passing the impugned judgments. The Courts below committed an error in law while passing the impugned judgment in not taking the abovesaid relevant aspect of the matter while exercising their power in this case, which would tantamount to depriving of a valuable statutory right in favour of defendant and therefore it is a valid reason for this Court to exercise its jurisdiction and power eventhough the findings recorded in the impugned judgments by the Courts below on this contentious issue and the points formulated by them are concurrent, the valuable statutory right accrued in favour of defendant is deprived by them in not discharging their statutory duty as contemplated under Section 20 (2) of the Act and granted the judgments and decree for specific performance in favour of the plaintiff is reason for this Court to exercise its jurisdiction and power as the Courts below have committed an error in law in favour of defendant for which he is entitled in law on the basis of evidence on record and also on the question of law laid down by the Apex Court in the cases referred to supra upon which learned counsel for the defendant has rightly placed reliance, as the law laid down in the aforesaid cases with all fours applicable to the fact situation. ( 31 ) FOR the reasons recorded above, this Court has to hold that the findings recorded on the issue regarding exercise of power under Sec. 20 (2) (a) and (b) of the Act in favour of plaintiff in this case by the Courts below is not proper. Therefore, the second substantial question of law and additional substantial questions of law framed by this Court do arise for consideration and answer the same in favour of the defendant. Accordingly, the said questions are answered in his favour. ( 32 ) FOR the reasons stated supra, the defendant must succeed. Accordingly this appeal is allowed. The impugned judgments and decrees are set aside, the original suit No. 55/83 is dismissed with costs with a direction to the defendant to return the amount received by him pursuant to the Ex. P-1 with interest at 6% from the date of execution till the date of payment after deducting the arrears of rent due from the plaintiff to the defendant in respect of the premises in question. Appeal allowed. --- *** --- .