JUDGMENT 1. This first appeal has been filed impugning the judgment dated 6th December, 1996 passed by 3rd Additional District Judge, Vidisha in Civil Suit No. 25-A/96. Vide impugned judgment the learned Judge has dismissed the suit of the appellant-plaintiff filed for specific performance of the contract. 2. The facts giving rise to the appeal, in brief, are that this civil suit has been filed by deceased appellant Laxmichand against the respondents, alleging therein that respondent No.1 being a registered public trust, conducted one public auction after seeking permission dated 1.7.1977 from respondent No.2, the Registrar, Public Trusts. Public notice was issued and 14th August 1977 was fixed for public auction. After depositing required amount of Rs.500/-, the appellant took part in the bid and his bid being highest of Rs.20,000/-, was accepted. As per rules, he deposited Rs.4,500/- on 16th August 1977. For remaining amount of Rs.15,000/- an agreement was executed between the trustees of respondent No.1 and the plaintiff and it was agreed to between both the parties that remaining amount of Rs.15,000/- was to be given by the plaintiff to respondent No.1 at the time of execution of the sale-deed. As alleged by the plaintiff, he was always ready and willing to get the sale-deed executed by respondent No.1 in compliance of the aforementioned agreement, but on account of an order dated 23.8.1977 passed by respondent No.2, the Registrar Public Trusts, sale-deed could not be executed by respondent No.1. Vide order dated 23.8.1977 respondent No.2 directed for resale, for which he was not authorized. Once the permission was given by him for sale, he was functus officio and having no jurisdiction to order resale. 3A. Initially, the suit was filed against first four respondents but thereafter in compliance of the order of the trial Court, 5th respondent' was added. Respondent No.1, while admitting the factual aspects alleged in the plaint, in additional pleadings of written statement has averred that on account of the order dated 23.8.1977, in compliance of the agreement, sale-deed could not be executed in favour of the plaintiff. It is also averred that until order dated 23.8.1977 is not set aside, it is to be complied with by the respondent No.1. In case this order is set aside., then respondent No.1 is ready to execute the sale-deed in favour of the appellant. 3b. It is also averred that until order dated 23.8.1977 is not set aside, it is to be complied with by the respondent No.1. In case this order is set aside., then respondent No.1 is ready to execute the sale-deed in favour of the appellant. 3b. Respondent No.2 has also admitted the factual status of the case, however, it is averred in the written statement that auction sale was not as per law, hence, on receiving the complaints, after enquiry, vide order dated 23.8.1977 resale was ordered. The duty of respondent No.2 is to save the property of the trust from any loss occurred directly or indirectly. Thus, the order dated 23.8.1977 is within jurisdiction and valid. 3C. Respondent No.3 to 5 have tiled their individual written statements but almost on the same ground that sale was illegal inter alia on the ground that after concluding the same on 14th August, 1977 no date was made known, that it will continue on 15th August, 1977 but it was continued/conducted on 15th August, 1977 also and on that date it was finalized in favour of the appellant by collusion. In special pleadings, it is averred that the highest bid was of Rs.30,000/- but that was not accepted while they had also deposited 1/4 amount i.e. Rs.7,500/- after finalization of the bid. 4. After trial, vide impugned judgment, the learned Judge has concluded that respondent No.1 is a public trust, it could not be proved that the auction sale was as per rules and that the highest bid was of Rs.30,000/-, the appellant was always ready and willing to execute the agreement to sell but due to order dated 23.8.1977 passed by respondent No.2, the auction could not be concluded, the order dated 23.8.1977 is valid and not without jurisdiction, the impugned bid was with collusion and the suit suffers from bar of section 80 of CPC. 5. The impugned judgment has been assailed on the various grounds, however, only the following two grounds have been pressed during the course of arguments : "1. That the order dated 23.8.1977 passed by respondent No.2 is without jurisdiction. 2. That if the requirement of giving notice to respondent No.2 under section 80 of CPC has not been objected to in written statement, the same cannot be raised at the stage of appeal." 6. That the order dated 23.8.1977 passed by respondent No.2 is without jurisdiction. 2. That if the requirement of giving notice to respondent No.2 under section 80 of CPC has not been objected to in written statement, the same cannot be raised at the stage of appeal." 6. During the course of arguments Shri Saraswat, the learned counsel appearing on behalf of the appellant, has submitted that as provided in sections 14 and 22 of M.P. Public Trusts Act, the respondent No.2 after giving permission for sale becomes functus officio. The permission already granted cannot be reviewed or recalled or revised as observed in the case of Laxmichand Modi v. B.R. Mandai [1964 JLJ 313], and in the case of Dilip Singh v. Totaram [ 1959 JLJ 75 ]. While drawing the attention of the Court he submitted that without pleadings and objections the learned Judge has considered the bar to the suit of provisions of section 80 of CPC which is erroneous. It is further submitted by him that this suit is for specific performance of the agreement EX.P-3 and the appellant was always ready and willing to execute the same, hence, appeal ought to be allowed. For this, he placed reliance on Gobind Ram v. Gian Chand [ AIR 2000 SC 3106 ]. 7. Shri Sharma, the learned counsel appearing on behalf of respondent No.1 has submitted that due to the order dated 23.8.1977 of the respondent No.2, he could not execute the sale-deed in compliance of the agreement EX.P-3. It is further submitted by him that this appeal is to be dismissed on the ground that order dated 23.8.1977 has not been challenged. 8. Shri Singhal, the learned counsel appearing on behalf of the respondents No,3 to 5, has submitted that the appeal has been abated on account of the death of respondent No.4 as no legal representatives are brought on record. The provision of section 80 of CPC bars a suit without notice. It is being legal provision can always and at any stage, it can be considered by the Court and trial Court has rightly dismissed the suit on that count also. In support Shri Singhal has drawn the attention of the Court on a judgment delivered by apex Court in the case of State of Maharashtra v. Shri Chandrakant [1977 JLJ 225=1977 MPLJ 14]. In support Shri Singhal has drawn the attention of the Court on a judgment delivered by apex Court in the case of State of Maharashtra v. Shri Chandrakant [1977 JLJ 225=1977 MPLJ 14]. The order dated 23.8.1977 passed by respondent No.2 is valid and within jurisdiction. Vide order dated 23.8.1977 neither the permission was withdrawn nor revised only sale which was irregular and illegal has been set aside and resale has been ordered. As provided by section 20 of the Specific Relief Act, relief of performance of the contract is discretionary and in the circumstances sale was found irregular based on collusion and as the property of public trust was in loss, specific performance ought not be directed. In support he has cited a judgment delivered in the case of V.Muthuswami (dead) by LRs v. Angammal & others [ (2002)3 SCC 316 ]. It is further submitted that the agreement EX.P-3 dated 16.8.1977 has not been duly proved by its executants. In support he has cited a judgment of this Court in the case of Narayan and others v. State of M.P. [ 1996 JLJ 509 ]. 9A. On perusal of the impugned order dated 23.8.1977 which is Ex.P6, it appears that on receiving a complaint with regard to the irregularities during sale of the property, the respondent No.2, the Registrar Public Trust, conducted enquiry and came to the conclusion that among other irregularities after first date of auction i.e. 14 August, 1977 it was not notified that the sale will be continued on the next day. Despite that the sale continued on the next date i.e. on 15th August, 1977 and finalized in favour of the plaintiff. On account of the irregularities, the sale was set aside and resale was directed. It does not appear that the sanction for sale, granted earlier was cancelled. On perusal of auction sheet dated 14th August, 1977 (Ex.P-8), it appears that highest bid was of Rs.13,900/- of the plaintiff. Thereafter, it is noted that -- as no other bid is received, therefore, this bid is concluded. Nowhere it is mentioned that it will be continued till next date i.e. on 15th August, 1977. Witness Pramod Kumar (DW 1) has mentioned in para 5 of his statement that after conclusion of the bid on 14th August, 1977 no further date was fixed and the amount received from the persons concerned, was returned to them. Nowhere it is mentioned that it will be continued till next date i.e. on 15th August, 1977. Witness Pramod Kumar (DW 1) has mentioned in para 5 of his statement that after conclusion of the bid on 14th August, 1977 no further date was fixed and the amount received from the persons concerned, was returned to them. He further states that had the bid was intended to be continued, this amount would have not been returned. This fact has been admitted by witness Laxminarayan (PW2), who is the Secretary of the trust, respondent No.1, and has been examined on behalf of the plaintiff. Important extracts of his statements in para 13 and 14 are as under: 13- --------çn"kZ ih&8 esa ;g ugha fy[kk gS fd uhykeh 15 rkjh[k dks gksxhA 15 rkjh[k dh uhykeh dh dk;Zokgh çn"kZ ih&9 esa bl ckr dk mYys[k ugha gS fd 14 rkjh[k dh uhykeh dh dk;Zokgh dks fujarj fd;k x;k gSA 14- 14 rkjh[k dks ftu yksxksa us uhykeh esa #i;k tek fd;k Fkk mudks #i;s okfil dj fn;s FksA--- 14-8-1977 dks uhykeh lekIr ?kksf'kr djus ds vk/kk ?kaVs ckn cSBd gqbZ FkhA ;g ckr lgh gS fd 14-8-1977 dks uhykeh lekIr gksus ds ckn ;g fu.kZ; fy;k x;k Fkk fd fnukad 15 dks uhykeh tkjh j[kh tkosA bl fu.kZ; dh lwpuk foKkiu }kjk vFkok Mks<+h ds }kjk "kgj esa ugha dh xbZ FkhA Thus, this witness has admitted that amount received on 14th August 1977 was returned back and after conclusion it was not declared that the bid will remain continued on the next date. It also appears from his statement that after half an hour of the conclusion of the bid on 14th August 1977 there was a meeting of the Trust in which it was decided that the bid would remain continued on 15th August 1977. But this decision was not notified. Apparently, the aforementioned conclusion by the respondent No.2, Registrar Public Trusts, in Ex.P-6 does not appear erroneous and in view of this material irregularity if the bid has been cancelled vide order dated 23.8.1977 (Ex.P-6) there appears no illegality. But this decision was not notified. Apparently, the aforementioned conclusion by the respondent No.2, Registrar Public Trusts, in Ex.P-6 does not appear erroneous and in view of this material irregularity if the bid has been cancelled vide order dated 23.8.1977 (Ex.P-6) there appears no illegality. While placing reliance at the observation about power of cancellation of permission of Division Bench of this Court in the case of Laxmichand Modi (supra), as argued, the sanction given earlier by respondent No.2, the Registrar Public Trusts, was not cancelled nor withdrawn only sale was rejected and resale was ordered in compliance of the sanction already granted. Thus, facts being different, if the learned Judge in the impugned judgment has not given any benefit to the plaintiff on this count, there appears no mistake. 9B. Relevant provisions of section 14 of the M.P. Public Trusts Act, 1951 are as under: "Section 14. Previous sanction of Registrar in cases of sale etc. of property belonging to a Public Trust -- (1) Subject to the directions in the instrument of trust or any direction given under this or any other law by any Court – (a) no sale, mortgage, exchange or gift of any immovable property; and (b) ... shall be valid without the previous sanction of the Registrar. (2) The Registrar shall not refuse his sanction in respect of any transaction specified in sub-section (1) unless such transaction will, in his opinion, be prejudicial to the interests of the public trust." On perusal, it appears that no sale of any immovable property, which belongs to the trust, shall be valid without previous sanction of the Registrar and the Registrar can refuse sanction if the sale is prejudicial to the interests of public trust. It appears that the interest of the public trust in its property is also to be seen by the Registrar. After granting sanction for sale, if the sale conducted appears erroneous on such material point as mentioned hereinabove, his duty to look after the interest of the public trust in its I property does not become dormant. He can look after the interest. Of course as observed in the case of Laxminarayan (supra), he cannot withdraw the sanction already granted and in this case sanction has not been withdrawn. In view of this, the finding of the learned Judge in the impugned judgment ought to be sustained. 10. He can look after the interest. Of course as observed in the case of Laxminarayan (supra), he cannot withdraw the sanction already granted and in this case sanction has not been withdrawn. In view of this, the finding of the learned Judge in the impugned judgment ought to be sustained. 10. On perusal of the written statements, particularly the written statement submitted on behalf of respondent No.2, it appears that no objection has been raised about the maintainability of the suit on the point, that no notice under section 80 of CPC was given to the respondent No.2, the Registrar Public Trust, prior to the initiation of the suit. As argued on behalf of the plaintiff and also as observed by the Division Bench of this Court in the judgment of Dilip Singh (supra), it is to be considered that this objection has been waived if it is not raised at the earliest opportunity. As provided under section 80 of CPC the condition of giving prior notice to the Government or to the public officer appears to be beneficial for the officer concerned. If such objection has not been raised by the officer concerned at the earliest stage, it is to be considered that it is waived and thereafter the officer concerned is estopped from taking such objection at any further stage. In view of this, taking objection at this appellate stage on behalf of the respondent No.2 cannot be sustained. The judgment delivered in the case of State of Maharashtra (supra), does not observe anything on this point. It is only observed that the provisions are mandatory. The facts being different as well as the observation being on different point, citing this judgment does not appear fruitful in favour of the respondent No.2. In view of this, the observation of learned Judge in para 14 of the impugned judgment on the point that the suit is not maintainable as no notice was given under section 80 of CPC, is set aside. 11A. The contention of Shri Singhal on behalf of the respondents that the Ex.P-3, the agreement, has not been duly proved by any of its executants, does neither appear correct nor to be sustained because this document has been proved by witness Laxminarayan (PW2), who is the Secretary of the trust, respondent No.1. 11A. The contention of Shri Singhal on behalf of the respondents that the Ex.P-3, the agreement, has not been duly proved by any of its executants, does neither appear correct nor to be sustained because this document has been proved by witness Laxminarayan (PW2), who is the Secretary of the trust, respondent No.1. He has stated in para 9 of his statement that on 16th August 1977 the agreement, Ex.P-3, was executed in between plaintiff and the trust and all the 11 trustees have put their signatures on it. 11B. Section 20 of the Specific Relief Act goes as under: "20. Discretion as to decreeing specific performance -- (1) 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; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of Appeal. (2) The following are cases in which the Court may properly exercise 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; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable makes it inequitable to enforce specific performance. (3) The Court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party." On perusal, it appears that the relief of specific performance of the agreement, Ex.P-3 is not automatic and it is one of discretion of the Court and the Court has to consider whether it will be fair, just and equitable. Court is guided by principle of justice, equity and good conscience. Court is guided by principle of justice, equity and good conscience. In view of the order dated 23.8.1977 (Ex.P-6) passed by respondent No.2 after enquiry and also from the statements of the witnesses as quoted herein above it appears that the disputed auction sale was not proper. It gives an unfair advantage to the plaintiff. Consequently, the agreement, Ex.P-3, executed for the same, ought not to be complied with because it will not be fair in the interest of trust property. On this count the learned Judge has rightly negated this relief vide impugned judgment. The amount deposited by the plaintiff has been ordered to be withdrawn alongwith the interest. This decision appears to be sustained in the facts and circumstances of this case. In the case of Gobind Ram (supra), as cited in favour of the plaintiff the respondent had paid the earnest money as well as balance consideration, without taking any unfair advantage over appellant, who was trying to wriggle out of contract in view of the escalation of prices of real estate properties. In view of these facts, it was observed that decree of specific performance and not compensation is relief and decree was passed. Facts of this case are totally different, hence, the observation of the apex Court in the aforementioned judgment does not give any benefit to the plaintiff. In the present case, the bid which has been finalized in favour of the plaintiff is based on such auction whose public notice was not given and in such circumstances the view taken by the learned Judge does not appear erroneous. 11C. It has been argued by Shri Singhal on behalf of the respondents that respondent No.4 Rafique Khan has died during the course of the appeal and his LRs have not been taken on record, hence, appeal abates. Although on record it is not appeared that respondent No.4 is dead, however, if it is true, then in his absence cause of action survives against the rest of the respondents. The appellant has filed this suit mainly against respondent No.1 for specific performance of the contract and looking to the dispute between the parties, the status of the respondent No.4 appears only formal, who has objected the sale. Because cause of action survives even after the death of respondent No.4, hence, the contention of Shri Singhal cannot be sustained. 12. The appellant has filed this suit mainly against respondent No.1 for specific performance of the contract and looking to the dispute between the parties, the status of the respondent No.4 appears only formal, who has objected the sale. Because cause of action survives even after the death of respondent No.4, hence, the contention of Shri Singhal cannot be sustained. 12. Consequently, the appeal, being devoid of merits, is dismissed.