JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Sri P.K. Jain, learned counsel for the appellant and Sri M.K. Rajvanshi, learned counsel for the respondent as well as perused the record. 2. This second appeal has been filed challenging the validity and correctness of the judgment and order dated 22.11.2006 passed by the lower appellate Court dismissing Civil Appeal No. 4 of 2006, Tilak Ram v. Pramod Kumar and confirming the judgment and order dated 20.12.2005 passed by the trial Court in Original Suit No. 136 of 2000, Pramod Kumar v. Tilak Ram. 3. It appears from the record that when the case was taken up on 26.3.2007, the Court directed the appellant to deposit an amount of Rs. 70,000/- with the trial Court within a period of six weeks from the date of the order which may be paid to the plaintiff on moving appropriate application upon which the operation of the judgment and decree passed by the trial Court will remain stayed. It was further directed that in the event of default the interim protection given by this Court shall cease to operate and the authority will be free to execute the decree against the appellant. 4. Learned counsel for the appellant states that the order dated 26.3.2007 has been complied with and he has deposited an amount of Rs. 70,000/- with the trial Court. 5. The case is listed today for admission. Sri P.K. Jain, learned counsel for the appellant has submitted that from the pleadings of the parties and the judgments of the Courts below on record, the following substantial questions of law arise. (1) Whether relief of specific performance is automatic and Court is bound to decree the suit for specific performance without recording reasons and without recording finding as contemplated under Sections 20 and 21 of Specific Relief Act,1963 ? (2) Whether Court below was bound to look into the hardship before decreeing the suit for specific performance ? 6. He has placed reliance upon Sections 20 and 21 of the Specific Relief Act, 1963 in support of his aforesaid contention. A perusal of Section 20 and the explanation thereto show that in order to consider the question of hardship it has to be shown that the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. A perusal of Section 20 and the explanation thereto show that in order to consider the question of hardship it has to be shown that the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. Explanation-II to Section 20 provides that the question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff, subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. 7. Learned counsel for the appellant has relied upon the judgment rendered in ALR 1998(1), Smt. Jamila Khatoon (Dead and others v. Ram Niwas Gupta. In this case, the Court considered Section 21(2) of the Specific Relief Act, 1963 and the question of alternative relief. The Court held that alternative relief of damages or compensation and refund of earnest money was more suitable. The question considered by the Court in paragraph 3 of the judgment. The Court in that case held that the plaintiff must prove both willingness and readiness. In that case suit was filed wherein plaintiff failed to prove willingness and that there was a case of readiness only hence, plaintiff was not found entitled to get decree for specific performance of contract. The question of limitation was also involved in that case and in this regard the moot question before the Court was whether the Court should have granted alternative relief of compensation under Section 21(2) of the Specific Relief Act and whether the suit was filed within limitation. 8. After considering the legal proposition the Court in the aforesaid case of Smt. Jamila Khatoon (supra) held that the plaintiff had prayed for alternative remedy also i.e. for refund of earnest money together with damages, so it was not a case where the Court should provide with an opportunity to the plaintiff for making an alternative claim. However, the fact remained that plaintiff did not file the suit with right promptitude though it was filed within the period of limitation. Since there was inordinate delay in presentation of the suit without giving proper explanation for filing the suit after a long lapse of time. However, the fact remained that plaintiff did not file the suit with right promptitude though it was filed within the period of limitation. Since there was inordinate delay in presentation of the suit without giving proper explanation for filing the suit after a long lapse of time. The Court in that case held that the Court below was not justified in decreeing the suit for specific performance of contract. 9. Sri P.K. Jain, learned counsel for the appellant has also placed reliance upon paragraph 5 of the judgment in Kanshi Ram v. Om Prakash Jawal and others, AIR 1996 SC 2150 . Paragraph 5 of the judgment is as under : “ Having regard to the facts of this case and the arguments addressed by the learned counsel, the question that arises for consideration is : whether it would be just, fair and equitable to grant the decree for specific performance ?. It is true that the rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the Court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties. Considered from this perspective in view of the fact that the respondent himself had claimed alternative relief for damages, we think that the Courts would have been well justified in granting alternative decree for damages, instead of ordering specific performance which would be unrealistic and unfair. Under these circumstances, we hold that the decree for specific performance is inequitable and unjust to the appellant.” 10. The aforesaid case was based upon question of consideration of equity, fairness and alternative relief in the peculiar facts and circumstances arising therein. The arguments of Sri P.K. Jain, learned counsel for the appellant may therefore, be considered with regard to hardship and whether in the facts and circumstances of the instant case it would be fair, just and equitable for the Court to direct the appellant to execute the decree of specific performance or not. The arguments of Sri P.K. Jain, learned counsel for the appellant may therefore, be considered with regard to hardship and whether in the facts and circumstances of the instant case it would be fair, just and equitable for the Court to direct the appellant to execute the decree of specific performance or not. In this regard the counsel for the defendant appellant has placed reliance upon paragraph 17 of the written statement filed by the defendant which is as under : “17- ;g fd fookfnr Hkwfe dh izfroknh ds ifjokj dh xqtj clj dk ,dek= lk/ku gS mlh ls mlds ifjokj dh jksth jksVh pyrh gSA vU; dksbZ vkenuh dk lzksr eq’krfdy ugha gSA blfy;s izfroknh }kjk fookfnr Hkwfe dks cspus dk iz’u gh iSnk ugha gksrkA** 11. A perusal of the aforesaid paragraph 17 filed by the defendant show that the land in dispute was only the source of livelihood of the family of the defendant appellant and there was no other source of income, hence there was no question of selling the land. 12. Counsel for the plaintiff respondent has submitted that in view of the facts and circumstances of this case and in order to adjust the equities between the parties the Court may either (i) vacate the exparte interim order dated 26.3.2007 and the appellant be permitted to withdraw the amount of Rs. 70,000/- deposited by him in compliance of this order and he may further be permitted to withdraw the amount of Rs. 63,000/- deposited by the respondent on 15.2.2007 in compliance of the decree passed by the Courts below : or (ii) the appellant be directed to deposit an amount of Rs. 10,000/- per year with effect from 19.10.2000 ( or 1.1.2001) and go on depositing this amount per year during the pendency of this appeal in this Court and this amount may be kept deposited in an interest bearing amount for the benefit of the winner party of this appeal and Rs. 63,000/- deposited by the respondent on 15.2.2007 may also be directed to be kept in fixed deposit. or (iii) the respondent may be given possession of the disputed land provided he deposits Rs. 10,000/- per year during the pendency of this appeal, which amount may be kept in fixed deposit and the appellant be directed to deposit interest on the advance money of Rs. or (iii) the respondent may be given possession of the disputed land provided he deposits Rs. 10,000/- per year during the pendency of this appeal, which amount may be kept in fixed deposit and the appellant be directed to deposit interest on the advance money of Rs. 65,000/- with effect from 18.10.2000 till date to be kept in fixed deposit and Rs. 63,000/- deposited by the respondent on 15.2.2007 and Rs. 70,000/- deposited by the appellant, may be kept in fixed deposits. 13. It has not been pleaded by the defendant appellant in his written statement that he did not foresee hardship by the sale of this land at the time of execution of agreement to sell in terms of Section 20 of the Specific Relief Act nor had proved the same before the Court below, no substantial question of law arises in this second appeal. The cases cited by the learned counsel for the appellant are also distinguishable and do not apply to the facts and circumstances of the present case. 14. For the reasons stated above, the second appeal is dismissed. The amount deposited by the defendant appellant in the Court below may be released and refunded to him. ————