Judgment 1. The defendant’s legal heirs are in second appeal against the Judgment and decree in RA No.119/2004 dated 05.09.2008 on the file of Judge, Fast Track Court, Kolar, setting aside the finding of trial Court on issue No.6 to 10 and decreeing the suit for specific performance and restraining defendants from interfering with their possession. 2. Heard the learned Senior counsel Mr.Padmanabh Mahalay for appellants and the learned counsel Mr. Rahavendra Rao, for respondents and examined the records in supplementation thereof. 3. Before I advert to the contentious issues raised by the learned counsel on both sides a brief reference to the contextual facts is necessary. It reveals: The respondents filed a suit against the appellant for specific performance of an agreement to sell dated 18.01.1988 in respect of the property described in the schedule to the plaint and in that sought a direction to the defendants to receive balance sale consideration of Rs.15,000/-. Claiming to be in possession of the property they sought an order to restrain defendants from interfering with their possession. 4. The defendants while admitting he was owner of the property in question, resisted the decree for specific performance denying execution of the alleged agreement of sale on 18.01.1988 for consideration of Rs.45,000/- and denied of having received Rs.20,000/-as advance. He denied he had executed another agreement on 05-06-1993 affirming the earlier agreement in consideration of additional Rs.10,000/- to be paid to the mortgagee. 5. While denying all averments in the plaint, his specific plea was having acquired the property in the year 1974, he had put up a structure where he resides. He had not executed the agreement of sale referred to in the plaint, much less any document evidencing any transaction. Describing the averments in the plaint as false and mischievous and far from truth, he sought dismissal of the suit. 6. Based on the material propositions in the pleadings, the learned trial judge framed the following issues: 1. Whether the plaintiff proves that the defendant has executed suit agreement at 18-01-1988, agreeing to sale the suit schedule property? 2. Whether the plaintiff proves that the total sale consideration was Rs.45,000/-and on the same day the defendant has received a sum of Rs.20,000/- as a taken of advance? 3. Whether the plaintiff proves that the defendant has executed suit agreement at 18-01-1988, agreeing to sale the suit schedule property? 2. Whether the plaintiff proves that the total sale consideration was Rs.45,000/-and on the same day the defendant has received a sum of Rs.20,000/- as a taken of advance? 3. Whether the plaintiff further proves that again the defendant had approached him, by receiving a sum of Rs.10,000/- in commencing with the suit agreement by the another agreement? 4. Whether the plaintiff further proves that the suit property was mortgaged in favour of one Abdul Rahim Sab as on the date of agreement for a sum of Rs.10,000/-. 5. Whether the plaintiff proves that the said mortgage has been redeemed by the plaintiff himself. And taken possession of the suit property from the mortgagee? 6. Whether the plaintiff proves that he was always ready as a willing to take the sale deed? 7. Whether the plaintiff proves that there is an obligation to execute a sale deed as per a sale deed 18-01-1988 and 05-06-1993? 8. Whether the plaintiff proves that there is an interference? 9. Whether the plaintiff in entitled relief of specific performance of the agreement? 10. Whether the plaintiff proves that he is entitled for the relief of permanent injunction? 11. Whether the defendant proves that the suit is not maintainable invoice of the plea of the plaintiff above delivery of possession by the mortgagee, but not by the defendant? 12. What order or decree? 7. The plaintiff in support of his claim, tendered evidence as PW1 and of 6 witnesses, while the defendant tendered evidence as DW1 and examined two witnesses. Plaintiff relied on 7 documents while the defendant produced no document. 8. Analysing the evidence so brought on record, the learned trial court held plaintiff had established the transaction of sale with the defendant as evidenced by the agreement of sale dated 18.1.1988. It also held he had established sale consideration was Rs.45,000/- out of which he had paid Rs.20,000/- to the defendant and had also paid Rs.10,000/- to redeem the mortgage. Thus, issue nos.(1) and (2), the burden of which was cast on the plaintiff, were answered in the affirmative. Issue no.(3) which was to decide whether the defendant had approached the plaintiff subsequently and in consideration of Rs.10,000/-, executed another agreement of sale was also answered in the affirmative. Thus, issue nos.(1) and (2), the burden of which was cast on the plaintiff, were answered in the affirmative. Issue no.(3) which was to decide whether the defendant had approached the plaintiff subsequently and in consideration of Rs.10,000/-, executed another agreement of sale was also answered in the affirmative. It was further held plaintiff had established the property in question was mortgaged in favour of another person as on the date of agreement for Rs.10,000/-which the plaintiff had paid and got the property redeemed, and also obtained possession. Accordingly issue no.(5) was also answered in the affirmative. However, the trial court held plaintiff’s evidence did not establish he was ready and willing to perform his obligation under the agreement and that the evidence did not prove defendant had any obligation to execute the sale deed in terms of the agreement dated 18.1.1988 renewed on 5.6.1993. Thus those issues at nos.5 and 6 were answered in the negative. 9. Issue no.(8) which was framed to decide whether there was interference with his alleged possession by the defendant, the trial court held it was not established and answered the issue in the negative. Issue no.(9) was framed to decide whether in the fact situation specific performance of the agreement of sale could be ordered. In view of the finding that the plaintiff had failed to prove his readiness and willingness to perform his obligation, the learned trial judge answered that issue in the negative and declined to decree the suit for specific performance. Thus, based on that conclusion, the learned trial judge decreed the suit partly entitling the plaintiff to get refund of Rs.30,000/- paid as part of the sale consideration with interest at 6% p.a. but rejected the relief for specific performance. 10. Assailing it, he was in first appeal in R.A.119/04 which has since been allowed, granting decree as prayed for. Assailing it, the defendant’s legal heirs are in this second appeal. 11. Learned senior advocate, Sri Padmanabh Mahalay, assiling the judgment of the appellate court would contend that the trial court’s finding that the plaintiff was not ready and wiling to perform his part of the obligation in terms of the agreement of sale, was a clincher to negate all his claims to enforce the specific performance of the agreement. 11. Learned senior advocate, Sri Padmanabh Mahalay, assiling the judgment of the appellate court would contend that the trial court’s finding that the plaintiff was not ready and wiling to perform his part of the obligation in terms of the agreement of sale, was a clincher to negate all his claims to enforce the specific performance of the agreement. He would contend defendant had consistently been pleading he had not executed any agreement to sell the schedule property either in favour of the plaintiff or anyone else. He submits proof laid by the plaintiff did not establish that the defendant had executed the agreement dated 18.1.1988 after receiving Rs.20,000/-and had failed to establish the subsequent agreement dated 5.6.1993 was executed to enlarge the period of limitation. He read out to me portions of the evidence to contend that the agreement dated 18.1.1988, even assuming it was executed by the defendant, was unenforceable in law as it was time barred. Reliance is placed on Article 54 of the Limitation Act to non-suit the plaintiff. He submits the period of time stipulated in the agreement dated 18.1.1988 required the plaintiff to approach the court within three years when refusal was notified, i.e. at least by 1993, but the plaintiff approached the court only in the year 1995 which was beyond the period of limitation. 12. Regarding the subsequent agreement dated 5.6.1993, he submits it is a concocted document and not proved. He would further submit payment of sale consideration by the plaintiff was only Rs.20,000/- as per plaint averments and Rs.10,000/-to the mortgagee was not authorised payment. Therefore, the trial court ought to have held that the plaintiff had failed to prove payment of Rs.30,000/-towards sale consideration and dismissed the suit in entirety. 13. Learned counsel did endeavour to cull out from evidence to point out infirmities, inconsistencies in the plea and proof. He submits plaintiff had a heavy burden cast on him firstly, to prove defendant had entered into the agreement of sale and secondly, that the agreement was enforceable in law. Referring to the evidence on record, it is urged it is too vague and does not establish proof of execution nor of its binding nature. Thus, he submits the trial court should have dismissed the suit in its entirety. Referring to the evidence on record, it is urged it is too vague and does not establish proof of execution nor of its binding nature. Thus, he submits the trial court should have dismissed the suit in its entirety. However, it had decreed the suit partly, ordering refund of Rs.30,000/-and the appellate court has erred in decreeing the suit in its entirety. He has referred to the plea of the defendant, evidence on record to assail the findings on all issues. 14. In negation of all these contentions, Sri Raghavendra Rao would contend that the appellants- (legal heirs of defendant) had lost the right to question the finding recorded by the trial court on issue nos.(1) to (5); he would draw my attention to the fact that after the rendition of judgment by the trial court, defendant had the right to question the finding recorded against him on vital issues which he did not do. 15. He submits the clincher in this case is the agreement dated 18.1.1988 renewed on 5.6.1993. The trial court has affirmatively held validity of the said agreement as could be seen from the finding on issue nos.(1) and (2). As such the finding has not been questioned by the defendant and thus, it has reached finality and is not open to challenge in this appeal. 16. Regarding other issues he would submit though the trial court has held plaintiff’s evidence establishes his case, but the trial court erroneously held he was not entitled to a decree for specific performance. Plaintiff’s evidence had shown he was ready and willing to perform his obligation. In this regard he would refer to the terms of the agreement to show that all that the plaintiff had to do was to pay balance of sale consideration and nothing more. It was the defendant who had to execute the sale deed and therefore, liability of the plaintiff was only to pay the balance, while the duty of the defendant was to execute the sale, plaintiff had established payment of Rs.30,000/-. The trial court had erred in recording the finding that the plaintiff was not ready and willing which rightly the appellate court has set aside. 17. Several citations are relied by both sides and also the provisions of Specific Relief Act. It has received my serious consideration. 18. The trial court had erred in recording the finding that the plaintiff was not ready and willing which rightly the appellate court has set aside. 17. Several citations are relied by both sides and also the provisions of Specific Relief Act. It has received my serious consideration. 18. There are three substantial questions of law formulated at the time of admission of this appeal to be answered. They are: (i) Whether the courts below are justified in law in not taking into consideration as to whether a person who has no right, title or interest over property, can redeem the mortgage in respect of the same? (ii) Whether the Courts below are justified in law in not considering the essentials of a valid agreement especially, in the absence of the signatures of one of the parties? (iii) Whether the First Appellate Court is justified in law in passing the Judgment and Decree for specific performance of contract, when the plaintiff has failed to prove his readiness and willingness to perform his part of the contract? However, based on the contentions of learned senior Advocate, Sri Mahalay, two more questions of law need to be framed, and they are: (1) Whether the appellate court was right in decreeing the suit for specific performance without recording a finding on the grounds referred to? (2) Though under the provision of Section 20 of the Specific Relief Act the court is not bound to order specific performance of a contract merely because it is lawful, is such denial justified in the absence of pleading from the defendant regarding hardship or other circumstances enumerated therein? 19. Sri Mahalay assertively urged this court to consider the fact that Section 20 of the Specific Relief Act does not warrant granting a decree of specific performance in every case merely because it is lawful. Section 20 reads thus: 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. 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. It is no doubt true that the jurisdiction of the court to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do. But the provision itself mandates that the discretion of the court should not be exercised arbitrarily, but a reasoned order guided by judicial principles and capable of correction by the court of appeal. The provision enumerates circumstances in which the court may properly exercise discretion not to order specific performance. The circumstances enumerated are: (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 non-performance 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. It is necessary to notice though Section 200 makes grant of decree for specific performance ‘discretionary’, one of the circumstances engrafted in Explanation I is relevant. It reads thus: ‘Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).’ I have referred to this part of the provision for the purpose of deciding whether Section 20 disentitles as a rule, a person to have a decree for specific performance, or such denial is only an exception. 20. It is material to note Section 20 forms part of Chapter II in the Act which contains other relevant sections, viz., 9, 10 and 14. Thus, Section 20 has to be read with Section 10 which postulates. 10. 20. It is material to note Section 20 forms part of Chapter II in the Act which contains other relevant sections, viz., 9, 10 and 14. Thus, Section 20 has to be read with Section 10 which postulates. 10. Cases in which specific performance of contract enforceable- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced.- (a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or (b) when the act agreed to be done is such that compensation in money for its nonperformance would not afford adequate relief.’ The explanation to the section is relevant. It reads: Explanation.- Unless and until the contrary is proved, the court shall presume- (i) That the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and (ii) that the breach of a contract to transfer moveable property can be so relieved except in the following cases- (a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market; (b) where the property is held by the defendant as the agent or trustee of the plaintiff. 21. Thus, it could be seen there is an element of presumption in favour of the transferee when a contract relates to immovable property that breach of contract cannot be adequately relieved by compensation, unless proved to the contrary. This, therefore, would imply that the transferor under the agreement who seeks the benefit of Section 20 of the Specific Relief Act to resist the grant of decree of specific performance on the basis of any of the exceptions to Section 20, must plead and prove facts and circumstances to show the court may properly exercise the discretion not to decree specific performance covered by clauses (a), (b) and (c) of sub-section (2) of Section 20. 22. Besides in civil action in original suit, defendant is required to plead in his written statement in answer to the statements in the plaint as is required by Rules 2, 3 4 and 5 of that Order (Order VIII). 22. Besides in civil action in original suit, defendant is required to plead in his written statement in answer to the statements in the plaint as is required by Rules 2, 3 4 and 5 of that Order (Order VIII). Rule 2 clearly envisages ‘defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.’ Rule 3 requires specific denial. It postulates ‘It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.’ Rule 4 does not permit evasive denial. It postulates ‘Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received, and if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.’ 23. Rule 5 indicates the consequences if there is only general denial. It envisages ‘Every allegation of fact in the plant, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.’ 24. Therefore, if the defendant (transferor under the agreement) seeks to avoid decree of specific performance, he must necessarily plead and prove circumstances supporting clauses (a), (b) and (c) of sub-section (2) of Section 20 of the Specific Relief Act to enable the court to decide whether discretion to decree specific performance is necessary or has to be denied. 25. On this issue, Section 16 of the Specific Relief Act cannot be lost sight of. 25. On this issue, Section 16 of the Specific Relief Act cannot be lost sight of. It envisages that specific performance of a contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than the terms performance of which has been prevented or waived by the defendant. But if the plaintiff has averred he has performed or has always been ready and willing to perform the essential terms of the contract, then as required by order VIII Rules 1, 2 and 3, C.P.C., defendant is required to bring in circumstances in his written statement to negate such contentions. If he does not do so, then as envisaged under Rule 5 of Order VIII, C.P.C., it may amount to facts admitted. 26. What is the importance of pleading has been spelled out by the apex court in the case of BONDAR SINGH & OTHERS vs. NIHAL SINGH & OTHERS ( 2003 (4) SCC 161 , wherein the apex court observed thus: ‘As regards plea of sub-tenancy argued on behalf of the defendants by the learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forward now. Written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea, no amount of evidence led or relied on can be looked into. Therefore, in the absence of a clear plea regarding sub-tenancy, defendants cannot be allowed to built up a case of sub-tenancy. Had the defendants taken such plea, it would have been possible as an issue in the suit. We have perused the issues framed in the suit. There is no issue on this point.’ 27. Therefore, in the absence of a clear plea regarding sub-tenancy, defendants cannot be allowed to built up a case of sub-tenancy. Had the defendants taken such plea, it would have been possible as an issue in the suit. We have perused the issues framed in the suit. There is no issue on this point.’ 27. In the case of ANATHULA SUDHAKAR .vs. P.BUCHI REDDY ( AIR 2008 SC 2033 ), the apex court considering the scope and ambit of law under Section 100, C.P.C. observed thus: ‘Section 10-second appeal-powers of court-pleas not made in plaint-question of denying or traversing them by defendant does not arise-Thus in absence of pleadings and issue, no question of law relating to it could be formulated by High court in Second appeal.’ For clarity, reference may be made to paragraphs 17 and 21 which are extracted hereunder: 17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property is as under; (a) Where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with to without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely in interference or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar-2005 AIR SCW 3516 [supra]). (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar-2005 AIR SCW 3516 [supra]). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessarypleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight – forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. 18. .. 19. … 20. … 21. The plaintiffs and their witnesses gave evidence to the effect that Damodar Rao represented that his sister Rukminibai was the owner of the plot and negotiated for sale of the several portions thereof in favour of plaintiffs and PW3, and that Damodar Rao had attested the sale deeds in their favour and identified his sister as the vendor executant before the Sub Registrar, at the time of registration of the sale deeds. It is no doubt true that if that was the position, it is possible for them to contend that having regard to to Section 41 of the Transfer of Property Act, when the ostensible owner Rukminibai sold the property with the implied consent of Damodar Rao, the defendant as a transferee from Damodar Rao could not contend that the sales were not valid. They also alleged that defendant was a close relative of Damodar Rao and the sale in favour of defendant was only nominal intended to defeat their title. But Damodar Rao in his evidence denied having made the oral gift or having attested the sale deeds in favour of plaintiffs. He also denied having identified his sister at the time of registration of the sale deeds. Whether Rukminibai’s evidence and other plaintiffs’ witnesses should be believed or whether evidence of Damodar Rao should be believed on the question of title, can be examined only when there are necessary pleadings and an issue regarding title. Further, where title for plaintiffs is disputed and claim for possession is purely based on title, and the plaintiffs have to rely on various principles of law relating to ostensible ownership and Section 41 of T.P.Act, validity of an oral gift by way of ‘pasupu kumkum’ under Hindu Law, estoppel and acquiescence, to put forth a case of title, such complicated questions could properly be examined only in a title suit, that is a suit for declaration and consequential reliefs, and not in a suit for an injunction simpliciter.’ Thus, it is seen that without pleading in the plaint or written statement, the trial court would not frame an issue and when there is no pleading and no issue, the first appellate court would not apply even to decide any ground that is canvassed and particularly in second appeal, no question of law can be framed where there is no pleading or issue framed or finding thereon. 28. In this view, I am unable to accept the contention of senior counsel, Sri Padmanabh Mahalay, that even without the defendant pleading or proving the circumstances enumerated in clauses (a), (b) or (c) of sub-section (2) of Section 20 of the Act, the court should apply those clauses to deny decree for specific performance. 29. 28. In this view, I am unable to accept the contention of senior counsel, Sri Padmanabh Mahalay, that even without the defendant pleading or proving the circumstances enumerated in clauses (a), (b) or (c) of sub-section (2) of Section 20 of the Act, the court should apply those clauses to deny decree for specific performance. 29. In the instant case, from the material propositions in the pleadings of the parties which has substantially translated into acceptable evidence, plaintiff has paid Rs.20,000/- towards sale consideration in the first instance and paid Rs.10,000/- to the mortgagee to redeem the mortgage created by the defendant. Thus, having performed his part of the obligation to pay sale consideration in the manner aforesaid, he was required to pay only the balance. As against it, before the trial court, appellant-defendant had specifically denied having entered into a contract of sale with the plaintiff, and failed in such endeavour resulting in a clear finding by the trial court that he had in fact executed the agreement of sale in the year 1988 and had subsequently renewed the transaction in the year 1993. After the trial court recorded a finding against him, he did not assail it in appeal action consequent to which it has reached finality. 30. In short, suffice to say, while the plaintiff had led acceptable evidence in support of the relief sought, the defendant was not very consistent in his pleading and evidence. Besides, having faced adverse finding on vital issues regarding execution of the agreement and receipt of sale consideration, he did not question the same. 31. In this background, we have to examine the case laws on which Sri Padmanabh Mahalay has placed reliance. They are: 1) ILR 1992 KAR 717 (YOGAMBIKA vs. NARSINGH) 2) ILR 1996 KAR 3595 (C.N.RANGANATH vs. M.R.THYAGARAJA) 3) AIR 1993 SC 1318 (B.R.MULANI v. Dr.A.B.ASWATHANARAYANA AND OTHERS) 4) 2007 (6) KAR.L.J.138 (B.PUTTASWAMY v. JOSEPH D’CRUEZ AND OTHERS) Support is sought from these decisions to assert that circumstances not in contemplation of parties at the time of the agreement of sale or beyond the control of the defendant and impossibility to get on with the property agreed to be sold, are sufficient to deny specific performance. It is also urged non-alienation for a period of 10 years from allotment was not a bar to decree specific performance and the court was required to examine will not such direction cause immense hardship to the defendant. On the basis of the dictum in the above decisions, it is further urged that the sale was not in the interest of the defendant and hence it is enough to deny specific performance (please refer ILR 1992 KAR 717). 32. It is urged when enforcement of a contract was likely to cause hardship to the defendant and non-performance of the contract was not likely to cause hardship to the plaintiff, specific performance cannot be granted.’ Similar view was expressed in the decision reported in 1996 KAR 3595 wherein it is held ‘in a suit for specific performance to sell, plaintiff had not expressed his being ready and willing to pay balance consideration nor intimated the defendant his intention to pay the amount, but filed the suit directly. Held: The suit though not premature, plaintiff was not entitled to a decree for specific performance for not proving his readiness and willingness.’ 33. In AIR 1993 SC 1318 , the apex court held ‘in a case where plaintiff had agreed to pay mortgage money to obtain assignment of mortgage created by the defendant, in turn having agreed to sell the second property, on his failure to pay for the amount so advanced, specific performance cannot be ordered.’ 34. In 2007 (6) Kar.L.J.138, this court held ‘factual circumstances and background of a case needs to be taken into consideration. Unless acceptance is absolute proving the agreement, the question of enforcing the agreement would not arise. The order of specific performance is subject to justice, equity and good conscience. There is obligation on the court not to decree a suit for specific performance by exercising its discretion when it gives unfair advantage over the defendant. Defendant had acted as a man of trust, but however, plaintiff has tried to take unfair advantage of the trust.’ On this basis, specific performance was declined. 35. There can be no hesitation in accepting the proposal enunciated in these decisions as binding precedents. Defendant had acted as a man of trust, but however, plaintiff has tried to take unfair advantage of the trust.’ On this basis, specific performance was declined. 35. There can be no hesitation in accepting the proposal enunciated in these decisions as binding precedents. But what needs to be emphasized is, for availing the benefit of this legal position, there must be specific pleadings as required under various rules of Order VIII, C.P.C. (as amended), it virtually amounts to admission and the court will not be required to summon itself to enquire into facts which are not disputed or pleaded by the defendant. Therefore, there is no gainsaying that the defendant could remain docile without even disputing plaint averments and still seek indulgence of the court to protect him by denying the decree of specific performance despite proof laid by the plaintiff (transferee under the agreement) applying the provisions of Section 20 of the Specific Relief Act. 36. As referred to in paragraphs supra, material evidence supports plaintiff’s evidence that after the first agreement, defendant had executed a second agreement on 5.6.1993 renewing the earlier transaction under which he paid Rs.10,000/- to the mortgagee. Against this averment and evidence, defendant has simply put up the plea of denial simplicitor. He felt content denying execution of the agreement to sell and averred nothing more even as an alternate plea to avoid specific performance of the contract. 37. Be that as it may, appellants having suffered finding on point nos.(1) to (5) did not challenge or assail either in appeal action nor did he file cross-objection appeal when the plaintiff was in R.A.119/04. Thus, the finding having reached finality cannot be reopened for consideration in this second appeal. Therefore, the contention that the agreement was not executed and it was time-barred is not available for canvass in this appeal. 38. In the result, for the discussions made in the foregoing paragraphs, the first substantial question of law is answered holding that the plaintiff had justifiably redeemed the mortgage on the property by virtue of the right conferred upon him under the agreement of sale dated 18.1.1988. As the trial court and appellate court have considered the evidence relating to execution of the agreement and its renewal on 5.6.1993, the finding on facts so arrived is just and proper and needs no interference. Therefore, the second substantial question is answered against the appellants. As the trial court and appellate court have considered the evidence relating to execution of the agreement and its renewal on 5.6.1993, the finding on facts so arrived is just and proper and needs no interference. Therefore, the second substantial question is answered against the appellants. 39. The evidence on record supports the conclusion of the trial court and the first appellate court that the plaintiff had been ready and willing to perform his part of the contract and thus, the additional substantial questions of law framed are also against the appellants. 40. Thus, the ultimate conclusion would be unless the defendant pleads and proves circumstances referred to in clauses (a), (b) or (c) of Section 20(2) of the Specific Relief Act, the presumption engrafted in the explanation to Section 10 of the said Act that ‘Unless and until the contrary is proved, the court shall presume That the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money’ will apply and courts would not be justified in presuming the existence of circumstances referred to in Section 20 to deny the relief of specific performance. 41. In the result, the appeal fails and is dismissed with costs throughout. The judgment passed in R.A.119/04 is confirmed.