Sudhir Agarwal, J.— 1. Heard Sri S.P. Mishra, learned counsel for the appellant and Sri M.S. Piparsania, Advocate holding brief on behalf of Sri S.K. Srivastava, learned counsel for respondents. 2. This is a defendants' second appeal filed under Section 100 C.P.C. The plaintiff-respondent, Ram Naresh (since deceased and substituted by his legal heirs) and defendant-appellant, Ram Milan (since deceased and substituted by his legal heirs) were two real brothers. The dispute relates to residential house which was an ancestral property and there was a family partition in respect thereto between members of joint family. The defendant-appellant entered into a contract for sale dated 16.06.1977 in respect of his share in house in question for a total consideration of Rs. 6,000/-, whereagainst Rs. 2000/- was paid in advance and remaining amount was to be paid at the time of registration which was to be executed within a period of two years. The contract for sale contained the stipulations that existing house in question lacks appropriate accommodation and is also not very hygienic and healthy accommodation, therefore, the defendant-appellant intends to settle himself elsewhere by purchasing another accommodation and hence wants to sale the same. Later on he declined to execute sale deed, whereupon the plaintiffs-respondents instituted Original Suit No. 216 of 1980. The suit was contested by defendant-appellant wherein besides other he also denied to have received any amount towards partial consideration and also pleaded that he was not inclined to execute sale deed since he would have rendered homeless. 3. The Trial Court formulated seven issues. All the issues except issue No. 7 were decided in favour of plaintiffs. In respect of issue No. 7 the Trial Court held that since defendant-appellant would render homeless, therefore, it is not a fit case where the court should exercise discretion for enforcing contract for sale by a decree of specific performance and hence partly decreed suit by directing defendant-appellant to refund the amount received by him towards partial consideration. 4. Aggrieved thereto the plaintiffs came in Civil Appeal No. 182 of 1983 which has been allowed by Lower Appellate Court (hereinafter referred to as the "LAC"), i.e., District Judge, Basti vide judgment and decree dated 12.11.1984 and it has decreed the suit for specific performance by directing the defendant-appellant to enforce agreement for sale dated 16.06.1977 by executing sale deed in favour of plaintiffs. This appeal has been preferred by defendant-appellant against aforesaid judgments. 5. This Court formulated following two substantial questions of law vide order dated 14.03.1985: "(1) Whether the Trial Court acted in accordance with law when it exercised discretion in favour of the appellant and instead of decreeing the suit for specific performance decreed the suit for refund of the earnest money? (2) Whether the Lower Appellate Court acted in accordance with law when it set aside findings of Trial Court on the question of exercise of discretion regarding the grant of relief of specific performance and directing the refund of the earnest money?" 6. The basic question is, whether the discretion in the facts and circumstances of the case could have been exercised in favour of defendant-appellant. 7. The Trial Court has declined to decree the suit by enforcing contract for sale by granting a decree for specific performance. It has based its discretion only on the ground that it would render defendant without any accommodation and will lead to bring him on road though the plaintiffs, on the contrary, already possessed half of first floor and second floor and also some part on the ground floor, therefore, it would result in serious hardship if the decree for specific performance is granted. 8. The LAC has not accepted aforesaid reason. While reversing the same, it has observed that these facts were already known to defendant-appellant. He himself has stated in the contract for sale that existing accommodation/house is not suitable for his family and children on account of want of appropriate accommodation as also for unhygienic and unhealthy atmosphere, therefore, he wants to shift elsewhere and in furtherance thereof had purchased a land but subsequently sold the same alleging that he was indebted highly and to discharge such debt the land was sold. All these events reflects on the conduct and affairs of defendant-appellant managed by him subsequently but at the time of execution of contract for sale all these facts and circumstances were well within the knowledge of defendant-appellant. He placed on record all these facts, i.e., stated in the agreement so as to furnish a ground for entering thereinto. It is in these facts and circumstances, this Court will have to find out whether findings of reversal in the matter of exercise of discretion recorded by LAC is just, valid and in accordance with law. 9. He placed on record all these facts, i.e., stated in the agreement so as to furnish a ground for entering thereinto. It is in these facts and circumstances, this Court will have to find out whether findings of reversal in the matter of exercise of discretion recorded by LAC is just, valid and in accordance with law. 9. Section 20 of Specific Relief Act, 1963 (hereinafter referred to as the "Act, 1963") provides that jurisdiction to decree specific performance is discretionary. The Court is not bound to grant such relief merely because it is lawful to do so. However, it further says that discretion of Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by court of appeal. Then there are some illustrations provided in sub-section (2) of Section 20 which may justify for not exercising discretion to decree of specific performance. 10. The facts which were already in the knowledge of defendant-appellant when he executed contract for sale and yet he executed the same cannot be ignored or made ineffective subsequently giving advantage to defendant-appellant himself for his unwillingness to carry out contractual obligation unless something more is brought on record. The defendant-appellant has not placed on record as to in what circumstances he was highly indebted and that situation was not on account of some mischief or misconduct on his part or some bad habit on his part but due to misfortune or a consequence of bad time. Except of the fact that he would render homeless which fact had already been given as a reason in the contract for sale for executing thereto, and which did not deter the defendant-appellant from entering into the contract for sale with plaintiffs nothing further has been stated. In absence of any such facts or pleadings and evidence, in my view, if the defendant-appellant is allowed to wriggle out of all his contractual obligation, by exercising discretion in his favour, it will amount to giving him benefit of his own wrong. The conduct of defendant-appellant even otherwise has not been straight, honest and fair. In the written statement he has denied of having received any money whatsoever though this fact has been found incorrect and false by both the courts below. The conduct of defendant-appellant even otherwise has not been straight, honest and fair. In the written statement he has denied of having received any money whatsoever though this fact has been found incorrect and false by both the courts below. When a land was already purchased by defendant-appellant for constructing his own house, the plaintiffs could not have been expected to do more inasmuch as it is the defendant-appellant who has to take care of his own affairs and has to suffer for his misdeeds unless it is pleaded and proved that whatever he has suffered, was for the reasons beyond his control. Neither any of such facts are pleaded nor there is any evidence to fortify the same. When nothing is pleaded by defendant-appellant on this aspect and he has chosen not to lead any evidence also, there was no reason to draw a presumption in his favour or against the plaintiffs. 11. In Bal Krishna and another Vs. Bhagwan Das (Dead) by Lrs. and others, 2008(12) SCC 145 considering Section 20 of Act, 1963 the Court said: "While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void." 12. The Trial Court while exercising discretion in favour of defendant-appellant has not considered his conduct before institution of suit and during pendency before Trial Court. When a defendant has not contested the matter with clean hands, it is a relevant consideration which must be taken into account so as to exercise a discretion against him. In Parakunnan Veetill Joseph'S Son Vs. Nedumbara Kuruvila'S Son and others, AIR 1987 SC 2328 the Court said: "The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. In Parakunnan Veetill Joseph'S Son Vs. Nedumbara Kuruvila'S Son and others, AIR 1987 SC 2328 the Court said: "The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff." 13. In A.C. Arulappan Vs. Smt. Ahalya Naik, AIR 2001 SC 2783 the Court said that 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. 14. In Lourdu Mari David and others Vs. Louis Chinnaya Arogiaswamy and others, AIR 1996 SC 2814 the Court said that it is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the Court with clean hands. In other words, the party who makes false allegations, does not come with clean hands, is not entitled to the equitable relief. Though the above observations are in the context of plaintiff but in my view when a similar conduct is shown by defendant, the Court shall not take shelter under Section 20 to exercise its discretion in favour of such nefarious litigant. I am supported by the decision in Gobind Ram Vs. Gian Chand (2000) 7 SCC 548 where the Court said that it shall be guided by the principle of equity and good conscious. 15. The jurisdiction exercised by Trial Court in a suit for specific performance should not have been reversed by LAC lightly and without considering the entire facts and circumstances of the case. Gian Chand (2000) 7 SCC 548 where the Court said that it shall be guided by the principle of equity and good conscious. 15. The jurisdiction exercised by Trial Court in a suit for specific performance should not have been reversed by LAC lightly and without considering the entire facts and circumstances of the case. But where the Trial Court itself has failed to consider entirety of facts and circumstances as also the conduct of parties, such a decision of Trial Court deserved to be interfered and its reversal by LAC cannot be said to be erroneous or illegal unless it is shown that LAC has misread or has recorded perverse finding or otherwise has considered some inadmissible evidence and ignored admissible evidence. 16. The statement of defendant-appellant, Ram Milan ad DW-1 was recorded on 22.10.1982, i.e., within five years of the date of execution of contract for sale dated 16.06.1977. He himself has admitted that his father died about 13-14 years back which comes to sometimes in 1968-69. His two other brothers, namely, Ram Raj and Ram Dhani, got separated and residing in the ground floor of the house. The plaintiff, Ram Naresh and defendant, Ram Milan both were residing on the upper floor of house but in 1977 they also separated. He then stated that though he was assured of getting another accommodation but neither that was made available nor any amount alleged to be advanced consideration was paid to him though he admitted that contract for sale was registered before Sub-Registrar. In the cross-examination, however, he admits that till 16.06.1977 there was no actual partition between all the brothers though for convenience purposes Ram Dhani and Ram Raj used to reside in lower portion of house. He also admitted that Ram Raj sold his share in the house in question to him through a sale deed which was executed on the same day on which a contract for sale was executed by him with Sri Ram Naresh. Then he further admitted that he had purchased a land at Gorakhpur road for construction of house but subsequently sold it so as to repay bank loan. In respect of bank loan he further explained that there was a cash credit limit for business purposes of Rs. 25,000/-, whereagainst there was an outstanding of Rs. Then he further admitted that he had purchased a land at Gorakhpur road for construction of house but subsequently sold it so as to repay bank loan. In respect of bank loan he further explained that there was a cash credit limit for business purposes of Rs. 25,000/-, whereagainst there was an outstanding of Rs. 18,000/- and to clear the same, the land he purchased was sold after three months on a consideration of Rs. 16,000/- though it was purchased on a consideration of Rs. 13,700/-. He also admits of doing his own separate business of Atta Chakki and Oil Expeller etc. He then further stated in cross-examination that he is still ready to execute sale deed, provided plaintiff, Ram Naresh fulfill all his conditions but then he did not enumerate those conditions in his statement. All these facts go to show that conduct of defendant-appellant, Ram Milan is not straight, reasonable, fair and honest and on the contrary, after having executed contract for sale he has changed his mind so as to pressurize his elder brother for getting something more which himself he has not tendered and, therefore, it will not delve into any conjecture in respect thereof. 17. Mere hardship by itself is not a ground for denial of enforcing of specific performance of contract. In Hari Krishna Agarwala Vs. K.C. Gupta, AIR 1949 Allahabad 440, a Division Bench said that, mere hardship to the defendant will not affect discretion of the Court in enforcing specific performance of contract. 18. In Hari Narain Vs. Shiv Kumar 1990 (2) AWC 770 , this Court took the view that delay by itself would neither amount to waiver nor abandonment nor acquiescence. The facts and circumstances justifying grant or refusal of enforcement of contract vary and plenty in number. No thumb rule can be penned down but one thing established in law is that such discretion cannot be arbitrary or whimsical. 19. In Leela Vs. Smt. Mukanda & Ors. 1997 ACJ 1104 it is held that the question of hardship is to be judged on the date of entering into transaction. 20. The term "hardship on the defendant" in sub-section 2(b) of Section 20 of Act, 1963 has to be such which he did not foresee at the time of execution of contract for sale. Smt. Mukanda & Ors. 1997 ACJ 1104 it is held that the question of hardship is to be judged on the date of entering into transaction. 20. The term "hardship on the defendant" in sub-section 2(b) of Section 20 of Act, 1963 has to be such which he did not foresee at the time of execution of contract for sale. The question of hardship has to be judged on the date of transaction and not in the light of subsequent events. The hardships shall be one collectoral to the contract. This is the general rule and the exception contemplated in the statute is where events involving hardship have occurred subsequent to the contract, due in some way to the party who seeks specific performance or that the defendant at the time of entering into contract could not have foreseen. If the defendant knew all these circumstances at the time of entering into the contract for sale, those circumstances subsequently, cannot be pleaded so as to constitute hardship for exercising discretion against plaintiff seeking enforcement of specific performance of contract. 21. Looking to the facts and circumstances I return question No. 1 in negative and question No. 2 in affirmative and that is how decide both the questions against defendant-appellant. 22. In the result, this appeal deserved to fail and is accordingly dismissed with costs throughout. _____________