Hon'ble AGARWAL, J.—The defendant-appellants have preferred this civil first appeal under Section 96 read with Order 41 Rule 1 CPC against the judgment and decree dated 24.04.1993 passed by the Additional District Judge No.4, Jaipur City, Jaipur in Civil Regular Suit No.157/1985 whereby the learned trial Court decreed the suit filed by the respondent-plaintiff for specific performance of the agreement to sell and it was directed to the appellants to execute the sale-deed in favour of the respondent within a period of two months. It was further directed that if the appellants fail to comply the order the respondent would be entitled to get the sale-deed executed in her favour through Court. 2. Brief relevant facts for the disposal of this appeal are that the plaintiff-respondent filed a suit against the defendant-appellants on 14.8.1985 with the averment that the appellants floated a housing scheme in the name of “Shivrani Apartments” to allot plots and to construct flats upon them and they agreed to sell constructed Flat No.1 to the respondent in lieu of sale consideration of Rs.3,25,000/- on 24.8.1982 and issued a receipt after obtaining Rs.1,25,000/- as advance. It was further averred that the appellants could not carry out their housing scheme and, therefore, a further agreement was executed between the parties on 1.9.1983 and the appellants undertook to refund the advance amount of Rs.1,25,000/- with interest at the rate of 18% per annum from 24.8.1982. It was also undertaken by the appellants that if they fail to refund the aforesaid amount with interest, the respondent would be entitled to obtain the Flat No.1 in lieu of aforesaid amount of Rs.1,25,000/- through Court. It was further averred that despite oral request several times and written notice the appellants failed to execute sale-deed in respect of the flat in favour of the plaintiff-respondent. It was prayed that the respondent is entitled to get decree for specific performance of the contract in her favour and if by any reason the Court finds it unable to pass decree for specific performance, she is entitled decree for Rs.1,91,875/- alongwith the interest and the costs. 3. In the written statement almost all the averments of the plaint were denied and it was specifically averred that on 24.8.1982, the respondent was not in India as she was residing in Switzerland. It was further averred that the alleged agreement and receipt are forged. 3. In the written statement almost all the averments of the plaint were denied and it was specifically averred that on 24.8.1982, the respondent was not in India as she was residing in Switzerland. It was further averred that the alleged agreement and receipt are forged. It was further averred that it has not been explained by the respondent that when she is a foreign citizen why the sale consideration was paid neither through Demand Draft or cheque. It was objected that without the permission of Central Government, the respondent was not entitled to purchase immovable property in India. 4. It was further averred that it has not been explained by the respondent that when she is a foreign citizen why the sale consideration was paid neither through Demand Draft or cheque. It was objected that without the permission of Central Government, the respondent was not entitled to purchase immovable property in India. 4. On the basis of pleadings of the parties following issues were framed on 24.5.1988:- ^^1- vk;k fd izfroknhx.k us f'kojkuh vikVZesaV ds uke ls IykV dkV dj o cukdj nsus dk dk;Z 'kq: fd;k\ 2- vk;k fd izfroknhx.k us okfnuh ls 24-8-82 dks ,d yk[k iPphl gtkj :i;s ysV ua-1 dher rhu yk[k iPphl gtkj :i;s isVs izkIr dj jlhn fy[kdj nh\ 3- vk;k fd jlhn ,d yk[k iPphl gtkj :i;s QthZ ;k /kks[ks ls cukbZ xbZ\ 4- ;g fd en ua-3 okni= esa n'kkZ;k x;k bdjkjukek fnukad 1-9-83 okfnuh o izfroknhx.k ds e/; rgjhj o rdehu fd;k x;k\ 5- vk;k fd bdjkjukek fnukad 1-9-83 QthZ gS vkSj izfroknhx.k dh lEifÙk dks gM+ius ds fy;s cuk;k x;k gS\ 6- vk;k fd okfnuh bdjkjukek fnukad 24-8-82 o 1-9-83 ds rgr LisflfQd ijQksjesUl dh fMØh izkIr djus dh vf/kdkfj.kh gS vkSj tk;nkn eqn ftdjk en ua-1 o 2 dh jftLVªh vius gd esa djokdj dCtk izkIr djus dh vf/kdkfj.kh gS\ 7- vk;k fd LisflfQd ijeksjesUl dh fMØh u gksus dh lwjr esa okfnuh ,d yk[k bD;kuos gtkj vkB lkS fipgÙkj :i;s e; C;kt 12 izfr'kr okf"kZd nj ls fMØh izkIr djus dh vf/kdkj.kh gS\ 8- vk;k okfnuh fnukad 24-8-82 ,oa 1-8-83 rFkk 15-1-84 dks Hkkjr esa ugha Fkh vkSj mldk Dyse eux<+Ur gS\ 9- vk;k okfnuh fons'kh ukxfjd gksus ds dkj.k ls rFkk Hkkjr ljdkj dh vuqefr ds fcuk lEifÙk [kjhnus dh vf/kdkfj.kh ugha gksus ds dkjk ls okn [kkfjt fd;s tkus ;ksX; gS\ 10- vk;k fd f'kojkuh vikVZesaV dks okn esa i{kdkj cuk;k tkuk vko';d Fkk vkSj bl vk/kkj okn pyus ;ksX; ugha gS\ 11- vk;k fd okfnuh dh fons'kh ukxfjd gksus ls nkos ij dksbZ vlj gksrk gS\ 12- vk;k fd lqjsUnz xksysNk okfnuh ds eq[rkj [kkl gS bl ckr dh tkudkjh izfroknhx.k dks ugha Fkh ,oa lqjsUnz xksysNk okfnuh dks mdlkdj izfroknhx.k dh lEifÙk gM+iuk pkgrk gS vkSj okn blh dkj.k ls nk;j fd;k x;k gS\ 13- vk;k fd nkok dkuwuu e;kn gS\ 14- vk;k oknh okn esa pkgh xbZ nknjlh izkIr djus dh vf/kdkfj.kh gS\** 5. In support of their respective case, parties produced evidence and after hearing their counsel and evaluating and appreciating the evidence, the trial Court came to a conclusion that the appellants agreed to sell a plot with a constructed flat upon it to the respondent through her near relative. Late Shri Harish Chandra Golecha and received Rs.1,25,000/- as advance on 24.8.1992 and also issued a receipt for it. It was also concluded that a further agreement was executed in favour of the respondent on 1.9.1983 and at that time the respondent was in India. For its conclusion, the learned trial Court relied on oral as well as documentary evidence produced on behalf of the respondent whereas the evidence of mere denial by the appellants was not believed. It is pertinent to note that the original receipt and agreement were not filed during trial Court and an application for production of secondary evidence under Section 65 of the Evidence Act was filed by the respondent and the same was allowed and permission to lead secondary evidence in the form of photostat copy of the receipt and agreement was granted. It is also to be noted that although the respondent in the alternate sought relief the aforesaid amount alongwith interest, but as the trial Court chose to grant decree for specific performance of the contract, no order even in alternative was passed in respect of the aforesaid relief. 6. I have heard the learned counsel for the parties, have gone through the record made available for my perusal as well as the relevant legal provisions and the case law relied on by the learned counsel for the parties. In the facts and circumstances of the case, following questions arise for consideration of this Court for the decision of this appeal:- (i) Whether the learned trial Court vide order dated 21.10.1989 wrongly allowed application under Section 65 of the Evidence Act filed by the respondent-plaintiff and wrongly permitted to produce secondary evidence in the form of photostat copy of agreement dated 1.9.1983 and receipt dated 24.8.1982 ? (ii) Otherwise also whether from the evidence available on record the case of the respondent can be held to have been proved ? (ii) Otherwise also whether from the evidence available on record the case of the respondent can be held to have been proved ? (iii) As admittedly the plot in dispute for which the decree for specific performance has been passed is not available whether the respondent is entitled to get the alternative relief of refund of money alongwith interest even if she has not filed cross appeal or cross objections? 7. Question No.1- It was submitted by the learned counsel for the appellants that it is an admitted fact that the original agreement dated 1.9.1983 and the receipt dated 24.8.1982 allegedly executed by the appellants which are foundation and basis of the suit were filed neither alongwith the plaint nor at the stage when issues were framed and application for permission to lead supplementary evidence under Section 65 of the Evidence Act was filed on 22.7.1989 to which reply was filed by the appellants on 5.8.1989 and the same was allowed vide order dated 21.10.1989 whereas the statement of respondent-plaintiff-Smt.Shanta Kothari was recorded on 22.7.1989 but prior to that, it was never claimed that the aforesaid original documents have lost or not traceable whereas the well settled legal position is that permission to lead secondary evidence can be granted only when the circumstances enumerated in Section 65 of the Evidence Act are proved to the satisfaction of the Court. According to learned counsel for the appellants it was the duty of the respondent to prove that the original documents have been destroyed or lost or are not traceable but no such evidence was produced but even then learned trial Court vide order dated 21.10.,1989 without assigning any plausible reasons allowed the application under Section 65 of the Evidence Act. It was further submitted that it was the duty of the respondent-plaintiff to account for the loss/destroy/non-traceability of the original documents but she in her statement recorded on 22.7.1989 did not whisper even a word regarding it. It was further submitted that it was the duty of the respondent-plaintiff to account for the loss/destroy/non-traceability of the original documents but she in her statement recorded on 22.7.1989 did not whisper even a word regarding it. It was also submitted that although PW2-Shri Surendra Golecha and PW3-Shri K.G.Gupta in their statements recorded on 3.2.1990 have also deposed about existence of the original documents and preparation of their photostat copy by mechanical method and also about their misplacement and non-traceability, but they being interested witnesses are not reliable more particularly in view of the fact that the application was allowed before their statements were recorded whereas the legal requirement is that the circumstances provided under clause (c) of Section 65 of the Act are to be proved before permission is granted. It was further submitted that only the secondary evidence in the nature of in one of the forms as provided under Section 63 of the Evidence Act can be allowed to be produced but the photostat copies of the original document which have been exhibited as Ex.1 and Ex.3 on do not come within purview of any of the forms of secondary evidence as provided under the aforesaid provision. It was also submitted that once the secondary evidence relied on behalf of the respondent is excluded from consideration, the oral evidence is of no use and it is inadmissible in evidence as it is also well settled legal position that a fact is to be proved by primary evidence and in the present case only the original documents were primary evidence within the meaning of Section 62 of the Evidence Act and oral evidence is not admissible of a fact which is required to be proved by primary evidence in the form of documents. 8. In support of his submissions, learned counsel for the appellants relied upon the cases of Shankar Lal & Ors. vs. The Civil Judge (Jr. Divison), Shahpura & ors. reported in 2006(3) WLC (Raj.) 421 = RLW 2006(3) Raj. 2049, Janki Narayan Bhoir vs. Narayanan Namdeo Kadam reported in (2003) 2 SCC 91 , J.Yashoda vs. K. Shobha Rani reported in (2007) 5 SCC 730 , H.Siddiqui (Dead) By Lrs. vs. A.Ramlingam reported in (2011) 4 SCC 240 , Kishan Lal Vs.Sohanlal and ors. reported in AIR 1955 (Raj.) 45 and, M/s Electro Mechanical Engineering Coporation & anr. vs. Addl. vs. A.Ramlingam reported in (2011) 4 SCC 240 , Kishan Lal Vs.Sohanlal and ors. reported in AIR 1955 (Raj.) 45 and, M/s Electro Mechanical Engineering Coporation & anr. vs. Addl. District Judge (Fast Track) No.1, Alwar & anr. reported in 2013(1) WLC (Raj.) 773 = 2013(2) RLW 1741. 9. On the other hand, it was submitted by the learned counsel for the respondent that although initially the fact of loss/destroy/misplacement of the aforesaid original documents was not brought to the knowledge of the trial Court and they were filed neither alongwith the plaint nor at the time of sellement of the issues but it was in the plaint specifically averred that receipt for Rs.1,25,000/- was executed on 24.8.1982 and on 1.9.1983 an agreement was also executed by the appellants in favour of the respondent. It was also submitted that although before statement of respondent-plaintiff-Smt.Shanta Kothari was recorded on 22.7.1989, application under Section 65 of the Evidence Act seeking permission to allow secondary evidence was not filed but on the same date application alongwith the affidavit for that purpose was filed which was replied by the appellants on 5.8.1989 and the trial Court after hearing both the parties and considering the facts and circumstances of the case assigning reasons by a detailed order dated 21.10.1989 allowed the same and permission to produce secondary evidence in the form of photostat copy of the original agreement as well as receipt was granted. It was further submitted that the respondent-plaintiff in her statement dated 22.7.1989 clearly stated not only regarding execution and existence of the original documents but also about their non- availability as the same were not traceable. From the statements of PW2-Shri Surendra Golecha and PW3-Shri K.G.Gupta also it is clear that original documents were exhibited and were in executed and photostat copies thereof were got prepared by mechanical process but thereafter the file in which the original documents were available somehow misplaced and could not be traced out although efforts were made for it. It was further submitted that although permission to lead secondary evidence cannot be granted unless the circumstances as enumerated under Section 65 of the Evidence Act are accounted for but there is no further legal requirement that in each and every case before such permission is granted the circumstances have to be proved. It was further submitted that although permission to lead secondary evidence cannot be granted unless the circumstances as enumerated under Section 65 of the Evidence Act are accounted for but there is no further legal requirement that in each and every case before such permission is granted the circumstances have to be proved. According to learned counsel for the respondent the order dated 21.10.1989 cannot be assailed only on the ground that it was passed without first regarding evidence about the circumstances in which the permission to lead secondary evidence could be granted. It was submitted that if from the evidence available on record Court is satisfied that the circumstances do exist, then it is immaterial whether permission was granted prior to evidence was led. 10. In support of his submissions, learned counsel for the respondent relied upon the case of Radheshyam vs. Ramdhan @ Dinesh Kumar Thawaria & anr. reported in 2008 Manu (Rajasthan High Court) 491. 11. It is well settled legal position that best evidence the nature of case will admit shall be produced only means that so long as the higher or superior evidence is within the possession of a person or may be reached by a person, that person shall give no interior proof in relation to it. Essentially, secondary evidence is evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. In order to enable a party to produce secondary evidence, it is necessary for the party to prove existence and execution of the original document. The conditions laid down in Section 65 must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of the document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or the other of the cases provided for in Section 65 of the Evidence Act. Only when the conditions prescribed in Section 65 of the Evidence Act are satisfied, can documents be admitted as secondary evidence. Secondary evidence must be authenticated by foundational evidence that alleged copy is infact true copy of the original. Only when the conditions prescribed in Section 65 of the Evidence Act are satisfied, can documents be admitted as secondary evidence. Secondary evidence must be authenticated by foundational evidence that alleged copy is infact true copy of the original. The Court is obliged to examine the probative value of the document produced in the Court or their contents and decide question of admissibility of document in secondary evidence. 12. In the light of the aforesaid well settled legal position it is to be seen whether in the facts and circumstances of the present case permission to lead secondary evidence was rightly granted or not. As already stated in the plaint it was specifically averred that the appellants received Rs.1,25,000/- as advance and executed a receipt dated 24.8.1982. It was also alleged that on 1.9.1983 an agreement was also executed incorporating some conditions in favour of the respondent. Although, the original documents were filed neither alongwith the plaint nor at the time of framing of the issues and fact regarding their loss/non-traceability was not brought to the knowledge of the Court before statement of respondent-plaintiff-Smt.Kanta Kothari was recorded on 22.7.1989 but in her examination-in-cheif she specifically deposed that on her behalf her brother-in-law-Shri Harish Chandra Golecha entered into a transaction of sale with the appellants and paid Rs.1,25,000/- on her behalf and he informed her that on 25.8.1982 that a document has been executed in respect of the transaction. She in her examination-in-chief has further deposed that when she came to India in 1983, the appellants expressed their inability to provide constructed flat to her and, therefore, a new agreement was executed between them. She also deposed that the original agreement was given in the custody of Shri Surendra Golecha, her brother's son. She has further deposed that at that time the original receipt was also shown to her but lateron Shri Surendra Golecha told him that the original documents are not traceable as they have been misplaced somewhere. It is thus clear that the respondent-plaintiff has not only deposed about the execution and existence of the original documents but also about their loss/non-traceability. It is to be noted that the photostat copies of the said original documents which were available on record were not exhibited during her statement. It is thus clear that the respondent-plaintiff has not only deposed about the execution and existence of the original documents but also about their loss/non-traceability. It is to be noted that the photostat copies of the said original documents which were available on record were not exhibited during her statement. It is also pertinent to note that alongwith the plaint photostat copies of the aforesaid original documents were filed prima facie showing that some original documents were in existence at some point of time of which photostat copies were got prepared and produced in the Court. It is also clear that on 22.7.1989 itself an application under Section 65 of the Evidence Act to lead secondary evidence in the form of photostat copies of the original alongwith the affidavit of the respondent-Smt.Shanta Kothari was filed. Although, reply to the application was filed on 5.8.1989 taking objection that no reason has been assigned for the delay made in filing the application and the statement of the plaintiff has already been recorded whereas such an application should have been made before framing of the issues and the photostat copies cannot be allowed to be produced as secondary evidence, but the learned trial Court by a detailed and reasoned order dated 21.10.1989 allowed the same. It is also clear that subsequently statements of PW2-Shri Surendra Golecha and PW3-Shri K.G.Gupta were recorded on 3.2.1990. Each of these witness has not only deposed regarding execution and existence of the original documents, but also preparation of photostat copies thereof and misplacement of the original documents. Nothing has come in their cross-examination doubting statement made by them in their respective examination-in-chief. Although, it is required that secondary evidence can be permitted only when the circumstances enumerated under Section 65 of the Evidence Act are first accounted for but there is no further legal requirement that even if after permission is granted by the Court after hearing the parties and secondary evidence is produced by the party seeking permission of secondary evidence regarding the circumstances in which the secondary evidence is required to be led, the permission cannot be said to be perverse or illegal merely because permission was granted without recording evidence prior to it. I am of the view at the most it can be said to be an irregularity only. 13. I am of the view at the most it can be said to be an irregularity only. 13. In the present case, although, the statement of PW2-Shri Surendra Golecha and PW3-Shri K.G.Gupta was recorded subsequent to the order permitting the respondent to lead secondary evidence in the form of photostat copies of the original documents but the evidence so recorded cannot be ignored or discarded more particularly in view of the fact that the respondent-plaintiff in her statement recorded on 22.7.1989 deposed not only about execution and the existence of the original documents but also their non-availability. I am of the considered view that the fact of execution and existence of an original document and the circumstances in which the secondary evidence can be permitted under Section 65 of the Evidence Act is to be proved only to the extent of probability and in the present case the aforesaid requirement has been duly complied with. 14. The net result of this discussion is that no fault can be found in order dated 21.10.1989 and it cannot be said that the permission was wrongly granted. Now, the question remains whether photostat copy of the original can be said to be a “secondary evidence” within the meaning of Section 63 of the Act. Sub-section (2) of Section 63 of the Evidence Act provides that copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies are also secondary evidence. It is thus clear that if a copy is made from the original by mechanical process the same will be treated as secondary evidence within the meaning of Section 63 of the Act. According to Section 65 of the Act when the original has been destroyed or lost, any secondary evidence of the contents of the document is admissible and, therefore, a photostat copy prepared by a mechanical process which in itself ensures the accuracy of the original is secondary evidence. In the present case, PW2-Shri Surendra Golecha and PW3-Shri K.G.Gupta have clearly deposed that both the original documents were made available and photostat copies of the same were got prepared. Although, they have been cross-examined at length but nothing have come doubting their statements. 15. In the present case, PW2-Shri Surendra Golecha and PW3-Shri K.G.Gupta have clearly deposed that both the original documents were made available and photostat copies of the same were got prepared. Although, they have been cross-examined at length but nothing have come doubting their statements. 15. Apart from that, I do not found another reason dis-entitling the appellants to agitate and raise the present question before this Court as cost awarded by the trial Court while allowing the application was accepted on their behalf without any objection on 3.2.1990. It is not in dispute that the application dated 22.7.1989 was allowed by awarding Rs.150/- as cost. Order sheet dated 3.2.1990 clearly indicates that Advocate Shri K.S.Chandel appeared on behalf of the appellants and cost was received by him. It is also clear that the same Advocate conducted cross-examination of PW2-Shri Surendra Golecha and PW3-Shri K.G.Gupta on the same date. It is not the case of the appellants that although Advocate Shri K.S.Chandel was authorised to cross-examine the witnesses of the respondent, but he was not authorised to receive the cost awarded by the Court. 16. Hon'ble Delhi High Court in the case of Begum Hamid Ali Khan (supra) has held that when cost was paid and accepted by the tenant, he was estopped from challenging the order allowing amendment subsequently. The facts of the case appears to be that leave to amend the plaint was granted to the plaintiff-landlord on payment of Rs.50/- as cost and the same was paid and accepted by the counsel for the tenant. Subsequently, the order of amendment was challenged but the same was refused by Hon'ble Delhi High Court on the ground of acceptance of cost by the tenant. 17. In the case of Mani Ram (supra), the Division Bench of this Court has held that where the defendant accepted the cost through his counsel awarded by the Court as a condition for the restoration of the suit and there is no evidence to show that the counsel has no such authority, it is no longer open to the defendant to maintain an application for revision against the order allowing plaintiff's application for restoration. 18. 18. In the case of Bajrang Lal (supra), the application for amendment was allowed on payment of cost which was accepted subject to objection, but even then it was held the party accepting the same has no right to appeal or revision against it. 19. In the present case, as the appellants received the cost has awarded by the trial Court while allowing the aforesaid application through their counsel without any objection, I am of the considered view that once the cost was accepted the order dated 21.01.1989 attained finality and the appellants lost their right to challenge/agitate the same before this Court. 20. Question No.2: It was submitted by the learned counsel for the appellants that no reliable evidence is available on record to support the case of the respondent as there are several material contradictions and improvements in the evidence produced during trial in comparison to the pleadings taken. It was also submitted that it is an admitted fact that on 24.8.1982 when Rs.1,25,000/- were allegedly paid to the appellants as advance the respondent was not personally present whereas in the plaint it was averred that she personally paid the money and receipt was also issued to her. During trial a new case has been developed that Shri Harish Chandra Golecha paid the aforesaid amount on behalf of the respondent and receipt was also issued to him. Therefore, the statement of the respondent in regard to payment of the aforesaid amount and the receipt cannot be believed. Similarly, PW2-Shri Surendra Golecha, being son of Late Shri Harish Chandra Golecha and PW3-Shri K.G.Gupta being an employee of Shri Surendra Kumar Golecha, who is a near relative of the respondent, being interested witnesses cannot also be relied and on the basis of their statements the case of the respondent even to the extent of probability cannot be held to have been proved more particularly in view of the fact that from the very beginning the case of the appellants is that no transaction was ever entered into between the parties and the documents relied upon by the respondent are forged. It was also submitted that it is the case of the respondent that advertisement was issued by the appellants regarding the housing scheme floated by them, but copy of such advertisement has not been made available on record. It was also submitted that it is the case of the respondent that advertisement was issued by the appellants regarding the housing scheme floated by them, but copy of such advertisement has not been made available on record. Attention was also invited to the fact that it is the case of the respondent that appellant-Smt.Narendra Kumari w/o Shri Shiv Prakash Singh entered into agreement whereas according to PW2-Shri Surendra Golecha one Smt.Shiv Rani signed on the agreement. If Smt.Shiv Rani is signatory to the agreement, appellant-Smt.Narendra Kumari cannot be held liable for it. 21. On the other hand, it was submitted by the leaned counsel for the respondent that there is ample evidence on record to support the case of the respondent not only in the form of documentary evidence, but also oral evidence and even if there are some contradictions and improvements between pleadings and the evidence, the same are of immaterial nature which are bound to come if statements of the witnesses are recorded after a lapse of some period but that does not adversely affect the basic case of the respondent. 22. On consideration of submissions made on behalf of the respective parties and the pleadings and evidence available on record and the reasons recorded by the learned trial Court in support of his conclusion, I do not find any merit in the submissions of the appellants even on the merit of the case. Although, it is the case of the respondent that a housing scheme in the name of “Shiv Rani apartments” was floated by the appellants but it was never her case that in this regard some advertisement was also issued in any form and, therefore, if copy of such advertisement has not been made available on record, it cannot be said that some important evidence has been concealed from the Court. Otherwise also, in view of the other evidence available on record non-production of copy of such advertisement is of little value. Otherwise also, in view of the other evidence available on record non-production of copy of such advertisement is of little value. Although, in para No.2 of the plaint it was alleged that the appellants on 24.8.1982 rceived Rs.1,25,000/- from plaintiff and also issued a receipt to her and it was not alleged that her relative Shri Harish Chandra Golecha entered into transaction on her behalf whereas during trial in evidence it was stated by her that infact the transaction was entered by Shri Harish Chandra Golecha on her behalf and payment of the advance amount was also made by him, but only by that reason it cannot be said that there is material variance between pleadings and evidence. The question is not whether the respondent personally entered into transaction, but the core question is whether the appellants received Rs.1,25,000/- as advance on 24.8.1982 and issued a receipt thereof in lieu of providing a constructed flat on a piece of land to the respondent. The evidence available on record and more particularly Ex.3 receipt dated 24.8.1982 fully support this fact. It is pertinent to note that this receipt is on a Letterhead of “Shiv Rani Apartments” which admittedly belongs to appellants and it also bears the address and previous phone number of the appellants. It appears that the Letterhead which was available with the appellants was used for the execution of receipt. The appellants have failed to explain in what circumstances their Letterhead was misused for execution of the receipt. Mere denial by the appellants is not sufficient to discard the evidence produced by the respondent. Similarly, the agreement dated 1.9.193 (Ex.1) has been proved by PW3-Shri K.G.Gupta who is one of the signatory to it. He has not only identified and proved the signatures of appellants, but he has further deposed that another witness Shri J.C.Jain put his signature on it in his presence. Nothing has come in his cross-examination dis-crediting his statement made in examination-in-chief. It is well settled legal position that the findings of fact of the trial Court which are based on evidence available on record and are not otherwise perverse cannot easily be interfered even in the first appeal. I do not find any perversity and illegality in the findings arrived at by the learned trial Court. It is well settled legal position that the findings of fact of the trial Court which are based on evidence available on record and are not otherwise perverse cannot easily be interfered even in the first appeal. I do not find any perversity and illegality in the findings arrived at by the learned trial Court. It is well settled legal position that appellate Court shall not interfere when there is nothing erroneous, illegal or misdirection in law but when, on the other hand, conclusions of trial Court are well considered and based on detailed analysis of evidence and correctly applied. 23. Question 3:- It is now an admitted fact that the plot in dispute for which the decree for specific performance has been passed is not available as it has already been sold to RFC by the appellants during pendency of the suit itself and it is not possible to execute the decree passed by the learned trial Court to that extent. 24. Inviting attention towards Order 41 Rule 33 CPC learned counsel for the respondent submitted that the appellate Court has jurisdiction to modify the decree to do complete justice between the parties even if cross appeal/cross objections have not been filed. According to learned counsel for the respondent, although, in the suit alternative relief for refund of money alongwith interest was also claimed but the same was not granted and the trial Court was pleased to grant the decree for specific performance overlooking the fact that the plot in dispute is not available to be sold to the respondent and, therefore, decree for refund of the original amount of Rs.1,25,000/- with interest till payment is required to be passed in the appeal. 25. On the other hand, it was submitted by the learned counsel for the appellants that as the decree for refund of original amount alongwith interest was not granted, in absence of cross appeal/cross objections relief to that extent cannot be granted even if the decree for specific performance has become in-executable due to the reason that plot in dispute is not available to be sold to the respondent. 26. 26. It is well settled legal position that if the appellate Court is of the view that any decree which ought in law to have been passed was infact was not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require. Under Order 41 Rule 33 CPC the appellate Court is competent to pass decree for the enforcement of a right in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require. The words “as the case may require” used in Rule 33 Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meat the ends of justice. 27. In view of the admitted fact that the plot in dispute is now not available and it has been sold by the appellants to RFC during pendency of the suit and that fact was not brought to the knowledge of the trial Court and as a consequence thereof decree for specific performance was passed in favour of the respondent has become in-executable, in the light of the aforesaid legal position the respondent is entitled to refund of original amount of Rs.1,25,000/- alongwith interest upon it. 28. Consequently, the appeal filed by the appellants is dismissed with costs and the decree is modified in the following manner:-5 (1) The respondent-plaintiff is entitled to receive Rs.1,25,000/- from the appellants-defendants; (2) She is also entitled to receive interest at the rate of 12% per annum on the aforesaid amount from 24.8.1982 till the aforesaid original amount is paid to her.