JUDGMENT : 1. The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellant/plaintiff is as under :- “Whether Lower Appellate Court has committed an illegality by not affirming the finding of the trial Court and has denied for grant of discretionary relief in arbitrary manner ?” [For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court]. 2. The suit property bearing Khasra No.111/3 area 0.238 hectare situated at village Parsahi, Tahsil and District Bilaspur was originally held by original defendant No.1-Juglal, who died during pendency of the suit. It is the case of the plaintiff that original defendant No.1 on 28.4.1996 agreed to sell his suit land at the rate of Rs.50,000/-per acre and also obtained Rs.6,000/- and executed agreement to sell in favour of the plaintiff vide Ex.P-1, but thereafter defendant No.1 failed to perform his part of contract leading issuance of notice dated 13.11.2001, to which defendant No.1 refused to execute and served reply in December, 2001 and again fresh notice was issued on 23.7.2002 as original Advocate Mr. Dande has died. It has also been pleaded that the plaintiff is ready and willing to perform his part of contract and decree for specific performance of contract be granted in favour of the plaintiff. 3. Resisting the suit, original defendant No.1 filed his written statement and denied the averments made in the plaint stating that agreement to sell is fabricated document and the suit be dismissed with cost(s). 4. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 15.2.2010, decreed the suit holding that agreement to sell has been entered into with the plaintiff and defendant No.1 for sale of the suit land, defendant No.1 has also obtained Rs.6,000/- and the suit is not barred by limitation and the plaintiff is ready and willing to perform his part of contract. On appeal being preferred by legal representatives of original defendant No.1, the first appellate Court concurred with findings of the trial Court with regard to valid agreement to sell by defendant No.1 in favour of the plaintiff and plaintiff is ready and willing to perform his part of contract and also that the suit is within limitation, but interfered on the ground that the plaintiff is not entitled for relief of decree for specific performance of contract and by partly granting appeal, granted decree for return/refund of earnest money, against which, this second appeal under Section 100 of the CPC has been filed, in which one substantial question of law has been formulated, which has been set-out in the opening paragraph of this judgment for sake of completeness. 5. Mr. Somnath Verma, learned counsel for the appellant/plaintiff, would submit that the first appellate Court having concurred with all findings of the trial Court with regard to valid agreement to sell, readiness and willingness on the part of the plaintiff and the suit being within limitation could not have interfered with relief of specific performance by holding that it would cause hardship to defendant No.1 as there is no specific plea in terms of Section 20 (2) (b) of the Specific Relief Act, 1963 (hereinafter called as 'the Act of 1963') and therefore, in absence of that, no relief could have been granted to defendant No.1, as such, the judgment and decree of the first appellate Court to that extent deserve to the set aside. 6. On the other hand, Mr. Ravish Verma, learned counsel for the respondents/defendants, would support the impugned judgment and decree and submit that the agreement is admittedly said to be of 28.4.1996 (Ex.P-1) and after considering the delay on the part of the plaintiff in serving notice and filing suit, the first appellate Court has rightly interfered with the judgment and decree of the trial Court particularly only granted relief of refund/return of earnest money. He would rely upon the judgment of the Supreme Court in the matter of Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff and others, (2011) 12 SCC 658 . 7. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. He would rely upon the judgment of the Supreme Court in the matter of Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff and others, (2011) 12 SCC 658 . 7. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 8. The trial Court after appreciation of oral and documentary evidence available on record found that defendant No.1 has entered into agreement to sell with the plaintiff for sale of his suit land on 28.4.1996 vide Ex.P-1 at the rate of Rs.50,000/-per acre and Rs.6,000/- as earnest money was paid to him. The trial Court also recorded a finding that defendant No.1 has failed to perform his part of contract and the plaintiff is always ready and willing to perform his part of contract and the suit filed by the plaintiff is within limitation and accordingly, granted decree for specific performance of contract. On appeal being preferred by legal representatives of original defendant, the first appellate Court concurred with finding that there is valid agreement to sell in favour of the plaintiff, the suit is also within limitation and the plaintiff is also ready and willing to perform his part of contract, but the first appellate Court took notice of the fact that there is some delay in serving legal notice and filing of the suit for specific performance of contract, though the suit is within the period of limitation and proceeded to interfere with the relief ultimately granted to the plaintiff holding that relief of refund of earnest money would be more appropriate than the relief of specific performance of contract and accordingly, modified the decree. That has been questioned in this second appeal and substantial question of law formulated has already been set-out in opening paragraph of this judgment. 9. The question for consideration would be whether the first appellate Court is justified in holding that the plaintiff is not entitled for relief of specific performance of contract ? 10. That has been questioned in this second appeal and substantial question of law formulated has already been set-out in opening paragraph of this judgment. 9. The question for consideration would be whether the first appellate Court is justified in holding that the plaintiff is not entitled for relief of specific performance of contract ? 10. In order to decide the correctness of that finding, it would be appropriate to notice the plea taken in written statement, which states as under :- fyf[kr dFku izfroknh Øekad&1 fuEufyf[kr mRrj izLrqr djrk gS%& 1- ;g fd dafMdk 1 dh ckrsa izfØ;k laca/kh gS vr% dksbZ mRrj ugha fn;k tk jgk gSA 2- ;g fd dafMdk 2 dh ckrsa Lohdkj gSA 3- ;g fd dafMdk 3 dh ckrsa vLohdkj gSA ;g Li"V :i ls budkj gS fd 6000@& c;kuk ds :i esa ysdj 50]000@& esa cspus dk lkSnk fd;k FkkA tehu esa t;pan] ckydjke] tudjke rFkk cks/kjke ds 'kkfeykuh gd dh tehu gSA izfroknh Øekad&1 cspus ds lkSns dk vf/kdkj ugha j[krk gSA c;kus dh jlhn dwVjfpr nLrkost gS bl ij izfroknh ds vaxwBs dk fu'kku Hkh ugha gSA 4- ;g fd dafMdk 4 dh ckrsa vLohdkj gSaA pwafd cspus dk lkSnk gh ugha gqvk rks cspus dk vk'oklu nsus dk iz'u gh ugha gSA 5- ;g fd dafMdk 5 dh ckrsa vLohdkj gS Jh nkaMs us dksbZ uksfVl ugha fn;k dsoy Jh ik=s dk uksfVl izkIr gqvk Fkk ftldk tokc fn;k x;k FkkA 6- ;g fd dafMdk 6 dh ckrsa vLohdkj gSA fnlacj 2001 esa dksbZ okn dk dkj.k mRiUu ugha gqvk gSA 7- ;g fd dafMdk 7 dh ckrsa vLOkhdkj gS fcØhi= iath;u djkus dk dksbZ vf/kdkj oknh dks ugha gSA 8- ;g fd dafMdk 8 dh ckrsa izfØ;k ls lacaf/kr gS vr% budk dksbZ mRrj ugha fn;k tkrkA 9- ;g fd dafMdk 9 dh ckrsa izfØ;k ls lacaf/kr gS vr% dksbZ mRrj ugha fn;k tkrkA 10- ;g fd dafMdk 10 dh ckrsa vLOkhdkj gSA fnlEcj 2001 dks dksbZ okn dk dkj.k mRiUu ugha gqvkA 11- ;g fd dafMdk 11 dh ckrsa izfØ;k ls lacaf/kr gS vRk% dksbZ mRrj ugha fn;k tkrkA 12- ;g fd dafMdk 12 dh ckrsa vLohdkj gSa A okn dk lgh ewY;kadu ugha fd;k x;k gS vr% okn iks"k.kh; ugha gSA 13- ;g fd oknh dksbZ vuqrks"k ikus dk vf/kdkjh ugha gSA 14- ;g fd okn vius orZeku Lo:i esa iks"k.kh; ugha gSA 15- ;g fd okn le; ckf/kr gSA 16- ;g fd okn es dqla;kstu ,oa vla;kstu dk nks"k gSA 17- ;g fd okn izfroknh 1 dks ijs'kku djus O;FkZ esa is'k fd;k x;k gS tks QthZ ,oa >wBs nLrkost ds vk/kkj ij gSA vr% 10]000@& fof'k"V gtkZuk yxkdj okn fujLr djus ;ksX; gSA vxqaBk fu'kku izfroknh Øaekad&1 ¼tqxyky½ 11. A careful perusal of written statement of defendant No.1 would show that though he has taken number of defences that the suit property being joint family property he has no right to alienate the suit property and there is no agreement to sell between him and the plaintiff and he has not put his thumb impression on the agreement to sell, but did not take a specific plea in terms of Section 20(2)(b) of the Act of 1963 that the performance of the contract would involve hardship to him which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff and consequently, no issue was framed by the trial Court, but the first appellate Court has interfered on the ground that decree for specific performance of contract would cause hardship to defendant No.1. 12. At this stage, it would be appropriate to notice Section 20(2)(b) of the Act of 1963 [repealed w.e.f. 01.10.2018 substituted by Act 18 of 2018] which states as under:- “20. Discretion as to decreeing specific performance.- (1) xxx xxx xxx (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:- (a) xxx xxx xxx (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; or (c) xxx xxx xxx Explanation 1.-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). Explanation 2.-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.” 13. The Supreme Court in the matter of Vimaleshwar Nagappa Shet (supra) has clearly held that decree for specific performance is purely discretionary. It was observed as under:- “11. It is settled law that Section 20 of the Specific Relief Act, 1963 confers discretionary powers. [Vide M. Meenakshi v. Metadin Agrawal, (2006) 7 SCC 470 , Nirmala Anand v. Advent Corpn. The Supreme Court in the matter of Vimaleshwar Nagappa Shet (supra) has clearly held that decree for specific performance is purely discretionary. It was observed as under:- “11. It is settled law that Section 20 of the Specific Relief Act, 1963 confers discretionary powers. [Vide M. Meenakshi v. Metadin Agrawal, (2006) 7 SCC 470 , Nirmala Anand v. Advent Corpn. (P) Ltd., (2002) 5 SCC 481 And Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Karuvila's Son, 1987 Supp SCC 340]. It is also well settled that the value of property escalates in urban areas very fast and it would not be equitable to grant specific performance after the lapse of a long period of time.” 14. The Supreme Court in the matter of Prakash Chandra v. Narayan, AIR 2012 SC 2826 has clearly held that the question as to whether the grant of relief for specific performance will cause hardship to the defendant within the meaning of Clause (b) of sub-section (2) of Section 20 of the Specific Relief Act, 1963, is question of fact. It was observed as under:- “15. the question as to whether the grant of relief for specific performance will cause hardship to the defendant within the meaning of Clause (b) of sub-section (2) of Section 20 of the Specific Relief Act, 1963, being a question of fact, the first appellate court without framing such an issue ought not to have reversed the finding of the trial court while concurring with it on all other issues with regard to the appellant's entitlement to relief for specific performance of contract. The High Court in the second appeal failed to notice that the respondent had not taken any defence of hardship and no such issue was framed and in absence of any such evidence on record, the first appellate court held that he would be landless should the decree for specific performance be granted.” 15. The Supreme Court in the matter of K. Prakash v. B.R. Sampath Kumar, AIR 2015 SC 9 has held that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles. It was observed as under:- “17. The Supreme Court in the matter of K. Prakash v. B.R. Sampath Kumar, AIR 2015 SC 9 has held that the court's jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles. It was observed as under:- “17. The principles which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists a condition precedent to the grant of decree for specific performance that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree is established then the Court has to exercise its discretion in favour of granting relief for specific performance.” 16. The Supreme Court in the matter of Leeladhar (Dead) Through LRS. v. Vijay Kumar (Dead) Through LRS. And Others, AIR 2019 SC 4652 has held as under:- “7. To take benefit of clause (c) of sub-section (2) of Section 20 of the Specific Relief Act, the defendant in a suit for specific performance must show that he entered into the contract under the circumstances which though rendering the contract voidable, make it inequitable. In the present case, once we hold that the document entered was an agreement to sell and not a sham transaction, the appellants can take no benefit of this provision.” 17. In the present case, once we hold that the document entered was an agreement to sell and not a sham transaction, the appellants can take no benefit of this provision.” 17. Reverting to the facts of the present case in the light of aforesaid legal principle of law laid down by their Lordships of the Supreme Court in the abovestated judgments (supra), it is quite vivid that in the instant case, though defendant No.1 in his written statement only took a plea that no agreement to sell was executed in between him and the plaintiff and took a calculated chance to proceed the suit without taking a specific plea based on Section 20(2)(b) of the Act of 1963, in which two Courts below have clearly reached to the conclusion that there was valid agreement to sell between defendant No.1 and the plaintiff and it fulfills the requirement of valid agreement to sell. Defendant No.1 did not take a plea based on Section 20(2)(b) of the Act of 1963 that the performance of the contract would involve some hardship to him and it will not cause any such hardship to the plaintiff. Defendant No.1 did not take a plea based on Section 20(2)(b) of the Act of 1963 that the performance of the contract would involve some hardship to him and it will not cause any such hardship to the plaintiff. Consequently, the trial Court did not frame any issue based on Section 20(2) (b) of the Act of 1963 and parties also did not lead any evidence to demonstrate the fact of hardship to the defendant in performance of contract and no hardship to the plaintiff in case the contract is not allowed to be performed and consequently, the trial Court has not recorded any finding in this regard, but the first appellate Court without there being any pleading on the part of defendant No.1 based on Section 20(2)(b) of the Act of 1963 and without any issue in that behalf and there being no evidence on said point, proceeded to takeup the issue of hardship to defendant No.1 in granting decree for specific performance of contract after affirming all other findings, modified the decree holding that the plaintiff is not entitled for decree for specific performance of contract as it would cause hardship to defendant No.1 and he would be entitled only decree for return/refund of earnest money, which is in the considered opinion of this Court is not correct finding particularly in view of the fact that no pleading having been raised on behalf of defendant No.1 before the trial Court based on Section 20(2)(b) of the Act of 1963 and parties did not lead any evidence on the instant issue and therefore, the first appellate Court could not have modified the decree after affirming all other findings which were required for granting relief of specific performance of contract. 18. Accordingly, the judgment and decree of the first appellate Court to the extent of setting aside the decree for specific performance of contrary is hereby set-aside and the judgment and decree of the trial Court is hereby restored by answering the substantial question of law in favour of the plaintiff and against defendant No.1. 19. The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s). 20. Appellate decree be drawn-up accordingly.