Research › Search › Judgment

Punjab High Court · body

2023 DIGILAW 2563 (PNJ)

Manju v. Vijender Singh

2023-08-23

VIKRAM AGGARWAL

body2023
JUDGMENT Vikram Aggarwal, J. The defendant-Manju is in second appeal against concurrent findings of facts and law recorded by both the Courts below. For the sake of convenience, the parties shall be referred as per their original status. 2. The plaintiff filed a suit for possession of a house situated at Mohalla Tibri Gujran, Near Bawal Chowk, Rewari (fully described in the plaint) (hereinafter referred to as 'the suit property') by way of specific performance of agreement to sell dated 13.05.2008. It was the case of the plaintiff that the agreement to sell dated 13.05.2008 had been executed with regard to the suit property. The total sale consideration was Rs. 6,50,000/-. Rs. 5,80,000/- was paid as earnest money. The date fixed for the execution of the sale deed was 29.10.2008. The plaintiff had always been ready and willing to perform his part of the contract. Since on 29.10.2008, there was a Government holiday, the plaintiff went to the house of the defendant on 30.10.2008 and called upon her to remain present in the office of the Sub-Registrar concerned for execution and registration of the sale deed. The plaintiff remained present in the office of the Sub-Registrar on 30.10.2008 from 09:00 A.M. to 05:00 P.M. alongwith the balance sale consideration and other expenses but the defendant did not turn up. The plaintiff called upon the defendant repeatedly to perform her part of the contract but to no avail. She finally refused on 14.11.2008 leading to the filing of the suit. 3. Initially the defendant was proceeded against ex-parte on 19.02.2009 and an ex-parte judgment and decree dated 13.01.2010 was passed. However, subsequently an application under Order 9, Rule 13 CPC was filed which was dismissed on 29.10.2014 but in appeal, vide judgment dated 26.09.2017, the same was allowed and the matter was remitted to the trial Court for trial. 4. The defendant filed a written statement raising a number of preliminary objections with regard to maintainability, concealment of material facts etc. The execution of the agreement was denied. It was averred that the husband of the defendant was an alcoholic and was having money transactions with the plaintiff since the year 2003. He used to borrow money from the plaintiff and used to return the same. The execution of the agreement was denied. It was averred that the husband of the defendant was an alcoholic and was having money transactions with the plaintiff since the year 2003. He used to borrow money from the plaintiff and used to return the same. The plaintiff used to obtain the signatures and thumb impressions of the defendant on some blank papers/stamp papers as security for the amount borrowed by her husband as the suit property was in her name. Since he had an evil eye on the suit property, the plaintiff misused the blank signed papers and prepared a forged and fabricated agreement to sell. The receipt of earnest money of Rs. 5,80,000/- was denied. A stand was also taken that the market value of the suit property was not less than Rs. 1 crore and, therefore, there was no question of alienating the suit property for a sum of Rs. 6,50,000/-. A stand was also taken that the defendant was having strained relations with her husband and she had been living separately for the last six months prior to the filing of the written statement. She alongwith her children were being maintained by her elder son Bharat who was working as a carpenter. Her husband did not come home for several days and did not provide any expenses to her for her day-to-day life. It was averred that a sum of Rs. 1,80,000/- had been borrowed from the plaintiff which had duly been returned. It was averred that she had constructed a residential house on the suit property and had been living in the same. All other averments were denied. 5. In the replication, the averments made in the written statement were denied and those made in the plaint were reiterated. 6. The trial Court framed the following issues:- "1. Whether the defendant entered into an agreement to sell dated 13.05.2008 with the plaintiff regarding the suit land? OPP 2. Whether the plaintiff was always ready and willing to perform his part of the agreement to sell dated 13.05.2008? OPP 3. Whether the plaintiff is entitled to a decree of specific performance of the agreement to sell dated 13.05.2008 ? OPP 4. Whether the suit is not legally maintainable ? OPD 5. Relief" 7. Parties led evidence in support of their respective cases. OPP 3. Whether the plaintiff is entitled to a decree of specific performance of the agreement to sell dated 13.05.2008 ? OPP 4. Whether the suit is not legally maintainable ? OPD 5. Relief" 7. Parties led evidence in support of their respective cases. After considering the evidence and hearing the counsel for the parties, the trial Court decreed the suit. The defendant was held to have executed the agreement to sell dated 13.05.2008. The evidence led by both parties was considered in detail. The plaintiff was directed to deposit the balance sale consideration of Rs. 70,000/- in the Court within a period of one month and on deposit of the same, the defendant was directed to get the sale deed executed within a period of two months failing which, the plaintiff would be entitled to get the same executed through Court. 8. An appeal was preferred by the defendant but the same was also dismissed upholding the findings of the trial Court. 9. The defendant then filed the present second appeal. Before this Court, at the time of issuance of notice of motion, learned counsel for the appellant-defendant restricted the claim of the appellant-defendant to the point that since she had strained relations with her husband and the house in question was the only dwelling house in which she was residing alongwith her children, the relief be moulded to that of a decree for refund of earnest money in terms of the agreement to sell instead of a decree of possession by way of specific performance of the agreement to sell. 10. I have heard learned counsel for the parties. 11. Mr. Ajay Jain, learned counsel representing the appellant-defendant strenuously urged that the grant of a decree of specific performance and the consequential execution of the sale deed would cause extreme hardship to the appellant-defendant. Learned counsel referred to the pleadings of the parties. Pointed reference was made to the written statement and it was submitted that right from the very beginning, the appellant-defendant had taken a stand that her husband was an alcoholic and that she had strained relations with him. Learned counsel submitted that in view of the same, the Courts below erred in granting a decree for specific performance rather than granting a decree for the refund of earnest money. Learned counsel submitted that in view of the same, the Courts below erred in granting a decree for specific performance rather than granting a decree for the refund of earnest money. Learned counsel submitted that though both the Courts duly noticed the stand of the appellant-defendant, they erred in non-suiting her. Learned counsel referred to the cross-examination of the appellant-defendant and submitted that she was a simple lady as a result of which she stated the truth and the Courts held the same against her, thereby committing an error. Learned counsel also referred to the provisions of section 20 of the Specific Relief Act, 1963 and submitted that the decree of specific performance would not be equitable. Learned counsel also submitted that it had been proved on record that the husband of the appellant-defendant was an alcoholic and a fine had also been imposed upon him which was proved from the receipt Ex.Dl. Learned counsel submitted that under the circumstances, the Courts below should have considered the case of the appellant-defendant from the right perspective. Learned counsel further submitted that the alleged agreement to sell had been executed as far back as in the year 2008 and 15 years down the line, it would be inequitable to grant a decree for specific performance. Learned counsel also submitted that the appellant-defendant was willing to compensate the respondent-plaintiff adequately in lieu of the decree of specific performance. Learned counsel also contended that in view of the judgment of the Hon'ble Apex Court in the case of Satyender and others v. Saroj and others 2022 (4) RCR (C) 89, a substantial question of law would not be required to be formulated since it is Section 41 of the Punjab Courts Act, 1918 which is applicable and not section 100 CPC. In support of his contentions, learned counsel relied upon the judgments of Hon'ble Apex Court in Civil Appeal No.8102 of 2011 (arising out of SLP (C) No.21139 of 2007) titled as Prakash Chandra v. Narayan decided on 23.04.2012; Civil Appeal No.2373 of 2015 (arising out of SLP (C) No.4930 of 2014) titled as Nanjappan v. Ramasamy and another decided on 24.02.2015 and Civil Appeal Nos.5233 and 5234 of 2001 titled as A.C. Arulappan v. Smt Ahalya Node decided on 10.08.2001. He also placed reliance upon the judgments of this Court passed in RSA No.5143 of 2013 titled as Kanta v. Gajanand decided on 21.03.2016; RSA No.1696 of 1999 titled as Diwan Chand v. Kuldip Kumar Mehta decided on 03.12.2007; RSA No. 2540 of 2006 titled as Ram Mari and others v. Mehar Singh and others decided on 06.07.2007; RSA No.4331 of 2011 titled as Gamdoor Singh v. Ajaib Singh decided on 03.11.2011; RSA No.3489 of 2007 titled as Narender Mohan v. Hari Ram decided on 19.10.2007; RSA No. 1555 of 1991 titled as State of Punjab v. Bhag Singh (deceased through LRs) decided on 05.02.2018 and RSA No.511 of 2017 titled as Rajender Singh (deceased) through LRs v. Bhola Singh and others decided on 30.03.2017. 12. On the other hand, Ms. Kushaldeep Kaur, learned counsel representing the respondent-plaintiff submitted that there is no illegality in the findings recorded by the Courts below. Reference was made to the provisions of section 20 of the Specific Relief Act, especially Section 20(2) explanation (2) of the unamended provision and submitted that the plea of hardship had to be seen as on 13.05.2008, i.e. the date when the agreement to sell was executed. Leaned counsel submitted that as per the own case of the defendant, she had strained relations with her husband six months prior to the filing of the written statement meaning thereby that the relations were not strained when the agreement to sell was executed. Learned counsel submitted that under the circumstances, the plea of hardship was devoid of merit. Learned counsel submitted that the plaintiff acted very swiftly and did not waste any time in pursuing the matter and, therefore, both the Courts rightly granted the decree of specific performance to the plaintiff. Learned counsel submitted that from the cross examination of the defendant, it becomes amply clear that a fake plea had been raised by the defendant and actually, she was not having strained relations with her husband. In support of her contentions, learned counsel placed reliance upon a judgment of Hon'ble Apex Court in P.D'Souza v. Shondrilo Naidu 2004 (6) SCC 649 . She also placed reliance upon the judgments of this Court passed in Darshan Singh v. Dalip Kaur and others 2015 (5) RCR (Civil) 639, Jai Chand v. Bhag Chand 2008(1) RCR (Civil) 714 and Jarnail Singh and others v. Sukhwinder Singh 2009 (2) RCR (Civil) 604. She also placed reliance upon the judgments of this Court passed in Darshan Singh v. Dalip Kaur and others 2015 (5) RCR (Civil) 639, Jai Chand v. Bhag Chand 2008(1) RCR (Civil) 714 and Jarnail Singh and others v. Sukhwinder Singh 2009 (2) RCR (Civil) 604. 13. I have considered the submissions made by learned counsel for the parties. It is well settled that in a suit for possession by way of specific performance of an agreement to sell, the grant of a decree of specific performance is the rule and non-grant thereof is the exception. The non-grant would be in case specific performance of the contract would result in extreme hardship. The question which would, therefore, have to be examined is as to whether, the award of a decree of specific performance of the agreement to sell dated 13.05.2008 would amount to extreme hardship to the present appellant. 14. The agreement to sell is on record as Ex. PW1/B. The same pertains to house bearing tax No.6530Y/2. The dimensions in the boundaries are duly given in the agreement to sell. The agreement to sell mentions that the suit property is free of any encumbrances. It also mentions that the present appellant was in need of money. The agreement further mentions that the same was being executed with the consent and free will of the appellant and without any pressure from any side. It is, therefore, clear that the agreement to sell was executed with regard to suit property of the appellant, by the appellant, without any force or pressure, with her own free will. The same was, however, not honoured leading to the filing of the suit. In the written statement, a plea was taken that the husband of the appellant was an alcoholic and the suit property was the sole residential suit property of the appellant. While appearing in the witness box as DW1, the appellant stated that her husband was an alcoholic. However, at the same time, she feigned ignorance about many other things namely as to what was the income of her husband, as to when her children had got married, as to how much land her husband owned, when the same had been purchased etc. At the same time, she admitted that the expenses for the education of her children as for also their marriages had been borne by her husband. At the same time, she admitted that the expenses for the education of her children as for also their marriages had been borne by her husband. She also admitted that adjoining the land on which the disputed property is constructed, there was 05 marlas of land owned by her husband. She then went on to state that she did not know as to when it had been purchased. She stated that she had not given any complaint to any authority with regard to her husband being an alcoholic. She stated that she did not know as to when her husband had got separated from her. She admitted that the present case was being pursued by her husband and that the expenses for the same were also being borne by her husband. This in itself would make it abundantly clear that the ground of hardship was not genuine and had been taken only with a view to avoid the decree. When the agreement to sell was executed, the appellant was very much aware that the agreement to sell was with regard to a house. At that time, no hardship was there. Even as per the written statement, her husband had started living separately six months ago. As per Section 20(2) explanation 2, the hardship was to be seen on the day when the agreement was executed. Even the subsequent hardship portrayed by the appellant is not genuine. It is not the case that the property in dispute is the only property with the family. There is an admission about some more land being there. For the sake of repetition, it is reiterated that when the agreement to sell was executed, the appellant was very well aware that the agreement was with regard to a house. The appellant cannot be permitted to turn around and subsequently contend that specific performance of the agreement to sell would cause extreme hardship to her. Both the Courts below duly considered this argument raised by the appellant and rightly rejected the same. 15. I have gone through the judgments relied upon by both sides. In so far as the judgments relied upon by learned counsel representing the appellant are concerned, the same do not apply to the facts of the present case. Both the Courts below duly considered this argument raised by the appellant and rightly rejected the same. 15. I have gone through the judgments relied upon by both sides. In so far as the judgments relied upon by learned counsel representing the appellant are concerned, the same do not apply to the facts of the present case. In the case of Kanta v. Gajanand (supra), a Coordinate Bench of this Court, while relying upon the judgment of the Hon'ble Apex Court in Nanjappan v. Ramasamy and another 2015 (3) PLR 218 and Veluyudhan Sathyadas v. Govindn Dakshyani 2003 (1) RCR (Civil) 28 held that where the suit property was the only residential constructed property of the defendant, the relief of specific performance was not to be granted. However, in that case the property in question was the only residential house. First of all, in the present case, there is other property with the family as well. Still further, with all due respect to the judgment under reference, even if it was the sole residential property, it was well within the knowledge of the appellant when she entered into the agreement to sell and she should have been careful at the said stage. In the case of Nanjappan v. Ramasamy and another (supra), the first agreement had been executed 27 years ago. With the passage of time, there was escalation of the value of property. The suit property was the only property of the seller. The Hon'ble Apex Court held that as compared to the purchaser, the seller would suffer significant hardship if a decree for specific performance was granted. Under the circumstances, the Hon'ble Apex Court ruled otherwise and held that a decree of specific performance was not required to be granted. The suit is clearly distinguishable on facts. The Hon'ble Apex Court granted the said relief in the peculiar facts of that case which were enumerated in the judgment. In A.C. Arulappan's case (supra), the Hon'ble Apex Court held that the jurisdiction to decree specific relief was discretionary but the discretion could not be exercised in an arbitrary or unreasonable manner. It was held by the Hon'ble Apex Court that if the defendant could be put to undue hardship, which he did not foresee at the time of agreement, the specific relief may not be granted. It was held by the Hon'ble Apex Court that if the defendant could be put to undue hardship, which he did not foresee at the time of agreement, the specific relief may not be granted. Certain other circumstances under which a decree for specific relief should not be granted were enumerated. This judgment could also not come to the aid of the appellant because these circumstances were known to the appellant when the agreement to sell was executed and had not arisen subsequently. In so far as the other judgments relied upon by learned counsel for the appellant are concerned, they mainly hold that the objection has to be taken at the earliest stage. No doubt, in the present case, this stand was taken in the written statement itself. However, in view of the evidence led on record of the case by both sides which has been discussed in the preceding paragraphs, this Court is of the considered opinion that the grant of a decree of specific performance would not result into an extreme hardship to the appellant. In fact, the non-grant of the relief of specific performance would result in hardship to the respondent-plaintiff who has been pursuing the litigation for the last 15 years. 16. I have perused the judgments relied upon by learned counsel for the respondent also. In Darshan Singh's case (supra), a Coordinate Bench of this Court was examining a similar question. In that case also a decree for specific performance had been granted. Subsequently a plea was raised that the suit property in question was the only residential house of the defendant and, therefore, a decree for specific performance of the agreement would cause great hardship to the defendant. This plea was rejected not only by the Courts below but also by the Coordinate Bench of this Court. While rejecting it, it was held by this Court as under:- "10. The argument that is being advanced by the learned counsel for the appellant lacks conviction and cannot be countenanced. Plaintiff indeed proved the due and valid execution of the agreement, dated 30.06.1999. Both the marginal witnesses of the agreement in question (PW1 and PW2) were examined in this regard. The argument that is being advanced by the learned counsel for the appellant lacks conviction and cannot be countenanced. Plaintiff indeed proved the due and valid execution of the agreement, dated 30.06.1999. Both the marginal witnesses of the agreement in question (PW1 and PW2) were examined in this regard. So much so, PW4 Narender Kumar (Deed Writer) deposed in no uncertain terms that the agreement in question was scribed by him and the same was duly explained and read out to the defendant, who after admitting the contents thereof appended his signatures thereon. Further, defendant had received a sum of Rs.50,000/- by way of earnest money in their presence. The specific case set out by the defendant was that the agreement in question, dated 30.06.1999, was a forged and fabricated document and the same was never executed by the defendant. It was maintained that the same does not bear his signatures or thumb impression. An issue was formally framed in this regard and the onus was placed upon the defendant to prove the same. However, the defendant failed to substantiate that the agreement, dated 30.06.1999, was indeed a forged and fabricated document. Defendant did not even examine any expert to compare the disputed signatures on the agreement with his standard signatures. That being so, defendant could not turn around and plead hardship. At any rate, no such plea in terms of provisions of section 20(2) (b) of the Specific Relief Act was set up in defence. Quite naturally, as the defendant out-rightly denied the execution of the agreement in question and the same was purported to be a forged document. Still further, even when the defendant entered into an agreement to sell and received a sum of Rs.50,000/- by way of earnest money, he was alive to the fact that the suit property was his only residential house. Thus, he cannot maintain that he could not forsee the purported hardship. That being so, the argument being advanced by the learned counsel for the appellant is of no consequence in law. Therefore, discretion exercised by the court in granting a decree for specific performance to the plaintiff is ex facie judiciously exercised and thus does not warrant any interference. " 17. A similar view was taken by a Coordinate Bench in Jai Chand's case (supra) wherein it was held as under:- "11. Therefore, discretion exercised by the court in granting a decree for specific performance to the plaintiff is ex facie judiciously exercised and thus does not warrant any interference. " 17. A similar view was taken by a Coordinate Bench in Jai Chand's case (supra) wherein it was held as under:- "11. In the present case, the trial Court, declined the relief of specific performance primarily on the ground that the defendant is residing in the house in question along with his family members and the ends of justice would be met if the amount paid by the plaintiff as earnest money, is refunded to him. Once, the finding has been returned by the learned trial Court that the execution of the agreement is proved, then the fact that the possession was not delivered, is wholly inconsequential as such fact does not affect the execution of the agreement or the payment of the earnest money or the fact that the plaintiff was ready and willing to perform his part of the contract. The plaintiff has filed a suit for specific performance of the agreement, therefore, in the event of decree being passed, the possession can very well be delivered to the plaintiff. Similarly, the fact that the defendant was residing in the house in question, is immaterial as the defendant has executed the agreement to sell knowing well that he is residing in the house. There is no hardship pleaded by the defendant in the written statement nor proved on record in terms of section 20 of the Specific Relief Act, 1963 (for short 'the Act'). In fact, the appellant has denied the execution of the agreement. 12. In terms of Section 20(2) (b) of the Act, the Court may exercise discretion not to decree specific performance in the cases 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. The Explanation (1) contemplates that mere inadequacy of consideration, or the fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute a hardship. Still further, Explanation (2) contemplates that the hardship on the defendant within the meaning of Clause (b) of Section 20(2) of the Act, would be determined with reference to the circumstances existing at the time of the contract. Still further, Explanation (2) contemplates that the hardship on the defendant within the meaning of Clause (b) of Section 20(2) of the Act, would be determined with reference to the circumstances existing at the time of the contract. Therefore, the fact that the defendant and his family members are residing in the house, is not a hardship, which may permit the defendant to avoid the specific performance of the contract, in terms of Section 20 of the Act." 18. Another such view was taken by a Coordinate Bench in Jarnail Singh's case (supra), wherein it was held as under:- "12. There is also no force in the contention of the learned counsel for the appellants that the suit property is a residential house and no decree for specific performance can be passed. A perusal of the agreement EX.P-3 shows that the appellants had agreed to sell the house in question. The execution of this agreement has been fully proved. Therefore, now, it does not lie in the mouth of the appellants to say that it will not be equitable to grant specific performance against them for a residential house in which they are living. Explanation 1 appended to Section 20 clearly stipulates that merely inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of section 20(2) of the Specific Relief Act. The contention of the appellants to the effect that the Courts below should not have exercised its discretionary jurisdiction in view of the hardship which would be visited by the appellants is liable to be rejected. The appellants were the owner of the house. They accepted the part payment from the plaintiff. Moreover, this plea of hardship is also not proved from the evidence on record of the case. It is not a case where the appellants did not foresee the hardship. The Hon'ble Supreme Court of India in the case of P.D'Souza v. Shondrilo Naidu, 2004(3) RCR (Civil) 668 : 2004 (6) SCC 649 , negatived the plea of hardship. Similarly, in the case of Madamsetty Satyanarayana v. G.Yellogi Rao and two others [1965] 2 SCR 221, the Hon'ble Supreme Court has held that mere delay is not sufficient to empower a Court to refuse the relief of specific performance. Similarly, in the case of Madamsetty Satyanarayana v. G.Yellogi Rao and two others [1965] 2 SCR 221, the Hon'ble Supreme Court has held that mere delay is not sufficient to empower a Court to refuse the relief of specific performance. The judgment of the Apex Court reported in Sargunam (dead) By LR v. Chidambram 2004 (4) RCR (Civil) 721 cited by the learned counsel for the appellants is also of no help to him. In the present case, no such situation as envisaged under section 20(2) of the Specific Relief Act, 1963 has arisen. " 19. In P.D'Souza's case (supra), the Hon'ble Apex Court was also seized of a similar issue. The Hon'ble Apex Court also took the view that it was not a case where the defendant had not foreseen the hardship. It was held as under: "29. The third contention of the learned counsel to the effect that this Court should not exercise its discretionary jurisdiction in view of hardship which would be faced by the defendant is stated to be rejected. Such a plea was not raised before the High Court. 30. It is not a case where the defendant did not foresee the hardship. It is furthermore not a case that nonperformance of the agreement would not cause any hardship to the plaintiff. The defendant was a landlord of the plaintiff. He had accepted part payments from the plaintiff from time to time without any demur whatsoever. He redeemed the mortgage only upon receipt of requisite payment from the plaintiff. Even in August, 1981, i.e. just two months prior to the institution of suit, he had accepted Rs. 20,000 from the Plaintiff. It is, therefore, too late for the Appellant now to suggest that having regard to the escalation in price, the Respondent should be denied the benefit of the decree passed in his favour. Explanation I appended to Section 20 clearly stipulates that merely inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair advantage within the meaning of sub-section (2) of Section 20. 31. The decision of this Court in Nirmala Anand (supra) may be considered in the aforementioned context. " 20. I am in agreement with the view taken by the Coordinate Benches of this Court. 31. The decision of this Court in Nirmala Anand (supra) may be considered in the aforementioned context. " 20. I am in agreement with the view taken by the Coordinate Benches of this Court. Further, the ratio laid down by the Hon'ble Supreme Court in P.D'Souza's case (supra) is also squarely applicable to the facts of the present case. 21. In view of the aforementioned facts and circumstances, this Court is of the considered opinion that the present appeal is devoid of merit and the same is accordingly dismissed.