A. Noorjahan v. Ayisumma

P.B Suresh Kumar, J.:— The plaintiff in a suit for specific performance is the appellant in this second appeal.

2. The suit property measuring one cent belongs to the defendant. The case of the plaintiff is that the defendant had agreed to sell the suit property to the plaintiff on 23.9.1998 for a sum of Rs. 15,000/-, after receiving a sum of Rs. 5,000/- towards the advance sale consideration. Ext.A2 is the agreement for sale relied on by the plaintiff. Ext.A2 provides that the balance sale consideration shall be paid by the plaintiff to the defendant within 11 months. It is alleged by the plaintiff that though the plaintiff was ready and willing to discharge her obligations under Ext.A2 agreement, the defendant was not willing to convey the suit property. The defendant resisted the suit. According to the defendant, he had borrowed a sum of Rs. 5,000/- from the plaintiff and the plaintiff has fabricated Ext.A2 agreement making use of the blank signed papers entrusted by him to the plaintiff while borrowing the amount.

3. The trial court rejected the contentions raised by the defendant and decreed the suit. The defendant challenged the decision of the trial court in appeal. Though the appellate court confirmed the findings rendered by the trial court in all respects, it declined the decree of specific performance sought by the plaintiff holding that the performance of Ext.A2 agreement for sale would involve hardship to the defendant and that the non-performance of the said agreement would not involve any hardship to the plaintiff. In other words, the appellate court granted the defendant the benefit of Section 20(2)(b) of the Specific Relief Act. Paragraph 11 of the appellate judgment dealing with the said aspect reads thus:

“11. The evidence of DW1 shows that he along with his family has been residing in the house on the plaint schedule property measuring one cent, that he has got three unmarried daughters, and that he does not have financial capacity to construct another house. The evidence of PW1 shows that when Ext.A2 was executed, the defendant along with his family was residing in the house on the plaint schedule property covered by Ext.A2, and that the defendant had been conducting tea shop in the plaint schedule property. There is nothing on record to show that the defendant has got any other property than the plaint schedule property. The evidence of PW1 further shows that he does not know whether the defendant has financial capacity to purchase another building for his residence. His evidence also shows that the defendant has got five daughters of them three daughters have attained the age of marriage, and that the marriage of two daughters has already taken place. The evidence adduced in this case shows that the marriage of three daughters has not taken place. During the pendency of this appeal, the defendant died. Now it appears that the wife and unmarried daughters of the defendant have been residing in the house on the plaint schedule property. Admittedly, they have no other property to reside. In the circumstances, it appears that the performance of Ext.A2 contract would involve hardship on the wife and daughters of the deceased defendant, whereas its non-performance would involve no such hardship on the plaintiff. Having regard to the entire facts and circumstances of this case, it appears that the defendant entered into Ext.A2 contract under the circumstances which make it inequitable to enforce specific performance. In the circumstances, the decree for specific performance of the contract for sale of the plaint schedule property cannot be granted. However, the respondents are liable to refund the advance amount of Rs. 5,000/-.”

4. The plaintiff, who is aggrieved by the said decision of the appellate court, has thus come up in this second appeal.

5. The learned counsel for the appellant contended that the defendant has not claimed in the written statement the benefit of Section 20(2)(b) of the Specific Relief Act. He also contended that there was no issue framed in the suit as regards the benefit, if any, due to the defendant under Section 20(2)(b) of the Specific Relief Act. The learned counsel for the appellant also relied on the decision of the Apex Court in Prakash Chandra v. Narayan ((2012) 5 SCC 403 : AIR 2012 SC 2826) in support of his contention that there should have been an issue framed in the suit as regards the benefit, if any, due to the defendant under Section 20(2)(b) of the Specific Relief Act.

6. I do not find any substance in the arguments advanced by learned counsel for the appellant. It is the duty of every court dealing with a suit for specific performance to consider whether on the facts of the given case, the plaintiff is entitled to the discretionary relief of specific performance having regard to the provisions contained in Section 20 of the Specific Relief Act. As such, the contention that the defendant has not claimed the benefit of Section 20(2)(b) of the Specific Relief Act and therefore he is not entitled to the same is liable to be rejected. Coming to the decision of the Apex Court in Prakash Chandra v. Narayan (supra), it is seen that a specific issue was not raised in the said case as regards the benefit, if any, which the plaintiff in the said case was entitled to under Section 20 of the Specific Relief Act. However, as far as the present case is concerned, the issue raised namely, whether the plaintiff is entitled to get a decree for specific performance of the contract, takes in within its scope, according to me, the issue as to whether the defendant is entitled to the benefit of Section 20 of the Specific Relief Act also.

7. There is no question of law, much less any substantial question of law involved in this matter. The second appeal, in the circumstances, is devoid of merits and the same is accordingly, dismissed. All the interlocutory applications in the appeal are closed.