Swatanter Kumar, J.
1. The plaintiff filed a suit for permanent injunction and specific performance against the defendant in relation to the built-up property bearing no. 100, Block no. B, Jhilmil Colony, Shahdara, Delhi admeasuring 57.50 sq. yards, in furtherance to the agreement to sell entered into between the parties on 20.01.2004. Vide the above agreement, the defendant had agreed to sell the said property to the plaintiff, for a total consideration of Rs. 19 lacs and in terms thereof a sum of Rs. 6 lacs was received by the defendant from the plaintiff. The balance amount of Rs. 13 lacs was payable at the time of the registration of the Sale Deed. The sale deed was executed on 18.2.2004 and possession of the vacant property was to be delivered to the plaintiff on the said date. Having failed to get the sale deed registered in its favor and having not received any response from the defendant, the plaintiff on 1.2.2004 visited the suit property and learnt from a Real Estate Agent in the vicinity namely M/s. Bhasin Associates that the defendant had approached them with an intention to sell the said property. The intention of the defendant was to get more price and to commit breach of the terms of the agreement. Apprehending that the defendant would sell the said property to a third party and create further complications for the plaintiff, the plaintiff filed a suit for injunction and specific performance.
2. Vide order dated 10.2.2004, the defendant was ordered to be served and as nobody appeared on his behalf he was proceeded ex parte in the suit.
3. The plaintiff led his evidence and proved on record the agreement to sell as Ex.PW-1/1, receipt as Ex.PW-1/2 and he also placed on record a copy of the suit which was earlier filed by the plaintiff and which is stated to have been decreed in favor of the plaintiff. On the basis of the ex-parte evidence led by the plaintiff, the Trial Court decreed the suit of the plaintiff, but only for recovery of double the money which the plaintiff had paid in terms of the agreement i.e. a sum of Rs. 12 lacs. Vide judgment and decree dated 24.8.2004, the learned Trial court for the reasons stated therein, granted the following relief:
I have heard Ld. Counsel for the plaintiff and have gone through the material placed on record. There is no reason to disbelieve the contents of the affidavit filed by the plaintiff. The plaintiff has not placed on record any document regarding ownership of the defendant in respect of the property. In para no. 2 of the plaint, reference is there to some registered documents to show that the defendant is owner of the property. In the absence of any such document, I think it proper to allow the double of the amount paid by the plaintiff to defendant as earnest money to avoid further litigation between the plaintiff and third person. Accordingly, decree in the amount of Rs.12 lakh (Rupees Twelve Lakh Only) with cost and interest @ 6% from the date of filing the suit till realization, as the plaintiff has not sent any legal notice to the defendant to enable plaintiff to get interest from the date of payment, is passed in favor of the plaintiff against the defendant. Decree-sheet be prepared accordingly. File be consigned to Record Room.
4. The correctness of the above findings of the Trial Court are questioned in the present appeal primarily on the ground that the reason given by the learned Trial Court for declining the relief to the plaintiff is factually incorrect and impermissible in law. Even in this appeal the respondent has been served by way of publication and the citation was issued and published in 'The Statesman' dated 5.4.2006. As nobody appeared on behalf of the respondents they were ordered to be proceeded against ex parte vide order dated 5.4.2006, and ex-parte arguments were heard.
5. There is some merit in the contentions raised by the learned Counsel appearing for the appellant in as much as the only reason given for declining a decree of specific performance in favor of the plaintiff is that no document had been placed on record to show that defendant was the owner of the property.
6. Firstly, this finding of the Trial Court is, contrary to the evidence led by the plaintiff on record. An averment has been made in the plaint that the defendant is the owner of the property which was not disputed before the court. Secondly, Ex.-PW1/1 in its very recitals refers that the defendant is owner of the property by virtue of lease deed, a registered document at No. 4937, in Additional Book No. 1, Volume 388 on pages 96-99 dated 18.1.2002 in the Office of the Sub-Registrar, Delhi. This was an exhibited document on the basis of a statement made on oath by the plaintiff before the Court. What was the material before the court to doubt the ex parte evidence, the contents of a registered document which was referred to in the agreement Ex.PW1/1 and the fact that the plaintiffs had otherwise proved his case in accordance with law. The Court has not expressed any reservation about the authenticity of Ex.PW1/1. If the court doubted the genuineness or correctness of Ex.PW1/1, then it could not have even decreed the suit for recovery of money. It is a settled principle of law that it is not mandatory for a court to grant relief of decree for specific performance, simply for the reason that the plaintiff has proved his case and it is lawful to do so. But this discretion vested in the court is not arbitrary and can be exercised only for sound and reasonable ground. The need for sound reasoning is illustrated in the statute by the language used by the legislature in Section 20 of the Act. The discretion exercised, guided by judicial norms has to be capable of correction by a court of appeal. Reference in this regard can be made to a judgment of this Court in the case of Raj Kumar Sharma v. Smt. Pushpa Jaggi and Ors. (CS(OS) No. 1186/2005) decided on November 24, 2006, where the Court held as under:
The present suit is a suit for specific performance and the relief is one granted by the Court primarily on equitable principles. Section 20 of the Act vests a wide discretion in the Court to grant or decline a decree for specific performance. Of course, this discretion is to be exercised in accordance with the settled principles of law applicable to the facts of the case. It is not necessary for the Court to grant specific performance merely because it is lawful to do so. In the facts of the present case Ex.P-1 does not give any unfair advantage to the plaintiff over the defendants. The parties had agreed to extend the period for execution of the sale deed from June, 2005 to July, 2005 and the measurement of the land in question was a persisting dispute as is clear from the various notices sent by the plaintiff to the defendants. If the specific performance is granted to the plaintiff, it would not involve great hardship to the defendants as what has happened, the parties could foresee the same at the time of execution of the agreement. The mentioning of the price per sq.yard does indicate and even subsequent conduct of the parties including the present defendants show that there was some dispute with regard to the measurement of the land and it is own case of the defendants that they had further reduced the price from Rs.39.50 lacs to Rs.38.50 lacs and intended to sell the plot 'as is where is basis.' The stand taken by the defendants is unfair and certainly tilts the equity against them rather than in their favor. Firstly, they denied the very knowledge about the transaction in question and subsequently have taken contradictory stand even in regard to smallest of the things. Ex.D-1 suffers from the infirmity of suspicion. In these circumstances, it would no way be unfair to grant relief to the plaintiff whose 5 lacs of rupees have been retained by the defendants for all this time and the plaintiff filed the present suit without any unnecessary delay and in fact in less than one month, that too after serving notice upon the defendants from the agreed date for execution of the sale deed i.e. 25th July, 2005. The defendants have not even spelled out in their written statement what is the breach committed by the plaintiff. The notices issued by the plaintiff to the defendants have been received and replied to by the defendants. In fact, in their reply to the notice, they had stated that they are willing to sell the land and parties were trying to resolve the dispute with regard to measurement of the land in question. In the circumstances of the present case, it is difficult to hold that plaintiff has committed any specific breach of the terms of the agreement and/or has acted malafidely in a manner which would disentitle him from getting the equitable relief of specific performance in the discretion of the Court. At this stage, it would be appropriate to make a reference to the judgment in the case of Rattan Lal v. Smt. Bharpai and Ors. 1998 (4) ICC 412, where the Court after considering the law at length and the judgment of the Supreme Court as well as of that Court in the case of Ram Dass v. Ram Lubhaya 1998 (2) plr 326, held as under:
It is clear from the above finding that no fault can be attributed to the plaintiffs. They never attempted to gain undue advantage over the defendant. The plaintiffs were always willing and ready to perform their part of the agreement and had gone to the Court Complex with the money on the appointed dates. The stand of the defendant is totally inconsistent. No averments of fraud have been pleaded. The defendant claims to have gone to the court complex to perform the agreement. However, at no point of time he pleaded that plaintiffs had breached the terms of the agreement and as such the earnest money was liable to be forfeited.
Coming to the legal aspect of the matter in the case of S. Rangaraju Naidu v. S. Thiruvarakkarasu, the Supreme court never intended to lay down as a principle of law that specific performance should be denied, if alternative relief is asked for. Keeping in view the special facts of that case, as there was undue delay on the part of the plaintiff, the Hon'ble Supreme Court had denied the specific performance. Their Lordships specifically observed that the order is being passed in view of the fact of that case.
This court in a recent judgment in the case of Ram Dass v. Ram Lubhaya 1998 (2) plr 326 considered this aspect at a great length and observed as under:
Coming to the second contention, the learned Counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Kanshi Ram v. Om Parkash Jawal and Ors. : AIR1996SC2150 and Rangaraju Naidu v. S. Thiruvarakkarasu : [1995]2SCR617 . The principles of law enunciated in these case is the reiteration of settled principles of law. The principle of equity good conscience and fairness being very foundation for grant of relief of specific performance is the concept not introduced by judicial pronouncement but explicitly indicated by the Legislature in the provision of Section 20 of the Specific Relief Act. The very language of Section 20 spells out and indicates the wide discretion that is vested in the Court of competent jurisdiction to grant or decline to grant a relief of specific performance for transfer of immoveable property. The guiding principles for determination of such controversies have been consistently cogitated by various courts but to a common end. The common weal sought to be achieved is to avoid resultant undue hardship to one party while avoiding undue gain to the other by mere lapse of time attributable to erring party.
An alternative prayer by a plaintiff in a suit cannot be construed as a waiver or abandonment of the main relief in the suit. An alternative prayer is a relief which is claimed by the party if the party is found to be not entitled to the principle of main relief claimed in the suit. The submission of the learned Counsel appears to be totally contradictory to the well accepted concept of pleadings and cannot be accepted.
The jurisdiction vested in the Court to decline specific performance and grant alternative relief is a jurisdiction of equity and good conscience and must be exercised in consonance of the settled principles of law. Even principles emerging from judicial verdicts which are to guide the courts concerned while passing such a decree and which have been specifically acted upon, are still open to correction by the court of appeal. The provisions indicate the intention of the Legislature to vest the Court with the wide discretion but still define the extent of caution with which such power should be exercised. Settled can one of limitations on the discretion of the court have been well defined by various judicial pronouncements. Precept of equity are accepted good in law. Reliefs in equity are founded on the principle of good conscience and grant of effective relief. The maxim Actio de in rem verso appears to be the underlining feature under the provision of Section 20 of the Act. Exercise of judicial discretion does not admit a limitation extending to a prohibition for grant of relief of specific performance. It is only where the judicial conscience of the court is pricked to an extent that the Court first is able to see inequities, imbalances created against one party and in favor of other, that it would consider exercising its discretion under these provisions. The scheme of this Act clearly shows that where a contract is proved in accordance with law and party has acted without undue delay and has pursued its remedy in accordance with law without infringing the settled canon of equity the grant of specific relief by enforcing the contract would certainly be a relief which equity would demand. The Legislative intention behind Section 20 cannot be stated to be that a party first fails to perform its part of the agreement later contests litigation on frivolous basis then that party cannot be permitted to raise a plea in equity that value of the property has increased disproportionately resulting in an undue advantage to the plaintiff in a suit. Resultantly it would not be fair to deny specific performance against such a party.
A lawful agreement being proved and judicial conscience of the court being satisfied the equity would demand enforcement of an agreement rather than granting an alternative relief of damages to the plaintiff. It need not be reiterated that equity must give relief where equity demands. Equities nuquam vacillator ubi remedium potest dare is a clear illustration which has been duly accepted by the Indian Courts. The time taken by the courts in deciding suit or appeals would normally be not permitted to work to the disadvantage of the party to the lis. Acts of the courts shall cause prejudice to none was so stated by the Hon'ble Apex Court in the case of Atma Ram Mittal v. Ishwar Singh Punia : (1994)IIILLJ972SC .
xx xx xxFurther more the courts have also found that the respondent was always ready and willing to perform his part of the agreement. The litigation before the Courts has been prolonged for all this time by the appellant without any fruitful result. In these circumstances I am unable to see any equities in favor of the appellant and reliance placed upon the observations of the Hon'ble Supreme Court in the case of S. Rangaraju Naidu v. Thiruvarakkarasu (supra) is misplaced one. No facts and circumstances have been brought on the record nor any evidence has been adduced to show that the case of the appellant was covered under any of the exceptions carved under Sub-clause (a) to (c) of Sub-section (2) of Section 20. The appellant has suffered no unfair disadvantage. No such hardship has been caused to the appellant which would justify nonperformance on his part. The appellant has also not been placed at any inequitable situation. Equities have to be balanced. It is only when totally unequitable and unjust and unfair advantage is given to one party that court has to consider such factors. The conduct of the appellant is certainly not worthy of claiming any special equities while conduct of the respondent has been to the accepted standard demanded by the equity and he has pursued his remedy carefully and in the earliest point of time, while things are taken to be done in their normal course. Reference is made to Krishna Singh v. Krishna Devi : [1994]3SCR717 .
In view of the above settled principles of law, the contention raised on behalf of the defendant is without merit. The plaintiffs had no point of time delayed the legal remedies available to them and acted with prudence and reasonable expectation.
The principle of wide discretion vested in the Courts, in terms of Section 20 of the Specific Relief Act has consistently been upheld by the Courts. No doubt such discretion is to be guided by settled principles of law and is applicable to the facts of a given case. It is a well settled norm that Court may amplify, extend justice but within the prescribed limitation of its jurisdiction. This was also accepted by the Supreme Court in the case of Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel and Ors. : [2001]2SCR590 . The relevant extract of the judgment is as under:
The grant of decree for specific performance is a matter of discretion under Section 20 of the Specific Relief Act, 1963. The court is not bound to grant such relief merely because it is lawful to do so but the discretion is not required to be exercised arbitrarily. It is to be exercised on sound and settled judicial principles. One of the grounds on which the Court may decline to decree specific performance is where it would be inequitable to enforce specific performance. The present is clearly such a case. It would be wholly inequitable to enforce specific performance for (i) residential houses for weaker sections of the society cannot be constructed in view of the existing master plan and thus, no benefit can be given to the said section of the society; (ii) In any case, it is extremely difficult, if not impossible, to continuously supervise and monitor the construction and thereafter allotment of such houses; (iii) the decree is likely to result in uncalled for bonanza to the plaintiff; (iv) patent illegality of order dated 20th June, 1998; (v) absence of law or any authority to determine excess vacant land after construction of 4356 dwelling units; and (vi) agreement does not contemplate the transfer of nearly 600 acres of land in favor of the plaintiff for construction of 4356 units for which land required is about 65 acres. The object of the Act was to prevent concentration of urban land in hands of few and also to prevent speculation and profiteering therein. The object of Section 21 is to benefit weaker sections of the Society and not the owners. If none of these objects can be achieved, which is the factual position, it would be inequitable to still maintain decree for specific performance.
7. The discretion of the court is a judicial discretion and must have a plausible reasoning which can be sustained in law. The reasoning is the soul of any judgment and reasoning ought to be within the four corners of the statute. A reason which is alien to the provisions of law where the legislature has opted to provide such limitations illustratively, would hardly stand the scrutiny of law.
8. Sub-section (2) of Section 20 further clearly indicates the kind of cases where it is proper for the court to exercise its discretion in not decreeing the suit for specific performance. The present case does not fall in any of the Clauses (a) to (c) of the Sub-section (2). The discretion must be exercised within the circumscribed limits of the dos and dont's enumerated by the Legislature in Section 20 of the Act.
9. In the present case, the evidence on record does not support the findings recorded by the learned Trial Court. The court has fallen in error of law as well as appreciation of evidence. Thus, the judgment under appeal cannot be sustained.
10. For the reasons afore-stated, the appeal of the appellant is allowed and the decree of the Trial Court is modified to the extent that the suit for specific performance of the agreement dated 20.1.2004 in relation to property bearing no. B-100, Jhilmil Colony, Shahdara, Delhi, is decreed in favor of the appellant. The appellant would also be entitled to costs of the appeal.