# Defendant v. Bans Bahadur Singh and another

- **Citation:** (2003) 2 ILRA 358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-28
- **Case number:** Second Appeal No. 1419 of 2002
- **Bench:** Janardan Sahai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-bans-bahadur-singh-and-another-40106
- **Pages:** 9

## Headnote

Code of Civil Procedure -Section-100 -
Concurrent finding of facts - both the
Courts below given good reason - about
ownership of exertion for entire property
- Defendant also not alleged in written
statement-finding of facts can not be
interfered by High Court.

Held- Para 18

This contention which was raised before
the court below was turned down on the
ground that there was no plea in the
written statement of the first defendant
that he was owner of only a half share
and that the other half belongs to his
brother. It has also relied upon the
admission of the first defendant that he
was the owner in possession of the
entire land and there was also admission
n the sale deed dated 27.11.1984
executed by the first defendant in favour
of this wife that the first defendant was
the
owner
of
the
entire
disputed
property and was in possession thereof
and that none other was the owner.
Good reasons have been given by the
lower
appellate
to
turn
down
the
contention of the appellant.

B- Specific Relief Set: Section 20 (2)
Explanation I - Consideration - Whether
in adequacy of consideration would be
grand for drawing inference - about
obtaining unfair advantage? Held - `No'
it depends upon various factors and
circle rate is not decisive factors.

Held- para 20
It has relied upon the explanation-I to
section 20 (2) of the Specific Relief Act
that mere inadequacy of consideration
would not be a ground for inferring that
unfair advantage has been obtained. The
value of a piece of land depends upon
various factors and the circle rate is not
a decisive factor. The finding of the
courts
below
on
the
question
of
adequacy of consideration is a finding of
fact.
Case law discussed:
AIR 1999 SC-137

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
358
and others v. State of U.P. and others,
copy of which is Annexure-5 to the writ
petition.

14. It is not necessary to repeat the
facts of the case as they have been dealt
with in the aforesaid judgment of the
Supreme Court. As observed therein, the
adhoc appointment will be deemed to
have been appointed from 17.4.85. Hence
the
Assistant
Prosecution
Officers
selected through the Commission before
17.4.85 will become senior to such adhoc
appointees, but those selected by the
Commission after 17.4.85 will be junior
to the adhoc appointees. This is clear from
the aforesaid judgment of the Supreme
Court. Hence if a select list was prepared
by the Commission prior to 17.4.85, even
though appointments were given after
17.4.85, such appointees would be senior
to the adhoc appointees who were
regularized with effect from 17.4.85 by
the aforesaid judgment. The Supreme
Court judgment is binding on all Courts
and authorities under Article 141 of the
Constitution. Even though there were only
5 appellants before the Supreme Court the
law laid down therein is of a general
nature and hence will apply to all.

15. In G. Deendayalan Ambedkar v.
Union of India and others (1997) 2 SCC
638 it was held that a person ranking
higher in merit in the selection list has to
be placed senior to the person ranking
lower in the merit irrespective of the date
of appointments. From this it follows that
the date of appointment is not relevant but
the date of announcement of the select
list.

16. Further we may mention that one
of the appellant before the Supreme Court
in Harihar Prasad's case (supra) namely
Mani Lal was placed at serial no.375 in
the merit list declared by the Commission
and was appointed on 5.2.85 whereas the
respondents in the present writ petition
are higher in the merit list vide paragraph
27 of the counter affidavit and AnnexureCA-4 to the counter affidavit of Sabhakar
Tiwari, though some of the contesting
respondents were appointed subsequent to
the date of appointment of Mani Lal.
Reference may also be made to Rule 5
U.P.
Government
Servant
Seniority
Rules, 1991 which provides that intre- se
seniority of persons appointed on the
result of one selection shall be the same as
it is shown in the merit list prepare by the
Commission.
Hence
the
date
of
appointment is not relevant but the date of
selection is relevant.

17. The impugned seniority list was
hence in consequence with the judgment
of the Supreme Court and the aforesaid
Rules. The petition is therefore dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2003

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Second Appeal No. 1419 of 2002

Krishna Gopal Pandey and another

 ...Defendant-Appellants.
Versus
Bans Bahadur Singh and another

 ...Plaintiff-Respondents

Counsel for the Appellants:
Sri V.K.S. Chaudhary
Sri O.P. Misra
Sri R.K. Singh

Counsel for the Respondents:
Sri R.K. Jain
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2 All] Satish Chandra Srivastava and others V. The State of U.P. through Secretary(Homes) and others 359
Sri D.P. Singh

Code of Civil Procedure -Section-100 -
Concurrent finding of facts - both the
Courts below given good reason - about
ownership of exertion for entire property
- Defendant also not alleged in written
statement-finding of facts can not be
interfered by High Court.

Held- Para 18

This contention which was raised before
the court below was turned down on the
ground that there was no plea in the
written statement of the first defendant
that he was owner of only a half share
and that the other half belongs to his
brother. It has also relied upon the
admission of the first defendant that he
was the owner in possession of the
entire land and there was also admission
n the sale deed dated 27.11.1984
executed by the first defendant in favour
of this wife that the first defendant was
the
owner
of
the
entire
disputed
property and was in possession thereof
and that none other was the owner.
Good reasons have been given by the
lower
appellate
to
turn
down
the
contention of the appellant.

B- Specific Relief Set: Section 20 (2)
Explanation I - Consideration - Whether
in adequacy of consideration would be
grand for drawing inference - about
obtaining unfair advantage? Held - `No'
it depends upon various factors and
circle rate is not decisive factors.

Held- para 20
It has relied upon the explanation-I to
section 20 (2) of the Specific Relief Act
that mere inadequacy of consideration
would not be a ground for inferring that
unfair advantage has been obtained. The
value of a piece of land depends upon
various factors and the circle rate is not
a decisive factor. The finding of the
courts
below
on
the
question
of
adequacy of consideration is a finding of
fact.
Case law discussed:
AIR 1999 SC-137

(Delivered by Hon'ble Janradan Sahai, J.)

1. Bans Bahadur Singh and Vikrama
Singh, respondents in this appeal filed a
suit for specific performance of a contract
of sale dated 20.2.1985 executed by the
first defendant, the appellant Krishna
Gopal Pandey. Alternatively refund of
advance money together with interest was
also sought.

2. Before the contract of sale dated
20.2.1985, the subject matter of this
appeal, Krishna Gopal Pandey had
executed
a
contract
of
sale
dated
26.11.1984 in respect of a different plot in
favour of the plaintiffs. It is not disputed
that the second defendant Smt. Damyanti
Devi is the wife of the first defendant
Krishna Gopal Pandey who had executed
a sale deed dated 27.11.1984 in her favour
in respect of the land which was the
subject matter of the contracts of sale
dated 26.11.1984 and 20.2.1985. In this
suit the first defendant Krishna Gopal
Pandey admitted his signatures on the
agreement to sell and also admitted
having received a sum of Rs. 40,000/-
from the plaintiff but his case was that the
document dated 20.2.1985 was obtained
from him by practicing fraud in that he
had merely taken a loan from the plaintiff
and intended to execute a mortgage deed
in security but the plaintiff fraudulently
obtained his signatures on the agreement
to sell.

3. The case of the second defendant
who as stated above is none other than the
wife of the first defendant was that a sum
of Rs. One lac was due to her from her
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
360
husband as she had advanced certain
amounts to him which she had received
from her parents and that the sale deed
dated 27.11.1984 was executed by him in
her favour in consideration of that loan.

4. Both the courts below have
repelled the case of fraud set up by
defendant no. 1 and it has been held that
the sale deed in favour of the second
defendant was a sham transaction and was
void. The courts below have decreed the
suit for specific performance.

5. I have heard Shri V.K.S.
Chaudhary, learned senior counsel for the
appellants and Shri Ravi Kiran Jain
learned
senior
counsel
for
the
respondents.

6. The contract of sale dated
20.2.1985 bears the signatures of the first
defendant, hereinafter referred to as the
`vendor' but it does not to bear the
signature of the plaintiffs in whose favour
it was executed. It was contended by Sri
V.K.S. Chaudhary that under section 54
of the Transfer of Property Act as
amended in Uttar Pradesh a contract of
sale must be registered - a requirement
which implies that it must be in writing
and when it is stipulated that the contract
is to be in writing the entire contract
which is a bilateral transaction consisting
of incidents of proposal and acceptance
must be in writing and that a unilateral
deed such as the one executed in the
present
case
does
not
meet
the
requirement of section 54 of the Transfer
of Property Act.

7. It is not in dispute that the
contract of sale dated 20.2.1985 is a
registered document. The copy of the
contract has been filed along with the stay
application as Annexure-7. It bears the
recital that the vendor has agreed with the
vendees (an expression loosely being used
for the party proposing to purchase) to
sell to them for a sum of Rs.48,000/-, the
land described in the agreement and that
a sum of Rs.40,000/- has been paid by the
vendees as advance and that the sale deed
would be executed within a period of six
months on payment by the vendees of the
balance consideration of Rs.8,000/-. This
agreement, therefore, does contain the
element of mutuality of obligations. It
contains also the admission by the vendor
of having received from the vendee
Rs.40,000/- as advance. The recitals if
proved constitute a complete contract. If
the document had been signed by the
vendees the acceptance by token of the
signature would be deemed to be
incorporated in the document itself but it
is submitted by the learned counsel for the
appellant that in the absence of such
signatures by the vendees the incidence of
acceptance is not contained in the
document and as such the document does
not fulfil the requirement of a written
contract of sale complidly stipulated
under section 54 of the Transfer of
Property Act.

8. Before examining the cases which
have been relied upon the learned counsel
for the appellant reference may be made
to a decision of the Apex Court cited by
the learned counsel for the respondent
which appears to be the nearest on the
point in issue. In AIR 1999 Supreme
Court 37 Rajendra Pratap Singh Versus
Rameshwar Prasad - a lease for a term
exceeding one year was signed by one of
the parties. Section 107 of the Transfer of
Property Act provides that such a lease
for more than a year is required to be
made by a registered instrument. The
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2 All] Krishna Gopal Pandey and another V. Bans Bahadur Singh and another
361
third paragraph of that provision which
though not applicable in U.P. provides for
execution by both parties. The question
before the Apex court was whether the
document could be said to have been
executed in the absence of signature of
both the parties. The Apex Court stated
the law in paragraph 11 of the judgement
as follows:-

"11. The word "execute" is given
the meaning in Black's Law Dictionary as
"to complete; to make; to sign; to
perform; to do; to follow out; to carry
out according to its terms; to fulfil the
command or purpose of." In "Words and
Phrases" (Permanent Edition) the word
"execute" is given the meaning as "to
complete as a legal instrument; to
perform what is required to give validity
to." An instrument is usually executed
through multifarious steps of difference
sequences. At the first instance, the
parties might deliberate upon the terms
and reach an agreement. Next the terms
so agreed upon would be reduced to
writing. Sometimes one party alone
would affix the signature on it and
deliver it to the other party. Sometimes
both parties would affix their signature
on the instrument. If the document is
required by law to be registered, both
parties can be involved in the process
without
perhaps
obtaining
the
signatures of one of them. In all such
instances the instrument can be said to
have been executed by both parties
thereto. If the instrument is signed by
both parties it is presumptive of the fact
that both of them have executed it, of
course it is only rebut table presumption.
Similarly if an instrument is signed by
only one party it does not mean that
both
parties
have
not
executed
it
together. Whether both parties have
executed the instrument will be a
question of fact to be determined on
evidence if such a determination is
warranted from the pleadings of the
particular
suit.
Merely
because
the
document shows only the signature of
one of the parties it is not enough to
conclude that the non-signing party has
not joined in the execution of the
instrument."

9. Shri V.K.S. Chaudhary sought to
distinguish the decision of the Apex court
on the ground that the ruling relates to
lease of a shop which being a transfer can
be unilateral whereas a contract is
bilateral and consists of reciprocity. He
gave the analogy of a deed of gift which
being a transfer the acceptance need not
be incorporated in the document itself. It
was
also
submitted
that
the
third
paragraph of section 107 of the Transfer
of Property Act has been repealed in U.P.
and the ruling is not applicable to U.P.
and further that the lease of property can
be oral and is complete when the
transferor lets it out and that it is only a
lease for a term exceeding one year that
has to be made by registered instrument.
These grounds for distinguishing the
decision of the Supreme Court are not real
grounds of distinction. The Apex Court
has laid down the law relating to
execution of documents by two parties
and has held that it is not necessary for
due execution of such document that it
must be signed by both the parties and
that it was a matter of evidence in case the
execution of the document was denied.

10. The cases cited by the learned
counsel for the appellant thought not
direct on the point may now be referred to
for what they hold. In AIR 1966 Supreme
Court 543 Bhagwandas Goverdhandas
Kedia
Vs.
M/s.
Girdharilal
Parshottamdas and Co., and others it
was held that acceptance of offer and its
intimation by external manifestation is
necessary for a contract. In 1928 ALJ 324
Sohan Lal Vs. Raghubir Sahai and
another it was held that it is not every
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
362
agreement that is binding on a party to it,
simply because he agreed to it and where
the law requires that a contract to be
effective, should be executed in a
particular way such as it be registered and
attested, the mere registration may make
the document admissible in evidence but
in the absence of attestation would not
create a binding transaction.

11. In 1952 SCR 269 Ram Kumar
Das Vs. Jagdish Chandra Deb Dhabal
Deb and another a Kabuliyat for 10
years was executed. The Apex Court held
that the Dabuliyat thought a registered
instrument but ex concessis is not an
operative document at all and can not
consequently fulfil the requirements of
Section 107 of the Transfer of Property
Act. The law in respect of Kabuliyat has
been considered by the Apex Court in the
case of Rajendra Pratap Singh Vs.
Rameshwar Prasad (Supra) and a
reference was made to a previous decision
of Apex Court in AIR 1958 Supreme
Court 1183 Asha Ram Vs. Ram Kali in
that case a Kabuliyat was executed by the
lessee in favour of their lessors, but the
latter did not execute any instrument in
favour of the lessees. It was contended
that the lessees could not claim the status
of tenants solely on the strength of he
Kabuliat, which was only a unilateral
undertaking. But the evidence showed
that the lessors had accepted the Kabuliat
and received rent as prescribed therein.
On these facts, the Apex Court overruled
the contention that the lessees could not
claim the status of tenant.

12. In the present case the plea taken
is that the contract of sale was obtained by
fraud. There was no plea in the written
statement that the document was not a
valid document, as it was not executed by
both the vendor and vendee. In the case of
Rajendra Pratap Singh Vs. Rameshwar
Prasad (Supra) where the position was
similar as in this case, it was held that the
defendant having not disputed in the
written statement the fact that the lease
was validly made it was not open to him
to raise a contention later that the
instrument was not executed by both the
lessor and lessee.

13. The decision in AIR 1938 Cal
136 Kumar Gokul Chandra Law Vs.
Haji Mohammad Din relied upon by the
appellants in which it was held that if
there is a proposal in writing and also
acceptance in writing, the proposal and
acceptance
constitute
a
contract
in
writing; but if the proposal is in writing
but the acceptance is not in writing, the
entire agreement not being in writing it
can not be said that the contract to lease is
in writing, does not help the appellant as
section 27-A of the Specific Relief Act
applicable in that case provided for a
contract to lease immovable property
made in writing signed by the parties
thereto. The statute itself thus postulated a
written agreement `signed' by the parties
which is not the requirement under
section 54 of the Transfer of Property Act.

14. In Egged Co-operative Society
Ltd. Vs. Levi Geffen AIR (34) 1947
Privy Council 32 the observation to the
effect that a document signed only by one
of the parties to it is not therefore, a
written agreement does not help the
appellant as that observation was rendered
in connection with the right of a party to
lead oral evidence disputing the fact
mentioned in the document. So also the
decision in AIR 1952 Allahabad 782
Mohd. Tahir Vs. Mst. Sardar Bano in
which while interpreting section 91 of the
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2 All] Krishna Gopal Pandey and another V. Bans Bahadur Singh and another
363
Evidence Act it was held that the word
`document' must be taken to be one
executed by a party and therefore signed
by him in token of execution also is not
directly on the point and is on a different
context of facts and can not be construed
to mean that if a document is not signed
by both the parties it can not be a
document executed. The contention of the
learned counsel for the appellant that the
contract for sale does not conform to the
requirement of Section 54 of the Transfer
of Property Act is therefore repelled. A
contract of sale if interred need not bear
the signatures of both the executants to
make it a valid one within the meaning of
Section 54 of the Transfer of Property
Act.

15. Apart from this Section 20(4) of
the Specific Relief Act goes against the
appellant's contention. It reads as follows:

"The court shall not refuse to any
party specific performance of a contract
merely on the ground that the contract is
not enforceable at the instance of the
other party."

16. It was next contended that the
contract for sale dated 20.2.1985 can not
be enforced against the second defendantappellant Smt. Damyanti Devi to whom
the plot was transferred earlier on
27.11.1984 by a registered deed as section
19, clause (b) of the Specific Relief Act
can be enforced only against a subsequent
transferee and not against a prior
transferee.

17. Both the courts below have held
that the sale deed dated 27.11.1984 was
without consideration. The sale deed was
executed by the first defendant in favour
his wife only one day after the contract of
sale dated 26.11.1984 though that was in
respect of plot no. 82 which was not the
subject mater of contract of sale dated
20.2.1985. The lower appellate court has
held that the payment of consideration for
the sale was not proved and in fact it is
stated
in
the
document
that
the
consideration was the service rendered by
the second defendant and that the sale
deed dated 27.11.1984 was a sham
document. This finding that there was no
transfer of interest in favour of the second
defendant by that document which was
sham is a finding of fact. Learned counsel
for the appellant relied upon AIR 1957
Supreme Court 434 Smt. Kamla Devi
and another Vs. Bachulal Gupta and
others and AIR 1997 Supreme Court 127
Smt. Gomtibai Vs. Mattulal on the point
that the transfer becomes complete on
registration. These decisions do not apply
to cases where the transaction was a sham
one. The sale deed was being relied upon
the second defendant on the ground that
she was the owner of the property on the
date the agreement to sell in favour of the
plaintiff was executed by the first
defendant. In these circumstances it was
open to the plaintiff thought they were not
parties to the sale deed to allege that no
interest was conveyed by the sale deed in
favour of defendant no. 2 and the
defendant no. 1 continued to be its owner
on the date when the agreement to sell
was executed.

18. It was then submitted by the
learned counsel for the appellant that the
first defendant had only a half share in the
property and the other half share belongs
to his brother who is not a party to the
agreement or in the suit and as such
specific performance in respect of the
entire disputed property could not be
enforced. The Katauni entry showing only
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
364
half share of the appellant in the property
is relied upon and it is submitted that
under section 44 of the U.P. Land
Revenue Act the court was bound to raise
a presumption of law that the first
defendant was only the owner of a half
share. This contention which was raised
before the court below was turned down
on the ground that there was no plea in
the written statement of the first defendant
that he was owner of only a half share and
that the other half belongs to his brother.
It has also relied upon the admission of
the first defendant that he was the owner
in possession of the entire land and there
was also admission n the sale deed dated
27.11.1984
executed
by
the
first
defendant in favour of his wife that the
first defendant was the owner of the entire
disputed property and was in possession
thereof and that none other was the
owner. Good reasons have been given by
the lower appellate to turn down the
contention of the appellant. The decision
of the Apex Court in 1994 (4) SCC 18
Sardar Singh Vs. Krishna Devi (Smt.)
and another relied upon is on different
facts.
In
that
case
there
was
an
unregistered award of the arbitrator that
the appellant in that case and his brother
were entitled to a half share in a house
and the agreement of sale of the entire
house was entered into by the appellant's
brother and the Apex Court reversing the
decision of the courts below held that the
award required no registration and that the
courts had erred in exercising discretion
of granting degree of the entire house. In
that case the challenge made by the
person claiming to be the owner who was
a party in the suit was allowed by the
Apex Court and not a challenge made by
the executant of the agreement as the case
here is. A person who has executed the
agreement is bound by it. That apart in the
present case a finding of fact has been
recorded that the appellant no. 1 was the
owner of the entire property and as such
the decision in the case of Sardar Singh
(Supra) does not help the appellant.

19. It was urged that the transaction
between the first defendant and the
plaintiff was a fraud on the statute as the
plaintiff Vikrama was a money lender but
does not maintain any register or
documents required under the U.P.
Regulation of Money Lending Act, 1976.
There is no pleading brought to my notice
to the effect that the transaction was a
fraud on the statute and in the courts
below no evidence was led to substantiate
such a plea. The application for taking
additional evidence filed in this appeal
has been rejected. This ground is one of
fact and never appears to have been raised
in the courts below. In my opinion it is
not open to the appellants to raise the
question for the first time in this appeal.

20. Specific performance is a
discretionary relief. It is contended that
the plaintiff Vikrama Singh was a money
lender and a decree for refund was the
appropriate decree and the bargain is
unconscionable and gives an unfair
advantage to the plaintiff and in the
circumstances
specific
performance
should be refused under section 20(2) of
the Specific Relief Act. The appellate
court has rejected the contention. The
finding of the appellate court on this point
is that the land covered by the contract of
sale is 58 decimals. The sale deed relied
upon by the defendant for proving the
value of the land in dispute was also
considered by the lower appellate court
and it was held that that sale deed was in
respect of 25x65 ft. which was a very
small piece of land about 1 katta whereas
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2 All] Krishna Gopal Pandey and another V. Bans Bahadur Singh and another
365
the disputed land was many times larger
and that sale deed therefore could not be
relied upon for the purpose of determining
whether the consideration for the present
transaction was adequate. The lower
appellate court has relied upon the sale
deed dated 27.11.1984 said to have been
executed by the first defendant himself
whereby an area of 1.89 acres is alleged
to have been transferred in favour of the
second defendant for a sum of Rupees one
lac and the market value of the land
shown in that deed was Rs. 43,417/-. It
has relied upon the explanation-I to
section 20 (2) of the Specific Relief Act
that mere inadequacy of consideration
would not be a ground for inferring that
unfair advantage has been obtained. The
value of a piece of land depends upon
various factors and the circle rate is not a
decisive factor. The finding of the courts
below on the question of adequacy of
consideration is a finding of fact.

21. Learned counsel for the
appellant relied upon AIR 1995 Supreme
Court 1769 S. Rangaraju Naidu Vs. S.
Thiruvarakkarasu. In that case the Apex
Court held that the court has discretion to
grant specific performance and is not
bound to do so. It was held on facts that
although the appellant in that case had
agreed to sell the property to the
respondents,
the
predominant
object
thereby was for recovery of the dues with
interest. In that case the respondents were
money lenders and they had sought to
recover the amount due to them and since
the appellant was not in a position to pay
the amount due on the promissory note,
he entered into an agreement to sell the
property. From the facts of the present
case it can not be inferred that the
agreement to sell was entered into
predominantly with the object of recovery
of dues with interest. Reliance was also
placed upon AIR 1987 Supreme Court
2328 Parakunnan Veetill Joseph's Son
Mathew Vs. Nedumbara Kuruvila's
Son and others in which the Apex Court
held that in a suit for specific performance
the court should see that the litigation is
not used as instrument of oppression to
have unfair advantage to the plaintiff. The
finding recorded in the present case by the
lower appellate court is that the first
defendant was a literate person and was
running medical store and from his
conduct it appeared that he was involved
in several transactions in respect of land.
The appellant's case that consideration
was not adequate has also not been
accepted.

22. Another decision relied upon is
2001 (3) AWC 2456 (S.C.) A.C.
Arulappan Vs. Smt. Ahalya Naik in
which the Apex Court held that no decree
for specific performance can be granted
where the plaintiff does not come with
clean hands or where he can take unfair
advantage over defendant and in such a
case refund of money is the adequate
relief. This case is not applicable to the
facts of the present case. The plea that the
bargain was unconscionable has been
turned down. Ordinarily in the case of a
contract of sale the relief of specific
performance is to be granted. The courts
below have exercised this discretion on
good grounds. Learned counsel for the
appellant also relied upon 2000(7) SCC
548 Gobind Ram Vs. Gian Chand. In
that case an agreement to sell in respect of
certain property in Lajpat Nagar, New
Delhi was entered on 24.1.1973 for a
consideration of Rs. 16,000. The suit for
specific
performance
filed
by
the
purchasers was decreed on 6.10.1976. The
vendor preferred an appeal, which was
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
366
dismissed by the High Court but it
directed the respondent vendee to pay a
further sum of Rs. One lac which was
raised by 3 lacs by the Apex Court that
case there are two distinguishing features.
Firstly the property was situate in Delhi
where the real estate price had escalated
and secondly out of the consideration
Rs.16,000/- settled only Rs.1,000/- was
paid at the time of the agreement to sell
and the balance was to be paid later. In
these circumstances the vendee was called
upon to pay an additional sum of Rs. 3
lacs. In the present case there is no
evidence to indicate that the prices had
escalated. That apart out of the total
consideration of Rs.48,000/-, Rs.40,000/-
was paid as advance and only a small
portion of Rs. 8,000/- remained to be
paid.

23. The appeal does not involved
any
substantial
question
of
law.
Dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD FEBRUARY 25, 2003

BEFORE
THE HON'BLE K.N. SINHA, J.

Criminal Misc. Writ Petition No. 483 of 2003

Than Singh and others
...Petitioner
Versus
Kishore Kumar & another ...Respondents

Counsel for the Petitioner:
Sri Dhruva Narayan
Sri Bala Krishna Narayana

Counsel for the Respondents:
Sri Mahendra Pal Singh
A.G.A.

Code
of
Criminal
Procedure,
1973Section 90 (1) (a) and (b) and S.173 (2)-
Scope
taking
of
cognizance
under-
Incident of beating by both sides-FIR
lodged
by
both
sides-Order
of
Magistrate
summoning
petitioners-
F.I.R. submitted by Police-Magistrate
not bound to accept police version-Order
of Magistrate showing that there were
three eye witnesses besides complainant
and a report to S.S.P.-Magistrate on
receipt of report under S.173 (2) may
accept
or
reject
same
and
take
cognizance of offence under S.190 (1)
(b) or S.190 (a) on basis of original
complaint and may proceed to examine
complainant and his witnesses-On basis
of evidence on record, held, there exists
sufficient ground to proceed against
accused-Impugned orders, held to be
justified. Held;

Held- Para 7

I have perused the summoning order
and that of the revisional court. If some
incident takes place and beating is given
from both sides and both sides lodged
F.I.R. it cannot be said that the F.I.R. by
the other party is the result of the F.I.R.
by one party. If this plea is accepted,
then every aggrieved person lodging the
report, after one party has lodged shall
be debarred from taking action against
the culprit. The order of the Magistrate
shows
that
there
were
three
eye
witnesses besides the complainant and a
report to the S.S.P. It is settled principle
that the Magistrate on receipt of a report
U/s 173 (2) Cr.P.C. may accept the
report or reject the same and take
cognizance of the offence under section
190 (1) (b) Cr.P.C. or he may take
cognizance of offence U/s 190 (1) (a)
Cr.P.C. on the basis of the original
complaint and proceed to examine the
complainant and his witnesses.

Held- Para 9
So far as the question of evidence is
concerned, the court has to see whether
there exists sufficient ground to proceed
of not. By scrutinizing the impugned