# Gopal Ji v. Smt. Naseeran Bibi & Ors

- **Citation:** (2016) 5 ILRA 1601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-17
- **Bench:** Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-ji-v-smt-naseeran-bibi-ors-43793
- **Pages:** 10

## Headnote

Himanshu Shekhar

PROCEEDINGS:
This second appeal arises out of the judgment and decree dated 07.05.2013 passed by the Civil Judge (Senior
Division), Azamgarh in Original Suit No. 105 of 2000, and the judgment dated 04.02.2016 passed by the
Additional District Judge, Court No. 8, Azamgarh in Civil Appeal No. 120 of 2013, whereby the suit for specific
performance was decreed and the appeal preferred thereagainst was dismissed.

PROCEDURE:
The plaintiff-respondent instituted Original Suit No. 105 of 2000 seeking specific performance of a registered
agreement to sell dated 25.04.1997. The trial court decreed the suit holding that the plaintiff was ready and
willing to perform her part of the contract and that time was not the essence of the contract. The first
appellate court affirmed the findings and dismissed the appeal. Aggrieved, the defendant has preferred the
present second appeal.

STATUTORY PROVISIONS:
Section 16(c), Specific Relief Act, 1963
Section 20, Specific Relief Act, 1963
Article 54, Limitation Act, 1963
1602 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 100, Code of Civil Procedure, 1908

CASE LAW REFERRED:
Ahmmadsahab Abdul Mulla (D) by L.Rs. v. Bibijan, 2009 (2) AWC 1863 (SC)
R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy, 2006 (2) AWC 1336 (SC)
N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr.), (1995) 5 SCC 115
Man Kaur v. Hartar Singh Sangha, AIR 2010 SC 3854
Satya Jain (D) v. Anis Ahmed Rushdie (D), 2013 (31) LCD 558 (SC)
Rathnavathi v. Kavita Ganashamdas, 2015 (1) CCC 164 (SC)

HEADNOTES:
Specific Performance - Agreement to sell - Readiness and willingness - Time not essence of
contract - Article 54, Limitation Act - Concurrent findings of fact - Scope of interference under
Section 100 CPC.

Where the plaintiff had paid substantial portion of sale consideration and proved continuous readiness and
willingness to perform her part of the contract, and the courts below concurrently found that time was not the
essence of the contract, such findings being based on appreciation of evidence cannot be interfered with in
second appeal. Limitation for a suit for specific performance commences from the date of refusal when no
specific date is fixed for performance. No substantial question of law arises.

FACTS:
Registered agreement to sell dated 25.04.1997
Total sale consideration of Rs. 3,00,000/-
Advance payment of Rs. 2,00,000/- made to the defendant
Period of one year mentioned for execution of sale deed
Defendant failed to execute sale deed despite reminders
Legal notice issued on 16.03.2000
Suit instituted on 22.04.2000 for specific performance

CONTENTIONS:
For the Appellant:
Plaintiff was not ready and willing to perform the contract
Time for execution of sale deed was essence of the contract
Delay in issuing legal notice disentitled the plaintiff
Suit barred by limitation

For the Respondents:
Time was never intended to be essence of the contract
Parties were residing together and in constant communication
Substantial consideration already paid established readiness and willingness
Cause of action arose on refusal by defendant
Concurrent findings not open to interference in second appeal

ANALYSIS:
The agreement to sell and receipt of substantial consideration are admitted facts.
Limitation under Article 54 begins from the date of refusal when no fixed date is prescribed.
Suit was filed within three years even from the date of agreement.
Readiness and willingness were proved by payment of two-thirds consideration and conduct of the plaintiff.
Time was not the essence of the contract, as evident from the terms and surrounding circumstances.
5 All. Gopal Ji Vs Smt. Naseeran Bibi & Ors.

1603
Findings recorded by the trial court and first appellate court are concurrent and based on evidence.
No perversity, illegality, or misapplication of law is shown to warrant interference.

CONCLUSION:
The plaintiff-respondent established continuous readiness a

## Text

5 All. Gopal Ji Vs Smt. Naseeran Bibi & Ors.

1601
permission could not be passed. Consequently this second appeal was allowed. The judgments and
orders passed by the Courts below were set aside. The suit was thus dismissed.

7. In these view of the matter, this Court answers that in between the period from
15.10.1980 to 31.7.1981 the land in question being covered under the Urban Land (Ceiling &
Regulation )Act, 1976 was not exempted in view of the provisions of Explanation (B) and (C ) of
Section 2(O) of the Act.

8. With these observations, this Court reiterates the views drawn earlier while allowing this
second appeal vide order dated 27.4.2004.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 311 Of 2016

Gopal Ji Appellant
Versus
Smt. Naseeran Bibi & Ors. Respondents

Counsel for the Appellant:
 Akhilesh Kumar, Narendra Bhushan Nigam

Counsel for the Respondents:
 Himanshu Shekhar

PROCEEDINGS:
This second appeal arises out of the judgment and decree dated 07.05.2013 passed by the Civil Judge (Senior
Division), Azamgarh in Original Suit No. 105 of 2000, and the judgment dated 04.02.2016 passed by the
Additional District Judge, Court No. 8, Azamgarh in Civil Appeal No. 120 of 2013, whereby the suit for specific
performance was decreed and the appeal preferred thereagainst was dismissed.

PROCEDURE:
The plaintiff-respondent instituted Original Suit No. 105 of 2000 seeking specific performance of a registered
agreement to sell dated 25.04.1997. The trial court decreed the suit holding that the plaintiff was ready and
willing to perform her part of the contract and that time was not the essence of the contract. The first
appellate court affirmed the findings and dismissed the appeal. Aggrieved, the defendant has preferred the
present second appeal.

STATUTORY PROVISIONS:
Section 16(c), Specific Relief Act, 1963
Section 20, Specific Relief Act, 1963
Article 54, Limitation Act, 1963
1602 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 100, Code of Civil Procedure, 1908

CASE LAW REFERRED:
Ahmmadsahab Abdul Mulla (D) by L.Rs. v. Bibijan, 2009 (2) AWC 1863 (SC)
R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy, 2006 (2) AWC 1336 (SC)
N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr.), (1995) 5 SCC 115
Man Kaur v. Hartar Singh Sangha, AIR 2010 SC 3854
Satya Jain (D) v. Anis Ahmed Rushdie (D), 2013 (31) LCD 558 (SC)
Rathnavathi v. Kavita Ganashamdas, 2015 (1) CCC 164 (SC)

HEADNOTES:
Specific Performance - Agreement to sell - Readiness and willingness - Time not essence of
contract - Article 54, Limitation Act - Concurrent findings of fact - Scope of interference under
Section 100 CPC.

Where the plaintiff had paid substantial portion of sale consideration and proved continuous readiness and
willingness to perform her part of the contract, and the courts below concurrently found that time was not the
essence of the contract, such findings being based on appreciation of evidence cannot be interfered with in
second appeal. Limitation for a suit for specific performance commences from the date of refusal when no
specific date is fixed for performance. No substantial question of law arises.

FACTS:
Registered agreement to sell dated 25.04.1997
Total sale consideration of Rs. 3,00,000/-
Advance payment of Rs. 2,00,000/- made to the defendant
Period of one year mentioned for execution of sale deed
Defendant failed to execute sale deed despite reminders
Legal notice issued on 16.03.2000
Suit instituted on 22.04.2000 for specific performance

CONTENTIONS:
For the Appellant:
Plaintiff was not ready and willing to perform the contract
Time for execution of sale deed was essence of the contract
Delay in issuing legal notice disentitled the plaintiff
Suit barred by limitation

For the Respondents:
Time was never intended to be essence of the contract
Parties were residing together and in constant communication
Substantial consideration already paid established readiness and willingness
Cause of action arose on refusal by defendant
Concurrent findings not open to interference in second appeal

ANALYSIS:
The agreement to sell and receipt of substantial consideration are admitted facts.
Limitation under Article 54 begins from the date of refusal when no fixed date is prescribed.
Suit was filed within three years even from the date of agreement.
Readiness and willingness were proved by payment of two-thirds consideration and conduct of the plaintiff.
Time was not the essence of the contract, as evident from the terms and surrounding circumstances.
5 All. Gopal Ji Vs Smt. Naseeran Bibi & Ors.

1603
Findings recorded by the trial court and first appellate court are concurrent and based on evidence.
No perversity, illegality, or misapplication of law is shown to warrant interference.

CONCLUSION:
The plaintiff-respondent established continuous readiness and willingness to perform her part of the contract.
The defendant-appellant committed breach by refusing execution of the sale deed after receiving substantial
consideration. The discretion exercised by the courts below under Section 20 of the Specific Relief Act is
sound and in accordance with settled principles.

RESULT:
The second appeal fails and is dismissed.
The judgments and decrees passed by the trial court and the first appellate court are affirmed.
No order as to costs.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1. This second appeal has been preferred against the judgment of the Court of Civil Judge
(S.D.), Azamgarh in original suit no. 105/2000 and judgment dated 04.02.2016 of the Additional
District Judge, Court no.-8, Azamgarh in Civil Appeal no. 120/2013.

2. Original suit no. 105/2000 (Naseeran Bibi v. Gopal Ji) was filed for specific
performance of contract. The plaint case in brief was that registered agreement to sell dated
25.04.1997 was executed between the parties, by which defendant Gopal Ji had agreed to sell his
property in question to plaintiff Smt. Naseeran Bibi for a consideration of Rs. 3,00,000/- and had
received advance consideration of Rs. 2,00,000/-. It was agreed that defendant will execute the
sale-deed of this property to plaintiff within one year. But later on, defendant had not executed the
sale-deed in spite of reminder, then plaintiff had sent her legal notice dated 16.03.2000 and also
orally requested. The plaintiff has been ready and willing to perform his part of contract by paying
remaining consideration for getting the sale-deed executed but defendant was not willing to
perform her part of contract, therefore, plaintiff had filed suit on 22.04.2000 for specific
performance of aforesaid registered agreement for sale.

3. Defendant Gopal Ji had filed written-statement in original suit, by which this plaint case
was admitted that registered agreement to sell dated 25.04.1997 was executed between the parties,
by which defendant had agreed to sell his property to plaintiff for a consideration of Rs. 3,00,000/-
and had received advance consideration of Rs. 2,00,000/-, and that it was agreed that defendant will
execute the sale-deed of this property to plaintiff within one year. It was further pleaded that it was
mentioned in said agreement that if sale-deed will not be executed within one year then plaintiff
will not be entitled to get it executed and his advance consideration amount would be confiscated.
The plaintiff was not ready or willing to perform his part of contract, so he gave legal notice after
two years. Suit is time barred and is liable to be dismissed.

4. After framing issues, accepting evidences and affording opportunity of hearing to
parties, the Court of Civil Judge (Senior Division), Azamgarh had decreed the original suit by its
judgment dated 07.05.2013 and directed the defendant to receive remaining consideration from
1604 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff and execute the sale-deed of disputed property, failing which plaintiff would be entitled to
get the sale-deed executed through court. In this judgment the trial court had appreciated the
evidences and contentions of the parties and had also given finding that the plaintiff has been ready
and willing to perform is part of contract regarding execution of sale-deed, which is proved from
evidences, and also that in this transaction the time was not essence of the contract. On the basis of
these findings, trial court had decreed the original suit.

5. Against the judgment of trial court, Civil Appeal no. 120/ 2013 (Gopal Ji v. Naseeran
Bibi) was preferred by defendant of the original suit. This appeal was heard and dismissed by the
judgment dated 04.02.2016 of the Additional District Judge, Court no.-8, Azamgarh. In this
judgment the first appellate court had framed the point of determination on two point; firstly as to
whether the time was essence of the contract, and secondly as to whether the plaintiff has been
ready and willing to perform his part of contract. Lower appellate court had decided these points in
favour of plaintiff-respondent and against defendant-appellant.

6. Aggrieved by the judgments of the trial court as well as the first appellate court, present
second appeal has been preferred by the defendant of the original suit.

7. Learned counsel for the plaintiff-appellant contended that, in fact, the plaintiff was not
ready or willing to perform his part of contract, so he gave legal notice after two years in this
matter where the time of execution of sale-deed within one year was the essence of the contract,
and it was already agreed between the parties that even the advance consideration would be
forfeited after one year. Had plaintiff-respondent been ready and willing to execute sale-deed
within time, then he would have given legal notice earlier.

10. These contentions were refuted by learned counsel for the respondent, who contended
that in this particular matter, time was never the essence of the contract. Since parties have been
living in same building and in good relationship, so there was no occasion to give written legal
notice because they were in talking terms and such notice might have caused bitterness in their
relationship. He submitted that plaintiff had admittedly paid earlier the most of the sale
consideration to defendant appellant in advance, which is also proof of his readiness and
willingness. He contended that in such matter cause of action arises from the time of refusal by
defendant, therefore after serving the legal notice dated 22.04.2000. Suit is not time barred. Appeal
is liable to be dismissed.

11. In Ahmmadsahab Abdul Mulla (D) by proposed L.Rs. Vs. Bibijan and others,
2009 (2) AWC 1863 (SC, the Apex Court had held as under:-

"7. The inevitable conclusion is that the expression 'date fixed for the performance'
is a crystallized notion. This is clear from the fact that the second part "time from which period
begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it
means that there is a definite date fixed for doing a particular act......"
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1605
12. In R.K. Parvatharaj Gupta Vs. K.C. Jayadeva Reddy, 2006 (2) AWC 1336 (SC),
the Apex Court had held as under:-

"18. Thus, even though the time for performance was not fixed in the agreement for
sale, on receipt of the notice, the respondent had notice that the performance was being refused, if
he failed to fulfil his obligation under the contract within 15 days of receipt of the notice.

19. The suit was, therefore, in terms of the requirement of Article 54 of the
Limitation Act, should have been filed within a period of three years from the date of expiry of
fifteen days from the date of receipt of the said notice."

13. It is settled legal position that limitation for the suit for specific performance of contract
is three years from the date of cause of action. For the purpose of institution of a suit for specific
performance, two dates are material, namely, the date fixed for specific performance of agreement
and if such date is not fixed, in that event the date when the plaintiffs had notice that the
performance was refused. Consequently, the date of the execution of the agreement is immaterial.
What is material is, the date of the refusal of the performance of the agreement of the defendants.
The time of three years, for filing a suit begins to run from the date fixed for the performance and if
no such date is fixed, then from the date when the plaintiff had noticed that the performance was
refused. In present matter the agreement to sell in question was entered between the parties on
25.04.1997 and the original suit was instituted on 22.04.2000 after giving legal notice. Therefore
suit was not time barred even from the date of agreement in question. Cause of action in any case
arose after one year of lapse of period agreed between the parties. Everything happened, including
institution of suit within three years. Lower courts had rightly held that suit was not time barred.

14. Refusal to perform his part of contract by defendant-respondent can be properly
inferred by circumstances as well as conduct of the parties. In present matter the facts and
circumstances were properly scrutinized by the lower courts for determining readiness and
willingness as well as whether time was or not essence of the contract for sale. These points do not
relate to question of law, but are questions of fact that could be decided on basis of evidences, as
had been done by the lower courts. This submission is not unacceptable that finding of facts on
these points, especially the concurrent findings, cannot be interfered in second appeal unless there
is gross infirmity or perversity in such findings.

15. Section-20 of Specific Relief Act reads as under:

"20. Discretion as to decreeing specific performance.--(1) The jurisdiction to
decree specific performance is discretionary, and the court is not bound to grant such relief merely
because it is lawful to do so; but the discretion of the court is not arbitrary but sound and
reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may properly exercise discretion not
to decree specific performance-
1606 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) where the terms of the contract or the conduct of the parties at the time of
entering into the contract or the other circumstances under which the contract was entered into are
such that the contract, though not voidable, gives the plaintiff an unfair advantage over the
defendant; or

(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;

(c) where the defendant entered into the contract under circumstances which though
not rendering the contract voidable, makes it inequitable to enforce specific performance.

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 te contract, be determined with
reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any
case where the plaintiff has done substantial acts or suffered losses in consequence of a contract
capable of specific performance.

(4) 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. The Apex Court in N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr), (1995) 5 SCC
115 held as under:

"5. It is settled law that remedy for specific performance is an equitable remedy and
is in the discretion of the court, which discretion requires to be exercised according to settled
principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act,
1963 (for short "the Act"). Under Section 20, the court is not bound to grant the relief just because
there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and
prove that he had performed or has always been ready and willing to perform the essential terms of
the contract which are to be performed by him, other than those terms the performance of which
has been prevented or waived by the defendant. The continuous readiness and willingness on the
part of the plaintiff is a condition precedent to grant the relief of specific performance. This
circumstance is material and relevant and is required to be considered by the court while granting
or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To
adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must
5 All. Gopal Ji Vs Smt. Naseeran Bibi & Ors.

1607
take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit
along with other attending circumstances. The amount of consideration which he has to pay to the
defendant must of necessity be proved to be available. Right from the date of the execution till date
of the decree he must prove that he is ready and has always been willing to perform his part of the
contract. As stated, the factum of his readiness and willingness to perform his part of the contract is
to be adjudged with reference to the conduct of the party and the attending circumstances. The
court may infer from the facts and circumstances whether the plaintiff was ready and was always
ready and willing to perform his part of the contract."

17. In present case the readiness and willingness to perform his part of the contract, as
required for the grant of relief of specific performance, is proved fact. Not only the lower courts
had given such finding in favour of plaintiff- respondent, but also this fact is explicitly clear and
evident from the fact that out of total agreed sale consideration of Rs. 3,00,000/- the plaintiffrespondent had already paid Rs. 2,00,000/- which is 2/3 of the total sale consideration. This amount
of sale consideration was used and usurped by defendant-appellant who had also been enjoying the
possession of disputed property.

18. So far point of time being the essence of contract is concerned, the trial court as well as
the first appellate court had meticulously appreciated circumstances which led the parties to enter
the agreement of sale, the alleged ground of need of money for marriage of daughter of defendantappellant, the parties living under one roof in harmonious relationship, their talks on several points
including the talks on sale etc. Trial court had specifically considered this point by noting that this
is mentioned in agreement in question that when plaintiff will ask the defendant, then defendant
would receive Rs. 1 lac and execute sale-deed. The trial court had held that these words indicate the
intentions of the parties were not to limit the contract for sale within any particular period of
limitation. Trial court had held the word one year was used in general terminology and for
approximation of time and it was not essence of the contract. The first appellate court had also
considered facts and circumstances of the matter including the circumstances of the agreement,
nature of the property and the circumstances in which contract in question was executed and held
that it is proved from the evidences that in spite of regular reminders of the plaintiff-respondent, the
defendant-appellant had not been willing to execute sale-deed and had been deferring the matter
and had not even showed his promptness after receiving of legal notice. First appellate court had
also considered the circumstances stating that parties have been residing in one house and they
when in possession to talk each other and for that there was no occasion to have any independent
witness. First appellate court had independently appreciated the evidences and gave its own finding
that it was defendant-appellant who was not inclined to get the sale-deed in question executed
while plaintiff-respondent had been ready and willing to perform his part of contract and in this
particular case in spite of the words of contract time was not the essence of contract.

19. Learned counsel for the appellant relied on Man Kaur Vs. Hartar Singh Sangha,
2010 AIR SCW 6198, in which Hon'ble Apex Court has held as under:-
1608 INDIAN LAW REPORTS ALLAHABAD SERIES

"11. To succeed in a suit for specific performance, the plaintiff has to prove: (a) that
a valid agreement of sale-deed was entered by the defendant in his favour and the terms thereof;
(b) that the defendant committed breach of the contract; and (c) that he was always ready and
willing to performm his part of the obligations in terms of the contract. If a plaintiff has to prove
that he was always ready and willing to perform his part of the contract, that is, to perform his
obligations in terms of the contract, necessarily he should step into the witness box and give
evidence that he has all along been ready and willing to perform his part of the contract and
subject himself to cross-examination on that issue."

20. From the discussion made above, it is not denied that the agreement in question was not
a valid agreement to sell. It is also proved that defendant-appellant was not willing to perform his
part of contract, so it was he who had committed the breach of contract, and the plaintiffrespondent had been ready and willing to perform his part of contract which he had proved from
the evidences, as affirmed by trial court as well as the first appellate court by concurrent finding of
fact.

21. Most of the consideration was utilized and enjoyed by the defendant-appellant, who
had not only been enjoying the property in question, but had already been acting in the manner
which showed his conduct unworthy of credit as were found by the two lower courts.

22. Section 20(2) of the Specific Relief Act had provided certain conditions, as quoted
above, in which court may properly exercise discretion not to decree specific performance.
Considering those conditions in light of present case it is found that (a) the terms of the contract or
the conduct of the parties at the time of entering into the contract was not such could give the
plaintiff an unfair advantage over the defendant, because the plaintiff had already received more
than 66.66% of sale consideration, and it would be the defendant who would get unfair advantage
over plaintiff-appellant if no relief of specific performance is granted; (b) in present matter there
appeared nothing which the defendant-respondent could not foresee, and instead of defendant it
would be the plaintiff-appellant who would suffer hardship by non-performance who had paid most
of the price of property; and (c) the defendant-respondent, after receiving of almost two-third
portion of sale consideration, had not entered into the contract under any circumstances which
makes it inequitable to enforce specific performance.

23. In Satya Jain (D) through LR and others Vs. Anis Ahmed Rushdie (D) through
Lrs and others 2013 (31) LCD 558 Apex Court had held as under:

"The discretion to direct specific performance of an agreement and that too after
elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational
and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the
Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and
contours thereof will always depend on the facts and circumstances of each case. The ultimate
guiding test would be the principles of fairness and reasonableness as may be dictated by the
peculiar facts of any given case, which features the experienced judicial mind can perceive without
5 All. Gopal Ji Vs Smt. Naseeran Bibi & Ors.

1609
any real difficulty. It must however be emphasized that efflux of time and escalation of prince of
property by itself cannot be a valid ground to deny the relief of specific performance."

24. In the case of Rathnavathi and another Vs. Kavita Ganashamdas 2015(1) Civil
Court Cases 164 (SC), the Apex Court had held as under:

"In our considered opinion, the High Court being the last Court of appeal on
facts/law while hearing first appeal under section 96 of CPC as well within its powers to
appreciate the evidence and came to its own conclusion independent to that of the trial court's
decision. One cannot dispute the legal proposition that the grant/refusal of specific performance is
a discretionary relief, and, therefore, once it is granted by the appellate court on appreciation of
evidence, keeping in view the legal principle applicable for the grant then further appellate court
should be slow to interfere in such finding, unless the finding is found to be either against the
settled principle of law, or is arbitrary or perverse."

25. On the basis of above discussion, I am of the considered opinion that during trial or
during first appeal court, no evidence was led by defendant-appellant to prove that his livelihood is
dependent on disputed property or that prejudice, if any, would caused to him if contract for sale in
question is specifically performed. The burden of proving such facts are on defendant-appellant
who wants the court to believe it, but he had failed to discharge this burden. It is also proved that
defendant-appellant had no intention to execute agreement for sale in question. In these
circumstances, this contention of learned counsel for the respondent is not unacceptable that
plaintiff-appellant had totally proved its plaint case and would suffer prejudice if contract for sale
in question is not specifically performed, but no prejudice would be caused to defendant-appellant
in case of specific performance of contract. This contention is also found acceptable that for giving
false defences before the Court, the defendant-appellant should not be awarded and given benefit of
misuse of process of court.

26. For the reasons discussed above, it is found that plaintiff-respondent had totally proved
his case and readiness and willingness to perform his part of contract and also that if said contract
is not specifically performed, then she would be subjected to serious prejudices, because she had
been waiting for long time after paying more than 66% sale consideration, and had been subjected
to long litigation without any sufficient reason. It is also proved that both the lower courts had
properly appreciated the point as to how discretion under Section 20 of Specific Relief Act should
be exercised. It has also been proved that in this matter in spite of words written in registered
agreement to sell dated 25.4.1997, the time was not the essence of contract and in this regard the
concurrent finding of fact given by the two lower courts are apparently correct, which is without
any infirmity or perversity. Therefore they had passed orders without any factual or legal error.

27. As discussed above, the dispute between the parties relate to facts that could be decided
on the basis of evidences, as has been done by the two lower courts. The question to be determined
for decision of dispute related not to question of law, but a question of fact. No substantial question
of law arises in this matter.
1610 INDIAN LAW REPORTS ALLAHABAD SERIES
28. In view of the above, it is hereby held that first appellate court had properly and
correctly appreciated the available facts, circumstances and adduced evidences, and thereafter gave
its correct finding by reversing the judgment of trial court and allowing the appeal and dismissing
the original suit. There appears no factual or legal error in the impugned judgment of first appellate
court.

29. On examination of the reasoning recorded by the trial court, which are affirmed by the
first appellate court in first appeal, I am of the view that the judgments of the lower courts are well
reasoned, and are based upon proper appreciation of the entire evidences on record. No question of
law, much less a substantial question of law was involved in the case before the High Court. No
perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has
been affirmed by the first appellate court to warrant interference in this appeal. None of the
contentions of the learned counsel for the appellant- plaintiffs can be sustained. Therefore, said
judgments are hereby confirmed.

30. In view of the above, this appeal is dismissed.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Transfer Application (Criminal) No.- 172 Of 2016

Rameshwar Prasad Yadav ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel For the Applicant:
Murtuza Ali, Imtiyaj Ali

Counsel For the Opposite Party:
Government Advocate

Proceedings:
The present Transfer Application (Criminal) was moved under the inherent and supervisory jurisdiction of the
High Court seeking transfer of Special Trial No. 124 of 2016, arising out of Case Crime No. 10 of 2016, under
Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, Police Station Kotwali,
District Azamgarh. The trial was pending before the Court of the Special Judge (Anti-Corruption), Gorakhpur.
A supplementary affidavit filed on behalf of the applicant was taken on record. Learned counsel for the
applicant and learned A.G.A. for the State were heard at length. The entire record of the case was perused by
the Court. The relief sought was transfer of the trial from Gorakhpur to the Sessions Court at Allahabad,
primarily on the ground of inconvenience to the accused and alleged statutory competence of Sessions Judges
under a Government Order dated 19 February 2008.