# Zamadar v. Kali Charan - **Citation:** (2016) 5 ILRA 1167 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-20 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zamadar-v-kali-charan-43751 - **Pages:** 7 ## Headnote Specific Relief Act, 1963 - S. 20 - Discretion to decree specific performance - Agreement to sell - Registered agreement - Admission of execution - Plea of fraud - Burden of proof - Failure to prove fraud - Readiness and willingness - Payment of substantial consideration - Concurrent findings of fact - Second appeal - Substantial question of law - Interference - Refusal Civil Procedure Code, 1908 - S. 100 - Second appeal - Scope - Concurrent findings - No perversity - No substantial question of law. 1168 INDIAN LAW REPORTS ALLAHABAD SERIES Second appeal - Scope - Concurrent findings of fact - Interference. In a second appeal under Section 100 CPC, where both the trial court and the first appellate court have concurrently recorded findings of fact upon independent appreciation of evidence, the High Court cannot reappreciate evidence or interfere with such findings unless they are shown to be perverse, arbitrary or based on misreading of evidence. Mere allegation that evidence was not properly appreciated does not give rise to a substantial question of law. Specific performance - Registered agreement to sell - Admission of execution - Plea of fraud - Proof. Where execution of a registered agreement to sell is admitted, the burden lies heavily on the executant to establish the plea of fraud or lack of intention. In absence of cogent evidence, such plea cannot be accepted, particularly when the executant had prior experience of executing similar documents and had received substantial consideration under the contract. Specific Relief Act, 1963 - S. 20 - Exercise of discretion - Readiness and willingness - Substantial payment of consideration. When the plaintiff has paid a major portion of the agreed sale consideration and has consistently shown readiness and willingness to perform his part of the contract, refusal of specific performance would result in serious prejudice to him. Escalation in price of property or alleged hardship to the defendant, not pleaded or proved, is not a valid ground to deny relief. Discretion under Section 20 must be exercised on principles of fairness, equity and reasonableness. Alternative relief - Refund of consideration - Pleading and proof. Relief of refund in lieu of specific performance cannot be granted in absence of pleadings or evidence showing hardship or exclusive dependence of the defendant on the disputed property. IN RESULT : Second appeal dismissed - No substantial question of law involved - Judgments and decree of courts below affirmed. List of Cases cited: ## Text 5 All. Zamadar Vs Kali Charan 1167 28. Now coming to Question-3, it goes without saying that an additional document, if is admitted in evidence at appellate stage, it is obligatory upon Appellate Court to give opportunity to other side to lay its evidence, if any, in rebuttal and if such opportunity is not granted, the document admitted in evidence per se, if relied, would be illegal. Such procedure adopted by Appellate Court is apparently contrary to law and would vitiate further proceedings as also the findings recorded relying on such additional evidence. 29. Question-3, therefore, is also answered in favour of appellants. 30. Once the document is on record, it ought to have been considered by Court below and if such document is not considered, particularly when it is relevant to the issue considered by Court below, it goes without saying that omission of such evidence is illegal and vitiates the findings recorded by Court below. Question-4 is, accordingly, answered in favour of appellants. 31. In view of the answers given to Questions- 1 to 4, I have no manner of doubt that Question-5, without any further discussion, has to be answered necessarily in favour of appellants and is returned accordingly. 32. In the result, the appeal is allowed. Impugned judgment and decree dated 18.09.1999 and 25.09.1999 respectively passed by Lower Appellate Court is hereby set aside. 33. Matter is remanded to Court below to re-consider the appeal and pass a fresh order in accordance with law and in the light of observations made above. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 20.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 30 Of 2016 Zamadar ...Appellant Versus Kali Charan ...Respondent Counsel for the Appellant: Prem Sagar Gupta Specific Relief Act, 1963 - S. 20 - Discretion to decree specific performance - Agreement to sell - Registered agreement - Admission of execution - Plea of fraud - Burden of proof - Failure to prove fraud - Readiness and willingness - Payment of substantial consideration - Concurrent findings of fact - Second appeal - Substantial question of law - Interference - Refusal Civil Procedure Code, 1908 - S. 100 - Second appeal - Scope - Concurrent findings - No perversity - No substantial question of law. 1168 INDIAN LAW REPORTS ALLAHABAD SERIES Second appeal - Scope - Concurrent findings of fact - Interference. In a second appeal under Section 100 CPC, where both the trial court and the first appellate court have concurrently recorded findings of fact upon independent appreciation of evidence, the High Court cannot reappreciate evidence or interfere with such findings unless they are shown to be perverse, arbitrary or based on misreading of evidence. Mere allegation that evidence was not properly appreciated does not give rise to a substantial question of law. Specific performance - Registered agreement to sell - Admission of execution - Plea of fraud - Proof. Where execution of a registered agreement to sell is admitted, the burden lies heavily on the executant to establish the plea of fraud or lack of intention. In absence of cogent evidence, such plea cannot be accepted, particularly when the executant had prior experience of executing similar documents and had received substantial consideration under the contract. Specific Relief Act, 1963 - S. 20 - Exercise of discretion - Readiness and willingness - Substantial payment of consideration. When the plaintiff has paid a major portion of the agreed sale consideration and has consistently shown readiness and willingness to perform his part of the contract, refusal of specific performance would result in serious prejudice to him. Escalation in price of property or alleged hardship to the defendant, not pleaded or proved, is not a valid ground to deny relief. Discretion under Section 20 must be exercised on principles of fairness, equity and reasonableness. Alternative relief - Refund of consideration - Pleading and proof. Relief of refund in lieu of specific performance cannot be granted in absence of pleadings or evidence showing hardship or exclusive dependence of the defendant on the disputed property. IN RESULT : Second appeal dismissed - No substantial question of law involved - Judgments and decree of courts below affirmed. List of Cases cited: 1. Satya Jain (D) through LRs v. Anis Ahmed Rushdie (D) through LRs and others, 2013 (31) LCD 558 (SC) 2. Rathnavathi and another v. Kavita Ganashamdas, 2015 (1) Civil Court Cases 164 (SC) (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. Heard learned counsel for the appellant on the point of admission of second appeal and perused the records. 2. Admittedly the defendant Zamadar Singh is real elder brother of plaintiff Kali Charan. It is also admitted that registered agreement to sell dated 19.7.2005 was executed on behalf of defendant/appellant Zamadar Singh for sale of his property in favour of defendant for consideration of Rs. 1,50,000/-, and it was mentioned in said-deed that advance consideration of Rs. 1,40,000/- was received by defendant/appellant at the time of execution of said contract. When sale-deed was not executed by defendant/appellant in favour of plaintiff, then plaintiff had filed suit no. 148/2008 for specific performance of contract, which was decreed for the relief of specific performance. Then Civil Appeal no. 40/2014 (Zamadar vs. Kali Charan) was preferred by defendant was dismissed by the judgment dated 7.9.2015 by Additional District Judge, Court No. 3 Etah. Agaist 5 All. Zamadar Vs Kali Charan 1169 the judgment of trial court as well as first appellate court present Second Appeal has been preferred by defendant of the original suit. 3. In this matter written-statement, the execution the deed of registered agreement to sell was admitted. But the defendant had pleaded that he had never willfully executed said document. He further pleaded that defendant had executed another registered agreement to sell in favour of Bharat Singh, and when he returned advance consideration of said deed and approached Bharat Singh for cancellation of deed of contract for sale, then plaintiff played fraud on him in connivance with Bharat Singh and Rajendra, and instead of preparation of deed of cancellation of agreement to sell in favour of Bharat Singh, he got executed deed by registered agreement to sell dated 19.7.2005 for sale of defendant's property in his own favour. 4. After affording opportunity of hearing to the parties, the trial court found that the registered agreement to sell dated 19.7.2005 was properly and willingly executed by defendant for total consideration of Rs. 1,50,000/-, and at the time of execution of said deed advance of Rs. 1,50,000/- was received by him from plaintiff. The trial court had found that defence of fraud and lack of intention to sale of agreement in question alleged by defendant are not proved, the plaintiff had been ready and willing to perform his part of contract. On the basis of these findings, lower court was decreed the suit. 5. In first appeal, the lower appellate court had afforded opportunity of hearing to the parties, framed points of determination even on the fact as to whether the registered agreement to sell dated 19.7.2005 was without consideration and was result of fraud played by plaintiff over defendant, and also on the point as to whether plaintiff has been ready and willing to perform his part of contract. After appreciating the evidences independently in the light of arguments adduced, the lower appellate court had decided all the point of determination in favour of plaintiff/respondent and against defendant/appellant. Lower appellate court had held that it is proved that defendant had willingly executed registered agreement to sell dated 19.7.2005 for sale of his land for consideration of Rs. 1,50,000/- and received advence consideration of Rs. 1,40,000/- ; but later he refused to execute the sale-deed. Lower appellate court had also considered other arguments of appellant's side and gave finding that the plaintiff/respondent has always been ready and willing to perform his part of contract for purchase of disputed property by taking remaining consideration. On the basis of these findings, first appeal was dismissed. 6. Against the judgments of trial court as well as the first appellate court, present second appeal has been preferred by the defendant of original suit. 7. Learned counsel for the appellant contended that facts and evidences were not properly considered by two lower courts, therefore the appeal should be admitted for being allowed. But a perusal of record reveals that in this matter execution of registered agreement to sell dated 19.7.2005 was not only admitted, but was also properly proved by plaintiff/respondent. It was also proved from the evidences that defendant had willingly executed the said registered contract for sale of his property and no fraud was committed during this transaction. The defendant/appellant is 1170 INDIAN LAW REPORTS ALLAHABAD SERIES elder brother and he had earlier executed registered agreement to sell of his property in favour of other persons as mentioned in the written-statement itself. Thus, he had experience of execution of such documents and it cannot be accepted without any proof as he was deceived at the time of preparation or execution of deed of agreement to sell in question. 8. There has been concurrent finding of facts by the two lower courts based on independent appreciation of evidences in favour of plaintiff. The two lower courts had declined to accept the defences raised by defendant/appellant with finding that defendant had failed to prove his case. 9. The only dispute between the parties that as to whether registered agreement to sell dated 19.7.2005 result of fraud played by plaintiff/respondent upon defendant/appellant. It was not a question of law but was question of fact that could be decided on the basis of evidences, as has been done by the two lower courts. The findings of facts given by the two lower courts in this regard are apparently correct and acceptable. No infirmity or perversity in these findings that may require interference by re appreciation of evidence. 10. Alternative argument of learned counsel for the appellant was that relief of refund of advance consideration may be granted to plaintiff because disputed property is only source of of livelihood of appellant. Such facts were never pleaded in written statement nor any evidence in this regard was adduced before the Court. 11. 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. 1,50,000/- the plaintiffrespondent had already paid Rs. 1,40,000/- which is 93.3 % of the sale consideration. This amount of sale consideration was used and usurped by defendant-appellant who had also been enjoying the possession of disputed property. 12. Section 20 of the 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- (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 5 All. Zamadar Vs Kali Charan 1171 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 the 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." 13. 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 93% of sale consideration, and it would be the defendant whould 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 almost nearly whole the price of property, and when in present age of rise in price of property and fall in value of currecy, would get meager amount of actual price of said land, even if the money is refunded with interest; and (c) the defendant-respondent, after receiving of almost more than 93% of sale consideration, had not entered into any circumstances which makes it inequitable to enforce specific performance. In present matter ehe court should properly exercise discretion to decree specific performance because in this case the plaintiff has done substantial acts or suffered losses in 1172 INDIAN LAW REPORTS ALLAHABAD SERIES form of waitin for a long time and litigating against false defences after paying the major portion of consideration in consequence of a contract capable of specific performance. This has been done by him in belief of truth and law. 14. 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 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." 15. 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." 16. 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-respondent 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 appellant had been acting dishonestly, pleading false defences and giving false evidences in Court to prove that he had no intention to execute agreement for sale in question and also that no amount of plaintiff is due against him. In these circumstances, this contention of learned counsel for the respondent is not unacceptable that plaintiff-respondent 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 acting in dishonest and mala fide way and giving false defences and for telling lie before the Court, the defendant-appellant should not be awarded and given benefit of his greed, nor should he be permitted to benefit of his misuse of process of court. 5 All. State Of U.P. & Anr. Vs Jhinkan Chaudhary & Anr. 1173 17. 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 he would be subjected to serious prejudices, because he had been waiting for long time after paying more than 93% 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 the discretion under Section 20 of Specific Relief Act should be exercised. 18. 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 trial court as well as the first appellate court are well reasoned, and 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 this Court. No perversity or infirmity is found in the concurrent findings of facts 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. 19. In view of the above, this appeal is dismissed. --------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 20.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 145 Of 2011 State Of U.P. & Anr. ...Appellants Versus Jhinkan Chaudhary & Anr. ...Respondents Counsel for the Appellants: S.C. Srivastava, S.C. Counsel for the Respondents: Vinod Kumar Dwivedi Limitation Act, 1963 - Sections 3 and 9 - Suit for declaration regarding status as Assistant Teacher and for salary dues - Cause of action pleaded as arising on 1-7-1977 due to stoppage of salary - Suit instituted on 11-8-1983 - Period of limitation held to be 3 years - Held, once the cause of action first arose on 1-71977, time began to run and, by virtue of Section 9, could not be stopped thereafter - Amendment of plaint incorporating an additional date i.e. 30-7-1982 did not extend or revive limitation - No recurring or continuing cause of action made out - Suit barred by time.