R. C. Lahoti, J. - (1.) Leave granted.
(2.) A suit for specific performance of an agreement to sell an immovable property, which is an agricultural land, was directed to be decreed by the Trial Court and the First Appellate Court. In Second Appeal preferred by the defendant the High Court has upheld the agreement but while dealing with discretion to decree specific performance the High Court has held that it was not a fit case where the Court could have exercised discretion in favour of decreeing the specific performance and rather it was a fit case where the Court ought to have directed only refund of consideration. For the purpose of arriving at such a finding, the High Court has noted during the course of its judgment:- "It is, however, not in dispute that the defendant is a farmer and the plaintiff is a Commission Agent and dealing in fertilizers. It is true that agreement dated 4-7-1987 has been proved by the plaintiff but the plea of the defendant that the plaintiff had obtained her thumb impression on some plain paper, cannot be outrightly rejected. Since there is no evidence in this regard, no definite opinion can be given in this aspect of the case. However, considering that "the alleged agreement to sell is of the year 1991 (sic - 1987) and only a paltry amount of Rs. 2000/- is alleged to have been paid to the defendant as earnest money for purchase of land measuring 24 kanals at the rate of Rs. 10,000/- per acre, I am of the view that it will meet the ends of justice if instead of passing decree for specific performance of agreement to sell, suit is decreed for a sum of Rs. 2,000/- which was paid as earnest money to the defendant with reasonable interest."
(3.) The High Court accordingly modified the decree passed by the courts below.;