- (1.) S. K. Phaudjar, J. A suit (O. S. No. 104 of 1981) was filed by the present respon dent before the Civil Judge, Muzaffarnagar for specific performance of contract by the present appellant. The suit was decreed on 31-5-1984, not for the specific performance but for realisation of Rs. 15,000 that was paid in part- performance of the contract.
(2.) AN appeal (CA 150 of 1994) was preferred by the aggrieved plaintiff and the claim for specific performance of the con tract was decreed by the judgment dated 7-8-1995. It was urged that the trial court had rightly exercised the discretion under Sec tion 20 (2) (b) of the Specific Relief Act and there was no reason for the first appellate court to go against the exercise of that dis cretion. It was urged that whether hardship was pleaded or not, the court had a right to come to a conclusion of hardship and to refuse specific performance under Section 20 (2) (b) of the Specific Relief Act. It was urged that there had been an admission on the part of the plaintiff that the defendant would have been in possession of only one kutchha bigha of land after the proposed sale and this admission was sufficient to infer hardship. Two questions came up for consideration: (1) Whether a court can arrive at a decision on hardship even in the absence of a pleading to that effect; and (2) Whether in the absence of such a pleading an admission touching the point of hardship could be looked into. Section 20 deals with discretion for decreeing specific performance. For easy reference it is desirable to quote the whole of Section 20. "20. Discretion as to decreeing specific per formance.- (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 such that the contract, though not voidable, gives the plain tiff 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 it is non-perfor mance 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 inequitable to enforce specific performance. Explanation 1.- Mere inadequacy of con sideration, 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 th 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 con tract. (3) The court may properly exercise discre tion 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. "
(3.) IT appears that the jurisdiction to decree a specific performance is discretionary and the Court is not bound to grant such relief. A caution is, however, given in the section itself That the discretion is to be exercised on sound and reasonable judicial principles. It is further indicated in the sec tion itself That exercise of this jurisdiction is capable of correction by a court of appeal. It must be held, therefore, That the court of first appeal had every jurisdiction to inter fere with the discretion exercised by the trial court on good grounds.;