- (1.) POONAM Srivastava, J. Heard Sri Rahul Sahai learned Counsel for the appellant and Sri S. C. Mandhyan, learned Counsel for the ceveator/respondents.
(2.) COUNSELS for the respective parties have agreed that since all the requisite documents alongwith stay application are available on record, second appeal may be decided finally. Original Suit No. 894 of 1996 for specific performance of contract was instituted by the plaintiff/respondents before the Civil Judge (Senior Division), Meerut. It is alleged that the property in dispute is shown in Khasra No. 312 Aa Rakba 5 Bighas 3 Biswas and 312 B area 1 Bigha 15 Biswas. The defendant/appellant entered into an agreement to sell with the plaintiff/respondents for an amount of Rs. 90,000/- by means of registered deed on 9-12-1994. Rs. 40,000/- was paid as earnest money at the time of execution of the agreement to sell. Balance amount was to be paid subsequently at the time of execution of the sale-deed. The plaintiffs made repeated request to execute the sale-deed but all his efforts failed to yield any result. On 14-11-1995, a notice was served upon the defendant/appellant asking him to be present before the Sub-Registrar on 4-12-1995, last request was made on 25-7-1996 for execution of the sale-deed but since the defendant was not ready to perform his part, the suit was instituted. Allegation of the plaint was denied by the defendant/appellant. According to the written statement, there was a loan of Rs. 20,000/- which was a loan/mortgage agreement purported to be executed. Since the defendant is illiterate and rustic man, he was not able to understand as to what was written in the deed and it was only on account of misrepresentation and fraud practised on him, deed of agreement to sale was executed. A number of issues were framed. The trial Court dismissed the suit and directed the defendant to pay Rs. 20,000/ -.
(3.) COUNSEL for the appellant pressed three substantial questions of law, which are quoted herein below : (1) Whether the defendant/appellant, belonging to a rustic background and virtually illiterate was entitled to the benefit which is available to a Pardanaseen lady and because of which the onus to prove due execution of the sale-deed lays upon the plaintiff/respondent? (2) Whether the lower appellate Court was justified in holding the comparative hardship is irrelevant and directed for specific performance of contract in contravention to Section 20 of Specific Relief Act, when to the contrary, the trial Court had dismissed the suit holding amongst others that the defendant/appellant would suffer greater hardship if specific performance of contract is directed? (3) Whether the lower appellate Court was justified in reversing the finding of the trial Court with regards to readiness and willingness when the trial Court had exclusive privilege to see and observe the demeanour of witnesses? Argument is that since the trial Court recorded its findings on issue No. 6 regarding Section 20 of Specific Relief Act to the effect that the land in question is only source of livelihood and if the land is sold to the plaintiffs, he and his family members will starve to death. Specific findings were recorded by the trial Court. The appellate Court was of the view that this fact is not worth consideration since agreement to sale was executed by the defendant in full consciousness, therefore, finding recorded on issued No. 6 was not specifically set aside.;