LexN. L. DEVENDER SINGH & ORS. versus SYED KHAJA
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~.:;;- ,._ !llZ N. L. DEVENDER SINGH & ORS. A .v. SYED KHAJA AugUJt 3, 1971 LK. K. MATHEW AND M. H. BEG, JJ.] Sptc;fiC Rditf Act 1877, 1, 12-Presumptloll ul'!dtr-WMn rebutttd-B~~r 111 a ,, Zl-When optratu. Tho plaintiff (rtSpondent herein) eXecuted an ai"!ement on. 9-_10-1962 With defendant no. l whereby the latter aifeed to ·~11 . to ~e former hjs hOUSo m Hyderabad for a sum of IU. 60,000. Tho plamtiJI pa1d a aum «?f RJ. 2.000 u caroeat money. However, dependant no. 1 sold tbe property In qu.,f.ioo. OQ J9·HH962 to defendants 2 to 7 for a sum of RJ. 70,000. ~ plaintiff CODa>- quently filed a suit for specific performance of tho aar~ment. The ~uit wu milled by defendant no. 1 on tho jV!>Und tha~ the pla.Jn~ had obWoed tho c agreement dated 9-10·1962 as a result of marep~entalton and fnud. Tho trial court held that misrepresentatlon and fraud had not been proved but the plaintilr had obtained an "unfair advantaao". On thi3 view the trial Court dia- missed the 1uit for 1pecific performance. It ordered the repayment to tho pllill· tiff of the earnest money paid by him. lfll~ alia tho trial eourt also ordered tko payment of RJ. 20,000 to tho plaintiff as liquidated dall?ges or penalty ~ 5tipll· laced in the agreement o! 9·10-1962. In appe:U the High Court decroed the plaintiff'• auit disagreeing with tho view of the trial Court that the plaintiff bad D obtainod llD Unfair advantal!C• Tho Hi(lh Court Jl'aDled the defendantJ a corti· ficate of fitnea, to appeal to this Court. It was contended oo behalf of the delco- dan~ppellants that the pllrliea theiilie!Ves havina stipulated for RJ. 2D,OOO o liquidated dlliL!Iges in the event of a br~ ~ the lint defendant. the !Jreswnp- tion contained in the cxplana,ion to s. 12 of o Specific Relic! Att IS 7 ltood rebutted. It was also contended that ooce the aforesaid pre~umption wu rtbutltd tho bar conbuned in i«tion 21 of the Act ll'ould ipSQ facto becomo operative. DU.mwina the nppeoJ, E HElD : (I) A rcfercoce to a. 22 of tbo Act of U77 (correspon~ to s. 20 of tho Specific Relief Act 196S) would sbow that tho jurisdiction of the Court m decree specific relief is di&cretionarv and mUJt be ex~rcised on sound and rcuoa- ab!o JCOI!Och M~n~ided by judicilll priacip!CJ and capable of correction by tho Colut .. of appeal". This jurisdiction cannot be curtailed or taken away by merely fiiln: a. aurn even as liquidated damages. This is ~o perfectly clear by tho pcovi· SIOill o! •· 20 of the old Act (corresponding to s. 23 of the Act of 1963) to that the Court hu to detcrmioo, on tho facts and circu!ll!ltancn of each ~ be'oro It, whether apccific performance of a contract to convey a property F ougllt to be granted. p 19G-HJ The fact .that the P!U'lies thecnsel ves •peclfied a sum of money to be paid. in !he event of 111 breach IS, no doubt, a piece of oYidence to be comidercd In: detid· IllS whether the presumption baa been repelled or not. But, it is nothinl m0C11 than a PICCC of evidence, It ia not coacluslv0 or decuive. (320A-BJ 'iJ) Tho content!on th11t coco tho pre:~umption tontaltled in uplan.aqoo m a. 1~ of the old Act It removed, the bar c:ont.aincd '· 21 of the old Att .11110St tha G II'POCiftc: e.n!~ment ~~ a contract for which compensation In mooey Is an ~ qaato rcl~ef, aut~matically opcratca, overloob that tho eonditioo for tho lm;lol4• }1011 of lbc bar U actual rroof that c;ompeoutlon ln money b adequate 00 thO acta and. dl'C?trul.llnCta o 11 particular c:uo before tho Court. Tbe cJJect ol ~ P(esumrliDn " that the party comina to the c:ourt for the apedde pcr!ormac<:e o a c~nlraet for tale of Immovable p~y ~d not pro\~ .ao~r until the other •Ide bas removed the Pre\U~!I01l. A~r tho evidence Is ed to rcJllO\'C 1~o.[raurnptlon, the plalntlfi may u 1.o 14 • IIO'ltlon to pre\"C, ~other evidOII~ o Cibe, tb.al paymrnt of money does oot cotnpcn.ato bim a oquattly. " tnoo-EI .· lo the present c~, altbouab. evidcQCO -.n. le<J by art!~. yet there wu oo CJideDC41 to s.how tlle Clttellt Of ion of pt"'6pecLJvc gai~ to lbe p!alAtlff·tciPOI• ent or to tho .appellan~. [320E-F) ~ . ' - 313 A • (iii) Sin~e the presumption under s •. 12 ·<>f fhe old Act had not been rebutteds the High C<:n.lrt rightly decreec:t the suit for specific performance of the contract. It could not be said that tb.e High Court had lightly interfered with the exercise of it3 discretion by the trial court to grant or not to grant specifi performa
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