Evidence recorded before Criminal Courts not conclusive for granting decree of specific performance

Whether, while adjudicating plea of grant of decree for specific performance, Court can consider a document produced and related evidence led before the Criminal Court to make base for determining existence of fact.

High Court vide its impugned finding in the instant matter set aside the order of trial court rejecting the plea of grant of specific performance. The relief was sought on the basis of agreement to sell written on a quarter size piece of paper, which also included a mention of earlier execution of another agreement, which however was not filed on record. High Court reversed the finding on the premise that document in question was filed before the Criminal Court and evidence was led and based thereupon decreed the suit for specific performance.

The Court while hearing appeal against the impugned High Court finding made an observation that a decree for specific performance can be granted even on the basis of oral contract. However, an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties. In a case where plaintiff comes forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the him to prove that there was consensus between the parties for the concluded agreement for sale of immoveable property.

Whether there was such a concluded contract or not would be a question of fact to be determined on the facts and circumstances of each individual case. In a suit for specific performance of a contract, the Court cannot ignore Section 20 of the Specific Reliefs Act giving judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. It should meticulously consider facts and circumstances of the case to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. The relief of specific performance is discretionary but not arbitrary which must be exercised in accordance with sound and reasonably judicial principles.

Where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. Under Section 20 of the Specific Relief Act, a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance.

In the instant case the issue related to as to whether the agreement (in question) of 1967 allegedly executed by the defendants, could be enforced. In the agreement there was reference of earlier agreement where some sum of money was paid to the defendant-appellant which was denied and disputed. As mentioned above, the previous agreement was neither filed nor exhibited to substantiate the case of the plaintiff. The High Court placed reliance on the said agreement written in a quarter sheet of paper merely because of the fact that said quarter sheet of paper was produced before the Magistrate in a criminal proceeding.

The view taken by High Court was held to be incorrect to the effect that there was no reason to disbelieve the execution of the document although it was executed on a quarter sheet of paper and not on a proper stamp and also written in small letter. The High Court also misdirected itself in law in holding that there was no need for the plaintiff to have sought for the opinion of an expert regarding the execution of the document.

Various documents including order-sheets in the earlier proceedings including execution case were filed to nullify the claim of the plaintiff regarding possession of the suit property but these documents were not been considered by the High Court.

The evidence and the finding recorded by the criminal courts in a criminal proceeding cannot be the conclusive proof of existence of any fact, particularly, the existence of agreement to grant a decree for specific performance without independent finding recorded by the Civil Court.

It was accordingly held that the present was not the fit case where the discretionary relief for specific performance could be granted in favour of the plaintiff-respondent. The High Court in the impugned judgment failed to consider the scope of Section 20 of the Specific Relief Act and the precedents.

K. Nanjappa (Dead) By LRs. Vs. R.A. Hameed @ Ameersab (Dead) By LRs. and Anr.

SC, 02.09.2015

Civil Appeal No. 8224 of 2003