SUPREME COURT OF INDIA

Before:- S. Rajendra Babu and Shivaraj V. Patil, JJ.

Civil Appeal No. 1414 of 2000. D/d. 21.7.2000.

Sarita Rani - Appellant

Versus

Deepak Raj - Respondent

Specific Relief Act, Section 20(2)(b) - Suit for specific performance - There was neither any plea nor proof that defendant suffered hardship as a result of sale being asked to be specifically performed - Court cannot imagine that specific performance might result in hardship to party concerned when party concerned did not raise this plea - Examination of provisions of Section 20(2)(b) would not arise at all.

[Paras 2 and 5]

ORDER

S. Rajendra Babu, J. - Leave granted.

2. In a suit for specific performance, the trial Court after appreciating the evidence on record, gave its findings on the issues arising in the case and decreed the suit. On appeal, the findings of the trial Court were affirmed.

3. On a second appeal, the High Court upset the findings of the trial Court as affirmed by the Appellate Court on two aspects, firstly, the question whether defendant No. 1 is a bona fide purchaser for value and secondly, question whether hardship may result to the defendant-vendor and which had not been considered by the High Court and first Appellate Court.

4. So far as the first question is concerned, the High Court did notice the fact that defendant No. 2 who got the sale deed executed in his favour did not even enter the witness box in respect of the claim made by him that he is a bona fide purchaser for value without having notice of the earlier agreement, however, stated that this aspect ought to have been examined. We fail to understand, when two Courts come to the conclusion that no evidence had been adduced in this regard and when defendant No. 2 had only produced the sale deed without even examining himself, as to how the High Court in the second appeal could have upset a finding to that effect.

5. On the second question there was neither any plea nor proof that defendant-vendor suffered hardship as a result of the sale being asked to be specifically performed. When the plea of hardship had not been raised by the parties concerned, examination of the provisions of Section 20(2)(b) of the Specific Relief Act would not arise at all. When the parties concerned did not raise this plea as to how the Court could imagine it might result in hardship to the party concerned, is beyond our comprehension. We set aside he order of the High Court and restore that of the first Appellate Court. The appeal is allowed accordingly.

Appeal allowed.