Rattan Singh vs Akhtar Islam

Court
Delhi High Court

* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 06 February, 2026
th
Pronounced on: 09 July, 2026

+ RSA 271/2017, CM APPL. 53087/2023 and
CM APPL 68162/2025

RATTAN SINGH
S/o Shri Har Lal,
R/o House No. 6, Jogabai,
P.O. Jamia Nagar,
New Delhi-110025. .....Appellant
Through: Mr. Kshitiz Mahipal and Ms. Khairun
Nisa, Advocates.

versus

AKHTAR ISLAM
S/o Late Sh. Mahmood Khan,
R/o House No. 7/1, Jogabai,
P.O. Jamia Nagar,
New Delhi .....Respondent
Through: Mr. Vaibhav Kumar, Advocate.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 ( hereinafter referred to as „CPC‟ ) has been filed on behalf
of the Defendant/Appellant, Mr. Rattan Singh, against the Judgment dated
28.08.2017 , whereby the learned Additional District Judge upheld the
Judgment of learned Civil Judge, decreeing the Suit for Specific
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Signed By:VIKAS
ARORA
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Performance filed by the Plaintiff/Respondent, Mr. Akhtar Islam , in his
favour.
2. The Plaintiff had filed a Suit bearing Civil Suit No. 317/1988 for
Specific Performance against the Defendant.
3. The brief facts as narrated in the Plaint are, that the Plaintiff and
Defendant entered into an Agreement to Sell dated 13.07.1966 , for the sale
of land admeasuring 680 sq. yards in Khasra No. 161, Abadi Deh, Jogabai,
Jamia Nagar, New Delhi-110025 ( hereinafter referred to as „Suit Property‟ ),
for a total sale consideration of Rs.8,160/-. he Plaintiff paid a sum of
Rs.1,700/- as part payment towards the sale consideration. The balance
amount of Rs.6,460/-, was agreed to be paid within a period of one year
from the execution of the aforesaid Agreement to Sell, whereafter, the
Defendant would execute the Sale Deed, in favour of the Plaintiff.
4. It was claimed that the Sale Deed could not be executed in favour of
the Plaintiff, within the stipulated period, on account of the pendency of
Civil Suit No. 802/1965, between the Defendant and certain third parties.
Consequently, the Defendant entered into a supplementary Agreement to
Sell dated 08.06.1967 , whereunder, an additional sum of Rs.3,200/- was
received by the Defendant, who required the money for the marriage of his
younger sister. It was further agreed that, the balance amount of Rs.3,260/-
shall be paid at the time of the registration of the Sale Deed, which was to be
executed within three months of the final decision of the aforesaid litigation.
5. It was further agreed between the parties that, if for any reason either
because of the litigation or otherwise, the Defendant was not able to execute
the Sale Deed in favour of the Plaintiff, the Defendant would be bound to
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sell House No. 6, Jogabai, Jamia Nagar, New Delhi-110025 for a sum of
Rs.4,900/-, which had already been received by the Defendant as earnest
money.
6. It was asserted that the Plaintiff, from time to time, enquired from the
Defendant about the status of the aforesaid litigation. On each such
occasion, the Defendant stated that the litigation was still pending and
requested the Plaintiff to await its final adjudication. The Defendant further
assured the Plaintiff that the Sale Deed in respect of the Suit Property would
be executed immediately upon the conclusion of the said litigation.
7. It was further asserted that the Plaintiff subsequently came to know
that the Defendant had been postponing the execution of the Sale Deed in
favour of the Plaintiff, on false and frivolous pretexts. It was alleged that the
Defendant was trying to sell the suit property in favour of third parties, who
were willing to purchase the same, notwithstanding the pendency of the
aforesaid litigation, as the value of the properties in the area had appreciated
considerably over time. It was further alleged that the Defendant was no
longer ready and willing to sell the suit property to the Plaintiff .
8. Consequently, the Plaintiff approached the Defendant to execute the
Sale Deed in terms of the aforesaid Agreements to Sell. However, the
Defendant told the Plaintiff that he would neither execute the Sale Deed nor
dispose of his residential house. The Plaintiff claimed that he was always
ready and willing to perform his part of the contract, whereas it was the
Defendant who had consistently evaded the execution and registration of the
Sale Deed.
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9. Accordingly, the Plaintiff instituted the present Suit seeking Specific
Performance of the Agreements to Sell dated 13.07.1966 and 08.06.1967 or,
in the alternative, appropriate relief in respect of House No. 6, Jogabai,
P.O. Jamia Nagar, New Delhi-110025.
10. The Suit was contested by the Defendant who in his Written
Statement , took the preliminary objection that the Plaintiff had not
approached the Court with clean hands as he never approached or served
any notice upon the Defendant, to perform his part of the aforesaid
Agreements to Sell.
11. It was claimed that, the Plaintiff was never ready and willing to
purchase the suit property as he did not have sufficient funds or else he
would have served the Notice well within time seeking Specific
Performance of the Agreements to Sell dated 13.07.1966 and 08.06.1967.
12. It was further asserted that the Plaintiff did not disclose any cause of
action for filing the present Suit , as the aforesaid Agreements to Sell became
inoperative and unenforceable on the expiry of the limitation period of three
years.
13. On merits , the Defendant denied the Site Plan and asserted that the
same did not relate to the Suit Property which was in the possession of
Defendant. It was further asserted that the Plaintiff had obtained an
Agreement from the Defendant, which was revoked immediately, as the
same had been executed under the false pretext . It was further contended
that the sale consideration had, in fact, never been paid and consequently,
the Plaintiff had never sought enforcement of the said Agreements to Sell
dated 13.07.1966 and 08.06.1967.
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14. The Defendant further asserted that under duress and threat, some
other Agreement got executed, which was also subsequently cancelled , as
the Defendant had threatened to initiate the criminal proceedings against the
Plaintiff on the ground of fraud played upon him by writing about some plot ,
which was not in possession of the Defendant. However, the money was
never received under the second Agreement to Sell dated 08.06.1967, as
well. The contents of the Plaint, were denied completely by the Defendant.

15. The Plaintiff in his Replication reaffirmed the assertions made in the
Plaint and denied the averments made in the Written Statement.
16. The learned Civil Judge framed the following issues on 16.01.1991,
which are as under:-
1) Whether the suit is within period of limitation? OPP
2) Whether plaintiff was always ready and willing to
perform his part of contract? OPP
3) Whether the alleged agreement was executed under
duress and threat and without consideration as alleged?
OPD
4) Relief.

17. The Plaintiff, Akhtar Islam in support of his case, examined himself
as PW-1 . He proved the two Agreement to Sell dated 13.07.1967 as Ex.P-1
and Agreement to Sell dated 08.06.1967 as Ex. P-2 . He further deposed on
similar lines as the averments made in the Plaint.

18. PW-2 , Mohd. Yasin Barni was the scribe of the Agreement to Sell
dated 08.06.1967 Ex.P-2 and proved its authenticity.
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19. PW-3 , Mr. Khurshid Alam deposed about the execution of the
Agreement to Sell dated 13.07.1966 Ex.P-1 , in his presence.
20. The Defendant, Mr. Rattan Singh examined himself as DW-1 and
deposed on similar lines as the defence taken in the Written Statement.
21. DW-2 , Mr. Dinesh Sharma , deposed that the Plaintiff had executed
some documents of loan, whereas he had neither given the loan nor were the
documents returned to him.

22. In the first round of litigation, the learned Civil Judge after
appreciating the rival contentions of the parties vide Judgment dated
05.04.2003, observed that, admittedly, it was due to Suit bearing No.
802/1965 and Suit No. 421/1974 pending in regard to the Suit Property that
the Defendant avoided the execution of the Sale Deed.
23. It was further observed that the Suit No. 471/1974 was pertaining to
Partition and there was no record to show that the litigation had got settled
between the parties qua the suit property. It was further observed that the
claim for an alternate Property in terms of the Agreement to Sell dated
08.06.1967 Ex.P-2 , would arise only in the event, the Defendant defaulted in
executing the Sale Deed.
24. It was further observed that the aforesaid Agreements to Sell were
executed in 1966-1967 and it was incumbent upon the Plaintiff, to prove that
he had made the request to the Defendant, for execution of the Sale Deed in
his favour. However, it emerges from the pleadings that it was not until a
week prior to filing of the present Suit, that the Plaintiff had made any
request for execution of the Sale Deed, which reflects that he was not ready
and willing to perform his part of the Contract.
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25. The defence of the Defendant that he had been made to sign the
aforesaid Agreements to Sell under duress and threat and without
consideration was not proved. The Suit of the Plaintiff, was thus,
dismissed on the ground that the Suit was pre-mature in terms of the
provision of Contract.
26. Aggrieved, the Plaintiff preferred Appeal bearing RCA No. 24/2003
before the learned Additional District Judge. The learned Additional District
Judge vide Judgment dated 25.02.2004, observed that undisputably, the two
Contracts were contingent Contracts, in view of on-going litigation between
the Defendant and third parties. Admittedly, the Defendant was unable to
execute the Sale Deed, in terms of the First Agreement dated 13.07.1966 Ex.
P-1 and therefore, another Agreement to Sell dated 08.07.1967, Ex.P-2 was
executed between the parties. It was further observed that under the second
Agreement to Sell dated 08.06.1967 Ex. P-2 , the Defendant had undertaken
to sell his house to the Plaintiff, in case he was unable to execute the Sale
Deed. Consequently, the learned Additional District Judge allowed the
Appeal filed by the Plaintiff and the present Suit was remanded back to the
learned Civil Judge, to be decided afresh .
27. Thereafter, in view of the Judgment dated 25.02.2004 passed the
learned Additional District Judge, the Suit was decided afresh by the
learned Civil Judge vide Judgment dated 25.05.2010. The learned Civil
Judge observed that Suit No. 802/1965, which was the litigation between the
Defendant and the third party, was decided vide Judgment dated 03.09.1976.
The learned Civil Judge observed that since the Plaintiff was not a party to
the said litigation, it was for the Defendant to have informed the Plaintiff
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about it, which he failed to do. It was further observed that there was
nothing on record to prove that the Plaintiff was not willing to perform his
part of the Contract.
28. The learned Civil Judge further observed that the impediments
claimed by the Defendant, were not duly proved by him and he was evasive
about the Khasra Number of which the Suit Property was a part . The Suit
for Partition was filed in the High Court of Delhi, however, the same was
dismissed vide Order dated 14.07.1993. The plea of the Defendant that the
dismissal of the Partition Suit made the Judgment dated 03.09.1976 in-
effective, was not accepted.
29. The learned Civil Judge further observed that while the Defendant
claimed that he had sold various portions of the suit property to the villagers,
however, he avoided to state on what dates the land had been sold, despite
the Judgment dated 03.09.1976, wherein the Defendant was restrained from
selling the suit property, was still operative. It was thus, held that the
Defendant was not able to prove that the Sale Deed could not be executed .
During the pendency of proceedings, it had emerged that the suit property
had been already been sold, however, his house was still available. In view
of the aforesaid, the learned Civil Judge passed a Decree of Specific
Performance in respect of House No. 6, Village Jogabai, P.O. Jammu
Nagar, New Delhi and the Defendant was directed to execute the Sale
Deed and hand over possession of the house to the Plaintiff, within 30
days of the decree.
30. Aggrieved by the Judgment dated 25.05.2010, the Defendant filed an
Appeal bearing RCA DJ - 61148/2016 before the learned Additional
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District Judge, who vide Judgement dated 28.08.2017 , dismissed the Appeal
filed by the Defendant and upheld the Judgment dated 25.05.2010.
31. Aggrieved by the Judgment dated 28.08.2017 the Defendant has
preferred the present Regular Second Appeal under Section 100 of the
CPC.
32. The Grounds of Challenge are that the learned Additional District
Judge failed to appreciate that the Judgment and Decree dated 25.05.2010 of
the learned Civil Judge, was based on conjectures and surmises, without
appreciating the grounds of defence raised by the Defendant and learned
Additional District Judge has wrongly confirmed the findings. It has not
been appreciated that the Suit of the Plaintiff, had not been filed within the
period of limitation and the findings that the Suit was not barred by
limitation, is totally baseless.
33. Both the Courts failed to appreciate that the Plaintiff himself had
admitted in his testimony that the proceedings in Suit No. 802/1965 was still
pending. It was further admitted that it was due to pendency of the Suit No.
802/1965 in regard to the Suit Property, due to which, the Defendant was
unable to execute the Sale Deed in favour of the Plaintiff. The Plaintiff in his
cross-examination had admitted the Judgment dated 03.09.1976 passed in
Suit No. 802/1965, which was exhibited as Ex.PW-1/DX . Therefore, it can
be said that the Plaintiff was in the knowledge of the litigation, pending
against the Defendant.
34. It has also not been appreciated that though the Plaintiff was claiming
that he was always ready and willing to execute his part of the Contract , but
he failed to disclose the date on which he ever approached the Defendant for
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execution of the Sale Deed or the date on which the Defendant refused to
execute the Sale Deed in his favour.
35. The allegations that the Defendant did not inform the Plaintiff about
the litigation, which was claimed to be pending in respect of the Suit
Property, has not been proved in as much as no dates have been given when
the Plaintiff sought the information qua the litigation and when was it
refused by the Defendant . It is only when PW-4 , Mr. S.M. Azeem , who for
the first time in his examination in chief had deposed that the Plaintiff had
asked the Defendant to execute the Sale Deed in September, 1988.
36. Furthermore, both the Courts failed to appreciate that in the present
case, the Agreements to Sell had been executed in 1966 and 1967
respectively, while the Suit was filed in 1988, i.e. after a period of 22 years,
which is blatantly beyond the period of limitation of three years. The
issue of limitation has not been dealt by both the Courts, in the light of the
settled law. It was for the Plaintiff to explain the delay in institution of the
Suit after 22 years or even after 12 years of passing of the Judgment and
Decree dated 03.09.1976 in the Suit for Permanent Injunction, pending
between the Defendant and the third party.
37. The Courts have simply believed the version of the Plaintiff that a
week prior to filing of the present Suit, he had approached the Defendant for
execution of the Sale Deed, in order to bring the Suit within the period of
limitation. While the fact of the matter is that such kind of allegation, cannot
be deemed to be sufficient to bring the Suit within the limitation.
38. Furthermore, the Suit pending between the Defendant and the third
party, was decided on 03.09.1976 and the Plaintiff was well aware about the
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said decision. It has also not been considered that no prior notice for
performance of the Agreement to Sell, was ever given by the Plaintiff.
39. It was further asserted that the antecedents of the Plaintiff would show
that he was in a habit of involving innocent people in false litigation by
fabricating and forging documents in his favour, which has not been taken
into consideration. The acts of the Plaintiff have been corroborated by his
testimony in so much as during his cross-examination, he admitted “ it is
correct that the Suit of similar nature is pending with respect to adjacent
land. The Agreement of that land was executed in 1967 .”
40. It was further claimed that both the properties, which are the subject
matter of the present case, are situated in Khasra No. 161, Village Jogabai
and a Decree of Permanent Injunction was passed vide Judgment dated
03.09.1976 in respect of the suit properties forming part of the said Khasra,
and therefore, none of the Properties can be sold or transferred by the
Defendant; as such, there is a continuous contingency attached to the
Agreements, which prohibits the sale of property.
41. Though this aspect was vehemently contended before the learned
Appellate Court and the Lal Dora Certificate was also filed, but this aspect
has been completely ignored. Furthermore, the discretion to direct specific
performance of an Agreement , that too, after the elapse of more than 22
years, undoubtedly, has to be exercised on sound, reasonable, rational and
acceptable principles.
42. The discretion vested by Section 20 of the Specific Relief Act, 1963,
cannot be entrapped within any precise expression of language and the
contours thereof, always depends upon the facts and circumstances of each
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case. Before passing a Decree of Specific Performance , it was obligatory for
the Courts to consider whether by doing so, any unfair advantage would
result for the Defendant over the Plaintiff; the extent of hardship that may be
caused to the Defendant and if it would render such enforcement,
inequitable. These aspects have not been considered by both the Courts.
43. Reliance has placed on Nirmala Anand vs. Advent Corporation (P)
Ltd. , AIR 2002 SC 2290 and Gobind Ram vs. Gian Chand , AIR, 2000 SC
3016, wherein, when a decree of Specific Performance of an Agreement to
Sell of a Property was not executed for a long time, having regard to the
escalation in price of the property, the Appellate Courts refused to affirm the
decree of Specific Performance or directed the Plaintiff to pay higher sale
consideration than what was agreed between the parties, while affirming the
decree.
44. In the present case as well, the Agreements to Sell date back to 1966-
1967 and the Suit had been filed after almost 22 years, in 1988 and the
Judgment has been finally passed on 25.05.2010, which has been affirmed
by the learned Additional District Judge on 28.08.2017, after more than 50
years, during which the prices of the property have increased manifold. The
First Appellate Court should have thus, refused to affirm the decree or at
least direct the Plaintiff, to pay higher sale consideration than what was
agreed between the parties.
45. The equity should have been balanced between the parties. Moreover,
it should be kept in mind whether a party is trying to take undue advantage
over the other, as also the hardship that may be caused to the Defendant by
directing the Specific Performance. A prayer is, therefore, made that the
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impugned Judgment of the learned Additional District Judge dated
28.08.2017, be set-aside.
46. The Defendant has filed his Written Submission s on the similar lines
as the grounds of Appeal.
47. The Plaintiff in his Written Submissions while detailing the entire
litigation, has asserted that the Appeal has been filed on false, frivolous
grounds and the Appeal is liable to be dismissed .
Submissions heard and the record perused .
48. The substantial questions of law, which arise in the present Appeal,
are as under:-
(i) Whether the findings of the learned Civil Judge in Judgment
dated 25.05.2010 as endorsed by the learned Additional
District Judge in Judgment dated 28.08.2017, are perverse and
not based upon the evidence led by the parties?
(ii) Whether the Plaintiff was entitled to the equitable relief of
Specific Performance of Contract , after 50 years of the
Agreement to Sell, initially executed on 13.07.1966 ?
49. Before evaluating the facts of the present case, it would be appropriate
to first examine the principles of seeking Specific Performance in terms of
an Agreement to Sell. Section 16 of the Specific Relief Act, 1963 stipulates
the circumstances when a relief for specific performance shall not be granted
by a court. The relevant part of the provision of it reads as under:
“Section 16 Personal Bars to Relief – Specific
performance of a contract cannot be enforced in favour
of a person–
(a) .....
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(b) .....
(c) [who fails to prove] that he has performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than terms the performance of which has been
prevented or waived by the defendant.
Explanation – For the purpose of clause (c), –
(i) where a contract involves the payment of money, it is
not essential for the plaintiff to actually tender to the
defendant or to deposit in court any money except when
so directed by the court;
(ii) the plaintiff [must prove] performance of, or
readiness and willingness to perform, the contract
according to its true construction.”

50. The principles relating to specific performance as contained in
Sections 16(c), 20, 21, 22 and 23 of the Specific Relief Act, 1963 read with
Forms 47/48 of Appendix A to C of the Code of Civil Procedure, 1908 were
succinctly summarized by the Supreme Court in Kamal Kumar vs Premlata
Joshi, 2019 SCC OnLine SC 12 as under:
“10. It is a settled principle of law that the grant of relief
of specific performance is a discretionary and equitable
relief. The material questions which are required to be
gone into for grant of the relief of specific performance,
are First, whether there exists a valid and concluded
contract between the parties for sale/purchase of the suit
property; Second , whether the plaintiff has been ready
and willing to perform his part of contract and whether
he is still ready and willing to perform his part as
mentioned in the contract; Third , whether the plaintiff
has, in fact, performed his part of the contract and, if so,
how and to what extent and in what manner he has
performed and whether such performance was in
conformity with the terms of the contract; Fourth ,
whether it will be equitable to grant the relief of specific
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performance to the plaintiff against the defendant in
relation to suit property or it will cause any kind of
hardship to the defendant and, if so, how and in what
manner and the extent if such relief is eventually granted
to the plaintiff; and lastly , whether the plaintiff is
entitled for grant of any other alternative relief , namely,
refund of earnest money etc. and, if so, on what grounds.

51. Thus, in order to be successful, in a case for Specific Performance the
Plaintiff has to prove the following points:

1. First, whether there exists a valid and concluded contract
between the parties for sale/purchase of the Suit Property;
2. Second, whether the Plaintiff has been ready and willing to
perform his part as mentioned in the contract;
3. Third, whether the Plaintiff has, in fact, performed his part of
contract and, if so, how and to what extent and in what manner
he has performed and whether such performance was in
conformity with the terms of the contract.
4. Fourth, whether it will be equitable to grant the relief of
specific performance to the Plaintiff against the Defendant in
relation to the Suit Property or it will cause any kind of
hardship to the Defendant and, if so, how and in what manner
and the extent if such relief is eventually granted to the
Plaintiff;
5. Fifth, whether the Plaintiff is entitled for grant of any other
alternative relief, namely, refund of earnest money etc. and, if
so, on what grounds.
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52. In the present case, there is no denial that the two Agreements to Sell
dated 13.07.1966 Ex. P-1 and 08.06.1967 Ex. P-2 were duly executed
between the parties. The other components are considered hereunder.

I. Whether the Plaintiff has been able to prove the Cause of action
under the Two Agreement to Sell:
53. The admitted facts are that the Plaintiff, Mr. Akhtar Islam had entered
into an Agreement to Sell dated 13.07.1966 Ex. P-1 with the Defendant, Mr.
Rattan Singh , in regards to the suit property, which is a plot of land
admeasuring 680 sq. yards in Khasra No. 161, Abadi Deh, Jogabai,
Jamia Nagar, New Delhi-110025. As per this Agreement to Sell, the
essential features were:
(i) The Sale Consideration of Rs.8,160/- , was agreed, out of
which Rs.1,700/- were received at the time of entering
into the aforesaid Agreement to Sell.
(ii) The balance consideration of Rs.6,460/- was to be paid
at the time of execution of the Sale Deed and its
registration,
(iii) The sale deed was to be executed within one year of the
date of Agreement.
(iv) If the Defendant did not execute the Sale Deed, within the
time period, then the Plaintiff would have the right to get
the Sale Deed registered, through the Court at the
expense of the Defendant to which, he and his legal
heirs, would have no objection.
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(v) If the transfer of suit property is proved illegal, then the
Defendant would refund the advance with expenses and
damages, to the Plaintiff.
54. It is an admitted case of the parties that at the time of entering into the
first Agreements to Sell, there was a third-party litigation by way of Civil
Suit No. 802/1965 for Permanent Injunction, which was pending in respect
of the suit property , due to which Second Agreement to Sell dated

08.06.1967 Ex. P-2 was executed between the parties.
55. The salient covenants of this Second Agreement to Sell , were:
(i) It was noted that because of the pending litigation in
Civil Suit No. 802/1965 (sic) titled as Sh. Sarupa and Sh.
Shankar and others, resident of Saray Julina vs. Ram
Singh and others resident of Joga Bai, the Defendant was
not able to execute the registered Sale Deed dated
13.07.1966 in favour of the Plaintiff.
(ii) It was further recorded that the Defendant was hopeful of
the decision in the aforesaid case, and he undertook to
execute the Sale Deed in regards to the Suit Property
“within three months of completion of legal
proceedings and legal obstructions”.
(iii) That the Defendant had to get his younger sister married
and was in dire need of funds. Consequently, the
Defendant received a sum of Rs. 3,200/- from the
Plaintiff, as part of the sale consideration for the suit
property. Thus, a total sale consideration of Rs.4,900/-
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was received by the Defendant and he agreed to sell the
suit property to the Plaintiff on payment of balance sale
consideration of Rs.3,260/-.
(iv) The Defendant undertook to get the registration of the
Sale Deed done, within three months of the final outcome
of Civil Suit No. 802/1965.
(v) That in case, the Sale Deed was not executed in favour of
the Plaintiff within the time limit, the Plaintiff, would
have a right to get the Sale Deed executed through the
Court and the Defendant would be responsible for the
expenses and damages.
(vi) That if there is any impediment to legal transfer of the
suit property after the decision of the Court in Civil Suit
No. 802/1965, then the Defendant would sell his own
house bearing House No. 6, Village Jogabai, P.O.
Jammu Nagar, New Delhi-110025 to the Plaintiff for a
total advance amount of Rs.4,900/-.
56. The first aspect which emerges, is that in the First Agreement to Sell
dated 13.07.1966 Ex. P-1 , it was contemplated that in case the Defendant
failed to execute the Sale Deed, within a period of one year, the Plaintiff had
a right to seek the execution of the Sale Deed through the Court. It further
emerges that on account of the pending Civil Suit No. 802/1965, the
Defendant found it difficult to honour the said Agreement to Sell, within the
given timeline of one year resulting in the second Agreement to Sell dated
08.06.1967, Ex.P-2 .
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57. The peculiar circumstance agreed between the parties in the
Agreement to Sell dated 08.06.1967, Ex.P-2 was that the Sale Deed was to
be executed on conclusion of the Suit No. 802/1965. It is evident that the
contract, therefore, was a contingent contract as defined in Section 31 of
the Indian Contract Act, 1872. It reads as under:
“S.31. A “contingent contract” is a contract to do or
not to do something, if some event, collateral to such
contract, does or does not happen.”


58. Section 32 of the Indian Contract Act, 1872 provides that a
Contingent Contract cannot be enforced unless and until such event had
happened. In case the event becomes impossible, such contracts become
void.
59. Thus, the Agreement to Sell dated 08.06.1967 Ex.P-2 , was a
Contingent Contract, the execution of which depended upon the conclusion
of Civil Suit No. 802/1965 pending inter se the parties.
60. It emerges from the record that the Civil Suit No. 802/1965 for
Permanent Injunction, pending in respect of the Suit Property, was
decided by learned Sub-Judge vide Judgment dated 03.09.1976, Ex.PW-
1/DX wherein the Defendant was restrained from transferring any part of
the Suit Property till the partition of the property was effected.
61. It is significant to observe that the in the Agreement to Sell dated
08.06.1967, Ex.P-2 , it had been specifically noted that the Sale Deed would
be executed on conclusion of the litigation pending vide Civil Suit No.
802/1975. It is, therefore, evident that in view of the aforesaid decision, the
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Defendant could not have sold the Suit Property because of such legal
impediment, and thus the Agreement to sell Ex.P-2, became void.
62. In this context, it is relevant to mention that in the first round of
litigation, the learned Civil Judge in the Judgement dated 05.04.2003 , had
dismissed the Suit filed by the Plaintiff, by observing it to be pre-mature in
terms of the Agreement to Sell dated 08.06.1967, Ex.P-2, however Civil
Appeal No. 24/2003 was preferred against the said Judgment and the learned
Additional District Judge remanded back the matter for fresh adjudication,
to decide whether the Plaintiff was entitled to get the Sale Deed in respect
of the house of the Defendant, executed or not.
63. This makes it evident that even though the Defendant was restrained
form creating third party rights without partition, but in terms of second
Agreement to Sell dated 08.06.1967 Ex. P-2 , the plaintiff had every right to
seek execution of Sale deed in respect of the House, within three months
of decision of this Suit for Permanent Injunction, under the Agreement to
Sell dated 08.06.1967 Ex. P-2 .
64. Though as discussed above, in view of the Judgement passed in the
Suit for Permanent Injunction, it may be considered if the property in
question, was ever partitioned. The defendant and his brothers, had filed a
Civil Suit No. 471/1974 for Partition before this Court; however, it was
dismissed vide Judgment dated 14.07.1993 .
65. Even though the Suit for Partition, got dismissed vide Judgment dated
14.07.1993, it has emerged in the testimony of the Defendant that the
Property in question was being sold by the villagers including the land
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belonging to the Defendant, without there being any partition. However, the
Defendant avoided to give the dates on which the Suit Property was sold.
66. In this context, it is significant to refer to the cross-examination of the
Plaintiff, Akhtar Islam as PW-1 , wherein he stated that in the year 1988, the
Defendant along with other co-sharers, mutually partitioned the land and
thereafter, started to dispose of the Suit Property.
67. He further clarified that the Defendant had sold part of the land to one
Mohd. Azim Siddiqui s/o Abdul Hamid Siddiqui in the year 1988, though he
could not tell the exact month and the date. However, he had seen the
documents in regard to the sale of the Property by the Defendant to Mohd.
Azim Siddiqui. Though, he subsequently stated again that the Defendant had
not sold the Property to anybody. He explained that the land had been sold
by proxy though, he was not able to tell the name of such proxy. He further
deposed that the two Civil Suits i.e. 802/1965 and 471/1974 in regard to the
Suit Property, were still pending, because of which the Defendant avoided
the execution of the Sale Deed.
68. The Plaintiff was unable to bring any documents to show that the land
had been sold by the Defendant to anybody, after passing of the Judgment in
the Injunction Suit vide Judgment and Decree dated 03.09.1976, Ex.PW-
1/DX . At the same time, he reiterated that since the Property had been
mutually partitioned, however, he was unable to give the date, month or the
year of the Partition as it was done secretly.
69. The Plaintiff in his cross-examination, asserted that pursuant to the
Judgment dated 03.09.1976, the Property had been mutually partitioned by
the Defendant and other co-owners. However, this fact was denied by the
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Defendant who further denied that the Suit Property and other jointly owned
land, was being sold by him separately.
70. The Plaintiff has not been able to prove that there was any partition by
mutual consent effected between the parties. If so is the case, then the
Plaintiff in any case, cannot seek the execution of the Agreement to Sell
dated 08.06.1976 Ex. P-2 in regard to the Suit Property , on account of the
impediment imposed by the Judgment dated 03.09.1976, Ex.PW1/DX .
Moreover, the Suit for Partition filed by the Defendant, got dismissed vide
Judgment dated 14.07.1993. In these circumstances, there is a legal
impediment on the Defendant to effect the sale of the suit plot.
71. The next and most pertinent aspect which has emerged is that the
plaintiff had a right to get the Sale Deed executed in respect of the House
No. 6, Village Jogabai, P.O. Jammu Nagar, New Delhi-110025, in terms of
second Agreement to Sell dated 08.06.1967 Ex. P-2 , as has been permitted
by the learned Civil Judge and upheld in first Appeal by the learned
Additional District Judge.
72. The Plaintiff in his testimony, deposed that he had approached the
Defendant for execution of the Sale Deed, a week prior to filing of the
present Suit in 1988. There is no averment, no suggestion or no evidence, to
show when the Plaintiff ever approached the Defendant, to either enquire
about the fate of the pending litigation or request for sale of the alternate
property as was indicated in the Agreement to Sell dated 08.06.1967, Ex.P-
2 . No dates have been mentioned, on which he approached the Defendant,
prior to the refusal, as alleged by the Plaintiff in the Plaint, who according to
the Plaintiff, tried to delay the execution of the Sale Deed. Furthermore,
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there is nothing mentioned in the Plaint or in the evidence of the Plaintiff at
all, that he ever sought the information about the pending trial.
73. The Plaintiff had examined PW-2 , Mohd. Yasin Burni , who had
written the Agreement to Sell dated 08.06.1967 Ex. P-2 . He deposed that he
did not make any statement in regard to the subsequent events. PW-3 , Sh.
Khurshid Alam , who was also witness to the execution of the said
Agreement to Sell, stated in his examination-in-chief that the Plaintiff had
asked the Defendant, to execute the Sale Deed in September, 1988, which
was refused by the Defendant.
74. It was for the first time that the said witness had deposed that the
Plaintiff had approached the Defendant in September, 1988 for execution of
the Sale Deed. Pertinently, neither the Plaintiff nor any other witness had
ever given the date on which, the Plaintiff had approached the Defendant.
The Plaintiff has vaguely stated that he had approached the defendant, a
week prior to the institution of the Suit. This is evidently stated merely to
create a date for cause of action and to somehow meet the aspect of
Limitation.
75. PW-3 Sh. Khurshid Alam , though has asserted that the Plaintiff had
made a request in September, 1988 but there is no basis on which, this date
has been given, especially when Plaintiff had not so stated in his Plaint of
his evidence.
76. Despite the decision of the Suit, the Plaintiff had failed to take any
steps to seek the Specific Performance of the aforesaid Agreement to Sell. It
is claimed by the Plaintiff that it was the responsibility of the Defendant to
have informed him about the conclusion of the trial and since the Defendant
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failed to do so, the limitation did not commence till 1988 when he came to
know that the Defendant was selling the land, which was the subject matter
of the said Agreement to Sell.
77. While the Plaintiff may lay the blame at the door of the Defendant,
but he having entered into Agreements to Sell dated 13.07.1966 Ex. P-1 and
08.06.1967 Ex. P-2 , the Plaintiff was also expected to be vigilant and to
check with the Defendant in regard to the status of the pending case. It has
emerged in his evidence that he never contacted the Defendant during all
this period and had only approached a week prior to institution of the Suit in
September, 1988.
78. The Plaintiff, however, failed to take any reasonable steps for the
execution of the Sale Deed in respect of the house, in terms of the Second
Agreement to Sell dated 08.06.1967 Ex. P-2, which gave him a right to get
the Sale deed executed in respect of the house .
79. In this regard, it may also be noted that the Defendant had claimed
that House No. 6, Jogabai, P.O. Jamia Nagar, New Delhi-110025, also fell in
Khasra No. 161 and was, therefore, not amenable to say in view of the
Judgment dated 03.09.1976, as well as the dismissal of the Suit for Partition
by the High Court on 14.07.1993.
80. However again, the Defendant has not proved any document
whatsoever to show that the house also formed part of the land in respect of
which, the Restraint Order had been given by the learned Sub Judge vide
Judgment dated 03.09.1976, Ex.PW-1/DX .
81. The learned Civil Judge in the impugned Judgment dated 25.05.2010
however, had concluded that the Defendant had already sold the Property in
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question, even though there was no cogent evidence. and yet at the same
time, decreed the Suit for Specific Performance in respect of House No. 6,
Jogabai, P.O. Jamia Nagar, New Delhi-110025. If so was the conclusion , the
Suit of the Plaintiff could not have been decreed by the ld. Civil Judge.
82. A person who has entered into an Agreement to Sell, would not sit
quiet till 15.09.1988, i.e. for 22 years, to seek specific performance of two
Agreement to Sell in dated 13.07.1966 and 08.06.1967. It is evident that
after 1966, he never ever enquired about the status of the litigation, a
conduct not of a person who is inclined to get the sale Deed executed.
83. Pertinently, there was no letter or legal notice issued to the defendant
to seek the status of the litigation or to seek execution of sale deed in respect
of the House. The conduct of the Plaintiff, reflects an absolute
abandonment of the Agreement to Sell, Ex. P2, and he therefore could not
have sought Specific performance of an abandoned Agreement.

II. Whether the Plaintiff has proved his Readiness and Willingness to
execute the Agreement to Sell:
84. Another important aspect for entitling a person to the relief of
Specific Performance, is that he must establish his readiness and willingness
to perform his part of the contract.
85. The Legislature has chosen to use two phrases, namely “ readiness ”
and “ willingness ”. While the “ willingness ” indicates his state of mind which
is determined through the conduct of the plaintiff, the “ readiness ” indicates
the financial capacity of the plaintiff which is required to be proved through
evidence that he had the financial capacity to perform the Agreement, as has
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been explained in the case of K.V. Balan (Dead) Through Legal
Representatives vs Bhavyanath , 2015 SCC OnLine Kel 298.
86. In Syed Dastagir v. T.R. Gopalakrishna Setty, (1999) 6 SCC 337, the
Apex Court while construing the connotation of readiness and willingness,
observed that the compliance of “Readiness and willingness has to be in
spirit and substance and not in letter and form . So to insist for mechanical
production of the exact words of a statute is to insist for the form rather than
essence. So absence of form cannot dissolve an essence if already pleaded.”
It was also observed that the plea of readiness and willingness is not an
expression of art and science, but an expression through words to place fact
and law of one’s case for a relief. In order to gather true spirit behind a plea
it should be read as a whole and to test whether the plaintiff has performed
his obligations, one has to see the pith and substance of the plea. Unless
statute “specifically require a plea to be made in any particular form, it can
be in any form. No specific phraseology or language is required to take such
a plea.”
87. In H.P. Pyarejan v. Dasappa (Dead) By L.Rs. & Ors., (2006) 2 SCC
496, the Apex Court observed that the plaintiff is required to prove
continuous readiness and willingness from the date of the contract to the
time of the hearing, to perform the contract on his part. Failure to make good
that averment brings with it and leads to the inevitable dismissal of the Suit.
In Motilal Jain v. Ramdasi Devi, (2000) 6 SCC 420, the Apex Court had
expounded the same principle that averments in the plaint must reflect the
readiness and willingness on the part of the plaintiff.
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88. To establish “ readiness ”, the Plaintiff is required to be proved
through evidence that he had the financial capacity, as has been explained in
the case of K.V. Balan (Dead) Through Legal Representatives v.
Bhavyanath(supra).
89. The connotation of readiness in the context of Section 16 was
explained in Raghunath Rai & Another v. Jageshwar Prashad Sharma,
(1999) 50 DRJ 751 that the intending purchaser need not produce the money
or to vouch a concluded scheme for financing the transaction; it is sufficient
for the purchaser to establish that he has the capacity to pay.
90. The financial capacity has to be however, proved strictly and self-
serving statements cannot discharge the burden of proving existence of
financial capacity as noted by this Court in the case of Baldev. v. Bhule,
(2012) 132 DRJ 247.
91. Similar view has been expressed in M/s Hotz Industries Pvt. Ltd. v.
Dr. Ravi Singh, 2018 SCC OnLine Del7618 and Manhor Lal Khetrapal and
Ors. v. Hari Chand and Ors., MANU/DE/2934/2018.
92. In Aniglase Yohannan v. Ramlatha and Others, (2005) 7 SCC 534, the
Apex Court further observed that the court has to grant relief on the basis of
the conduct of the persons seeking relief. If the pleadings manifest that the
conduct of the plaintiff entitles him to get the relief on perusal of the plaint,
he should not be denied the relief. The averments in the plaint as a whole
must clearly indicate the readiness and the willingness. Section 16(c) of the
Specific Relief Act, 1963 mandates the plaintiff not only to make averments
in the plaint but also to establish fact by evidence aliunde about his
readiness and willingness to perform the Contract.
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93. The Supreme Court in Madhukar Nivrutti Jagtap v. Pramilabai
Chandulal Parandekar, 2019 SCC OnLine SC 1026 held that the
requirement to prove readiness and willingness is not that the plaintiff
should continuously approach the defendant with payment or make incessant
requests for performance. The requirement of readiness and willingness of
the plaintiff is not theoretical in nature but is essentially a question of fact
which needs to be determined in reference to the pleadings and the evidence
led by the parties.
94. In the present case, the Plaintiff in his Plaint, as well as, in his
testimony has only asserted that he was ready and willing to perform his
part of the Contract. However, the Plaintiff has failed to disclose his
resources to pay the part sale consideration; merely stating that he was ready
to perform his part of the Contract, is not sufficient to establish that he had
any readiness or financial capacity to seek Specific Performance of the
Agreement, especially when he has instituted the present Suit, after a period
20 years.
95. Even it is assumed that the consideration of Rs.4,900/- for the
execution of the sale deed for the house, already stood paid, the second
aspect is the “ willingness ” to honour the Agreement .
96. The concept of "willingness" has been examined by the Supreme
Court in Aniglase Yohannan v. Ramlatha & Ors. , (2005) 7 SCC 534,
wherein it was observed that the Court has to grant relief on the basis of the
conduct of the person seeking relief. If the pleadings manifest that the
conduct of the plaintiff entitles him to relief, he should not be denied the
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same. The averments in the plaint, read as a whole, must clearly indicate not
only readiness, but also willingness to perform the contract.
97. Thus, the willingness of the plaintiff is essentially reflected through
his conduct. Mere assertions in the Plaint that he was always ready and
willing to perform his part of the contract are not sufficient unless they are
substantiated by his conduct showing his genuine intention to complete the
transaction. Willingness is an essential component to entitle the Plaintiff, to
seek Specific Performance of the said Agreement to Sell, which he has
miserably failed to state in his pleadings or to prove in his evidence.
98. In the present case, as noted above the Plaintiff sat silent for more
than 20 years and did not even once approach the Defendant for even
enquiring about the status of litigation or in the alternative seek Specific
Performance of the Agreement to Sell in respect of the house. Deep slumber
of the Plaintiff for more than 20 years is only indicative of abandonment of
the Agreement to Sell. It blatantly reflects his sheer disinterest, lack of
willingness to seek execution of Specific Performance of Agreement to Sell.
99. It is, therefore, established from the evidence that the Plaintiff had
failed to prove his readiness and willingness to perform his part of
Agreement to Sell.

III. Whether the Suit is barred by Limitation:
100. The limitation for filing a Suit for Specific Performance of Contract,
is three years from the date of execution of the Agreement or when the cause
of action last accrued. Even it is accepted that the cause of action was
continuing till the conclusion of the pending litigation, then too the Civil
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Suit for Injunction bearing No. 802/1965, got decided vide Judgment dated
03.09.1976 and the cause of action would have arisen three months after the
decision of the said Suit because admittedly, the litigation came to an end as
no Appeal was preferred against the aforesaid Judgment.
101. The Plaintiff in his examination-in-chief, stated that he had asked the
Defendant, to execute the Sale Deed in his favour, a week prior to filing of
the Suit. The Plaintiff for the first time, gave the specified date when he
approached the Defendant for execution of the Sale Deed i.e. one week prior
to the institution of the Suit on 15.09.1988.
102. It was incumbent upon the Plaintiff, to have shown that his Suit filed
on 15.09.1988, was within the limitation. However, the entire Plaint failed to
disclose that there was a continuing cause of action and that the Suit was not
barred by limitation. Even if, it is accepted that the cause of action continued
till the decision of the Civil Suit No. 802/1965 but that Suit also got decided
vide Judgment dated 03.09.1976. The cause of action would have continued
for three months thereafter but i.e. till December, 1976. Even thereafter, the
right accrued in favour of plaintiff to get the Sale deed executed in respect of
the House, if not the plot of land. Therefore, the present Suit filed in
September, 1988, is blatantly barred by limitation.

IV. Whether the Plaintiff is entitled to the Equitable Relief Of Specific
performance of the Agreement to Sell:
103. It cannot be overlooked that under the First Agreement dated
13.07.1966 Ex. P-1 , the sale consideration for the property was Rs.8,160/-
out of which, a sum of Rs.1,700/- had been paid by the Plaintiff. The Suit
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Property was a plot of land admeasuring 680 square yards, in Khasra No.
161, Village Jogabai, Jamia Nagar, New Delhi-110025.
104. In the second Agreement dated 08.06.1967 Ex. P-2 , the total sale
consideration continued to be the same though, the Plaintiff had paid an
additional amount of Rs.3,200/-, which implied that Rs.4,900/- had been
paid and the balance of Rs.3,260/- remained to be paid at the time of
execution of the Sale Deed. It further contemplated sale of house of
Defendant for the paid amount of Rs. 4,900/- in case the Sale of Plot of land
did not materialize on account of the outcome of the pending litigation.
105. The present Suit had been filed in the year 1988 i.e. after more than
20 years of executing the aforesaid Agreements to Sell.
106. The question, which thus arises, is irrespective of the period of
limitation, can the equitable relief of Specific Performance be granted to the
Plaintiff.
107. The Three Judge Bench of the Supreme Court of India in Prakash
Chandra vs. Angadlal , (1979) 4 SCC 393 held that ordinary rule is that
specific performance should be granted. It ought to be denied only when
equitable considerations point to its refusal and the circumstances show that
damages would constitute an adequate effect.
108. The Supreme Court in N.P. Thirugnanam vs. R. Jagan Mohan Rao
(Dr) , (1995) SCC 115 reiterated that the remedy of specific performance is
equitable in nature and granting or refusing specific performance is within
the discretion of the Court, which is required to be exercised according to
the settled principles of law and not arbitrarily, as adumbrated in Section 20
of the Specific Relief Act, 1963. Under this Section, the Court is not bound to
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grant the relief just because there was a valid agreement of sale. Section 16
(C) of the Specific Relief Act, 1963 envisages that the Plaintiff must plead
and prove that he had performed or has always been ready and willing to
perform the essential terms of the Contract, which are to be performed by
him, other than those terms of performance of which, he has been prevented
or are waived by the Defendant.
109. Likewise, in Nirmala Anand vs. Advent Corpn. (P) Ltd ., (2002) 8 SCC
146, the Three Judge Bench of the Supreme Court, discussed what are the
considerations that need to be kept in view while considering grant or
refusal of a decree of Specific Performance. It was observed that it is not
always necessary to grant Specific Performance simply for the reason that it
is legal to do so. The Court in its discretion can impose any reasonable
condition including payment of an additional amount by one party to the
other while granting or refusing the decree of specific performance. In
Kamal Kumar vs. Premlata Joshi , (2019) 3 SCC 793, it was held that while
considering the Suit for Specific Performance, it would be necessary to
consider whether it is equitable to grant the relief to the Plaintiff in relation
to the Suit Property or it will cause any kind of hardship to the Defendant
and, if so, how and in what manner and the extent to which, the relief can be
granted to the Plaintiff.
110. Similar observations were made in I.S. Sikandar vs. K. Subramani,
(2013) 15 SCC 27.
111. In the case of Azhar Sultana vs B. Rajamani & Ors ., (2009) 17 SCC
27, the Supreme Court, again reiterated that in view of the fact that the
Court exercises a jurisdiction and a discretionary jurisdiction and would be
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entitled to take into consideration as to whether the Suit has been filed
within a reasonable time. How much would be a reasonable time would,
however, depend upon the facts and circumstances of the case.
112. In Saradamani Kandappan vs. S. Rajalakshmi & Ors ., (2011) 12 SCC
18, the Hon’ble Supreme Court of India again reiterated that a decree of
specific performance need not be granted merely because it is filed within a
period of limitation, by ignoring time limits stipulated in the Agreement. The
Courts would also frown upon the Suits, which are not filed immediately
after the breach/refusal. The fact that limitation is three years, does not
mean that the purchaser can wait for one or two years to file a Suit and
obtain specific performance.
113. In Atma Ram vs. Charanjit Singh , (2020) 3 SCC 311, the long delay
of three years, in filing the Suit after issue of Legal Notice, was considered
to be the conduct of the Plaintiff not entitling him to a decree of Specific
Performance.
114. The aforesaid Judgments were endorsed with the approval by the
Hon’ble Supreme Court of India in the Case of R. Kandasamy (since dead)
& Ors. vs. T.R.K. Sarawathy & Anr., Civil Appeal No. 3015/2013, decided
on 21.11.2024.
115. It therefore, well settled that ordinarily, the Plaintiff is not to be
denied the relief of specific performance only on account of phenomenal
increase of price during the pendency of litigation. However, this may be, in
a given case, one of the considerations besides many others, to be taken into
consideration for refusing the decree of specific performance.
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116. While balancing the equities, one of the considerations to be borne in
mind is whether a party is trying to take undue advantage over the other and
also the hardship that may be caused to the Defendant by directing specific
performance. The totality of circumstances is required to be seen and
equities must be balanced, to ascertain if the discretionary relief of specific
performance of an Agreement to Sell, may be granted.
117. Now adverting to the facts in hand, the Agreement to Sell dated
08.06.1967 Ex. P-2 was somewhat tainted with uncertainty, as it provided
that the Sale Deed shall be executed within three months of conclusion of
the Suit No. 802/1965, pending in respect of the Property in question.
Admittedly, the Suit got decided vide Judgment dated 03.09.1976.
118. It is quite evident that the Plaintiff by his own conduct, had not been
vigilant in pushing the matter with the Defendant or failed to take any steps
to ascertain the outcome of the litigation. The very fact that the Suit had
been filed after 20 years of the initial Agreement to Sell, itself reveals
inequitable circumstances disentitling the Plaintiff to any relief.
119. His own inaction disentitles him in equity to claim the relief of
Specific Performance. Not only this, it cannot be ignored or overlooked that
in the last 20 years from the date of entering into the Agreement to Sell till
filing of the Suit, much water has flown and the surrounding circumstances
have totally changed with passage of time and it would not be equitable for
the Plaintiff, to claim any benefit of his own inaction. The Plaintiff is not
entitled to any relief of Specific Performance in equity, of an Agreement
to Sell after 20 years.

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Conclusion:
120. In the light of aforesaid discussion, it is concluded that the Plaintiff
was unable to satisfy the ingredients for seeking Relief of Specific
performance, the suit was barred by limitation and the Plaintiff is not
entitled to any relief in equity. The learned Civil judge as well as the
Appellate Court fell in error in application of law and the findings on the
facts, are perverse, for the reasons stated hereinabove.

121. In view of the aforesaid discussion the present Regular Second
Appeal is allowed , and the Suit filed by the Plaintiff is dismissed .
122. Pending Application(s), if any, also stand disposed of.


(NEENA BANSAL KRISHNA)
JUDGE
JULY 09, 2026/ RS








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