CAV Judgment

Parth Prateem Sahu, J.

1. Appellant/defendant has filed this appeal under Section 96 of the Code of Civil Procedure, questioning legality and sustainability of the judgment and decree dated 09.11.2022 passed in Civil Suit No.86-A/2014 by the Additional District Judge (FTC) Korba, District- Korba (CG) whereby learned trial Court allowed the suit filed by respondent-plaintiff for specific performance of contract, possession, declaration, permanent injunction.

2. Facts relevant for disposal of this appeal are that respondent-plaintiff filed a suit for specific performance of contract with other reliefs pleading therein that the original plaintiff- Vimal Kohli entered into the contract for purchase of the land from defendant- Shambhu Nath Singh bearing kh.no. 164/10 admeasuring 0.10 acres situated at P.H. No.4 Village and Tahsil- Korba for a total consideration of Rs.11 lakh, out of which, a sum of Rs.3,52,500/- was paid as advance and rest of the amount was to be paid at the time of execution of sale deed after taking prior permission from the competent authority by land owner/defendant. An agreement to sell the land was registered on 14.01.2010. Application for permission under Section 165 (6) of the Land Revenue Code, 1959 (hereinafter referred to as " Code of 1959") was filed under signature of defendant before the competent authority seeking permission to transfer ownership of land by registered sale deed. Competent authority sent the matter to the Tahsildar for conducting enquiry and submitting its report and thereafter report prepared by Tahsildar was forwarded to the office of Sub Divisional Officer opining to give permission. In turn, Sub-Divisional Officer has consented to report submitted by Tahsildar and it was forwarded to the Collector. In the proceeding before the Collector, the authority who had to grant permission, defendant has raised an objection based upon which, the application submitted before the competent authority i.e. Collector under Section 165 (6) of the Code of 1959 was dismissed which made the plaintiff to file suit.

3. In the plaint, plaintiff has pleaded that the registered agreement to sell was executed between the parties. According to terms of agreement, defendant submitted an application seeking permission from the competent authority under Section 165 (6) of the Code of 1959. it is also pleaded that during pendency of proceeding of permission under Section 165 (6) of the Code of 1959 defendant had made a demand of further sum of Rs.7 lakh out of balance amount, pleading therein that said amount is required for treatment of his wife. The said demand was in contravention of the terms of agreement to sell dated 14.01.2010. Plaintiff was not under an obligation to pay further sum of Rs.7 lakh under the conditions of agreement to sell, before obtaining permission from the competent authority to sell the land. Original plaintiff was always ready and willing to execute sale deed after paying balance amount of consideration, upon obtaining prior permission from the competent authority by the seller of the land.

4. Defendant No.1 filed written statement pleading therein that defendant No.1 was in need of money for getting treatment to his wife and he entered into an agreement to sell the land owned by him for sum of Rs.30,01,000/- and agreement to that effect was executed on 14.11.2009. In the said agreement it was mentioned that purchaser will pay 75% of the agreed consideration by 15th January and balance amount is to be paid after obtaining permission from the competent authority at the time of execution of sale deed. Plaintiff pursuant to agreement dated 14.11.2009 had got the agreement to sell executed on 14.01.2010 and got it registered. At the time of obtaining signature of defendant, plaintiff had paid Rs.51,500/- to defendant and by the date of execution of registered agreement to sell dated 14.01.2010 plaintiff had paid to defendant only Rs.3,52,500/-. Plaintiff not complied with the conditions of agreement dated 14.11.2009 of making payment of 75% amount of the agreed consideration. Agreement dated 14.01.2010 was executed and registered without knowledge of the defendant. It is also pleaded that after one month from the date of execution of agreement dated 14.01.2010 when the defendant met the plaintiff, he informed him that the application for permission will be submitted without any further delay at the earliest. Submission of application is to be by the plaintiff and defendant is to appear as and when required. On plain paper/blank paper, signature of defendant was obtained on the pretext that application is to be submitted before the competent authority/Collector for permission. Defendant had made demand of Rs.7 lakh for treatment of his wife to which plaintiff denied. It is also pleaded that thereafter defendant had sent legal notice through his Advocate on 23.08.2011. In written statement it is also pleaded that defendant had not submitted application for permission before the Collector under his signature. However, the signature appearing in the application is forged. In the application there is prayer for permission to sell the land bearing kh. no.624 admeasuring 0.58 acres which is not owned by defendant No.1 for which also the objection is raised before the Collector/competent authority. It is also pleaded that plaintiff by playing fraud with defendant had not made any mention with regard to earlier agreement dated 14.11.2009 in the registered agreement to sell dated 14.01.2010. The plaintiff himself has caused delay in submitting the application for permission before the competent authority so that the plaintiff can sell the land to another person after lapse of time on higher rate. It is also pleaded that later on, agreement to sell executed between the parties was cancelled as there was no necessity to sell the property.

5. Learned trial Court on the basis of pleading made by the plaintiff and defendant has formulated as many as seven issues for consideration. Plaintiff in support of his case had submitted copy of registered agreement to sell as Ex.P-1; copy of registered legal notice dated 23.08.2011 sent by defendant as Ex.P-2; copy of reply to legal notice dated 23.08.2011 given by plaintiff as Ex.P-3; copy of second registered legal notice sent by defendant as Ex.P-4; reply to legal notice (Ex.P-4) sent to defendant as Ex.P-5, copy of postal receipts as Ex.P-6 and Ex.P-7; copy of acknowledgment as Ex.P-8; copy of order- sheets of Revenue Court passed in Revenue Case No.27-A/21/2009- 10 as Ex.P-9; copy of statement of defendant No.1 as Ex.P-10; copy of statement of plaintiff in other proceeding as Ex.P-11; copy of information supplied by SECL with regard to land subject matter of suit as Ex.P-12; copy of 'NOC' given to Tahsildar as Ex.P-13; copy of report submitted by Patwari as Ex.P-14; copy of report with regard to value of the land submitted before the Tahsildar as Ex.P-15; copy of inquiry report under Section 165 (6) (g) of the Land Revenue Code, 1959 as Ex.P-16; copy of objection filed by defendant as Ex.P-17; copy of order-sheets in the revenue proceedings as Ex.P-18; copy of letter sent to Sub-Registrar, Korba for providing value of the land according to guidelines as Ex.P-19; copy of Isthar as Ex.P-20; copy of objection submitted by defendant as Ex.P-21; copy of objection submitted by defendant to cancell the proceedings under Section 165 (6) (a) of the Land Revenue Code 1959 as Ex.P-22; copy of letter sent to Collector through Advocate as Ex.P-23 and examined Vimal Kohli as PW1, Raju Makwana as PW2.

6. Defendant No.1 in support of his case submitted copy of agreement to sell dated 14th November 2009 as Ex.D-1; copy of order sheet as Ex.D- 2; copy of order passed by Revenue Court as Ex.D-3; copy of application for seeking permission as Ex.D-4 and copy of objection as Ex.D-5.

7. Learned trial Court upon appreciation of documentary and oral evidence brought on record by respective parties had allowed the suit filed by plaintiff holding that the registered agreement to sell dated 14.01.2010 for selling of land situated at kh.no.164/10 admeasuring 0.10 acres is binding upon the parties. Defendant was directed to get the permission from the competent authority under Section 165 (6) of the Code of 1959 and to get the sale deed registered in accordance with the provision of Indian Stamp Act, 1899 and Registration Act, 1908 along with further directions.

8. Learned counsel for the appellant/defendant would submit that learned trial Court has passed the impugned judgment and decree without proper appreciation of facts and evidence available on record as also overlooking the relevant laws applicable to facts of the case. He contended that learned Court below had erred in not drawing adverse inference against the plaintiff as provided under Section 114 (g) of the Evidence Act, 1872 because plaintiff has not produced the first agreement to sell dated 14.11.2009. It is next contended that plaintiff had not pleaded in the plaint that the plaintiff was ready and willing but then also learned trial Court erred in decreeing the suit for specific performance of contract and therefore impugned judgment and decree is illegal. Pleading made by defendant and evidence adduced by him is totally overlooked. He contended that execution of agreement to sell in the year 2009 was admitted by plaintiff which ought to have been considered by the trial Court, which mentioned sale consideration of Rs.30,01,000/- and had overlooked that another agreement for same piece of land Ex.P-1 was executed on 14.01.2010 but showing less sale consideration which itself is sufficient to conclude that it was without knowledge of defendant. Plaintiff has to prove his case on the evidence brought by him and have to stand on his own legs. First Civil Suit filed by plaintiff bearing Civil Suit No.5-A/2012 was withdrawn only to fulfill the lacuna which is not taken note of, by learned trial Court. Ex.P-1 which is stated to have been executed between the parties as agreement to sell itself is void because it has been executed in contravention of the law and hence learned trial Court ought not to have granted the decree for specific performance of contract on the basis of Ex.P-1.

9. Learned counsel for the respondent/plaintiff would support the judgment and decree passed by learned trial Court and would submit that learned trial Court has allowed the suit filed by plaintiff upon appreciation of oral and documentary evidence. He contended that defendant had not denied the execution of registered agreement to sell (Ex.P-1) dated 14.01.2010. In the legal notice which has been issued by the defendant through his Advocate also mentioned about the execution of agreement to sell dated 14.01.2010 for total consideration of Rs. 11 lakh and in the said agreement have further mentioned about the advance amount received of Rs.3,52,500/- and balance amount to be paid as Rs.7,47,500/-. Application for permission was filed by defendant under his own signature. However, in the procedure of getting the report from Tahsildar, Sub-Divisional Officer, it took some time. It is the defendant himself who raised objection in grant of permission before the Collector and therefore defendant will not be permitted to take undue advantage of his own wrong.

10. We have heard learned counsel for the parties and also perused the record of the trial Court.

11.To prove his case, plaintiff had produced before the Court copy of registered agreement to sell as Ex.P-1; copy of registered legal notice dated 23.08.2011 sent by defendant as Ex.P-2; copy of reply to legal notice dated 23.08.2011 given by plaintiff as Ex.P-3; copy of second registered legal notice sent by defendant as Ex.P-4; reply to legal notice (Ex.P-4) sent to defendant as Ex.P-5, copy of postal receipts as Ex.P-6 and Ex.P-7; copy of acknowledgment as Ex.P-8; copy of order- sheets of Revenue Court passed in Revenue Case No.27-A/21/2009- 10 as Ex.P-9; copy of statement of defendant No.1 as Ex.P-10; copy of statement of plaintiff in other proceeding as Ex.P-11; copy of information supplied by SECL with regard to land subject matter of suit as Ex.P-12; copy of 'NOC' given to Tahsildar as Ex.P-13; copy of report submitted by Patwari as Ex.P-14; copy of report with regard to value of the land submitted before the Tahsildar as Ex.P-15; copy of inquiry report under Section 165 (6) (g) of the Land Revenue Code, 1959 as Ex.P-16; copy of objection filed by defendant as Ex.P-17; copy of order-sheets in the revenue proceedings as Ex.P-18; copy of letter sent to Sub-Registrar, Korba for providing value of the land according to guidelines as Ex.P-19; copy of Isthar as Ex.P-20; copy of objection submitted by defendant as Ex.P-21; copy of objection submitted by defendant to cancell the proceedings under Section 165 (6) (a) of the Land Revenue Code 1959 as Ex.P-22; copy of letter sent to Collector through Advocate as Ex.P-23 .

12. Perusal of the Ex.P-1 i.e. registered agreement to sell between the parties would show that defendant No.1 has been shown to be as party No.1 and plaintiff has been shown to be party No.2. Description of the property is mentioned as kh. no.164/10 admeasuring 0.10 acres of land situated at Village- Korba P.H. No.4 which is a diverted land. Area has been shown as 4360 sq.ft. Total sale consideration is mentioned as 11 lakh and advance amount as Rs.3,52,500/- and balance amount to be paid as Rs.7,47,500/- It is also specifically mentioned that balance amount is to be paid after obtaining permission and at the time of registration of sale deed. This document bears signature of the plaintiff and defendant both on each of the pages. Registration of this agreement to sell has not been denied by defendant nor its execution was denied initially but have made an attempt to say at later stage that second agreement got executed without his knowledge.

13. This defence taken by defendant in written statement appears to be false and fabricated. It is reflecting from Ex.P-2 registered legal notice issued by defendant through his Advocate on 23.08.2011. In the said legal notice plaintiff had pleaded about execution of agreement to sell dated 14.01.2010 for total consideration of Rs.11 lakh out of which Rs.3,52,500/- has been received as advance and the remaining amount of sale consideration to be Rs.7,47,500/-. It is also pleaded that at what time balance amount is to be paid i.e. after obtaining permission and at the time of execution of sale deed. In the legal notice defendant has further pleaded that defendant is in need of Rs.7 lakh for purpose of getting treatment to his wife and further that he is not having any other property to liquidate it for meeting out the said exigency. In this notice it is further mentioned that plaintiff had got signature of defendant on the application for seeking permission but even after lapse of more than 1 and ½ years, permission could not be obtained. It is further pleaded that plaintiff should obtain the permission without any delay and after making payment of balance amount, get the sale deed executed within 15 days. In the last para of notice it is also mentioned that plaintiff should get the sale deed registered within 15 days and to pay balance amount i.e. Rs.7,47,500/- or to pay Rs.7 lakh without getting the sale deed executed or else he will get the registered agreement to sell cancelled.

14. So far as the execution of agreement to sell Ex.P-1 and contents of the legal notice issued by the defendant through his Advocate Ex.P-2 is concerned, plaintiff examined Vimal Kohli party No.2 to agreement, as PW1. He stated according to paint averment in his examination-in-chief which is submitted in the form of an affidavit under Order 18 Rule 4 CPC. He was extensively cross-examined by defendant. In cross- examination he was put a question with regard to execution of un- registered agreement to sell, to which he admitted. However, he stated that he is not aware about the specific date. He further denied the suggestion given to him that in the un-registered agreement to sell, there was condition to pay 75 % of agreed sale consideration. In his cross-examination he stuck to his pleading made in the plaint with regard to payment of Rs.3,52,500/- as per the terms of agreement to sell. He also admitted that condition which is mentioned in un- registered sale deed is mentioned as it is in the registered sale deed Ex.P-1. This witness has not made any contrary statement in his cross- examination than what he has pleaded in plaint and have stated in examination-in-chief. He also proved the documents Ex.P-1 to Ex.P- 23. PW2 Raju Makwana has also submitted affidavit under Order 18 Rule 4 CPC as his examination in chief stating that the agreement to sell was executed for sale of land bearing kh. no.164/10 admeasuring 0.10 acres to plaintiff for a sum of Rs.11 lakh. It was executed on 14.01.2010 and the plaintiff had paid sum of Rs.3,52,500/- to defendant at the time of execution of agreement to sell and balance amount is to be paid after obtaining permission from the Collector to sell the land, at the time of execution of sale deed. He also stated that demand of Rs.7 lakh before execution of sale deed is contrary to the contents of agreement Ex.P-1. In cross-examination also he stuck to his statement which he has given in examination in chief. In cross-examination he also stated that prior to 14.01.2010, one agreement was executed between parties and further stated that on the date of execution of registered agreement to sell dated 14.01.2010, he plaintiff, defendant and one Ashok Nair were present. He also stated that based on the earlier agreement, agreement to sell dated 14.01.2010 was executed.

15. Defendant himself got examined as DW1. He submitted affidavit under Order 18 Rule 4 CPC as statement-in-chief stating therein that one agreement to sell was executed between the parties on 14.11.2009 to sell the suit land for consideration of Rs.30,01,000/- and getting advance sum of Rs.3,01,000/-. He also stated that there is a condition in the agreement dated 14.11.2009 that for getting permission to sell the land, demarcation, defendant will keep himself present and help. It is also stated that proceeding for taking permission and entire expenditure for permission is to be borne by plaintiff and where-ever presence of defendant is required, he will keep himself present. In examination-in-chief he had made statement on the basis of un- registered agreement to sell dated 14.11.2009 for a total consideration of Rs.30,01,000/- and getting of total advance amount of Rs. 3,52,500/-. It is also stated that only to save stamp duty second agreement to sell was executed showing sale consideration of Rs.11 lakh. It is also stated that plaintiff had not complied with the condition of paying 75% of the agreed sale consideration and when the defendant had asked for further advance of Rs.7 lakh for treatment of his wife, he denied. In cross-examination this witness had admitted about the execution of registered agreement to sell dated 14.01.2010 (Ex.P-1). He admitted his signature in Ex.P1 on "B" to "B". However, in self statement he further stated that Ex.P-1 agreement was got executed by the plaintiff to save stamp duty. He also admitted that at the time of execution of agreement to sell Ex.P-1 he was mentally and physically fit and he has put signature after understanding the contents of agreement . He also tried to clarified that his signature was obtained and was stated that payment will be made in his home, however no payment has been made. He also admitted about the receipt of total amount of Rs.3,52,500/-. He also admitted that he has not made any statement before the Registrar that total consideration for sale of property mentioned in agreement was Rs.30,01,000/- . He also admitted that in the agreement Ex. P-1, there is no mention of agreement dated 14.11.2009.

16. If in the light of aforementioned evidence available on record, contents of notice Ex.P-2 which is issued by defendant through his Advocate is to be considered, in Ex.P-2 there is no mention about execution of agreement to sell dated 14.11.2009 Ex.D-1 but in para-2 of the said legal notice it only mentioned that noticee has agreed upon to sell the land owned by his client (defendant) for sum of Rs.11 lakh and has executed registered agreement dated 14.01.2010. It further mention of receipt of advance amount of Rs.3,52,500/- and further balance amount of agreement to sell to be Rs.7,47,500/-.

17. In the the aforementioned paragraph of agreement it is not mentioned that there was a sale agreement between the parties for transfer of the property subject matter of suit in favour of plaintiff for consideration of Rs.30,01,000/- Further there is no mention that 75% of the agreed amount has not been paid as mentioned in the other alleged agreement said to be executed and as stated by defendant in his evidence. In the notice grievance of the defendant is of non-payment of Rs.7 lakh to meet out the emergent need of getting his wife treated. In the said notice (Ex.P-2) which is sent by defendant also mentions that balance amount to be received towards sale consideration as Rs.7,47,500/- only. In the aforementioned facts and documentary evidence available and undisputed contents of Ex.P-2, submission of learned counsel for defendant that he was not paid agreed sum of 75% of the agreed sale consideration out of Rs.30,01,000/- is not sustainable and this submission is perverse to the evidence available on record.

18. From the registered agreement to sell the land (Ex.P-1), it is apparent that sale deed is to be executed after getting permission from the competent authority as provided under Section 165 (6) of the Code of 1959. Application was submitted immediately under signature of plaintiff. Though the defendant had made an attempt to state that signature in the application seeking permission to sell the land submitted before the Collector is not his, but the said submission and evidence of defendant is not acceptable because no such plea has been taken by him at the time of sending the legal notice (Ex.P-2) to the plaintiff through his Advocate but in the notice there is mention that at the time of execution of agreement to sell plaintiff had got signature of defendant on the application for initiating proceeding of seeking permission for transfer of land subject matter of suit. Statement of defendant is also recorded before the Tahsildar and in his statement before the Tahsildar in proceeding of seeking permission to sell the land, he has not made any objection with regard to submission of application with his forged signature.

19. In para-37 of evidence, defendant Shambhu Nath (DW1), he denied his signature in his statement recorded before the Tahsildar and further stated that he did not appear before the Tahsildar to record his statement. However, in para-42 he admitted that except Ex.D-4 he has not made any attempt to obtain permission from Collector. He also stated that he has handed over the application to plaintiff on 14.01.2010. From the evidence of defendant it is appearing that defendant is not stating the correct fact but made self-contradictory statement with regard to submission of an application before the Collector for permission to sell the land. Once the defendant admits execution of D-4 with his signature then defendant will not be permitted to submit that signature in the application is forged and fabricated. From the above it is apparent that defendant for one or the other ground wants to avoid specific performance of contract vide Ex.P- 1. In the objection raised before the Collector vide D-5 also defendant has pleaded about execution of agreement to sell dated 14.01.2010 for total consideration of Rs.11 lakh out of which accepting the advance amount of Rs.3,52,500/-. He also mentioned that he wanted to sell the land for purpose of treatment of his wife. He further mentioned in the said objection that period to obtain permission is of 6 months for the purchaser and when he further demanded Rs.7 lakh from balance amount it was denied. There was also objection that in some place permission sought is with regard to land bearing kh. no.624 admeasuring 0.58 acres which was not registered in the name of defendant.

20. From facts and evidence available, it is apparent that there was an agreement between the parties to sell the land bearing kh. no.164/10 admeasuring 0.10 acres for sum of Rs.11 lakh out of which Rs.3,52,500/- was accepted as advance and further application is submitted in the month of January 2010. Signature in the application is not denied. Merely mentioning in the prayer clause of different land when in the first paragraph the land subject matter of agreement to sell is mentioned it cannot be said that application is submitted before the authority seeking permission of different land when it is the case of defendant himself that, he is no owner of the land which is mentioned in the last paragraph of the application. From it, defendant cannot get any benefit but it can be considered only that relief has not been appropriately made. The Collector in its order dated 07.03.2014 (part of Ex.D-3) has recorded a finding that applicant does not want to sell land is a different matter but it is wrong to say that applicant therein (defendant) has not submitted an application seeking permission to sell the land and, has dismissed the application recording that for getting permission under Section 165 (6) of the Code of 1959 agreement of both the parties is necessary to obtain the order of permission and only recording that applicant is not ready to sell the land, application seeking permission was dismissed.

21. From the aforementioned finding recorded by Collector vide its order dated 07.03.2014 it appears that defendant himself got the proceeding seeking permission to sell the land dismissed by raising false and fabricated ground which is observed by competent authority i.e. Collector in its order.

22. There is no dispute that grant of relief/decree of specific performance is a discretionary and equitable relief. Before coming to conclusion that plaintiff is entitled for the decree of specific performance, Court has to consider the fact whether there was a valid and concluded contract between the parties; readiness and willingness of the plaintiff to perform his part of contract; whether the plaintiff is still ready and willing to perform his part; whether the plaintiff has performed his part of contract as also whether the grant of decree of specific performance would be suitable or not.

23. Hon'ble Supreme Court in case of Kamal Kumar Vs. Premlata Joshi & Ors. reported in (2019) 3 SCC 704 has observed thus:

          "7. 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 relief of specific performance are:

          7.1 First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property.

          7.2. 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.

          7.3. 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.

          7.4. Fourth, whether it will be equitable to grant the relief of specific 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;

          7.5. 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."

24. If the facts of the present case is considered in the light of aforementioned decision of Hon'ble Supreme Court as discussed above, execution of agreement was not disputed by appellant- defendant. One of the condition of agreement is that defendant (owner of the land) has to obtain permission from the Collector for transfer of the suit property, application is filed. However, it is the defendant who raised objection making false pleading of his forged signature on application, which was found incorrect by the Collector, the competent authority considering the application for grant of permission. With regard to readiness and willingness, it is undisputed fact that plaintiff had paid advance sum of Rs.3,52,500/- and remaining amount is to be paid at the time of execution of sale deed, after obtaining permission from competent authority.

25. Plaintiff- Vimal Kohli, in paragraph- 2 of his affidavit filed under Order 18 Rule 4 of the Code of Civil Procedure, specifically stated that he had borne all the expenses required for obtaining the requisite permission in terms of the contract, had always been ready to bear the remaining expenses, and continues to remain ready and willing to do so. Further, in paragraph- 7 of the said affidavit, he categorically stated that he has always been ready and willing to comply with the terms and conditions of the agreement and continues to be ready and willing to perform his part of the contract. Notably, during his cross-examination, no suggestion or challenge was put to him disputing his specific averments regarding his continuous readiness and willingness to perform his contractual obligations. In the absence of any challenge to the plaintiff's testimony on this material aspect, his evidence regarding his continuous readiness and willingness to perform his part of the contract remains un-rebutted and is deemed to have been accepted. Consequently, the plaintiff has successfully established his continuous readiness and willingness to perform his obligations under the agreement, thereby satisfying the mandatory requirement under the Specific Relief Act.

26. Learned trial Court has not framed specific issue with regard to readiness and willingness of plaintiff. Merely non-framing of issue in itself will not be sufficient to interfere with the finding recorded by trial Court if the parties went to trial knowing that a particular question is in issue.

27. Hon'ble Supreme Court in case of Nagubai Ammal and Ors. Vs. B. Shama Rao and Ors. reported in (1956) 1 SCC 698 has observed thus:

          "9.3. It was argued for the appellants that as no plea of lis pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into, and that no decision could be given based on Ext. J series that the sale dated 30-1-1920 was affected by lis; and reliance was placed on the observations of Lord Dunedin in Siddik Mahomed Shah v. Mt. Saran and others that "no amount of evidence can be looked into upon a plea which was never put forward". The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they bad no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto. ......"

28. In case of Sayeda Akhtar Vs. Abdul Ahad reported in (2003) 7 SCC 52, Hon'ble Supreme Court has observed that omission to frame an important issue may sometimes cause prejudice to parties resulting failure to lead evidence on the point. But where the parties were not only aware of the point in controversy but also led evidence and advanced their submissions, it will not be appropriate to interfere with finding of facts.

29. Hon'ble Supreme Court in case of Pramod Shroff Vs. Mohan Singh Chopra (Civil Appeal arsing out of SLP (C) No.20779 of 2025, decided on 16th April 2026) has observed thus :

          "28. Though framing of issues, as mentioned above, although, is not mandatory yet, if the omission to frame the same causes prejudice to the parties, then the same can vitiate the trial. The test for finding as to omission to frame the issues have caused prejudice to the parties or not can be laid down on the touchstone as to whether parties that go to trial had knowledge that (i) a particular question is in issue and (ii) had opportunity to lead evidence on that issue."

30. In para-3 of the plaint, plaintiff has specifically pleaded that he has borne all the expenses for obtaining permission as per the contract and has always been willing and is presently willing to bear the remaining expenses. In para-9 of the plaint also, he pleaded that he has always been ready to comply with the agreement and is still ready for the same. He pleaded that he has already paid sum of Rs.3,52,500/- to defendant and is ready to pay the remaining amount as well, however, the defendant is not taking any steps for execution of sale deed.

31. In para-3 of his written statement, defendant had not specifically denied with regard to pleading of readiness and willingness in plaint to bear the all expenses of proceeding for grant of permission of the Collector to transfer the land. In reply to para -9 of the plaint also, wherein the plaintiff has pleaded about his readiness and willingness, defendant had not made specific denial.

32. In the affidavit filed under Order 18 Rule 4 of CPC, in the evidence-in- chief, defendant has not specifically denied that the plaintiff was ready and willing to execute the sale deed in terms of contract but has stated that when he demanded Rs.7 lakh because of urgent need of treatment of his wife, it was not paid to him.

33. From the aforementioned facts of case, when plaintiff has specifically pleaded that he is ready and willing and further the plaintiff had made statement with regard to readiness and willingness in his evidence, in the considered opinion of this Court, the parties to the suit were aware about the issue involved of readiness and willingness in the suit proceeding. Readiness and willingness is a connecting issue to be decided in case of suit for specific performance of contract and therefore when the parties went to trial knowing well that a particular question is involved, entire trial of the case cannot be vitiated and the judgment impugned cannot be said to be illegal.

34. So as to consider the plea raised by defendant for not getting sale deed executed that he could not get amount in time of Rs.7 lakh for treatment of his wife is concerned, if the claim of defendant is to be appreciated of necessity of Rs.7 lakh then the wife of defendant might have been suffering with some severe disease for which she might have taken treatment from different doctors and hospitals etc., but defendant had not submitted any document in this regard to prove the defence taken by him with regard to not getting the money to meet out emergent need . It is for the defendant who has to prove this fact, as pleaded in reply. In absence of any such documentary evidence merely pleading and oral evidence will not be considered to be proof of the said fact. In above facts of the case, non-payment of further demand of advance amount of Rs.7 lakh out of balance amount of Rs.7,47,500/-, it cannot be said that the plaintiff has acted in contravention of the conditions in the agreement to sell, but condition to pay balance amount is only after getting permission to sell the land, at the time of execution of sale deed.

35. From the aforementioned facts of the case it is apparent that defendant has not pleaded correct facts before the Court and had not come to the Court with clean hands and has only tried to make an attempt to avoid specific performance of contract pursuant to Ex.P-1 registered agreement entered into between the parties. True it is that relief under the specific performance of contract as on the date of execution of agreement to sell and on the date of filing of suit was discretionary however Court has to look into entire facts and circumstances of case, evidence of parties and further the intention of parties to the suit.

36. Hon'ble Supreme Court in case of Binod Pathak & Ors. Vs. Shankar Choudhary & Ors. (Civil Appeal No.7706 of 2025, decided on 14 th July 2025) observed thus:

          "45. The genesis of the provision of Rule 10A of the Order XXII lies in the doctrine of 'clean hands'. The doctrine of 'clean hands' originates from the Roman Law, and finds expression in two latin maxims being (i) ex injuria ius non oritur and (ii) nullus commodum capere potest de injuria sua propia, which mean "from wrong, no right arises" and "no one can take advantage of their own wrong", respectively. [See : Schwebel, Stephen M. "Clean Hands, Principle" Eds., Rüdiger Wolfrum, Oxford University Press, 2009].

          46. Although the aforesaid two maxims, semantically appear to be one and the same, with the courts often applying the two interchangeably, yet there lies a very fine but pertinent distinction between the two maxims. The two maxims are comparable to each other but they are not interchangeable, and differ in their scope. Aaron X. Fellmeth and Maurice Horwitz in the "Guide to Latin Maxims in International Law" 1st Ed., Oxford University Press, has explained the maxim ex injuria ius non oritur as follows : -

          "A right does not arise from wrongdoing." A maxim meaning that one cannot generally rely on a violation of law to establish a new legal right or to confirm a claimed right. E.g., "As Lauterpacht has indicated the maxim ex injuria ius non oritur is not so severe as to deny that any source of right whatever can accrue to third persons acting in good faith. Were it otherwise the general interest in the security of transactions would be too greatly invaded and the cause of minimizing needless hardship and friction would be hindered rather than helped."

          Advisory Opinion on Legal Consequences For States Of The Continued Presence Of South Africa In Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. Rep. 16, 167 (separate opinion of Judge Dillard). An alternative formulation is Ius ex iniuria non oritur. Compare with Nullus commodum capere (potest) de sua iniuria propria."

          (Emphasis supplied)

47. On the other hand, they have explained the maxim 'nullus commodum capere potest de injuria sua propia' as follows:--

          "No advantage (may be) gained from one's own wrong." A maxim meaning that the law will not recognize or validate any profit a person derives from his own wrongdoing. For example, one may not destroy evidence of the extent of damages caused by one's illegal act, then counter a claim for damages based on that act by pointing to the lack of evidence. E.g., "[T]he State must not be allowed to benefit by its inconsistency when it is through its own wrong or illegal act that the other party has been deprived of its right or prevented from exercising it [...]"

          (Emphasis supplied)

48. A perusal of the aforesaid makes it abundantly clear, that while the maxim 'ex injuria ius non oritur' is a principle governing the general spirit of the jurisprudence of "rights", that a right cannot emanate or emerge from a wrongful act, the maxim 'nullus commodum capere potest de injuria sua propria', on the other hand, confirms the general rule of equity and prudence that no one can benefit from their own wrongdoing. The scope of the latter is wider than the former. The first maxim explains that the legitimacy of a right stands vitiated if such right, which otherwise would have been legitimately exercisable, accrues from a wrongdoing of the person claiming under or exercising such right. Although, under the law, a right may arise even if from a wrongdoing, yet if exercise of such right is allowed, it would malign the very jurisprudential underpinning of 'right' and 'duty'. A right has a legal sanctity and backing to it, in order for it to have a legitimising effect, since the jural correlative of a right is duty. More particularly, the term "right" is very specific to not include every benefit, profit or advantage. The maxim solidifies the faith in law that no wrong action will be given a legal validity. The legal validity of a right flows from other legal norms or from a source of law [See : Niel MacCormick, "Rights in Legislation", Law, Morality and Society : Essays in Honour of H.L.A. Hart, P.M.S. Hacker, and Joseph Raz (eds). 189-206, Oxford : Clarendon Press (1977)].

49. The maxim, 'nullus commodum capere potest de injuria sua propria', on the other hand, lays itself as a rule of equity. An advantage falling from wrongdoing may be a legal or illegal advantage. The maxim dictates that, be that as it may, no profit or advantage of a person's wrongful act may be validated by the seal of law. It may very well happen, that the advantage may be legal or illegal, but the validation of law will not be extended to it by the law. Thus, the courts that have the discretion to allow or disallow the availment of such advantage in ordinary circumstances, are constrained to not permit a person who has committed a wrongful act to benefit from the advantageous position afforded to him because of such wrongful action as a matter of justice, equity and fairness. Fellmeth and Horwitz rightly extend an illustration, that when a person himself destroys evidence, he cannot take shelter of the defence of lack of evidence. The advantage falling from the wrong will not be validated by the courts of law."

37. The aforesaid exposition of law leaves no manner of doubt that a litigant is under a bounden obligation to approach the Court with all material facts. A party who suppresses material facts, takes inconsistent pleas, or seeks to derive an advantage from its own wrongful conduct cannot seek the equitable consideration of the Court. The doctrine that no person can be permitted to take advantage of his own wrong is a fundamental principle governing the exercise of equitable jurisdiction and is of particular relevance while adjudicating a claim for specific performance.

38. Applying the aforesaid principles to the facts of the present case, this Court finds that the defendant has not only failed to disclose the true and correct facts but has also attempted to avoid the contractual obligations arising out of the registered agreement to sell (Ex.P-1). The evidence led by the plaintiff, both oral and documentary, inspires confidence and stands duly corroborated by the documents brought on record. On the other hand, the defence put forth by the defendant is neither supported by reliable evidence nor consistent with the admitted documents. The suppression of material facts and the false pleas raised by the defendant clearly demonstrate an attempt to defeat the legitimate contractual rights of the plaintiff.

39. In the present case, the plaintiff has successfully established the execution of the registered agreement to sell (Ex.P-1), payment of the agreed consideration to the extent proved on record, and continuous readiness and willingness to perform the remaining obligations under the contract. On the other hand, defendant has failed to substantiate any legally sustainable defence which could disentitle the plaintiff from the relief claimed. The overall conduct of the defendant, viewed in the light of the evidence on record, clearly reflects an attempt to resile from the contractual obligations.

40. For the foregoing discussions, we do not find any merit in the appeal.

The First appeal deserves to be and is accordingly dismissed. The impugned judgment and decree dated 09.11.2022 passed in Civil Suit No.86-A/2014 by the Additional District Judge (FTC) Korba, District- Korba, are hereby affirmed.

41. Let a decree be drawn accordingly.