P L D 1986 Supreme Court 155 (PLP)

Feeling aggrieved Arif Shah petitioner has filed the present petition for leave to appeal.

4. Learned counsel for the petitioner has referred to section 20 of the Specific Relief Act, which reads as follows :‑ "

20. Liquidation of damages riot a bar to specific performance.‑A contract, otherwise proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same " He argued that according to this section, although an amount may be specified in the contract as the amount to be paid to the vendee in case of its breach, and the party in default is willing to pay the same, yet the Court may, enforce the contract, provided it is otherwise shown that it was not a proper contract to be specifically enforced. The learned counsel referred to pages 28 and 29 of the judgment (See pages 71 and 72 of the Paper Book) of the learned trial Court and pointed out that the allegation about coercion and undue influence by the S. H. O. or someone else has been repelled by the learned trial Court in the following words :‑ "Therefore, it is clear that the defendant has also failed to establish its contention regarding the undue influence of the S. H. O. or plaintiff......... All these facts go to show that the defendant's consent in the execu tion of (the contract) was very much there and he had signed it of his own free will." The counsel then went on to point out that reasons given by the trial Court for holding that the contract was not proper one for specific per formance, are as follows :‑ "As the plaintiff himself prayed for alternate relief of damages, hence in the peculiar circumstances (of) the agreement between the parties (emphasis supplied) and the prayer of the plaintiff that plaintiff is entitled for the earnest money amounting to Rs. 20,000 along with Rs. 20,000 as penalty. As such in view of the specific stipulation in the body of the agreement and as the plaintiff' himself has prayed for the compensation as alternate relief, the plaintiff is entitled for recovery of Rs. 40,000 from the defendant. Though an amount of Rs. 20.000 has been prayed as damages but the plaintiff has failed to adduce any evidence to prove such damages and even it is beyond the stipulated compensation agreed by the parties for the non‑performance of the contract hence plaintiff is not entitled for the relief of Rs. 20,000 as damages."

5. Learned counsel then pointed out that according to the High Court the trial Court has refused to exercise discretion under section 20 of the Specific Relief Act for the following reasons :‑ " But, in the present case the trial Court has exercised discretion in refusing to grant decree and it did so, keeping in view t1fe various pleas raised by the respondent ." He submitted that the learned High Court has failed to notice that the plea of coercion or undue influence had been disbelieved by the learned trial Court. and that the only ground on which the trial Court held the contract as not being a proper one for enforcement was that the peti tioner had agreed (in the agreement) to accept Rs. 20 000 as damages on failure of the vendor to perform the same. He argued that this reason, by itself, is not sufficient to render the contract `improper' for the purpose of being enforced within the meaning of section 20 of the Specific Relief Act. He urged further that the learned High Court as well as the Courts below have erred in refusing to exercise discretion and failed to enforce the contract of sale of the house in question. For this contention he relied on Abdul Karim v. Muhammad Shafi and another (1973 S C M R 225): Learned counsel also urged that the High Court erred in refusing to entertain the revision petition on the ground that the order of the trial Court could be only‑ interfered with, if the petitioner bad filed an appeal and not in the exercise of revisional jurisdiction under section 115 of the C. P. C. Leave is therefore granted to consider, inter alia, the following con tentions :‑ (a) Whether the discretion exercised by the trial Court in not granting the decree for specific performance was contrary to law ; (b) Whether the High Court had wrongly assumed that the trial Court had declined to grant decree of specific performance on account of peculiar circumstances of the case which had, allegedly, reference to the plea of coercion .and undue influence and if so what is its effect ; (c) Whether the High Court bad erred in refusing to allow the relief prayed for exercising its power under section 115 of the C. P. C on the ground that the power was discretionary and that the judgment of the trial Court could only have been interfered with if an appeal had been filed against it. Security in the sum of Rs. 2,

000. To be heard on the same record with permission to file additional documents. M. B. A. Leave granted.