A.P. Bhangale, J.@mdashThis Second Appeal is filed by the original defendant in Regular Civil Suit No. 1646/1989 which was dismissed by learned 20th Joint Civil Judge, Junior Division, Nagpur on 10.2.1994. The said suit which was for specific performance of contract was dismissed by the trial Court. The unsuccessful plaintiff had challenged dismissal of suit by filing Regular Civil Appeal No. 202/1994 which was heard and decided by learned 8th Additional District Judge, Nagpur who, by impugned judgment and order allowed the appeal and decreed the suit by setting aside the judgment and order by the trial Court.
2. The appeal was admitted on substantial question of law as to whether the first Appellate Court committed an error in holding that the agreement dated 15.8.1986 has been duly proved.
3. It is submitted in support of the appeal that the respondent Rahimatullah had committed murder of the appellant''s husband and for that offence he was sentenced to suffer imprisonment for life. Under the circumstances, it was highly impossible on the part of the appellant to enter into an agreement to sell her house to a murderer of her husband. It is also submitted that the appellant being a purdanashin Muslim woman, there was no possibility of talk and privity of contract between her and deceased respondentRahimatullah as no unlettered Muslim lady will come in public to enter into an agreement as alleged, and written in English.
4. As against these submissions, learned Counsel for respondents submitted that the plaintiff had led evidence of himself and attesting witnesses to prove the case and that the defendant did not depose in rebuttal. It is further submitted that her admission in Exh.18 was binding upon her to enforce specific performance of agreement in favour of legal representatives of deceased respondent. Learned Counsel, thus, supported the impugned judgment and order.
5. Heard the aforementioned submissions with reference to evidence on record and substantial question of law raised. Perused the judgment and orders passed by the Courts below.
6. The trial Court which had advantage to see witnesses deposing before it, had dismissed the suit. It is pertinent to note that Mumtajbi was not present when suit agreement is said to have been executed. It was, therefore, impossible to believe that the plaintiff had paid earnest money of Rs. 4000/- to the defendant. The version of the plaintiff that he had talk with defendant in Masjid where about 100 to 150 persons were present, is highly improbable. Muslim lady observing Muslim religious practice, would not visit a mosque and that too for knowingly executing Isarpatra (agreement to sell) pre drafted in English. The learned trial Judge had examined all the facts and circumstances minutely and correctly concluded that the defendant (appellant herein) had not agreed to execute sale deed dated 10.11.1986, as alleged. No reliable and cogent evidence was found to believe the case of the plaintiff. Hence the plaintiff was refused relief of specific performance. The first Appellate Court ought not to have interfered with well reasoned judgment and order passed by the trial Court. In the facts and circumstances of the case, there was no justification to interfere with the dismissal of the suit. Under the circumstances, a poor uneducated Muslim woman observing religious practices, such as, Purdah cannot be easily imputed with knowledge of an agreement to sell, which was drafted in English. Even otherwise, specific relief is not granted as a matter of course. It is a discretionary relief to be exercised in objective manner examining the bona fides and conduct of the plaintiff in a suit for relief. It is in evidence that the plaintiff had murdered husband of the defendant and he was sentenced to life imprisonment. Discretionary relief could not have been granted in his favour without cogent and reliable evidence about the alleged agreement to sell house and without apparent privity between the parties. For all these reasons, it must be concluded that Appellate Court erred in setting aside the decree passed by the trial Court. Hence, the substantial question of law must be answered in favour of the appellant. It is answered accordingly.
7. In the result, Appeal is allowed. Impugned judgment and order dated 3rd November, 1997 passed by learned 8th Additional District Judge Nagpur in RCA No. 202/1994 is set aside and the judgment and order passed in Regular Civil Suit No. 1646/1989 by the 20th Joint Civil Judge Junior Division, Nagpur, dismissing the suit is restored. The Appeal is disposed of accordingly. No order as to costs.
