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2006 (8) TMI 647 - SUPREME COURTPrayer for grant of specific performance of contract - piece of vacant land - application was filed u/s 10 - refund advance amount - damages together with interest - cancellation of the deed of sale in favour of the subsequent purchaser - High Court refusing to exercise their jurisdiction u/s 20 - HELD THAT:- It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in absence of the authorities who were the authors thereof. The order passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities. It was, therefore, not a case where the Trial Court found that the Defendant had committed a fraud on the statutory authorities or on the court. The expression 'fraud' in our opinion was improperly used. It must be noticed that admittedly when the agreement was entered into, the proceedings under the 1976 Act were pending. The parties might have proceeded under a misconception. It is also possible that the Defendant had made misrepresentation to the Plaintiff; but the question which was relevant for the purpose of determination of the dispute was as to whether having regard to the proceedings pending before the competent authority under the 1976 Act, the Defendant could perform their part of the contract. The answer thereto, having regard to the order of the competent authority dated 08.08.1980, must be rendered in negative. Our attention has rightly been drawn by Mr. Gupta to the deed of sale executed by the Defendant in favour of others. By the said deeds of sale all the six co-sharers have sold portions of their house properties and lands appurtenant thereto. The total land sold to the purchasers by all the six co- sharers was below 900 sq. metres. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted. Thus, the impugned judgment cannot be sustained which is set aside accordingly. The appeals are allowed. However, in the facts and circumstances of the case, the parties shall pay and bear their own costs.
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