TMI Blog2003 (3) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... a Civil Suit No. 228-A/86 in the Court of III Civil Judge, Class II, Gwalior, in respect of the same property, however, it was withdrawn vide order dated 6-5-1987. 3. Respondent No. 2, Prahladdas had applied to be impleaded as a party in this case on the ground that the appellant had also entered into subsequent agreement dated 9-9-1986 to sell the same house to him for which he filed a separate civil suit for specific performance of the contract which was dismissed, against which an appeal is still pending. 4. The learned trial Court, Second Additional Judge to the District Judge, Gwalior vide judgment dated 18-9-1999 passed in Civil Suit No. 13-A of 1987 passed a decree of specific performance of contract in favour of respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which of the storey or both the storeys are to be sold and how many rooms it contains. 9. Respondent/plaintiff, Vimlesh Kumari (PW-1) has stated that she was residing in the ground floor along with open land on the northern side. She was also using two rooms, a patore along with open land of the upper portion. She has no knowledge whether there was any partition between the family members of the appellant. In para 9 of her cross-examination she has admitted that she had not received the possession of the disputed house so far. It is on the basis of her statement that the learned counsel of the appellant has submitted that she claims to be a tenant In the house for the last sixteen years before execution of the agreement, and in case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the description of the house as provided in the plaint is conspicuously absent from the agreement because measurement of length and width has not been mentioned. According to him, up per portion of the house was also included in the agreement while admittedly a servant of the appellant was residing in upper portion of the house, which was not meant to be sold in the agreement. Both, plaintiff and her husband, have admitted that they never approached the appellant along with the remaining consideration for execution, of the agreement. It has, therefore, been argued for respondents that the plaintiff was not willing and ready to perform her part of agreement. 13. In the case of Smt, Shaharyar Bano v. Sanwal Das, reported in AIR 1976 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that for grant of decree for specific performance under Section 20 of the Specific Relief Act, 1963 rest in the discretion of the Court and cannot be claimed as of right. Parties seeking performance of contract must satisfy all the requirements necessary for seeking relief in equity. In exercising discretion. Court is obliged to take into consideration circumstances of the case, conduct of the parties and the respective interests under the contract. At the same time, it should not be lost sight of that the discretion has to be exercised by the Court not arbitrarily but based on sound judicial principles. The first fundamental, which must be proved beyond all reasonable doubts is the existence of a valid and enforceable contract. Where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of the earlier suit for the same purpose and in respect of the same property, the copy of the order-sheet in the aforesaid case clearly indicates that the case was withdrawn without any liberty to file fresh suit. In the circumstances filing of the subsequent suit is clearly barred under the provisions of Order 23, Rule 1, C.P.C. 20. Taking into consideration the facts and circumstances of the case coupled with the implications arising under the decisions referred to hereinabove, it has to be noticed that the agreement in question was vague and the portion of house required to be sold is also not definite. In the circumstances learned trial Court erred in granting a decree of specific performance. However, in the interest of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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