Suit for specific performance of agreement to sell --- Execution of agreement --- Admission --- In order to prove the agreement to sell the respondent examined her special attorney and one of the attesting witnesses of the agreement to sell as witnesses -

 2023 CLC 1411

Suit for specific performance of agreement to sell --- Execution of agreement --- Admission --- In order to prove the agreement to sell the respondent examined her special attorney and one of the attesting witnesses of the agreement to sell as witnesses ---- In addition thereto , the respondent tendered in evidence certain documents as well --- Contrary to this , the appellant examined his attorney as the sole witness to rebut the evidence led by the respondent , who in his statement conceded the execution of agreement to sell --- Thus , after the admission of this material fact , the respondent successfully discharged the onus of proof with regard to the execution of agreement , as admitted facts need not to be proved --- Record showed that there was no hurdle in the way of the appellant to execute the sale deed in favour of respondent in furtherance of the agreement to sell.

Suit for specific performance of agreement to sell- -Penalty clause --- Suit of the respondent was decreed to the extent of double of the amount paid by her to the appellant but in appeal the suit decree fo specific allowed holding her entitled to was performance --- Held , that only resistance to the suit was rested on the fact that there was a penalty clause in the agreement to sell that in case of failure by the appellant to abide the terms of the agreement , he would pay double of the amount received at the market value to the respondent , so the respondent was precluded to ask for specific performance of agreement to sell --- Relief of specific performance is a discretionary relief in terms of S.22 of the Specific Relief Act , 1877 but such discretion cannot be exercised arbitrarily and the court while exercising the discretion is bound to follow the well settled principle that discretion shall always be structured on reasoning and fairness ---

In the facts and circumstances of the case , S. 20 of the Specific Relief Act , 1877 , would come into play , which provided that even if there is a stipulation in agreement that in case of its breach a penalty would be the outcome , this by itself would not impede the specific performance of the agreement --- First Appellate Court was justified in forming the opinion that the respondent was entitled for the decree of specific performance , in the circumstances --- Second appeal was dismissed , in circumstance .

Second Appeal --- Regular second appeal has a very limited scope as provided under S.100 of C.P.C .--- Where there is divergence of views in both the Courts below , ordinarily preference should be given to the judgment of first appellate Court unless it offends any law --- Judgment of appellate Court cannot be interfered with unless some procedural defect materially affecting such findings is pointed out by the appellant --- There is a marked distinction between the revisional jurisdiction and appellate jurisdiction in terms of S.100 of C.P.C.