N.K. Kapoor, J.
1. This is defendant' regular second appeal against the judgment and decree of Additional District Judge whereby the appeal filed by the Plaintiff was accepted thereby setting a side the judgment and decree of the trial Court.
2. Briefly put, the Plaintiff filed a suit for specific performance of agreement dated 23.6.1989 regarding the suit property as detailed in the heading of the Plaint. As per case of the Plaintiff, defendant agreed to sell the property at the rate of Rs. 60,000/- per killa and received a sum of Rs. 60,000/-. The sale deed was to be executed on or before 31.12.1989. As per terms of the agreement, it was agreed that in case the defendant did not execute the sale deed he would pay a sum of Rs. 1,20,000/- to the plaintiff and in case the plaintiff does not get executed the sale deed, the amount of Rs. 60,000/- shall forfeited. Since the defendant failed to execute the sale deed in terms of the agreement, a suit for specific performance was filed by the Plaintiff.
3. The claim of the plaintiff was resisted by the defendant on a number of grounds, namely, that the plaintiff has no locus standi to file the present suit that the alleged agreement is forged and fabricated one for which the defendant has already filed a criminal complaint under section 467/420 of the Indian Penal Code. It was denied that the defendant entered into any agreement with the Plaintiff for selling the suit land.
4. On the pleadings of the parties, a number of issues were framed. The trial Court came to the conclusion that the agreement is result of forgery and fabrication and has come into being through fraud and so decided this material issue against the Plaintiff and in favour of the defendant. Since the Plaintiff failed to prove the due execution of the agreement dated 23.6.1989, the suit of the plaintiff was assailed.
5. Findings of the trial Court was assailed before the lower appellate Court. The appellate Court on reappraisal of evidence came to the conclusion that the execution of document Exhibit-P-1 (agreement) is proved beyond any manner of doubt. According to the appellate Court, a sum of Rs. 60,000/- was paid to the defendant by the plaintiff, However, the court came to the conclusion that this document has not intended to be an agreement for sale of property and was, infact, a document proving the payment of Rs. 60,000/- as loan to the defendant. In view of this finding, the lower appellate court while declining the relief of specific performance, decreed the suit of the Plaintiff for a sum of Rs. 64,000/- i.e. Rs. 60,000/- as the amount advanced by the plaintiff and Rs. 4000/- as interest at the rate of 12% from the date of agreement to the date of suit, with proportionate costs of the suit with interest at the rate of 6% per annum of this amount from 27.5.1992 to the date of actual payment.
6. Challenging the judgment and decree of the Additional District Judge, learned counsel for the appellant once again referred to the pleadings of the parties, evidence led as well as the conclusion arrived at by the trial Court. According to the counsel, there is no justifiable reason for the lower appellate Court to reverse the well considered judgment of the trial Court holding in clear terms that the document set up in itself is an act of forgery and a mere fabrication. The lower appellate Court has also erred in over, looking the fact that the appellant is a poor agriculturist and the Plaintiff is a commission agent doing the business of commission agent in the sale and purchase of agriculture produce, money lending and of cloth merchant. In fact, there was some dispute between the parties with regard to payment of sale price of agricultural produce as since the plaintiff refused to make payment and so falsely set up a false and fabricated document alleged to have been executed by the appellant on 23.6.1989. Thus, as a matter of fact, no amount had been paid by the plaintiff to the present appellant. This way the finding of the lower appellate Court is not only against fact but is also against law. According to the learned counsel for the appellant, the plaintiff did not pray for alternative relief of return of the amount advanced and in the absence of such a prayer no such relief could be granted by the lower appellate Court. Reference was made to Section 21(5) of the Specific Relief Act.
7. I have heard learned counsel for the parties and perused the judgments of the Courts below. Agreement dated 23.6.1989 pertaining to sale of agricultural land measuring 24 kanals has been duly proved by the plaintiff. The document has been scribed by the deed writer and attested by two witnesses who have come in the witness-box and deposed about the correctness of the document. Vide document Ex-hibit-P-1, a sum of Rs. 60,000/- was paid by the plaintiff to the defendant in the presence of the witnesses. It is on the basis of this evidence that the lower appellate Court came to the conclusion that document Exhibit P-1 stands duly proved vide which a sum of Rs. 60,000/- was paid by the Plaintiff to the defendant. The lower appellate Court while examining this document, however, came to the conclusion that the same was not intended to be an agreement for sale of the property and so declined to grant the relief of specific performance. The lower appellate Court formed a view that this document was given the shape of an agreement to sell without any intention of getting any sale deed of this land executed and so it was a case of advancing loan of Rs. 60,000/- This way the Court ordered for return of the amount along with interest.
8. Strictly speaking, the facts of the present case do not fall within the ambit of Section 21 of the Specific Relief Act. According to Section 21 of the Specific Relief Act, in a suit for specific performance of a contract, the Plaintiff can also claim compensation for its breach, either in addition to, or in substitution of, such performance i.e. to say while filing a suit for specific performance of the contract, the Plaintiff can claim compensation for breach either in addition to or in substitution of such performance. Thus, this section empowers the plaintiff to claim compensation in lieu of his right of specific performance as well as in addition there to. However, under this section the Court is debarred from granting such a compensation unless so claimed by the Plaintiff. In the present case, the Court had examined the claim of the Plaintiff independently of provisions of Section 21 of the Specific Relief Act as the Court has not considered the document to be an agreement for sale of the property. The Court has construed it to be a document evidencing advancing of a sum of Rs. 60,000/- only. So the decision of the appellate Court cannot be said to be erroneous. Under section 21(2) of the Specific Relief Act in case the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant then Court can award compensation to the plaintiff for the breach. In that case Section 21(5) of the Act stipulates that no compensation is to be awarded unless the plaintiff has claimed such compensation in his plaint.
9. In the instant case, the lower appellate Court has come to a positive conclusion that the purported document is not an agreement to sell the property and so declined to award the relief of specific performance. This way the case, strictly speaking, does not come within the ambit of Section 21 of the Specific Relief Act. Even if the case is examined Under Section 21 of the Specific Relief Act, at best, omission to ask the Plaintiff to amend the plaint with a view to incorporate the relief of compensation is a mere irregularity. The lower appellate Court vide its order has examined the case in its entirety and so has awarded compensation to the Plaintiff. Such a matter has been the subject matter of adjudication in case reported as K.H. Skinner v. Rosy Skinner, A.I.R. 1925 Lahore, 132, Examining the provisions of Sections 19 and 21 of the Act, the Division Bench came to the conclusion that in a suit for specific performance plaintiff is not bound to pray specifically for damages either in addition or in substitution as he has a choice of remedies to apply for and the Court has discretion to allow damages if it finds that damages will be the appropriate remedy. Similarly, in case reported as Kr. Shushilendra Pal Singh v. B. Kailash Chand Bhargava, A.I.R. 1945 Allahabad, 395 the Court came to the conclusion that in case the Court holds in its discretion that neither specific performance of the agreement nor an injunction against the defendant would be a proper remedy on the ground that pecuniary compensation is an adequate remedy, it ought not to dismiss the suit but should either itself award damages or order an enquiry with regard to the same, though the Plaintiff has not specifically asked for damages. Even as per Order 7 Rule 7 of the Code of Civil Procedure, the Court is within its power to grant such appropriate relief as it deems fit.
10. Thus finding no merit in this appeal, the same is dismissed.