Avadh Behari, J.
(1) Appellant had agreed to buy respondent's plot in suit for Rs. 8,000.00. Bargain was struck by parties through their agents. Respondent bought stamp paper and dictated terms on it through a typist. She then representing that she had forgotten to bring certificate of title went home to bring but never returned. Appellant sued her and got a decree. It was reversed in 1st appeal. He then filed 2nd appeal. Para 20 onwards, the judgment is :
(2) The decision of this appeal turns on a short question and it is this. Are the terms of the contract uncertain with regard to the expenses of the sale Is it not clear from. the record that the respondent was to bear the expenses of the sale
(3) The respondent had agreed to convey to the appellant her plot No. 23 measuring 287.77 square yards situated in Punjabi Bagh, Delhi, for the consideration of Rs. 8,000.00. The balance sum of Rs. 7,000.00 was to be paid before the Sub-Registrar, Rs. 1,000.00 having been received by the respondent by way of earnest money. Both the Courts found that these terms being certain it was the respondent who was in breach of the contract. On the short ground that it was not clear who was to bear the expenses of the sale the learned Additional District Judge non-suited the appellant.
(4) In my opinion there is no uncertainty about the terms of the contract as regards the expenses of the sale. It would be unfair to lay the blame on the appellant and to say that he had failed to discharge his burden with regard to the question of expenses of sale 209 In the plaint in para 3 the plaintiff clearly said the respondent had agreed to bear all the expenses of execution and the registration of the sale deed. The defense was that she was to bear the expenses of sale and registration up to the extent of Rs 8,000.00 and that on the remaining amount of Rs. 7,82,735.00 the purchaser was to bear. We have to see from the evidence whether the respondent has been able to prove her allegation with regard to the expenses of sale.
(5) It is not disputed that on 19th of March, 1974, the respondent herself purchased the stamp in her own name for Rs 560.00. The non-judicial stamp paper is on the record. The sale deed was drafted and was typed on it. This stamp paper duly engrossed was taken away by the respondent to her home on the pretext that she had forgotten to bring the certificate of Refugee Cooperative Society.
(6) The counsel for the respondent has stated that later on she, the respondent received refund of the stamp from the Collector of Stamps. It is thereforee clearly proved that she paid for the stamp and thereforee the appellant's allegation that she was to bear the expenses stood fully proved.
(7) Next the appellant himself came into the witness box as Public Witness 5 and he stated that Hari Chand Seth has told him that the entire expenses regarding stamp and registration etc. were to be borne by the respondent. Hari Chand himself came into the witness box and deposed that he told Kartar Singh that stamp paper was to be purchased in the name of the appellant Amar Nath.
(8) On behalf of the respondent Kartar Singh appeared and he repeated what the respondent had stated in her written statement, namely, that the expenses were to be borne by the respondent up to Rs. 8,000.00 and for the rest of the amount of the sale price the expenses were to be borne by the appellant.
(9) In the sale deed Ex. Pi it is mentioned that 'the vendee has borne all expenses of this sale deed.' The learned Additional District Judge found that this recital in the sale deed was contrary to the testimony led by the parties. He thereforee held that the terms were uncertain. I do not agree with him.
(10) Both the Courts have found that the consideration of the sale was Rs. 8,000.00 and only this amount was to be mentioned in the sale deed. It is the respondent's own case that the rest of the amount of Rs. 7,827.35 was to be paid as unaccounted money, or as the trial Court says as 'black money.' If the ostensible sale consideration was only Rs. 8,000.00 as is the respondent's own case. what expenses were to be borne by the appellant for the rest of the amount I have not been able to understand. For 'black money' there was to be no writing and thereforee no expense. It appears to me that both the appellant and the respondent were in agreement that the sale consideration which was to be mentioned in the sale deed was Rs. 8,000.00 and that the respondent was to bear the expenses regarding stamp and registration thereof. This is clear from the pleadings of the parties and from the evidence of their witnesses. In fact no other expense was to be borne because the rest of the money of Rs 7,827.35 was to be paid as 'black money' and 'black money' does not require any expenses to be incurred.
(11) Next it will be clear from the respondent's own conduct that she acted as wag agreed upon, namely, that she purchased the stamp paper worth Rs. 560.00 herself in her own name and later on claimed the refund. Now the question is : How has this term 'that the vendee has borne all expenses of this sale deed' appeared in the sale deed It is not difficult to find out the source of this error. Nirpat Rai, typist has come in the witness box and he prepared a draft of the sale deed as is usually done by these typists He did not know the exact terms between the parties. It is in evidence that the respondent herself got the sale deed prepared. The sale deed was prepared after she had told the typist what were the main terms of the contract between the parties.
(12) The typist thought that as usual the expenses must have been borne by the grantees. He thereforee recited this fact. But what is of importance is that the respondent herself laid no store by this recital. She said in the written statement : 'The (typist) typed the document without any reference to defendant and as a result the contents did not even represent facts intended to be mentioned.' 211 31. inspire of this stand of the respondent the first appellate Court and the respondent's counsel before me made capital out of the recital and founded their case of uncertainty on this tenous ground.
(13) I would thereforee attach no importance to the recital because it is against the case of the parties and their evidence. It is nobody's case that the expenses of the sale deed were to be borne by the vendee (appellant).
(14) In my opinion there is no uncertainty. The expenses of the sale deed were to be borne by the respondent. This was her own case before the Court and was proved in evidence by her witnesses. Simply because there is this term in the sale deed it will not introduce uncertainty when nobody says that the term in the sale deed truly represents the contract between the parties.
(15) I think the appellant successfully led his evidence on this point of expense. His witness and that of the respondent also corroborated him in his assertion that the expenses of the sale were to be borne by the respondent and that the sale was to be for Rs. 8,000.00.
(16) From the pleadings of the parties and the issues it does not appear to me that this question about the uncertainty of the term regarding expenses of sale was raised by any of the parties. The judge in the first appellate Court took up this question himself. He found the evidence unsatisfactory and dismissed the appellant's claim though the respondent never pleaded that the contract could not be enforced because there was uncertainty regarding expenses of sale. In fact she could not have taken that plea because she herself had paid the expenses of the stamp paper in the first instance which was enough to prove that the appellant's case that she was to bear the expenses was correct.
(17) Both the Courts disbelieved the respondent that the price agreed upon was Rs. 55 per square yard. As a logical extension of this is the other conclusion which should have been arrived at, namely, that there was no arrangement between the parties that the expenses of sale beyond Rs. 8,000.00 were to be borne by the appellant. As I have said there are in fact no expenses to be borne for the rest of the amount. The finding that there was uncertainty as regards who shall bear the expenses of sale is inconsistent with the other correct concurrent finding that the sale price was Rs. 8,000.00 only.
(18) Bakshi Gurcharan Singh, counsel for the respondent has urged that I should refuse a decree for specific performance for the following reasons :
(19) Firstly be said that there was an oral agreement between the parties and contract as regards expenses of sale has not been satisfactorily proved.
(20) The respondent's counsel relied on the judgment of Mahmood J. in Mayaram v. Prag Dat 2nd 5 All 44 where Story's Eq. Jurisdiction, is quoted :
'THEREis a manifest policy requiring all contracts of an important nature to be reduced to writing, since otherwise, from the imperfection of memory, and the honest mistake of witnesses, it must often happen, either that the specific contract is incapable of exact proof, or that it is unintentionally varied from its precise original terms : so sensible were Court of Equity of these mischiefs that they constantly refused to decree a specific performance of parol contracts, unless confessed by the party in his answer, or they were in part performed.'
(21) I do not agree with the counsel. There is a short answer. The term of the contract which is said to be uncertain is 'confessed by the party in her answer' and she 'part performed' it She admitted that she was to pay expenses for the sale to the extent of Rs. 8,000.00 and she herself bought the stamp of the required value.
(22) It was then said that the term regarding expenses of sale is not reasonably certain as there is a contrary recital in the sale deed. In my opinion one need not go to the recital in the sale deed. What we have to see is what was the respondent's own case with regard to expenses of sale deed. She admitted in so many words that she had to bear the expenses of the sale deed up to Rs. 8.000.00. There was nothing further to be borne if what she said is correct.
(23) Next it was said that the court has no right to substitute a contract in place of the one between the parties. This undoubtedly is a correct proposition of law. But the question is : Is there a substitution of the contract I do not think that any new contract is being substituted. What I have done is that I have tried to find out from the evidence of the parties what was their contract with regard to the expenses of sale. In my view there is material evidence on this point which has been ignored by the additional District Judge. This is the error of law which appears to have been committed by him and such a finding cannot be allowed to stand in second appeal if it cannot be sustained on evidence and is palpably incorrect.
(24) The counsel for the respondent next argued that though it is true that the question was not raised by the respondent with regard to uncertainty of the expenses of sale in her written statement in so many words yet it was a question of law and can be raised at any time. I do not think that is a correct proposition. If it is a question of law as is argued I can interfere in second appeal. But in my view it is not a question of law. It is a question which required evidence to be given. If the respondent had raised it in her written statement the appellant would have met that case. But as I find both the parties were agreed that the expenses of sale for Rs. 8,000.00 were to be born by the respondent. There was no disagreement on this between them.
(25) It was submitted that the first appellate Court has exercised its discretion in refusing specific performance and I should not interfere with the exercise of the discretion. It is true that specific performance is discretionary relief. In my opinion the first appellate Court did not exercise the discretion in a sound and a reasonable manner. S. 20 of the Specific Relief Act 1963 provides.
'......DISCRETIONof the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.'
(26) In my opinion the discretion exercised by the first appellate Court ought to be corrected and I must correct it if on such facts and circumstances as in my opinion have been proved by the parties it appears to me that the exercise of discretion is unsound.
(27) The counsel also relied on S. 29 of Contract Act to show that the contract is void for uncertainty. I do not find any uncertainty in the contract on the subsidiary question of sale expenses. The main terms of the contract were found by both the courts in favor of the appellant.
(28) It was then said that I should not disturb the finding of the first appellate Court regarding uncertainty of the term of the sale as this involved essentially a question of fact. Reliance in this regard has been placed on a full bench decision of the Calcutta High Court in Hyam v. Ghubbav, 32 Indian Cases 53. In that case Woodroffe J. said :
'THISappeal in my opinion, raises a question of fact, the principles of law applicable to such facts admitting of no doubt. The Court will doubtlessly not enforce specific performance of a contract, the terms of which are uncertain. If the Court does not clearly know what the contract is which the parties entered into, it cannot obviously enforce it. But the question whether a contract is in this sense uncertain, is a question of fact which arises upon the documents and oral evidence tendered in support of it.'
(29) This appears to me to be a correct statement of law and I can have no quarrel with it. The question is whether the evidence has been correctly read. If the first appellate Court has misdirected itself and misread the evidence and has come to a wrong conclusion because wrong inferences were drawn I think it committed an error of law.
(30) The Courts should arrive at their findings of fact from the evidence tendered before them. A finding based on no evidence or in disregard of evidence is an error of law.
(31) Secondly the Courts are bound to draw, for the purpose of deciding the issue before them, such inferences of facts as are reasonable from the facts placed before them. The drawing of an inference which cannot be drawn from and is not warranted by the facts is an error of law. (1866) 11 M. I. A.7 (PC).
(32) Thirdly where the conclusion of fact is not warranted by the facts on which it is based or is inconsistent with the other findings in the case and is opposed to the case set up by the party in whose favor it is drawn and is contrary to pleadings and evidence in the case the finding of fact can certainly be set aside in second appeal : See Ram Babu v. Har Prasad, : AIR1963All239 , Bakshi v. Mt. Mehrajo, Air 1926 Laho 535 and Raj Kumar v. Gopi Nath, : AIR1971All273 .
(33) On the pleadings of the parties and the evidence adduced in the case I have no doubt in my mind about the term of the contract as to expenses of sale There is no uncertainty. What was agreed upon was clear and certain. The agreement was that the respondent will bear the expenses of sale deed in which the consideration of Rs. 8,000.00 was to be set forth. The first appellate Court found uncertainty where there was none and the result was miscarriage of justice.
(34) The counsel for the appellant has made an offer that inspire of my finding his client is willing to bear the expenses of the sale for Rs. 8,000.00. The counsel for the respondent is not willing to accept this offer because in his view it would amount to creating a new contract between the parties I do not think so. I thereforee grant a decree to the appellant for specific performance. The respondent will convey the property in favor of the appellant on payment of Rs. 7,000.00 and execute the sale deed and get it registered in appellant's favor and put him in possession of the plot in dispute within one month from today. The expenses of the sale regarding stamp and registration of the sale deed will be borne by the appellant as is agreed to by his counsel.