Ajay Kumar Gupta vs State of Raj. and Others

Arun Madan, J.—This revision petition has been filed in this Court by the petitioner''s firm through its Manager u/s 115 of the CPC against the order dated 20-3-93 passed by the Additional District Judge No. 5, Jaipur City, Jaipur whereby the appeal filed by the petitioner against the order of Additional Munsiff (West), Jaipur City, Jaipur has been dismissed. The learned Additional Munsiff (West) dismissed the application for grant of temporary injunction filed by the petitioner.

It will be pertinent to mention that this revision petition was earlier listed before this Court on 25-8-93 when none was present on behalf of the petitioner. This Court after considering the matter passed the order by specifically observing to the effect that "it is thus clear that both the courts below have right to entertain the application and the appeal, and dismissed the same after discussing on merits. So this is not a case for interference u/s 115 CPC. Consequently, this revision petition is, therefore, dismissed in limine." Subsequently on petitioner''s application, the aforesaid order dated 25-8-93 was recalled by this Court on 11-4-94 and fresh notices were issued to the respondents. This is how this revision petition has come up for admission before this Court and is being disposed off today by an order passed in the Court after hearing the learned Counsel for the parties at length.

The petitioner who is a contractor filed a suit for permanent injunction against the non-petitioners on 25the April, 1992, in the Court of Addl. Munsiff (West), Jaipur City, Jaipur. The contract related to the construction of the road of Rajwas Nangal in District Dausa and the plaintiffirm accepted the contract. The learned Addl. Munsiff. after examining the matter in detail, has recorded specific findings in the order that the plaintiff was not entitled for the relief of injunction since the time was the essence of contract and the matter is related to the construction of the road for the benefit of public which the plaintiff failed to construct whiten the time stipulated in the contract.

As per the terms of the contract, the construction of the road was to be completed by 1st October, 1990 and since the construction could not be completed within the stipulated time, therefore, tenders were to be invited by the respondents and for this purpose a notice was sent to the plaintiffs firm on 23rd December, 1991. On 3rd December 1991, the application for temporary injunction filed by the petitioner plaintiff was taken up by the Addl. Munsiff, which was dismissed on the same day since no prima-facie case was made out by the plaintiff for grant of temporary injunction. Aggrieved by the said order the plaintiff-petitioner preferred an appeal in the Court of Addl. District Judge No. 5, Jaipur City, Japipur which was dismissed by the Appellate Court on 20th March, 1993, hence aggrieved by the concurrent findings of the two courts below, this revision petition has been preferred to this Court u/s 115 of the Code of Civil Procedure.

The principal question which arises for consideration of this Court is as to whether as per Clause (2) of the Agreement-75 of the year 1989-90 executed between the petitioner and the respondents time was the essence of the contract and the contract was to be completed within the stipulated time i.e. with effect from 2nd October, 1989 to 1st October, 1990, and since the construction of the road could not be completed by the petitioner contractor and he requested for extension of that time, which was further extended by the respondents committee in view of the plainfiff''s request upto 31st March, 1992 and still the work could not be completed, whether the contract should not be treated as cancelled since the petitioner failed to fulfill the contractual obligations within the specified time?

It has been contended by the learned Counsel for the petitioner that as a result of extension of time granted by the respondents the original contract must be deemed to have been modified by consent. There is obvious fallacy in the argument of the learned Counsel for the petitioner since the time was the essence of contract and the petitioner had failed to honour the commitment by completing the construction of the road within the specified time.

The matter has been examined in detail by both the courts below and both the courts have recorded the concurrent findings of fact against the petitioner that the petitioner is to be blamed for his own lapse since he has not completed the work pertaining to the construction of the road within the stipulated time and notwithstanding the extension of time granted to the petitioner yet he could not complete the same.

It has been contended by the Learned Counsel for the petitioner that since the requisite material namely, ''charcoal'' was not available, the petitioner could not complete the contract within the stipulated time and requested for extension of time which was granted by the respondents.

Whether the required material i.e. ''Charcoal'' was available with the petitioner or not is a question of fact which cannot be gone into in this revision and it is for the plaintiff to have taken into consideration before accepting the contract and the respondents cannot be blamed for the same. I am of the considered opinion that since the matter pertains to the construction of the road in public interest which has to be safeguarded at all costs, it was for the petitioner to have cooperated in the matter and no fault can be attributed to the respondents for the lapse of the petitioner.

I have examined in detail the judgments passed by the courts below and in my opinion the impugned order dated 20-3-93 passed by the Additional District Judge, Jaipur City, Jaipur does not suffer from any jurisdictional error and there is no infirmity or illegality in the orders passed by the courts below and hence this is not a fit case which calls for any interference by this Court in exercise of its revisional jurisdiction u/s 115 C.P.C.

It is further stated at the bar by Shri Goyal that the work will be completed at all costs within 2 weeks from today. This question is left open to be decided by the court below i.e. the Court of Additional Munsiff (West), Jaipur City, Jaipur, where the suit is pending.

In the result no interference is called for in the impugned order dated 20-3-93 and the revision petition is, therefore, dismissed, being devoid of any merit. The parties shall bear their own costs.