K. Marappan vs Perumal and Others

Pratap Singh, J.—The revision petition is directed against the order made in I.A. No. 696 of 1986 in O.S. No. 102 of 1983 on the file of

the Subordinate Judge, Salem.

The short facts are : The revision petitioner had filed the suit for specific performance of an agreement of sale and obtained a decree on

17.8.1987. The trial court had granted three months time for the deposit of the sale price. After extension of time, on two occasions, to deposit the

sale price the petitioner herein filed E.A. No. 696 of 1986 for another extension (third extension) of lime by nine months. The same was resisted by

the respondents. The court below, after hearing the parties has dismissed the said application. Aggrieved by that order the plaintiff has come

forward with this revision petition.

Mr. K. Sampath, learned Counsel appearing for the revision, would submit that the order of the court below is a non-speaking order; that the

court had got power to extend time for more than one occasion; that the respondents have not filed any petition u/s 26 of the Specific Relief Act

praying for recession of the contract, and in view of the various rulings, liberally time should be granted for extension of time and therefore, the

order of the court below is wrong. I have heard learned Counsel for the respondent on the above aspects.

I have carefully considered the submissions made by the rival counsels. Certain relevant facts need be stated at the outset. In the suit filed on

27.4.1963, in paragraph 12 of the plaint, the plaintiff has stated that he is always ready and willing to pay the sale price and get the sale deed

executed and is willing to deposit the sale price within the time granted by the court. After trial, the learned Subordinate Judge, rendered a

judgment on 17.8.1984 granting three months time to the revision petitioner to deposit the sale price, which expired by 17.11.1984. In paragraph

10 of the judgment, the learned Subordinate Judge has stated as follows:

...The plaintiff has called upon Kali Gounder and defendants 1 to 3 to execute the sale deed on receipt of balance of consideration. There has been

no latches on the part of the plaintiff. The plaintiff has been and is always willing to perform his part of the contract. He has issued notice calling

upon the defendants to execute the sale deed.

The office copy of the notice issued by the plaintiffs counsel to Kali Gounder and defendants 1 to 3 is marked as Ex. A-3 dated 19.5.1980. From

the above, it transpires that from 1980, the plaintiff has been saying that he is ready and willing to pay the sale amount. Even after the passing of the

decree, in 1984, he has not chosen to deposit the sale price in court within the period of three months granted by the court. He had applied for

extension of time on two occasions and obtained extensions. Even thereafter, the plaintiff had not chosen to deposit the sale price. Then for the

third time, the plaintiff had filed I.A. No.696 of 1986 praying for nine months time from 17.6.1986 on the ground that the defendants had not yet

vacated the tenants so as to give vacant possession, and clearance from the urban land tax authorities and income tax authorities were not

obtained. The decree does not contemplate the ''deposit of the amount on completion of these two clearances by the defendants. Therefore, the

reasons assigned by the plaintiff in the affidavit filed in support of the application in I.A. No. 696 of 1986 cannot at all be sustained. In the

circumstances, I am clear that the order of the court below refusing to give further extension of time, on the third occasion, is correct, though the

order of the court below is very cryptic and does not set out the reasons in detail.

Mr. K. Sampath, learned Counsel for the revision petitioner would rely upon K. Kalpana Saraswathi Vs. P.S.S. Somasundaram Chettiar, , in it

it was laid,

Specific performance is an equitable relief and he who seeks equity can be put on terms to ensure that equity is done to the opposite party even

while granting the relief. The final end of law is justice and so the means to it too should be informed by equity. That is why he who seeks equity

shall do equity.

The above principle goes against the very case of the petitioner. Here, though the petitioner would claim even in the notice issued in 1980, that he

was prepared to pay the sale amount, till the date of the filing of the application he had not chosen to pay the amount in 1986. That itself would

amount to denial of the equity and anxiety to negative equity to respondents. Though the court has got power to extend time in appropriate cases

where justice requires it, at the same time, it cannot be construed that even in cases where the extension of time could result in gross prejudice to

the other side, time should be granted indefinitely and repeatedly.

Mr. K. Sampath, learned Counsel for the revisional petitioner would further rely on Rama Bhathu v. Annayya Bhathu A.I.R 1926 Mad 144,

wherein it was held that the court ordering specific performance can extend the time to the plaintiff and the delay in such cases should be very

leniently treated than in a case of limitation. No doubt in such cases, extension of time should be considered very liberally. In this case, actually it

has been construed very liberally on more than one occasion. But this principle cannot be stretched to the extent of saying that time should be

granted whenever it is sought for, that too indefinitely.

Mr. K. Sampath, learned Counsel for the revision petitioner, would further rely on Mahommadalli Sahib v. Abdul Khader Saheb 59 M.L.J.

351, wherein the Division Bench has held that the court had power to enlarge the time, and the power can be exercised on sufficient cause shown,

even if the application is made after the date fixed by the decree. The learned Counsel for the revision petitioner relies upon the following

observation in the said decision which runs as follows:

...It follows from this that the right to enforce the decree is not extinguished unless and until a final order is made rescinding the contract. And as the

court has got the power to condone the default when the vendor applies for a recession of the contract it would be anomalous to hold that it has

not that power when as such application has yet been made.

I am unable to construe from the above observation that wherever plaintiff seeks extension of time for the deposit of sale amount, in a case of

specific performance of an agreement of sale, he should be given extension, even in a case where the reasons given by him are perverse and

vexatious. Only in appropriate cases, time can be extended.

The learned Counsel for the petitioner would further rely upon Abdul Shaker v. Abdul Rahiman (1923) 44 M.L.J. 104 : AIR 1923 Mad. 284,

in which it was laid that:

...It would seem to be absurd to hold that the mere fact that a date of completion is fixed in the original decree puts an end to the action and that

the control of the original court expires on the expiration of that date and thus substitute in effect for all the known remedies stated above the simple

expedient of treating the action and the decree as deed for all purposes and leaving the vendor in undisturbed possession of property which is not

his and may as in the present case be of a greater value than the contract purchase money, which perhaps by some accident, purchaser has failed

to produce on the date fixed.

It is no doubt true that the court has got power to extend the time on more than one occasion, if sufficient causes are shown. In the instant case, I

am clear that no sufficient cause was shown to extend the time for the third time and the court below has rightly rejected the application of the

petitioner for extension of time.

In view of the above, I am clear that the order of the court below cannot be interfered with. Hence, the revision petition fails and is dismissed.

No costs.