AI Structured Summary
Not yet generated for this judgment
Judgment
Chidananda Ullal, J.—The petitioner in filing the instant C.R.P. had challenged the order dt. 3-3-2003 passed by the Court of Civil Judge (Sr. Dn.), Chickmagalur (henceforth referred to for convenience as the Trial Court), on I.A.No. 28 in O.S.No. 76/1985 filed u/s 28(1) of Specific Relief Act, 1963.
Before proceeding further, I set here below the relevant facts of the case:
The petitioner - plaintiff had filed originally a suit in O.S.NO. 76/1985 for specific performance of the agreement of sale dated 3.12.1982 and further permitted the petitioner - plaintiff to deposit a sum of Rs. 2,50,000/- in court and on failure of the petitioner- plaintiff to do so the trial Court shall execute the sale deed in respect of suit schedule property in the name of the petitioner - plaintiff. Earlier the petitioner - plaintiff had executed an agreement of sale to sell the suit schedule property for sale consideration of Rs. 2,70,000/-.
The trial Court, on contest, decreed the suit of the petitioner - plaintiff with cost of Rs. 34,528/- and further directed the petitioner - plaintiff to deposit a sum of Rs. 2,50,000/-, the balance of the sale consideration on or before 22.2.1991; having not done that, the petitioner - plaintiff had filed series of I.As., i.e.: I.A. Nos. 25 to 27 before the trial Court seeking extension of time to deposit the above said balance of the sale consideration. Finally, the petitioner - plaintiff had filed I.A.No. 29 seeking extension of time, whereas the respondent - defendant opposed the said I.A. and further filed a separate I.A. numbered as I.A.No. 28 before the trial Court. The said I.A. was filed by the respondent - defendant u/s 28(1) of Specific Relief Act, 1963 praying for setting aside the judgment and decree passed earlier on 22.2.1990 and also to dismiss the said suit of the petitioner - plaintiff.
The trial Court, on hearing the arguments of both the sides on merits, had passed order on I.A.No. 28 of the respondent - defendant. In doing that the trial Court had allowed I.A.No. 28 of the respondent - defendant and further dismissed the suit of the petitioner - plaintiff;
Having been aggrieved by the said common order passed by the trial Court, the petitioner - plaintiff is before this Court in filing the instant Civil Revision Petition to challenge the said common order in so far as the same is related to orders on I.A.No. 28 filed by the respondent - defendant.
The learned Counsel for the petitioner, Sri R. Gopal had taken me through the facts of the case set out as above. He further tried to draw an analogy between provision in Clause (c) of Section 35 of the Specific Relief Act, 1877 and the provision in Section 28(1) of the Specific Relief Act, 1963 and Sri. Gopal had further argued that the impugned order passed by the trial Court is opposed to law and as such the same is liable to be set aside in allowing the C.R.P. According to him, the respondent - defendant would have filed a regular appeal by paying the court fees as per the Court Fees and Suit Valuation Act.
To appreciate the said argument of Sri. R. Gopal, I have to refer to the provision in Clause (c) of Section 35 of the Special Relief Act, 1877 on the one hand and Section 28(1) of Special Relief Act, 1963 on the other.
Section 35 of Special Relief Act, 1877 reads as follows:
When rescission may be adjudged ? - Any person interested in a contract in writing may sue to have it rescinded, and such rescission may be adjudged by the Court in any of the following cases, namely:
(a) Where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes apparent on its face and the defendant is more to blame than the plaintiff;
NOTE.- Corresponds to Section 27(1)(a) and (b) of the new Act.
(c) where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase-money or other sums, which the Court has offered him to pay.
NOTE. - Corresponds to Section 28(1) of the new Act.
When the purchaser or lessee is in possession of the subject matter, and the Court finds that such possession is wrongful, the Court may also order him to pay the vendor or lessor the rents and profits, if any, received by him as such possessor.
NOTE.- Corresponds to Section 28(2)(a) of the new Act.
In the same case, the Court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether, as the justice of the case may require.
NOTE. - Corresponds to Section 28(2)(b) of the new Act.
Whereas Section 28(1) of Special Relief Act, 1963 reads as hereunder:
Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.- (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.
By reading the above two provisions side by side, I am convinced to hold that there is substance or merit in the argument of Gopal that an analogy in fact can be drawn as argued by him. Therefore, I accept the said part of the argument in its entirety.
On the other side, the learned Counsel for the respondent, Sri C. Basavaraj, supported the impugned order. He further argued that the C.R.P. is not maintainable as the petitioner - plaintiff had to file a regular appeal by paying the requisite court fee by valuing the appeal based on the Court fee paid on the suit before the trial Court.
In support of his arguments he placed reliance on the reported decision of this Court reported in 1960 Mys.L.J. 123 in the case of Narayan Gangadhar Deshpande and Ors. v. Rango Krishna Dixit. In the said case of Narayan Gangadhar Deshpande and Ors. v. Rango Krishna Dixit, as I see, this Court had held as hereunder:
The true effect of this provision is that the Court which passed the decree for specific performance, is given power to rescind the contract and consequently set aside the decree which it had passed earlier if the successful plaintiff fails to comply with the terms of the decree. The resulting position is that a suit, which was once decreed, can be dismissed again if the Court is so pleased. That is what has happened in this case. If that is the true position in law, then the plaintiffs, who appeal against the dismissal of their suit, will have to pay Court fee on the very basis on which the Court fee had been paid on the plaint. No authority bearing on the point was brought to my notice. But, I think the view taken by the first appellate Court is the correct view of the law.
Therefore, he prayed that the instant C.R.P. be dismissed.
In reply Sri. Gopal had further argued that the above decision cited by Sri. Basavaraj in 1960 Mys.L.J. 123 is not applicable to the case in hand as the same is only on the point of Court fee. He further drew my attention to the reported decision of Delhi High Court reported in Jagjit Singh Sawhney Vs. Dewan Hukamchand, in the case of Jagjit Singh Sawhney v. Dewan Hukamchand. According to him, the said decision is squarely applicable to the instant case in hand as the facts and circumstances in the said case and the law applicable in both the cases, i.e. before the Delhi High Court and now before this Court are one and the same. The Delhi High Court had occasion to deal with Section 28(1) of the Specific Relief Act. He had drawn my attention to para (5) of the said judgment relied upon by him wherein the Court had held as hereunder:
(5) Sub-section (1) of Section 28 of the Specific Relief Act, 1963; provides that where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether as the justice of the case may require. It is, therefore, clear that the application for rescission is to be made in the suit in which the decree was made and the adjudication by the Court on the application is described as an "order".
To buttress his argument, he had placed reliance on the reported decision of 1960 Mys.LJ 123 in the said case of Narayan Gangadhar Deshpande and Ors. v. Rango Krishna Dixit, wherein this Court had held as hereunder:
The true effect of this provision is that the Court which passed the decree for specific performance, is given power to rescind the contract and consequently set aside the decree which it had passed earlier if the successful plaintiff fails to comply with the terms of the decree. The resulting position is that a suit, which was once decreed, can be dismissed again if the Court is so pleased. That is what has happened in this case. If that is the true position in law, then the plaintiffs, who appeal against the dismissal of their suit, will have to pay Court fee on the very basis on which the Court fee had been paid on the plaint. No authority bearing on the point was brought to my notice. But, I think the view taken by the first appellate Court is the correct view of the law.
Therefore, Sri. Gopal prayed that the instant C.R.P. be allowed by setting aside the impugned order passed by the trial Court.
Now let me set out the provision in Section 28(1) of the Specific Relief Act, 1963. The said provision reads thus:
Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.- (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded an on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.
On a simple reading of the above provision, it is clear that no matter that suit filed by a party earlier decreed, on being satisfied with, can as well set aside decree and further dismiss the suit of a party if the conditions thereto in Section 28(1) of the Specific Relief Act are satisfied.
Now the question is whether the suit decreed earlier in law continued to be so when impugned order on I.A. No. 28 came to be passed by the trial Court.
In the fact situation of the case in hand, in my considered view, that was not the position at all for the following reasons:
(1) The decree in the suit that was originally granted by the trial Court came to be challenged before this Court by the respondent - defendant in R.F.A.No. 454/1991 and on 28-7-2000 this Court dismissed the R.F.A. filed by the respondent - defendant and further by confirming the decree passed by the trial Court.
(2) That therefore there was no decree in the eye of law the trial court had originally granted in the suit of the petitioner - plaintiff. As such the question of entertaining I.A. No. 28 filed by the respondent - defendant to rescind the same before the trial Court did not arise at all.
I have carefully considered the arguments and counter arguments advanced by the learned Counsel appearing for the respective sides before me.
On a careful reading of the provision in Section 28(1) of the Specific Relief Act, 1963 and further analyzing the same vis-a-vis the facts of the case in hand, I have come to the conclusion that the trial Court had erroneously allowed I.A. No. 28 thinking that the decree it had granted earlier was very much existing, whereas it was not with the dismissal of the R.F.A. filed by the respondent - defendant as stated in para (19) supra and para (20) here below and the same is opposed to law. Therefore, I find merit in the C.R.P. and the same is liable to be allowed.
It is clear on facts that the suit for specific performance of contract of the petitioner - plaintiff came to be decreed against the respondent - defendant and despite that, the petitioner - plaintiff had not deposited the balance of the sale consideration as directed by the trial Court but instead of doing that he went on seeking extension of time by filing three I.As. - I.A.Nos. 25 to 27 successively without pursuing the relief of grant of extension of time to deposit the balance of sale consideration of Rs. 3,50,000/-.
That the respondent - defendant in the meantime had challenged the decree granted by the trial Court before this Court in R.F.A.454/1991 and this Court dismissed the said R.F.A. on 28-7-2000 by confirming the judgment of the trial Court decreeing the suit of the petitioner - plaintiff; as such in my considered view, there was no decree in the suit for the respondent - defendant to recourse to I.A. No. 28 before the trial Court since decree in suit had merged with the decree in R.F.A. referred to above u/s 28(1) of the Specific Relief Act, 1963, as if the decree passed in favour of the petitioner - plaintiff was not subsisting and as such, question of respondents - defendants to recourse to Section 28(1) of Specific Relief Act before the trial Court did not arise at all. That being so, in my further considered view, the trial Court did not get the jurisdiction to pass the impugned order u/s 28(1) of the Specific Relief Act as it did in allowing I.A. No. 28. In that view of the matter, the trial Court had committed error in law in passing the impugned order in allowing I.A. No. 28 of the respondents - defendants. Therefore, the same is liable to be set aside.
For the above said reasons, I am of the view that the impugned order passed by the trial Court cannot sustain in law. Therefore, the impugned order passed by the trial Court is liable to be set aside; accordingly the same is hereby set aside in allowing the instant revision petition; in the process, I.A. No. 28 filed by the respondents - defendants stands rejected.
In the result, the instant C.R.P. is allowed. In the peculiar facts of the instant case, there is no order as to cost.