ivil Appeal No 501 of 1976
Appeal by Special Leave from the Judgment and Order dated the 28th April 1975 of the Delhi High Court in Civil Revision No 186 of 1975
Hardayal Hardy SK Bagga Mrs section Bagga Miss Yesh Bagga and KK Mittal for the Appellant
Bikramjit Nayar BP Maheshwari and Suresh Sethi for Respondent
The Judgment of the Court was delivered by BHAGWATI J
This is an unfortunate litigation where a widow has been kept out of her monies for over six years by reason of wrong application of law by the courts
Much of the travail of the widow could have been avoided if the courts had taken a common sense view of the law instead of adopting a rather technical and unimaginative approach
The facts giving rise to this litigation are few and may be briefly stated as follows
The respondent is the owner of a residential quarter bearing No 120 situate at Old Rajendra Nagar New Delhi
He wanted a loan for the purpose of repaying an earlier debt and he therefore approached the appellant and as a result of negotiations between them an agreement dated 27th September 1967 was entered into 184 between the parties
This agreement recited that a sum of Rs 7500was lent and advanced by the appellant to the respondent and it provided that in lieu of interest on his amount of Rs 7500  the respondent would give to the appellant a portion of his residential quarter hereinafter referred to as the premises for temporary residence
The agreement went on to say and we are setting out the precise terms of the agreement since they are material for the decision of the controversy between the parties On the expiry of two years as stated above the second party shall give one month s notice in writing to the first party for the said room
If after the expiry of two years fixed period the first party wants to pay the amount he shall give one month s notice in writing to the second party
When the first party repays the above stated loan to the second party then the second party shall vacate the room etc
under temporary residence and give it to the first party
If the first party pays the amount of Rs 7500 and the second party does not give possession of the room etc
under her use then the second party shall be liable to pay Rs 110 per month as damages
If the first party does not pay the amount of Rs 7500 to the second party on the expiry of the two years period the first party will not be entitled to recover damages of Rs 110 per month from the second party and the second party shall be entitled to take legal proceedings against the first party and also if the first party pays the amount of Rs 7500 and the second party does not give possession the first party shall be entitled to take the legal proceedings regarding vacation of the room etc
under the use of the second party
 Pursuant to the agreement the respondent handed over pos session of the premises to the appellant and the appellant started occupying the same against interest on the loan of Rs 7500 advanced by her to the respondent
The period of the agreement expired on 27th September 1969 and according to the terms of the agreement the
respondent could thereafter repay the loan of Rs 7500 to the appellant and claim back possession of the premises from her
The case of the respondent was that he addressed a notice dated 26th August 1969 to the appellant and tendered a sum of Rs 7500 to her in repayment of the loan but the appellant refused to accept the same
The respondent also addressed another notice dated 4th May 1970 to the appellant but this notice also had no effect on her
The respondent thereupon filed Suit No 123 of 1973 in the Court of Sub Judge 1st Class Delhi seeking to recover possession of the premises from the appellant
The appellant did not appear to contest the suit and it was decreed ex parte by a judgment dated 22nd May 1973
The learned subJudge passed a decree for possession of the premises in favour of the respondent but added the following rider 185 The plaintiff is ordered to tender the amount of Rs 7500 to the defendant within a period of 30 days from today in cash
If the defendant refuses to accept the money it should be deposited in the Court with notice to the defendant within the aforesaid period
 Now it appears that prior to the filing of this suit by the respondent the appellant had filed a suit against the respondent for recovery of the loan of Rs 7500 advanced by her to the respondent
The respondent had filed his defence to the suit and various grounds were taken by him one of which was that the claim was barred by limitation
This suit was pending on 22nd May 1973 when the ex parte decree was passed against the appellant
The respondent had obviously no desire and perhaps not even capacity to repay the loan of Rs 7500 to the appel lant and he therefore preferred an application for review under Order XLVII Rule 1 of the Code of Civil Procedure seeking deletion of the direction given by the learned Sub Judge requiring him to deposit the sum of Rs 7500 
The respondent contended that since the appellant has already filed a suit against him for recovery of the amount of Rs 7500  and he was resisting the suit inter alia on the ground of limitation it was not competent to the learned Sub Judge to
give such a direction for deposit of the amount of Rs 7500 and the giving of such direction was clearly an error of law apparent on the face of the record
The respondent also claimed review on the ground of discov ery of new and important matter in the shape of Suit No 123 of 1973 filed by the appellant against him
The learned Sub Judge by a judgment dated 3rd August 1973 allowed the review application and held that the direction for deposit ing the amount of Rs 7500in court should be deleted from the ex parte decree passed against the appellant
The result was that the respondent became entitled to recover possession of the premises from the appellant without paying to the appellant or depositing in court the amount of Rs 7500 in repayment of the loan
Now unfortunately this order allowing the review appli cation was made by the learned Sub Judge without issuing notice to the appellant
That was obviously bad and there fore on the application of the appellant the learned Sub Judge had to set aside the order and reheat the review application
The same order was however once again made by the learned Sub Judge after hearing the appellant and the direction requiring the respondent to deposit the sum of Rs 7500 in court was deleted on the ground that such direc tion nullified the effect of the ex parte decree for posses sion and forced the respondent to admit the claim of the appellant for repayment of the sum of Rs 7500  which according to the respondent was time barred
The appellant being aggrieved by the order allowing the review application preferred a revision application to the High Court of Delhi under section 115 of the Code of Civil Procedure
Mr Justice Avadh Behari who heard the revision application took the view that the order allowing the review application was appealable and hence the revision application was not competent but on the alternative view that the revision application lay before the High Court 186 he proceeded to consider whether the review had been rightly granted and held that the respondent having brought a simple suit for possession the learned Sub Judge had no jurisdiction to impose a condition requiring him to deposit the sum of Rs 7500  particularly when the appellant s suit for recovery of the same was pending in that very court and that under the terms of the agreement all that he was required to do was to tender the sum of Rs 7500 and since that was done by him and the appellant had refused to accept the same he was entitled to a decree for possession
The learned Judge accordingly dismissed the revision applica tion
That led to the filing of the present appeal with special leave obtained from this Court
When the hearing of the appeal commenced a contention of a preliminary nature was advanced on behalf of the re spondent and it was that since the order of the learned Sub Judge impugned in revision before the High Court was an order allowing the review application it was appealable under XLIII rule 1
s of the
Code of Civil Procedure and hence no revision was competent to the High Court under section 115 of the Code of Civil Procedure and the High Court was right in rejecting the revision application
Now there can be no doubt that under section 115 of the Code of Civil Procedure a revision application can lie before the High Court from an order made by a subordinate court only if no appeal lies from that order to the High Court
The words of limitation used  in section 115 are in which no appeal lies thereto and these
words clearly mean that no appeal must lie to the High Court from the order sought to be revised because an appeal is a much larger remedy than a revision application and if an appeal lies that would afford sufficient relief and there would be no reason or justification for invoking the revisional jurisdiction
The question therefore here is whether an appeal against the order made by the learned Sub Judge allowing the review application lay to the High Court
If it did the
revision application would be clearly incompetent
Now Order XLIII Rule 1
cI s undoubtedly provides an appeal against an order allowing a review application but the order allowing the review application in the present case was made by the learned SubJudge and hence an appeal against it lay to the District Court and  not to the High Court and obviously since no appeal lay against the order of the learned Sub Judge to the High Court the revision application could not be rejected as incompetent
The preliminary contention must
in the circumstances be decid ed against the respondent
That takes us to the merits of the appeal and the ques tion which arises for consideration on merits is whether the direction requiring the respondent to deposit the sum of Rs 7500 in court as a condition of recovery of possession of the premises from the appellant was erroneous in law so as to justly its deletion on review
determination of this question turns on the true interpretation of the agree ment between the parties
If we turn to the agreement it is clear that the loan of Rs 7500 was advanced by the appel lant to the respondent for a period of two years and in lieu of interest on 187 the amount of the loan the respondent handed over the possession of the premises to the appellant and the appel lant was entitled to occupy the same free of rent
We have already set out the relevant portions of the agreement and it appears clearly from those provisions that the re spondent was not entitled to repay the amount of the loan and demand recovery of possession of the premises from the appellant before the expiry of the period of two years
It was only of the expiration of the period of two  years that the respondent was entitled to repay the amount of the loan and if he wanted to do so he was required to give one month s notice in writing to the appellant and on such repayment the appellant was bound to hand over vacant possession of the premises to him
If despite the repay ment of the amount of the loan by the respondent the appel lant failed to hand over vacant possession of the premises to the respondent she was liable to pay damages at the rate of Rs 110 per month
But if for any reason the respondent failed to repay the amount of the loan on the expiry of the period of two years he could not claim to recover any damages from the appellant
Clearly the obliga tion of the appellant to hand over vacant possession of the premises to the respondent was concurrent with the obliga tion of the respondent to repay the amount of loan to the appellant and the respondent could not claim possession of the premises from the appellant without making repayment of the amount of the loan
It the respondent tendered a sum of Rs 7500 to the appellant in repayment of the amount of the loan and yet the appellant refused to accept the same the appellant might incur liability to pay to the respondent damages for wrongful use and occupation of the premises but the respondent could not say that he was exonerated from the obligation to repay the amount of the loan and was entitled to recover possession of the premises without making repay ment of the amount of the loan
The respondent could seek to recover possession of the premises from the appellant only ion condition of making repayment of the loan because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the other by reason of any refusal on the part of the appellant to accept the tender of Rs 7500 from the respondent
We may in this connection refer to the following passage from the judgment in Dixon vs Clark1 when it said In action of debt and assumpsit the principle of the plea of tender in our apprehension is that the defendant has been always ready toujoure prist to perform entirely the contract on which the action is rounded and that he did perform it as far as he was able by tendering the requisite money the plaintiff himself precluded a complete performances by refusing to receive it
And as in ordinary cases the debt is not discharged by such tender and refusal the plea must not only go on to
allege that the defendant is still ready incore prist but must be accompanied by a profort in curiem of the money tendered
If the defendant can maintain this plea although he will not thereby 1 188 bar the debt for that would be inconsistent with uncore prist and profort in curiem yet he will answer the action
in the sense that he will recover judgment for his costs of defence against the plaintiff in which respect the plea of tender is essentially different from that of payment of money into court
And as the plea is thus to constitute an answer to the action it must we conceive be dificient in none of the requisite qualities of a good plea in bar
This decision has been quoted with approval in Leaks on Contracts 8th Ed
at page 663 and it establishes beyond disputation that merely because the plaintiff or the defend ant has tendered the amount due and payable by him and such tender has been wrongly refused by the other party it does not absolve the first named party from its obligation to make payment of the amount and where the obligation to make payment of the amount is concurrent with the obligation to hand over possession the claim for recovery of possession must be accompanied by payment or deposit of the amount
The respondent was therefore clearly bound to pay or deposit the amount of loan as a condition of recovery of possession of the premises from the appellant
We may point out that in fact in the present case there was no valid tender of the sum of Rs 7500 by the respondent to the appellant
The case of the respondent was that he tendered the sum of Rs 7500 in cash to the appel lant on 26th August 1969 but the appellant refused to accept the sum
Now  we will assume for the purpose of argument that this case of the respondent is factually correct and that he did tender the sum of Rs 7500 in cash to the appellant on 26th August 1969 but this was obvious ly not a valid tender because under the terms of the agree ment the respondent could repay the amount of the loan to
the appellant only on the expiry of the period of two years and the date of the agreement being 27th September 1967 the period of two years expired on 26th September 1969
The respondent could not validly tender the sum of Rs 7500 to the appellant in repayment of the amount of the loan until 27th September 1969 and the tender made by him on 26th August 1969 was clearly invalid
It may be noted that it was not the case of the respondent that he made any fresh tender to the appellant on or after 27th September 1969 and hence the conclusion must inevitably follow that the respondent did not at any time make a valid tender to the appellant of the sum of Rs 7500 
Now if the re spondent did not at any time validly tender payment of the sum of Rs 7500 to the appellant the appellant obviously did not become liable to hand over possession of the prem ises to the respondent and a fortjori no claim for damages for wrongful use and occupation of the premises could be sustained by the respondent against the appellant
It was pointed out to us on behalf of the respondent that he had already filled
suits against the appellant for damages or compensation for wrongful use and occupation of the premises and one of the suits namely Suit No 800 of 1975 had been decreed by the Sub Judge 1st Class and Civil Appeal No 9 of 1975 preferred by the appellant against it had been dismissed by the 189 Additional District Judge Delhi on the basis that the respondent had made a valid tender of the sum of Rs 7500 to the appellant and since the appellant had refused to accept the same she was in wrongful use and occupation of the premises from the date of the tender and was therefore liable to pay compensation to the respondent from that date
This is true but it cannot preclude us from laying down what we think to be the correct legal position on a proper interpretation of the agreement between the parties
More over this decision is under appeal before the High Court
But apart from that we do not think this decision is correct because on the view we have taken the respondent was not entitled to tender the sum of Rs 7500 to the appellant before 27th September 1969 and even if a tender was made by him on 26th August 1969 as alleged by him the appellant was entitled to refuse to accept the same and she did not become liable to hand over vacant possession of the premises to the respondent or to pay compensation to the respondent in respect of her occupation of the premises
It is only if the respondent made a valid tender of the sum of Rs 7500 to the appellant on or after 27th September 1969 that the appellant would be liable to hand over vacant possession of the premises to the respondent and since that did not happen in the present case there was no obligation on the appellant to deliver possession of the premises to the respondent
The respondent was not entitled to claim possession of the premises from the appellant unless he paid or deposited the sum of Rs 7500 in court in repayment of the amount of the loan
The High Court as well as the learned Sub Judge were therefore in error in allowing the review application and ordering that the direction requiring the respondent to pay to the appellant or to deposit in court a sum of Rs 7500 in repayment of the amount of the loan should be deleted
It was a correct and valid direc tion and it was rightly introduced in the original ex parte decree passed by the learned Sub Judge
We accordingly allow the appeal set aside the order allowing the review application passed by the learned Sub Judge as also the order of the High Court rejecting the revision application
The original ex parte decree for possession together with the direction requiring the re spondent to pay or deposit the sum of Rs 7500 in court will stand but since possession of the premises has already been taken over by the respondent in pursuance of the ex parte decree for possession we direct that the respondent do pay to the appellant the sum of Rs 7500together with interest thereon at the rate of 9 per cent per annum from the date when possession of the premises was taken by the respondent up to the date of payment
The respondent will pay to the appellant costs of the appeal as also costs of the review application before the Sub Judge and the revision application before the High Court
PBR Appeal allowed


Summary:
The appellant and the respondent entered into an agreement by which the appellant advanced money to the respondent and the respondent in lieu of interest thereon gave a portion of his house for residence to the appellant for a period of two years
The other terms were that if after the expiry of the two year period the respondent wished to repay the amount he should give one month s notice in writing that if after the payment of the sum the appellant would not vacate the house she would be liable to pay damages and that if the respondent did not repay the amount on the expiry of the two year period he would not be entitled to recover dam ages
The respondent alleged that before the expiry of the two year period on September 27 1969 he addressed a notice to the appellant and tendered repayment of the loan which she refused to accept
The respondent s suit for recovery of possession of the premises was decreed ex parte with an order that he should tender payment to the appellant and that if she refused to accept the money it should be depos ited in the court
The appellant on the other hand filed a suit for recovery of the loan in which the respondent contended that the claim was barred by limitation
The respondent filed a review application before the Subjective contending that the order directing deposit of money in the court was clearly an error apparent on the face of the record
Allowing the review application the Sub Judge or dered the deletion of the direction for depositing the money in court
The appellant filed a revision application in the High Court against the order can the review application
The High Court held that since the order allowing the review application was appealable the revision application was not competent but on the alternative view that the revision application lay before the High Court it held a that the Sub Judge had no jurisdiction to impose a condition requir ing deposit of the loan money
particularly when the suit for recovery of the money was pending before the same court and b since the respondent tendered the money to the appellant but it was refused he was entitled to a decree for possession
Allowing the appeal HELD 1 Order XLIII r 1s of the Code of Civil Procedure provides an appeal against an order allowing a review application
Since the order allowing the review application was made by a Sub Judge the appeal against it lay to the District Court and not to the High Court and since no appeal lay against the order of the Sub Judge to the High CoUrt the revision application could not be re jected as incompetent
186F Under section 115 CPC a revision application cart lie before the High Court from an order made by a subordinate court only if no appeal lies from that order to the High Court
The words of limitation used in that section name ly in which no appeal lies thereto clearly mean that no appeal must lie to the High Court from the order sought to be revised because an appeal is a much larger remedy than a revision application and if an appeal lies that would afford 183 sufficient relief and there would be no reason or justifica tion for invoking the revisional jurisdiction
186D E 2 The High Court and the Sub Judge were in error in allowing the review application
The direction requiring the respondent to pay the loan to the appellant or to depos it it in the court was a correct and valid direction and was rightly introduced in the original ex parte decree
The courts below were in error in ordering its deletion
189 E 3 Merely because one party has tendered the amount due and payable by him and such tender has been wrongly refused by the other party
does not absolve the first party from its obligation to make payment and where the obligation to make payment is concurrent with the obligation to hand over possession the claim for recovery of possession must be accompanied by payment or deposit of the amount
188C Dixon vs Clark ER 919 referred to
In the instant case the respondent could not validly tender the amount to the appellant ha repayment of the loan until September 27 1969 and the tender made on August 26 1969 was clearly invalid
If the respondent did not at any time validly tender payment to the appellant she was not liable to hand over possession of the premises and no claim for damages for wrongful use could be sustained against her
The respondent was not entitled to possession unless he paid or deposited the money in court in repayment of the loan
The respondent could seek to recover possession of the premises only on condition of making repayment of the loan because the two obligations were mutual and concurrent and were required to be simultaneously performed and one could not get delinked from the reason of the refusal on the appellant s part to accept the tender of money
188E H