IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 25569 of 2009(O) -------------------------- OS.333/2002 of MUNSIFF'S COURT, ALATHUR .................... PETITIONER: ------------------ K.SREEDEVI, D/O.BHARGAVI AMMA, RESIDING AT KOLLENGATTE VEEDU, KALLENGADE, PALANTHONI, THEKKETHARA AMSOM, MELARCODE VILLAGE, ALATHUR TALUK, PALAKKAD DIST. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE PRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT: ------------------- V.VELAYUDHAN, S/O.VELU, RESIDING AT PUTHANTHARA, MELARCODE, THEKKETHARA AMSOM, ALATHUR TALUK, PALAKKAD DIST. BY ADV. SRI.JOHNSON P.JOHN SRI.BABY MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.25569/09 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE DECREE IN O.S.NO.333/02 ON THE FILE OF THE COURT OF THE MUNSIFFF, ALATHUR DTD. 3/6/2003. EXT.P2 TRUE COPY OF THE I.A.NO.994/2008 IN O.S.NO.333/2002 ON THE FILE OF THE COURT OF THE MUNSIFFF, ALATHUR. DTD. NIL. EXT.P3 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO THE APPLICATON DTD. 7/2/2009 EXT.P4 TRUE COPY OF THE ORDER IN I.A.NO. I.A.NO.994/2008 IN O.S.NO.333/2002 ON THE FILE OF THE COURT OF THE MUNSIFFF, ALATHUR DTD. 28/5/2009. HARUN-UL-RASHID,JJ. ------------------------------- W.P.(C) NO.25569 OF 2009 ------------------------------- DATED THIS THE 23RD DAY OF SEPTEMBER, 2010 JUDGMENT Petitioner herein is the plaintiff in O.S.No.333/02 on the file of the Munsiff's Court, Alathur. The suit was filed for specific performance of the contract of sale against the respondent. Ext.P1 is the copy of the decree passed in the suit. The decree inter alia directed the plaintiff to deposit the balance sale consideration of Rs.4,000/- in court within one month taking note of the fact that a sum of Rs.36,000/- had already been paid as advance. Since there was no appeal, Ext.P1 decree has become final. The plaintiff did not deposit the balance sale consideration as directed in the decree. After five years and three months, he filed I.A.No.994/08 seeking permission of the court to deposit the balance sale consideration of Rs.4,000/- and to condone the delay of five years and three months in making the deposit. Ext.P2 is the photocopy of I.A.No.994/08 . -2- WP(C).No.25569/09 2. The learned counsel for the petitioner submitted that the respondent has not filed any application to rescind the contract either on account of the delay in making the deposit or on any other ground under Section 28(1) of the Specific Relief Act. Ext.P4 is the order passed by the Munsiff's Court, Alathur in Ext.P2. The court below, after considering the reasons stated for the delay in depositing the balance sale consideration, held that there is no just and sufficient reasons to condone the delay of more than five years and three months and to permit the petitioner to deposit the balance sale consideration by enlarging time. 3. It is pointed out by the learned counsel for the petitioner that the court below did not consider the reasons stated in the application liberally. The learned counsel also pointed out that it is settled by decisions that the power to extend the time is inbuilt in Section 28 of the Specific Relief Act itself, that the power under Section 28 of the Act is discretionary and the court cannot ordinarily annulled the decree once passed by it and that the court does not seize to have the power to extend the time even though the -3- WP(C).No.25569/09 decree provides that the payment of balance price to be made by certain dates. The learned counsel submitted that inbuilt power of the court to extend the time especially when the court retains control in a suit for specific performance till the decree is executed or rescinded ought to have been exercised liberally. He also pointed out that this is particularly so when no application was filed by the respondent to have the contract rescinded and the delay in making the deposit deserves to be condoned. It is also pointed out that the condonation of delay under Section 28 of the Specific Relief Act stands on a different footing in contra distinction to the condonation of delay under Section 5 of the Limitation Act. According to him, Ext.P4 order suffers from an error of jurisdiction and deserves to be set at naught in exercise of the power of superintendence of this Court. Learned counsel for the petitioner relied on the decisions reported in Joseph George v. Chacko Thomas (1992 (1) KLT 6), Jayaprakash v. John (1999(2) KLJ 533), Chitambaran v. Viswambharan (AIR 2001 Kerala 205) and Chanda v. Rattni ((2007) 14 SCC 26) in support of his legal -4- WP(C).No.25569/09 contentions. 4. In view of the legal position as pointed out by the learned counsel for the petitioner this Court is of the view that the matter requires re-consideration. In the circumstances, the impugned order (Ext.P4) is set aside. The Munsiff's Court, Alathur, after examining the contentions of the parties and after examining the legal position as laid down in the aforesaid decisions, shall dispose of I.A.No.994/208 on merits, within a period of three months from the date of receipt of a copy of this judgment. The learned counsel for the respondent submitted that he proposed to file a petition to rescind the contract. The submission is recorded. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.