IN THE HIGH COURT OF CHIIATTISGARH AT BILASPUR FIRSTAPPEAL N0. l^Tr^/2006 PLAINTIFF APPELLANT RESPONDENTS 0EFENDANTS ^'. h> e A k/f 'CTV /^y--- Neelkamal Mandal, Age 62 years S/o. Late Rajendra Mandal, R/o. Mana Camp, Raipur, Tahsil SE District Raipur (C.G.j. VERSUS Smt. Dashoda Bai, W/o. Shri Ramjivan Sinha, R/o. ViUage Sorid, P.0. Dhamtari, District Dhamtari (C.G.). 2/A. Pyarilal Sinha, S/o. Ram Lal c^~ ^ Sinha, Age 55 years, R/o. ViIIage Paclieda, Tahsil Abhanpur, District Raipur (C.G.). B. Doinar Sinha, S/o. Ramlal f^{ Sinlia, Age 53 years. '7^- .Madanlat Sinha, S/o. Ramlal Sinba, Age 50 years. D. Devlal Sinha, S/o. Ramlal -, », ^ Sinha. 9E, Jagnandan Sinha, S/o. Rainlal '?-;- {^ -/ ' Sinha. 'TKT ^.. F, Gulab Sinha, S/o. Ramlat Sinha. G, Smt. UIfi Bai, D/o. Ramlat <K Sinha. AH resident of ViIIage Kolar, Tahsil Abhanpur, District Raipi-u-fC.G.). 3. Smt. FiraNJnBai, D/o. Late ,-^' _Puran Sinha, Through Baldev Sinha, R/o. Village & Post Borsi, District Raipur (C.G.). 4.^ Smt. Malti Bai, D/o. Lafe (^ Puran Sinha, Through Rupesh Sinha, R/o. Vfflage Lachkera, P.0. Jamgaon, Tahsil Figeshwar, Distt. Mahasamund (C.G.). 5. State of Chhattisgarh, Through the Collector, Raipur. APTEAL V/S.96 OF THECODE OF CIVIL FROCEXfURE hb'^f S%ie^^".'';'tS^t^ \^' HIGH CQURT OF^HHATTISGARH AT BILASPUR FIRST APPEAL No. 187 of 2006 A.ppellant Neelkamal Mandal Versus Respondent Smt. Dashoda Bai ORDER Postforz-3. -7-2010 Sd/- ~ N.K. Agrawa! Judge '-^s, HIGH COURT OF CHHATTISGARH AT BILASPUR Appellant PlaintifF FIRST APPEAL No. 187 of 2006 Neelkamal Mandal Respondent Defendants Versus Smt. Dashoda Bai FIRST APPEAL UNDER SECTION 96 OF THE CODE QF CIVIL PROCEDURE (SB: Hon'ble Mr. N.K. Aearwal, J.l Present : Shri Kishore Bhaduri with Shri Chandresh Shrivastava, Advocates for the appellant. Smt. Anju Ahuja, Adv., for the respondents. Shri Sanjeev Agrawal, P.L. for the State. ORDER (Passedon-^T, day ofJuly, 2010) This is plaintiff's first appeal under Section 96 of the Civil Procedure Code (hereinafter referred to as the Code') against the judgment and decree dated 7-9-2006 passed by the VIIth Additional District Judge (FTC) Raipur in Civil Suit No. 5-A/2006 whereby and whereunder the plaintiffs suit regarding relief of specific performance of agreement of sale has been dismissed. (Hereinafter parties shall be referred as per their description before the trial Court) The fact of the case, in brief, are as under:- Plaintiff instituted a suit for specific performance of the agreement of sale dated 3-7-2001 (Ex. P-1) against the defendant No. 1, 3 and 4 and late Phatkin Bai. During pendency of the suit, Phatkin Bai died and her legal representatives were brought on record in her place. As per ^ plaintiff, he entered into an agreement of sale with defendants for purchase of land bearing Khasra No. 736 area 1.38 hectare, Khasra No. 1238 area 1.05 hectare, total area 2.43 hectare (hereinafter referred to as 'suit land') situated at village Pached, Patwari Halka No. 140/21, Tehsil Abhanpur, Distt. Raipur at the rate ofRs. 37,500/- per acre and paid Rs. 30,000/- as advance to defendants. Old IChasra number of above land was 436 and before settleinent, area was 4.144 hectare. As per terms ofthe said agreement, revenue case regarding correction of entries in revenue record with respect to suit land was pending. The notice of decision of revenue case by Tehsildar and correction of revenue records was to be given by the defendants and thereafter within 3 months sale deed was to be executed and registered, and balance amount of consideration was to be paid. After correction of revenue record, consideration amount was payable for the area mentioned in the revenue record. The defendants did not inform the plaintiff about the decision of the revenue case and correction of revenue records. The plaintiff has always been ready and willing to perform the essential terms of the contract which are to be performed by him and for that, he is having sufficient fund for payment of consideration and to meet the registration expenses. When the plaintiff did not hear anything from the defendants about correction of entries in revenue record, he approached the defendants for execution of the sale deed but no positive answer was ^ ih<y \^i. Kbir^tf tibjpt |tt> *>lb ^ yilb Utfc e ^ ^S^ i&JB (A inll^lfel^li '^-/OOO'gi. Pt-(t' ^fc 2iife ^. ^a ^lfc ^a ^ M«>lhlh- M.I"!?. (- ^ilb ^<b LO-ZO-EQ 'bll-y Ibfe Z Utli. ^ W->\^ lltl^M?.tb& |^ ^lln ^l^tb k &h feA^ PJ?-hP MJ3& J^ RpyR ^ 4JL. M.nt'it' ijpyi. ^ sui j±yi ^IB&K: ^. ^fe Jat&e uzfe ue^ te&Ejs JA i-o'/o'eo <bjt-y itb |-?'<t' ha'y i^ ^1' )* &*?> j^fi '^—/ooo'zs ^fc Jttpi. y^ PJdJf J^ J±(^ lnMi?>lt> teh: ^ l^lt'iya fe^ U'lt' uife ^ 1-fcli blb <l>lh<t> -:ssnssi SUIAOHOJ psurejj ^noQ {BUI paujeaq •AI •^.TUII^ 3lUp s^i jo Aidxa -layB IOBJ^UOO SAoqB sq^ sojojus o^. ^q§uou s'eq jjpure{d aqj, •panaoueo uasq Xpsaj^B saq qoTqM ^usuiaajSB jo sisaq 3vp. uo psjjajsjd ussq s^q ^ins ^UB^SUT aqi 's^irepuajsp aq^ szunssajd o^ japjo m '{Bsnjsj .s^irepuajap UQ '"! •V3S3 •yev^ m qSiq AISA sureosq puei jo aoud 'tBi.p o^ anp '^osfojd {B^d'eo ASU jo BSJB sip UTOTM s^j PUB^ ^ins sqi 'paojojus SBM 433foj[d ^id^o MSU jsyBSjaip VBV^ sxaaddv U "pansoi-reo S^M ^.OBJ^UOO sip ^ssnbsj uo 'ajojsjaip '^unoure uop^jspTsuoo souBiBq SmAsd Xq sipuoui asjLp jo pousd pa^indi^s aq^ uiqiiA paap SIBS sip ps^nosxa ^3§ o^ aiq'eun SBA aq 'punj jo ^ioqs o^ snp 'sousssjd siq ui pa^BojBuisp pWB pajnsBSiu SBM. pirei 'TOOS '^snSny jo q^uoui 3\y. ui pa^oajjoo aj3M spjooaj snusAsj aq^ ^BLp IQ^J aq^ ^noq^ ajBMB ipM SBA jjpureid av^ 'vsvp. punojS ai-p uo VC[B -la^ui lurep sjjpure^d 9tp psmap pire lusuiai^s ua^TJA Jiaip paiy pue 3SB3 sq^. ui psjeaddB s^irepuajsp aqi 'sopou Jsyv '!1 •paap 3{BS aq^ a^nasxs 0^ pasnjaj ^aq^ '^dsj Jiaq^ ui -a^BOOApv siq qSnojq^ sopou psnssi aq usq^ psAiaoaj: 4 VH V^f cidlet ^1*'< ffRl<l|c^JI"l ^ 'WTST ^PT^ ^ f^ft d<Rd ^t ^ uiiqK 1?^ crr<!sr %. ^rl^r T?^^ ^ R'HM ^ ~l^i ^cn^ ^? <fr*fl!?l'1 ^t 'qPT ^t aft ^n TTRi<<it01iui ^T^ ^ 5ooo/—^.ffRr ?^^ ^t ^^ ^ guif'ii ^TT^ ^ 1rra t <isi<ini ^ ^sra v. The plaintiff examined three witnesses including himself. The defendants did not examine any witness, rather on 21- 8-2006 they were proceeded exparte. vi. Learned trial Court on a close scrutiny of the evidence led, material placed and submissions made, decided the issues in plaintiffs favour but rejected his prayer for specific performance of contract on the ground that the plaintiff has not established title of the defendants over the suit land. Hence this appeal. 3. Shri Kishore Bhaduri, learned counsel for the appellant, would submit that the question of title over the suit land was never in dispute between the parties; by reading the whole agreement Ex. P-1, it is crystal clear that the time was not essence of contract; the defendants never informed the plaintiff about correction of entries in the revenue record nor gave any notice intunating the plaintiff about correction of record and asking for execution of sale deed; all triable issues have been decided by the trial Court in plaintiffs favour but the trial Court dismissed the suit only on the ground that the plaintiff has not proved the defendants' title which is perse illegal on the face of record and, therefore, the suit is liable to be decreed in plaintiff's favour. ^.^•-K-^.f. On the other hand, Smt.Anju Ahuja, leamed counsel for the respondents would contend that the time was essence of contract. The plaintiff has not performed his part of contract within a period specified therefor in the agreement. Therefore, learned trial Court in its discretion has rightly dismissed the suit and the appeal deserves to be dismissed. 5. I have heard learned counsel for the parties and perused the record. 6. The question arises for determination of this Court is whether in the facts and circumstances of the case learned , trial Court has erred in not granting the relief of speciSc performance of contract in plaintiffs favour. 7. Execution of contract of sale is not in dispute. Payment of Rs. 30,000/- as advance also cannot be disputed as the sarne has not been disputed by the defendants in their reply to notice (Ex. P-6), also the defendants failed to adduce any evidence to substantiate their plea taken in the written statement in this regard. The defendants also failed to prove the fact that the plaintiff was prosecuting the case of correction of revenue record before Tehsildar Abhanpur. The plaintiff averredin the plaint that he has always been ready and willing to perform the essential terms of contraGt which are to be performed by him and is having sufficient fund for execution of sale deed and to meet registration expenses. The defendants failed to substantiftte their plea that due to insufficient fund, the plaintiff himself requested for cancellation of the agreement which was accepted by the defendants as the defendants failed to brought any material °)' ^^""-^ in cross-exaraination of the plaintiffs witnesses in this regard and also failed to prove the plea taken by them in the written statement by examming the witnesses. Even the defendants themselves have not entered into witness box and were proceeded exparte in the case. 8. Statement of Para 5 of P.W. 3 Bhagwan Dhar Diwan would only show that records were corrected after one month of the execution of agreement Ex. P-1 and 8-9 days thereafter, the plaintiff and the defendants have gone for measurement of suit land where the plaintiff asked the defendants counsel for execution of sale deed, then defendants' counsel replied that he will try to make them understand for it. This statement although shows that the plaintiff was aware about the correction of revenue records but it does not show that he was shown the corrected revenue records by the defendants. Moreover, the above statement reflects the plaintiff's intention to get the sale deed executed. 9. It is trite law that in a contract of sale of immovable property, time would not be regarded as essence unless it is shown that the parties intended that their right should depend upon the observance of time as the essence of contract. Jt is open to one of the party to make time the essence of contract by calling upon other party who has been guilty of unreasonable delay to perform the contract within stated time by giving hlm a reasonable notice. Without giving a reasonable notice to the other party to complete the contract within a specified time, the contract would not be cancelled at the sweet will of one party. ^ Admittedly in the instant case, no such notice has been given by the defendant asking the plaintiff for payment of consideration and for getting the sale deed executed within a specified time. On the contrary, the defendants have pleaded that on the request of plaintiff, the agreement has been cancelled and then allowed the above plea remain unproved as they did not enter into witness box to substantiate fhe above plea. In such a circumstance, it cannot be said that fhe plaintiff was guilty of breach of contract in any way. Learned trial Court has also recorded the Bnding in plaintiff's favour. 10. Hon'ble Supreme Court in case of Madenisetty Satyanarayana -v- G. Yelloji Rao and others reported in AIR 1965 SC 1405 has held that mere delay wi.thout such conduct on the part of the plaintiff as to cause prejudice to the defendant does not empower the court to refuse such a relief. The Supreme Court in the above case has further observed in para 11 as under:- "11. The result of the aforesaid discussion ofthe case law may be briefly stated thus: While in England mere delay pr laches may be a ground for refusing to give a relief pf speeific performance, in India mere delay withouf such conduct on the part of the jilaintiff as would cause prejudice'to the defendant does not empower a court to refuse such a relief. But as in England so in India, proof of abandonment or waiyei- of a right is not a pre-condition necessar^ to disentitle the plaintiffto the said relief, for if abandonment or waiver is established, no question pf discretion on the jiart of the Court would arise. We have usecf the expression "waiver" in its legally accepted sense, "namely, "waiver is contra'cfual, and may constitute a cause of action: it is an agreement to release or not to assert a right"; see 'Dawson's BankLtd. v. Nippqn Menkwq~ Kabushiki Kqisha. It is not pdssible or desirable to lay down the circumstances under which a court can exercise its discretion against the plaintiff. But they must be such that~ the representation by or the conduct or neglect of'the plaintiff is directly y^ ^^••/'wss^fSS S^!1^^'1^^^^^^. ^^^^^^8®g^^E'®?isi%'s 11. 12. responsible in inducing the defendant to change his position tq his prejudice qr such as to bring about a situation when it would be inequitable to give him such a relief." The defendants have not shown any such circumstances showing plaintiff's intention to abandon his right for specific performance under the agreement. Learned trial Court only dismissed the suit on the assumption that since the plaintiff has not proved the title of the defendants nor placed defendants' title deeds regarding suit land, if the decree of specific performance based on oral evidence is granted then possibility of collusive decree regarding others land cannot be ruled out. Above reasoning to refuse decree is not sustainable in law. First of all, there is no dispute at all since inception regarding defendants' titie over the suit property. Further, learned trial Court could have imposed conditions of producing title deeds before registration to avoid such circumstances. Therefore, the Ending recorded by the trial Court that the agreement cannot be enforced for want of producing title deeds is not sustainable in law and deserves to be and is hereby set aside. Consequently, the appeal is allowed. A decree of specific performance of agreement (Ex. P-1) dated 3-7-2001 is passed in favour of the appellant/plgintiff with direction to the respondent to execute a registered sale deed of the property in suit in favour of the plaintiff, on payment of the balance amount of consideration under the agreement by him within a period of three raonths from the date of passing of the decree, failing which, the vendee shall have right to obtain registered conveyance through Court on ^ K r^?f^^-. ^ ET£^,^ ^ .*:/ deposit of balance amount of consideration. The plaintiff is also entitled to get possession of the suit property after obtaining registered conveyance. The decree passed by trial Court insofar as it refused the decree for specific performance and granted a decree for refund of sum of Rs. 30,000/- is hereby set aside and instead, a decree of specific performance as directed above is granted. It is however made clear, during execution of decree it shall be the duty of the plaintiff to furnish the documents showing ownership of the defendants over the suit property, for this sufficient opportunity shall be granted to the plaintiff and if the plaintiffs fails to furnish the docunients, plaintiffs suit shall stand disinissed. 13. No order as to costs. Sd/- N.K. Agrawai Judge °)v\ ~\