Case: Vidya Vati Vs. Devi Das

(incoreprist) 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 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. 6. 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 defendant 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 t o 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 appellant 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 obviously not a valid tender, because under the terms of the agreement 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 respondent 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 premises 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 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 direction and it was rightly introduced in the original ex-parte decree passed by the learned Sub Judge.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Now, there can be no doubt that under section 115 of theCode of Civil Procedure a revision application can lie before the High Court fro m 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 Sub Judge, and hence an appeal against it lay to the District Court and not to the High Court, and, obviously, since no appeal lay against t he 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 decided against the respondent.The. determination of this question turns on the true interpretation of the agreement between the parties. If we turn to the agreement it is clear that the loan of Rs. 7500/- was advanced by the appellant to the respondent for a period of two years and in lieu of interest on the amount of the loan, the respondent handed over the possession of the premises to the appellant and the appellant 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 respondent 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 months 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 repayment of the amount of the loan by the respondent, the appellant 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 o f the period of two years, he could not claim to recover any damages from the appellant. Clearly the obligation of the appellant to hand over vacant possession of the premises to the respondent was concurrent with the obligation 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 repayment 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.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 appellant 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 obviously not a valid tender, because under the terms of the agreement 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 respondent 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 premises 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.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 respondent 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 premises 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 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 direction and it was rightly introduced in the original ex-parte decree passed by the learned Sub Judge.