Case ID: 3650

Judgment:
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	 S.K. Bagga	 (Mrs.) section Bagga	 (Miss) Yesh Bagga and K.K. Mittal for the Appellant. Bikramjit Nayar	 B.P. 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. 1/20 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. 7500/was 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. 7500/in 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 Clark(1) 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. 7500/together 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. P.B.R. 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. 1(s) 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 C.P.C. 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 E.R. 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]