RAMESHWAR SWARUP Vs. SAROJ TYAGI

JUDGEMENT

(1.) In spite of service of notice, the respondents remained unrepre-sented. Hence, we requested Mr. R. Sundarvardan, learned senior Advocate, to assist the Court as Amicus Curiae.

(2.) The issue that arises for our consideration out of the judgment dated 22-7-81 of the Allahabad High Court in S. A. No. 1103/73, is:Can a party (purchaser) to a sale agreement of a property in Cantonment Area rescind the contract on the ground that the permission given by the Military Estate Officer (for short 'MEO') was conditional, when under the contract the purchaser had undertaken to get the permission. Brief facts are as under:- The property in question is a bungalow on Plot Nos. 258 and 258-A situated at Old Grant on the Mall Road in the Cantonment Area, Meerut. The appellants (hereinafter called the 'Vendors') are the owners of the suit property. The first respondent (hereinafter called the 'Vendee') entered into an agreement with the appellants (Vendors) on 3-11-65 for the purchase of the suit property for a consideration of Rs. 70,000/-. In terms of the Agreement, a sum of Rs. 11,000/- was paid as earnest money to the Vendors on 11-10-65. The Vendee filed a suit for recovery of the said amount of Rs. 11,000/- contending, inter alia, that the understanding was that the Vendors would get unconditional permission from the MEO, Meerut, for the transfer; that the Vendors have cunningly incorporated in the said agreement that the permission from the MEO for the agreed sale shall be obtained by the Vendees; that there were minors among the Vendors and by concealing that factor the agreement was entered into and that there were already proceedings pending for the resumption of the suit property. On the basis of the above allegations, the suit for recovery of the earnest money was filed.

(3.) The vendors resisted the suit denying each and every one of the allegations in the plaint. According to the vendors, the express term of the agreement was that it was for the Vendee to obtain the permission for the transfer of the property from the MEO; that there were no minors among the vendors on the date of the agreement as alleged; that there were no proceedings pending for resumption as pleaded in the plaint and that the vendee was fully aware of the condition that she had to get the permission from the MEO for the sale of the property.