RADHEY SHYAM Vs. RAFIQ UN NISAN

JUDGEMENT

(1.) THIS defendant's second appeal arises out of a suit filed by the plaintiff-respondent for repurchase of the house situate in village Patseni on payment of Rs. 2,000/- to the defendant. The said suit has been decreed by both the courts below.

(2.) THE relevant facts of this case are as follows;- On 26-6-1970 the plaintiff executed a registered sale deed Ext. 1 for Rs. 2,000/- in respect of the said house in favour of the defendant. THE deed has been styled as a sale-deed. At the same time it contains a covenant that if after three years and before the expiry of five years from the date of sale-deed, the vendor pays to the vendee a sum of Rs. 2,000/-, the vendee should convey the property to the vendor, it was further stipulated that the said condition would be void after the expiry of the period of five years. Admittedly, the said five years were to expire on 28-6-1975. THE courts below have also recorded a finding that the plaintiff did not approach the defendant with the aforesaid sum of Rs. 2,000/- either before 28-6-1975 or even thereafter. All that the plaintiff did was that since civil courts remained closed from 3-6-1975 to 2-7-1975 due to summer vacation hence on the reopening day of the court i.e. 3-7-1975, the plaintiff filed the instant suit. THE lower appellate court has, however, held that the suit was filed within time and neither the right, nor the remedy could be considered as extinguished because the non-filing of the suit stemmed not from any act or commission of the plaintiff but from the tact that the court was in recess and all that he could do, namely filing of the suit on the date on which the court re-opened, was done by him.