MEHDI HUSSAIN KHAN Vs. NUSRAT HASAN

JUDGEMENT

(1.) The above three appeals are Interconnected and between the same parties. As such they are being disposed of by this common judgment. Heard both sides. The plaintiff is the appellant herein. For the sake of clarity, the parties are referred as arrayed in O.S. 616 of 1975.

(2.) The plaintiff filed O.S. 616 of 1975 seeking specific performance of the agree ment of re-conveyance (Ex. A-l) dated 21-10-1973. In the plaint he has stated that he is ever ready and willing to pay the consideration for re-conveying the suit schedule property, which was sold to the defendant under registered sale deed dated 21-10-1973 for a consideration of Rs. 20,000.00 and was negotiating with one Dr. K. I. Askari elder brother of the defendant but the defendant evaded to receive the payment as such he was constrained to file the suit for specific performance. The defendant in the written statement, while admitting the relationship between Dr. Askari and herself has taken a stand that he has no authority to enter into any transaction with the plaintiff. She has also taken a plea that clause No. 3 in the agreement of re-conveyance where-under, it is stated that the time for re-conveyance can be extended by mutual consent was interpolated by the plaintiff and since time is the essence of the contract, the plaintiff cannot seek the relief of specific performance after expiry of the period mentioned in the agreement of re-conveyance. She has also taken a stand that the plaintiff is highly indebted and not having the capacity of paying the amount to her at the relevant point of time. It is also her case that since the portion of the house that was sold to her was under lease of Dolton Press, along with other portion of the house, the plaintiff agreed to pay Rs. 400/- for the portion that was sold to her towards rent from the date of sale and as per another agreement of even date Ex. B-3. The plaintiff was permitted to collect the rents up to January 1974 on condition that he pays the amounts to her subsequently and thereafter she is entitled to collect the rents from the tenant. When, the tenant was not paying the rents, she was forced to issue a legal notice, the details of which will be adverted to at the appropriate time. While, the above suit was pending, the defendant in the above suit filed O.S. No. 22 of 1977 for recovery of rents for the period from November 197 3/10/1974 @ Rs. 400.00 which the plaintiff received from the lessee. Subsequently, she filed O.S No 84 of 1978, for the same relief for the remaining period.

(3.) The Trial Court on consideration of the matter, framed the following issues for adjudication.