ATTAULLAH BEG Vs. SULKHICHAND

JUDGEMENT

(1.) THIS appeal under the Letters Patent is directed against the decree of the learned Single Judge by which he reversed the decree of the first appeal Court and restored that of the Court of first instance. Under the last mentioned decree, while the defendant I was directed to refund Rs. 2,000/ -received by him as ea money, the defendant 3 was directed to pay Rs. 2,300/ -and the defendant 4 was directed to pay Rs. 2,145/ -. It may be mentioned here that Rs. 2,000/ - of the amounts directed to be paid by the defendants 3 and 4 was the earnest money which the defendant 1 had received. To the extent of this amount of Rs. 2,000/ - there was, in effect, a joint decree against the defendants 1, 3 and 4.

(2.) THE two questions which have been pressed for our consideration are these:

(3.) IT is admitted before us that, within the time limited by the agreement, the defendant 1 failed to obtain clearance certificate from the Income Tax Officer or to execute the required sale deed. That clearly entitled the plaintiff to rescind the contract and to claim refund of the earnest money. It is, however, argued that in the suit as laid, the plaintiff did not base his claim on that ground. We do not agree. We may refer to paragraph 3 of the plaint and issue No. 2B framed by the court of first instance. It is, however, urged that the contract for sale was not void and the plaintiff, who stated in the witness -box that he was willing to purchase the houses even at that stage, was himself guilty of breach of the contract. Even apart from the consideration that the appealing defendant 3 urged in the first appeal Court that the contract became void and succeeded on that basis, the finding is that the plaintiff was all along willing to perform his part of the contract and that it was he vendor who did not carry out his part and thereby committed a breach of that contract. That being so, this contention does not help the appealing defendant, who alone contested the claim throughout.