LALTI DEVI Vs. HARI OM KUMAR

JUDGEMENT

(1.) The present civil misc. petition has been filed under Article 227 of the Constitution of India against the order dtd. 6/3/2017 passed by the learned Subordinate Judge-I, Gopalganj in Misc. Case No. 304 of 2016 rejecting the prayer of the petitioner made under Sec. 28 of the Specific Relief Act, 1963.

(2.) The conspectus of the case, as it appears from the record, is that the respondent file Title Suit No. 511 of 2002 against the original petitioner for grant of a decree for specific performance of contract with respect of 12 dhurs of land out of Plot No. 1069, Khata No.249 in the town of Mirganj Bazar, District-Gopalganj. The plaintiff/respondent contended that the defendant/petitioner contracted to sale the disputed land for a sum of Rs.1,20,000.00. The petitioner took earnest money of Rs.65,000.00 from the respondent and agreed to execute the sale-deed on receipt of the rest amount of Rs.55,000.00. The suit was decreed and the operative part of the said order reads as under:-

(3.) Learned senior counsel appearing on behalf of the petitioners submitted that a person seeking specific relief must prove his readiness and willingness to perform his part of contract at all stages of the litigation which continues even after getting the decree in his favour, till he has complied and fulfilled his part of contract. This is the mandate of Sec. 16(c) of the Specific Relief Act. Learned senior counsel further submitted that in the instant case, on 23/3/2005, while granting a decree in favour of the plaintiff, the court directed the defendant to receive Rs.55,000.00 from the plaintiff and then to execute the deed and the defendant was further ordered that after taking the balance amount of Rs.55,000.00, he would execute the sale deed within a month. So, this was also a direction to the plaintiff to pay the amount within a period of one month. Admittedly, this amount was never paid to the defendant in the suit at any of its stages although such deposit was required to be made in the suit itself. Thereafter, title suit was dismissed on 1/12/2015 and second appeal was filed in this Court and no deposit or no prayer for extension was made and no extension was even granted by the appellate court. On 11/6/2015, during pendency of the appeal, execution case bearing No. 108 of 2015 was filed for execution of sale deed and delivery of possession by breaking open the locks, still no deposit was made. After eight months, prayer was amended to accept deposit and on 7/4/2016, a petition to deposit Rs.55,000.00 was made, but again no prayer for extension of time was made. Subsequently, the balance amount was deposited on 15/3/2017. Learned senior counsel further submitted that Sec. 148 of the Code of Civil Procedure provides for enlargement of time but the same cannot exceed 30 days in total. Similarly, Order XX Rule 12(A) of the Code also provides where a decree for specific performance of a contract for the sale of immovable property orders that the purchase-money or other sum be paid by the purchaser, it shall specify the period within which the payment shall be made. In support of his submission, Mr. Dwivedi relied on the decisions of Hon'ble Supreme Court in the case of Chanda (dead) through LRs. Vs. Rattni and Anr., reported in (2007) 14 SCC 26 wherein rescission of sale of contract was held to be proper when the purchaser failed to pay the balance consideration for 6 years and no specific prayer for deposit of balance amount or extension of time in relation thereto was made before the court below. Further, the plea that there was no direction to pay the amount within a particular time was held to be unsustainable and untenable. In case of Prem Jeevan Vs. K. S. Venkata Raman and Anr, reported in (2017) 11 SCC 57, the Hon'ble Supreme Court held in Paras-8, 9 and 10 as under:-