DURGA PRASAD Vs. BISHAN SWARUP

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the appellate judgment and decree of the learned District Judge of Kota, dated August 14, 1961, setting aside the judgment and decree of the trial court and dismissing the suit for specific performance of a contract for the sale of immovable property, with the direction that the plaintiff shall be entitled to the refund of Rs. 1000/- paid by him to the defendant on account of the price.

(2.) DEFENDANT Bishan Swarup owns a piece of land measuring 100 feet x 100 feet near his bungalow, in Kota city. An agreement (Ex. 1) was made by his son Vishweshwar Swarup on April 12, 1958, for the sale of that land to the plaintiff for Rs. 7,750/-, at the rate of annas twelve per square foot, plus Rs. 250/- on account of a boundary wall towards the back. It was stated in the agreement that a sum of Rs. 1000/- had been paid by the plaintiff in advance and that the sale-deed would be registered by May 31, 1951. If for any particular reason it was not convenient to the parties to do so, it was agreed that the sale-deed would be registered by June 30, 1958. The agreement further provided that the sale deed would be registered in favour of those persons whose names would be disclosed by the plaintiff, but that the registration expenses would fall on the vendee. A further provision was made that a partition wall would be built towards the back, at the cost of the vendor and the vendee and that both the parties would be entitled to use it, but if the vendee did not approve of that arrangement he would pay a further sum of Rs. 150/- on that account. The execution of this document is admitted in this Court.

(3.) A perusal of paragraph 3 of the written statement further goes to support the view which I have taken. As a matter of fact it is significant that the defendant has not ventured to take the plea in his written statement that time was of the essence of the contract and that he was entitled to repudiate it for that reason. In these facts and circumstances, I have no hesitation in reaching the conclusion that time was not of the essence of the contract for the sale of the immovable property in question and the learned District Judge was completely in error in taking a different view.