SHANKAR SAKHARAM JAGDALE Vs. RATANJI PREMJI SHET

JUDGEMENT

(1.) The question in this case is whether, notwithstanding the lapse of time and the conduct of the parties, it is still open to the defendant to enforce the compromise embodied in the consent decree (Exhibit 28) in this suit. The plaintiff and defendant are adjoining owners, and it would appear that before the commencement of this litigation the western wall of the plaintiff's building was a mud wall, and that the eastern wall of the defendant's building adjoined it. The defendant wanted to rebuild his house and in the course of that rebuilding the plaintiff alleged that the defendant encroached upon his, the plaintiff s, rights. Thereupon this suit was brought for an injunction and other relief.

(2.) On January 29, 1920, the parties arrived at the compromise in question which is embodied in Exhibit 28. To indicate very briefly the nature of the point this Court has to decide, I will state that there is a provision in that compromise for the payment by the defendant of a certain sum of money and the building of a new wall within two months from the date of that compromise. Admittedly the money was not paid nor the wall built within the two months. So far as the evidence before us is concerned, nothing was done by either party until the defendant took out the present Darkha March, 30, 1921 Exhibit 1. That Darkhast states that the defendant told the plaintiff several times in accordance with the terms of the decree to do certain things. But apart from that mere statement in the Darkhast which is not evidence, there is no evidence before us at all of any intervening acts of the parties after the date of the decree. We have, therefore, a lapse of time of just over one year from the date fixed by the compromise for the performance of these acts.

(3.) The defendant's answer is that his acts of payment of the money and the building of the new wall were all conditional upon the plaintiff first pulling down an old wall, and that as the plaintiff did not pull down that old wall, he, the defendant, is absolved from strict compliance with the provisions as to time inserted in the compromise. The Darkhast (Exhibit 1) is based on the defendant's view of the true construction of the contract. There he asks that the plaintiff should be made to pull down the old wall, and that if he does not do it, the Court should have it done and direct payment of the costs out of the money the defendant was to pay. He makes there no offer of his being ready and willing to pull down the old wall at his own expense, supposing the Court is against his view of the contract. However before us, at the conclusion of the argument of his pleader, the defendant undertook to pull down the wall at his own expense, supposing the Court was against him on the true construction of the compromise.