JANARDAN MAHATO Vs. BHAIRAB CHANDRA MONDAL

JUDGEMENT

(1.) In this case, the plaintiff is the appellant. He filed a suit on 14th May 1909 against Srimati Thaka Sundari Dasi, wife of Naba Gopal Roy, for specific performance of an agreement to sell to him certain land. The suit has been dismissed in both the lower Courts and the plaintiff has consequently appealed.

(2.) It appears that, by a bainamah, dated 12th Sravan 1315 (27th July 1908), the first defendant, Thaka Sundari Dasi, agreed to sell to the plaintiff this land for a sum of Rs. 3,100. Of that Rs. 200 was paid as earnest money. The bainamah provided that the sale should be completed in three months, when the sale-deed was to be registered and the balance of the purchase-money paid, The plaintiff subsequently paid and the defendant accepted a sum of Rs. 85 on 7th Asvin 1315. That was before the three months named in the bainamah had expired. The parties thereafter did not come to terms with regard to the completion of the document. The plaintiff says that he asked Naba Gopal that his wife should go to Jamtara, and register the deed, but that Naba Gopal refused and required the plaintiff to come to Nagori where they lived and have the deed executed there. Nothing, therefore, was done with regard to the completion of the agreement. On 14th May 1909, some 10 months after the agreement, the plaintiff filed the present suit. After he had filed the suit, namely, on 16th July 1909, the defendant Thaka Sundari Dasi purported to sell the same property to Bhairab Chandra Mandal and Gopal Sundari Dasi, who are said to be mortgagees of the property from Thaka Sundari Dasi. That deed was registered on 17th July 1909. In consequence of that sale, those two persons were made parties defendant in this suit, and it is the who have contested the suit throughout. Thaka Sundari Dasi has stood aside; and, after filing her written statement, has taken no further part in the proceedings.

(3.) The learned District Judge has dismissed the plaintiff s suit in toto. In doing so, we think that he was clearly in error. In any case the plaintiff might have been given a chance of recovering the deposit which he had made, unless it was shown that he was guilty of laches which would prevent him from so doing. But the error of the learned District Judge consists in this that he has regarded the three months named in the contract as being the extreme limit, within which the contract was to be performed, and that there could be no extension of that time. In other words, that the three months fixed was of the essence of the contract. Now the Specific Relief Act does not apply to the Sonthal Paraganas; nor did the provisions of the Civil Procedure Code of 1859 in which there was a section dealing with specific relief. The case will, therefore, have to be governed by the ordinary rules of justice, equity and good conscience. It has been a long standing rule in all matters of specific performance of contract for sale of land that time is not of the essence; of the contract, until the parties expressly make it so. Some time is generally named in the agreement to sell, but that is rarely adhered to; and it is not until one side or the other gives the opposite party reasonable notice to complete the agreement within a definite time that the opposite party can be tied down to the time so prescribed. In this case, nothing of that kind was done; and within 10 months, the plaintiff filed the suit in which he offered to pay the amount and asked the Court to insist upon the defendant Thaka Sundari Dasi executing a conveyance in his favour. It appears to us that he was right in so doing.