Kharku and Others vs Rasil Singh and Others

Sham Krishna Dar, Member

This is an appeal against a judgment and decree of the High Court dated Poh 4, 2002, by which it affirmed a judgment and decree dated Sawan

22,2002 of the District Judge, Mirpur, whereby the judgment and decree dated Chet 7, 2001 of the Munsiff of Bhimber was affirmea.

On Baisakh 9,1990, the respondent No. 1, agreed to convey 27 Kanals 10 Marias of land situated in village Mathral to the appellants and to

respondent No. 2, on payment of a sum of Rs. 950/- and to put them in possession of the same. This land at one time was the tenancy holding of

Sarban-an uncle of the appellants & of the respondent No. 2, who in or about the year 1983 made an oral sale of it to the respondent No. 1,

which was given effect to by a mutation order dated Maghar 16, 1983. The appellants had challenged this Mutation Order and in the course of

litigation which ensued the above agreement was arrived at which was also recorded in an order of the Revenue Court of the same date.

From the date of the sale, the respondent No. 1, continuously remained in possession of the property and by Allan No. 4 of 1993, the

proprietary rights in the land were conferred upon him by the State. The land thus purchased abutted and adjoined a Nullah and in order to prevent

of flooding of the fields, the respondent No. 1, the course of his possession put up embankment and planted trees and made other improvement at

an estimated cost of Rs. 400/-.

On Magh 16,2000, the appellants instituted the suit out of which this appeal has arisen to enforce the above contract dated baisakh 9,1990 and

this suit has been dismissed unanimously by all the courts below on the grounds that it is barred by Article 84, Limitation Act, 1995 and by Section

22, Clause (2), Specific Relief Act, 1877.

Article 84, Limitation Act provides 3 years as a period of limitation for a suit for a specific performance of a contract, time to commence from

the data fixed for the performance or, if no such date is fixed when the Plaintiff has notice that the performance is refused"". In the above contract,

no date was fixed for the performance and the suit is clearly governed by the second alternative clause which runs the time against the Plaintiff

when he gets notice of the refusal of performance.

Undoubtedly there has been a delay of 10 year in bringing the suit but there is no evidence that three years before the suit the appellant made

any demand for the performance of the contract which was refused, nor there is any evidence that three years before the suit the respondent

repudiated the contract to the know-ledge of the appellants. In the absence of any evidence which may satisfy the condition laid down in the

second alternative clause, it is not possible to hold on the basis of mere delay in bringing the suit that the claim is barred, by limitation and the

findings of the Courts below in this matter cannot be legally supported.

The twenty-second section of the Specific Relief Act states that

The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do

so;....

It provides the following as a case ""in which the Court may properly exercise a discretion not to decree specific performance:

II. Where the performance of the contract would involve some hardship on the Defendant which he did not foresee, whereas its non-performance

would involve no such hardship on the Plaintiff.

The appellants contend that there is no evidence of any waiver of their right on their part and that the respondent did not serve any notice before

making any improvement and they made the improvements at their own risk and that the delay in bringing the suit, if it cannot defeat the claim on

the plea of Limitation, it cannot also defeat the claim on equitable ground under Specific Relief Act.

Delay in bringing the suit to enforce a contract per se may not be a ground to refuse specific performance of a contract but it is a relevant

matter to be taken into consideration along with other circumstances to determine whether discretion should be exercised in favour of or against the

specific performance.

In- AIR 1922 249 (Privy Council) where a suit for specific performance of a contract dated 18-12-1903 was brought in 1913, Lord

Buckmaster in refusing specific performance made the following observation :

It certainly is rather startling to be told that nine years after a contract has been made which could have been satisfied within twelve months of its

execution, a party to the contract is at liberty to take proceedings for specific performance. The rights of equity which prevail in British Burma are

rights which are given to people who are vigilant and not to those who sleep and unless there can be clearly established some reason which threw

upon the Defendant the entire blame for the delay that had occurred, or unless, indeed it can be shown that the real right of action had only accrued

a short time before the proceedings were instituted such a lapse of time should be fatal to any action for specific performance of a contract.

Here also the appellant is seeking specific performance of a contract ten years after its execution. In the meantime, the property which was

originally a tenancy has matured into full proprietary rights and has been materially and substantially improved after substantial investment of money.

Taking advantage of sudden rise in the market price of property during the currency of late war the appellant desires to purchase the improved and

materially altered property on a price agreed to in entirely different circumstances.

u/s 22, Specific Relief Act, the discretion of the Court can only be corrected by a Court of appeal if it is exercised arbitrarily. From the delay in

bringing the suit and from the institution of the suit at a time when the prices had gone up, the Courts below have inferred that the appellant had

abandoned his rights in the contract and misled the respondent 1, in making the improvements. It is not possible for the Board to say in this appeal

that the discretion exercised by the Courts below was not sound and reasonable and guided by Judicial principles which can and should be set

aside.

The Board will, therefore, humbly advise the Sadar-i-Riyasat that this appeal be dismissed but in the circumstance of the case, there will be no

order of costs in favour of any party either here or in Courts below.