Lal Singh vs Tejmal and others

Nigam, J.C.

Lalsingh filed Civil Suit No. 53 of 1942 against Tejmal and five others claiming a decree for specific performance of the contract dated 30-5-1939 and delivery of the house in question on payment of Rs. 700/- or in the alternative refund of Rs. 50/- advanced as earnest money and such damages as may be just.

The learned Subordinate Judge, Beawar, held that the plaintiff was not entitled to any relief and he dismissed the suit with special costs. He, however, directed refund of the advance paid by the plaintiff.

Against that judgment and decree, Lalsingh, plaintiff, took an appeal to the District Judge. The appeal was heard and decided by the learned Additional District Judge, who accepted it in part, but did not decree the suit either for specific performance or for damages.

Now the plaintiff has come up in second appeal praying for specific performance or for appropriate compensation for breach of agreement. A cross-objection has been filed by the respondents urging that the plaintiff was not entitled to the refund of the advance and that the decree in favour of the defendants granting them special costs be restored. In the appeal and the cross-objection, I have heard the learned counsel for the parties.

The plaintiff came to Court with the allegation that defendant 1 had on 30-5-1939 agreed to sell a house described in para 1 of the plaint to the plaintiff for Rs. 750/- through a written agreement. Rs. 50/- were paid as an advance and the balance was payable at the time of registration. Defendants 2 and 3 being son and grandson of defendant 1 also joined in the agreement.

The plaintiff several times pressed for the execution of the sale-deed and when no heed was paid, gave a written notice on 1-7-1939 and another notice on 14-7-1939 calling upon the defendants to attend the office of the Sub-Registrar on 17-7-1939. The defendants did not comply. The suit was filed on 29-6-1942.

The learned Additional District Judge held that time was not the essence of the contract, that the defendants'' oral evidence was not entitled to be taken at its face value, that the defendants wanted to avoid the contract, that there was no sufficient reason for discarding the plaintiff''s evidence and that taking all facts and evidence into consideration, it must be held that the breach was committed by the defendants.

These findings of fact have been assailed by the learned counsel for the respondents. The learned counsel for the appellant has urged that the findings of fact cannot be re-opened in second appeal. I have been referred to several rulings including - ''Rama v. Mt. Bakhti'', 1935 AMLJ 75 (A); - '' 6 AMLJ 1 (B)'' and the decision of - ''Banna v. Jetha'', Second Appeal No. 16 of 1951, D/- 14-7-1953 (Ajmer) (C).

It is clear that findings of fact recorded by the first appellate Court, however, erroneous that may be, cannot be re-opened unless it is held that the findings are vitiated. It is well settled that when the appellate Court fails to take into consideration evidence on record or misreads some important evidence or omits to pay sufficient attention to some evidence which shifts the burden of proof, commits some mistake in law or omits to consider the evidence of a material witness, the findings of fact may be vitiated and not binding on the second appellate Court. The question whether the findings of fact recorded by the first appellate Court in any particular case are binding or have been vitiated by some error, is a question of fact to be decided on the facts of each particular case.

So far as the facts of this particular appeal are concerned, the learned counsel for the respondents has urged that the learned Additional District Judge omitted from consideration the oral evidence on behalf of the respondents that the plaintiff was three times within the 10 days'' period pressed to pay the money. I am of opinion that this evidence was one of the items to be considered in deciding whether time was the essence of the contract or not and the mere omission to mention it specifically does not lead to the conclusion that the learned Additional District Judge was not aware of this evidence or did not attach due weight to it. I am of opinion that the finding of fact arrived at by the first appellate Court is not vitiated and is binding on this Court.

Even if I were to hold that the finding cal be reviewed, I am unable to come to any different conclusion.

The question really turns on the interpretation of the agreement, that is, whether time was the essence of the contract or not.

The learned counsel for the parties have referred me to - ''Jamshed v. Burjorji'', AIR 1915 PC 83 (D); - ''Steedman v. Drinkle'', AIR 1915 PC 94 (E); - ''Shankar v. Ratanji'', AIR 1922 Bom 441 (F); - ''Arun Prakash v. Tulsi Charan'', AIR 1949 Cal 510 (G); - AIR 1947 193 (Nagpur) ; - ''Mani v. Krishnan Nayar'', AIR 1953 TC 377 (FB) (I) and - Subedar Dubey Vs. Madho Dubey and Another, . The contract in question was not a commercial transaction. In such cases, the presumption is that time is not the essence of the contract unless there is an agreement to the contrary or the evidence of the conduct of the parties at the time of the agreement or prior thereto clearly indicates that the intention of the parties was that time should be the essence of the contract. There is no such evidence in this particular case. It is, therefore, not possible for me to hold that the intention of the parties was that time was the essence of the contract.

In the circumstances, the respondents could not have resoled from the contract unless they gave notice to the plaintiff for the performance of the contract within a reasonable time. Only in case such a notice was given, the defendants could have resiled from the contract without committing breach thereof. Thus the evidence that within 10 days the plaintiff was asked three times for the money or the fact that the plaintiff never tendered a scribed document for respondents'' signatures will not avail the respondents. On the evidence on the record to which reference has been made during the arguments, it must be held that the breach was committed by the defendants.

The next point for my consideration is whether the plaintiff was entitled to specific performance. The learned counsel has referred me to a number of rulings on the question whether delay by itself is sufficient to justify the refusal of the discretionary relief of specific performance. It is not, in the particular circumstances of the case, necessary for me to refer to those rulings as there are other circumstances which render the grant of the relief of specific performance inadvisable.

There is no doubt that the circumstance that the plaintiff did not seek the relief of specific performance with due diligence and did not come to Court till the prices had appreciably risen due to war is a circumstance that may validly be taken into consideration in deciding the question whether the relief of specific performance is to be granted or not.

In this particular case, I find that Ghaturbhuj, another son of defendant 1, had not Joined in the agreement. The learned counsel for respondents has urged that if a sale-dede is executed, it is possible that there may be a litigation a to whether Chaturbhuj''s share had been transferred or not and if Chaturbhuj is held not to hive joined in the agreement, then a partition was have to follow rendering the position of both me parties who will become owners of the house, difficult.

The main factor that weighs with me is that some of the respondents are minors. I have been referred to - Swarath Ram Ram Saran Vs. Ram Ballabh and Others, ; - Nripendra Chandra Sarkar and Others Vs. Ekherali Joardar and Others, ; - Krishnachandra v. Rishabha Kumar'', AIR 1939 Nag. 265 (M) and - ''Sankaralinga Nadar v. Ratnaswami Nadar, AIR. 1952 Mad 389 (N) in support of the contention that an agreement of sale cannot be enforced against a minor and that the relief in equity should not be granted against the minor. Respectfully agreeing with these rulings, I am of opinion that in the circumstances of the case, it would be inadvisable to grant the relief of specific performance.

The learned counsel for the appellant has next urged that in any case he was entitled to damages. The learned Additional District Judge refused damages as the plaintiff was not diligent and was guilty of laches and also because there was no evidence as to the damages suffered by the plaintiff. There is ample authority for the contention that the Court can itself award damages or order enquiry to be made - Mrs. Flora Sassoon Vs. Ardeshir H. Mama, and - Kr. Shushilendra Pal Singh Vs. B. Kailash Chand Bhargava and Others, The plaintiff was, in my opinion, entitled to damages. There is, however, no evidence as to the loss actually suffered by the plaintiff. The plaintiff did not come to Court till there had been an appreciable rise in the level of the prices. Apparently in 1939 the plaintiff did not suffer much loss by the defendants'' failure to execute the sale-deed. In these circumstances, only nominal damages can be awarded. I fix the amount at Rs. 25/- (rupees twenty-five) only.

An objection has been taken by the learned counsel for the respondents that the appeal is incompetent inasmuch as Mewalal who was defendant 2 in the suit is no party to the second appeal. Respondent 1 is described as ''Tejmal, son of Bherunji (died) represented by Mewalal son of Tejmal. Tejmal having died could not be made a party to the appeal. Mewalal is a party. The correct description would have been ''Mewalal on behalf of himself and as representing Tejmal''. The mistake however, is in my opinion, not material.

The learned counsel has referred me to the decision of this Court in - ''Prabhu Dayal v. Prabhulal", AIR 1954 Ajmer 74 (Q), - The Governor-General in Council Vs. T.M. Krishnaswami Pillai, In my opinion, neither helps the case of the learned counsel for the respondents. I am not prepared to attach any considerable weight to this technical objection.

No other point has been pressed before me.

Accordingly, I accept the appeal in part and direct that the plaintiff shall be granted a decree for Rs. 25/- only (rupees twenty-five) as damages in addition to the decree for the refund of the advance of Rs. 50/- (rupees fifty). In the appeal, the parties will bear their own costs.

The cross-objection is dismissed with costs to appellants.