Rajinder Singh vs Major Singh

S.P. Goyal, J.—A decree for specific performance of the agreement of sale of the land in dispute was passed in favour of the Respondent and against the Petitioner with the condition that the Plaintiff shall deposit the remaining amount of Rs. 9,600/- upto September 30, 1980 whereupon the Defendant shall execute the sale deed by October 15, 1980. As the Respondent failed to make the deposit within the stipulated period, the Petitioner moved an application for rescission of the contract on January 27, 1983. During the pendency of this application, the Respondent moved an application on April 20, 1983 for extension of the time for the deposit of the said money and deposited the same in the Court on June 8, 1983. The trial Court, allowing the application of the Respondent, extended the time for deposit upto June 8, 1983 when the deposit was actually made and dismissed the application of the Petitioner by a common order dated October 18, 1984. Aggrieved thereby, the Defendant has come up in this revision.

The learned Sub Judge extended the time relying on a decision of the Supreme Court in K. Kalpana Saraswathi Vs. P.S.S. Somasundaram Chettiar, . The facts and circumstances of that case, however, were totally different and peculiar. There, the Plaintiff, instead of depositing the mortgage money in the Court, paid it directly to the bank and got the mortgagee rights assigned to herself. The plain-tiff, thus, had paid the money to the mortgagee directly instead of depositing in the Court. As it was found to be a dubious move on her part, so the Court burdened her to make a fresh deposit with eleven per cent interest. The decision rendered in that case obviously does not provide any guidance so far as the present case is concerned and the trial Court misdirected itself in relying thereon.

In the present case, the amount was to be deposited by September 30, 1980, but the Respondent was arrested in a murder case on September 19, 1980. The ground for extension urged by the Respondent was that the money which had been procured for deposit in the Court, he had to spend on his defense. This hardly could provide any sufficient reason for the extension of time. It is an admitted fact that the Respondent was owner of two parcels of land which he had purchased for Rs. 15, 000/-and Rs. 30,000/- respectively prior to the present suit. He, therefore, had enough assets in his hand from which he could raise the amount required to be deposited. He was released on parole twice, once from July 21 to August 5 and then from October 18 to November 2, 1982 and was finally released on November 10, 1982. Even while confined to jail, he could very well arrange for the requisite money and move for the extension of time. Thereafter neither during the parole period nor within a reasonable time from his release, he moved for the extension of time. No reason whatsoever has been shown for moving the application after more than five months of his release. The facts and circumstances to constitute a sufficient case must be such which are beyond the control of the party concerned. No such situation was available here and the Plaintiff, if had the desire to seek an extension and make the deposit, had ample opportunity to so do even prior or soon after the date fixed for making the deposit, but he never cared to take any steps in this regard. None of the above facts having been taken into consideration, the trial Court failed to exercise its discretion in a judicious manner. The learned Counsel for the Respondent, relying on Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, . however, urged that the impugned order being discretionary, cannot be interfered with in exercise of the revisional jurisdiction of this Court. Even in the case relied upon by the learned Counsel, the delay had been condoned holding that there was sufficient cause for condoning the delay. The finding having been based on relevant considerations, it was ruled that the High Court had no jurisdiction to reverse the order in exercise of its revisional jurisdiction. In the present case, as already observed above, the discretion has not been exercised in a judicious manner and the time was extended relying on the Supreme Court judgment which had absolutely no bearing on the facts of the present case.

Consequently, the revision is allowed and the order allowing the extension of time reversed. The application filed by the Defendant is accepted and the contract rescinded. The case would now go back to the trial Court for passing an appropriate order u/s 28 (2) of the Specific Relief Act after affording the opportunity of hearing to the parties.