# SANDHYA RANI SARKAR v. SUDHA RANI DEBI AND ORS

- **Citation:** [1978] 2 S.C.R. 839
- **Court:** Supreme Court of India
- **Decided:** 1978-02-14
- **Case number:** Civil Appeal No. 1389 of 1976
- **Bench:** M. H. Beg, Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sandhya-rani-sarkar-v-sudha-rani-debi-and-ors-7438
- **Pages:** 17

## Headnote

Comtitution of India, 1950, Article 136-lnterference by Supreme Court,
when condonation of delay was ordered by the Court, exercising its db.ere·
tionary powers and H•hen sufficient cause has been shown, propriety-Limifa,.
tion Act (36 of 1963 ), 1963, S. 5.
A
B
Civil Procedure Code, (Act 5 of 1908), Section
2(2)--Decree-Pre/ilni·
nary decree-Decree passed in a suit for specific performance of- contract of
sale of immovable property callin!? upon the purchaser to deposit the balance
C
of consideration within the time stipulated in decree' with superadded condf ..
tion that in the event of default, the suit would be dismissed is not aj preli·
1ninary decree.
Limitation Act (36 of 1963 ), Section 5-Condonation of delay-Amend·
ment of decree-Decree in a suit for specific performance of contract for the
sale of immovable property calling upon the. purchaser to deposit balance of
consideration within the time stipulated in decree-Order ,extending time to
deposit the balance of consideration would not result in amending the decree.
Specific Relief Act (47 of 1963), •Section 16(b) and {c)-Specific performance of contract-Decree for specific performance! refused.
A contract for Sale of premises No. 88·A Rash 1Behari Avenue, Calcutta
was entered into between the appellant and deceased Smt. Paribala Das on
8·2·1956 for a consideration of Rs. 46,000/·. The agreement for sale Ex.I,
recites that Rs. 1001/. were paid as earnesti money and subsequently
the
defendant vendor received a further sum of Rs. 2000/. J'rom the plaintiff
intending purchaser. Parties had agreed to complete the transaction by the
end of April '56.
The appellant was put in actuGJ possessi.on of the 1st and
2nd floors of the premises by the defendant vendor in her anxiety to complete
her Part of the cO!ltract, but the appellant was seeking time on so1ne pretext
or the other and ultin1ately filed a suit for specific performance on 28th
January 1957, alleging non·performance by the vendor defendant. The trial
Court decreed the suit on 30th April, 1962, styling it as preliminary decree.
The defendant vendor was directed tto execute and register the deed of sale
in favour of the plaintiff on receipt of the amount stated in the order within
30 days of date failing which the plaintiff appellant was directed to file in
Court, within 15 days after the expiry of 30 days, the draft of conveyance
with stamp therefor. The decree was drawn up on 15·5·1962. The appellant
did not comply with the terms of the decree but sought some directions from
the Court regarding the excess land and a Commissioner was appointed on
14-5-1964. On 26-8-65, the Court directed the plaintiff appellant to deposit
the amount in Court by 22·9·1965; but the appellant filed a revision appli·
cation before the High Court which was dismissed on 8-1-1968. The High
Court granted 3 weeks' time for depositing the amount and again further
time till 8-2-1968. The appellant deposited the money on 6-2-68 and thereupon the vendor defendant No. 1 made an application on ·25·3·1968 request·
ing the Court to draw the final decree so as to enable her to prefer first
appeal. This application was rejected by the Court on 27th March 1968, and
thereafter she preferred First Appeal to the High Court on 11-4-1968 and
filed an application for condonation of delay, if any, on 8·8·1972.
The High Court held that the appeal was barred by limitation; but on the
facts of the case condoned the delay as sufficient cause having been shov.rn,
and examined the appeal on merits and allowed the appeal.
D
E
F
G
H
840
SUPREME
COURT
REPORTS
[1978] 2 S·C·R·
A
Dismissing the plaintiff's appeal, ,by special leave, the Court
B
c
D
E
F
G
H
HELD
(1) '(a) Discretion is conferred on the Court. before which an
application for condonation of delay is made and if the Court after keeping
in view relevant principles exercises its discretion granting relief unless it is
shown to b-e mrinifestly unjust or perverse the Supreme Court would be loathe
to interfere \

## Text

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•
839
SANDHYA RANI SARKAR
v.
SUDHA RANI DEBI AND ORS.
February 14, 1978
[M. H. BEG, C. J. AND D. A.,DESAI, J.J
Comtitution of India, 1950, Article 136-lnterference by Supreme Court,
when condonation of delay was ordered by the Court, exercising its db.ere·
tionary powers and H•hen sufficient cause has been shown, propriety-Limifa,.
tion Act (36 of 1963 ), 1963, S. 5.
A
B
Civil Procedure Code, (Act 5 of 1908), Section
2(2)--Decree-Pre/ilni·
nary decree-Decree passed in a suit for specific performance of- contract of
sale of immovable property callin!? upon the purchaser to deposit the balance
C
of consideration within the time stipulated in decree' with superadded condf ..
tion that in the event of default, the suit would be dismissed is not aj preli·
1ninary decree.
Limitation Act (36 of 1963 ), Section 5-Condonation of delay-Amend·
ment of decree-Decree in a suit for specific performance of contract for the
sale of immovable property calling upon the. purchaser to deposit balance of
consideration within the time stipulated in decree-Order ,extending time to
deposit the balance of consideration would not result in amending the decree.
Specific Relief Act (47 of 1963), •Section 16(b) and {c)-Specific performance of contract-Decree for specific performance! refused.
A contract for Sale of premises No. 88·A Rash 1Behari Avenue, Calcutta
was entered into between the appellant and deceased Smt. Paribala Das on
8·2·1956 for a consideration of Rs. 46,000/·. The agreement for sale Ex.I,
recites that Rs. 1001/. were paid as earnesti money and subsequently
the
defendant vendor received a further sum of Rs. 2000/. J'rom the plaintiff
intending purchaser. Parties had agreed to complete the transaction by the
end of April '56.
The appellant was put in actuGJ possessi.on of the 1st and
2nd floors of the premises by the defendant vendor in her anxiety to complete
her Part of the cO!ltract, but the appellant was seeking time on so1ne pretext
or the other and ultin1ately filed a suit for specific performance on 28th
January 1957, alleging non·performance by the vendor defendant. The trial
Court decreed the suit on 30th April, 1962, styling it as preliminary decree.
The defendant vendor was directed tto execute and register the deed of sale
in favour of the plaintiff on receipt of the amount stated in the order within
30 days of date failing which the plaintiff appellant was directed to file in
Court, within 15 days after the expiry of 30 days, the draft of conveyance
with stamp therefor. The decree was drawn up on 15·5·1962. The appellant
did not comply with the terms of the decree but sought some directions from
the Court regarding the excess land and a Commissioner was appointed on
14-5-1964. On 26-8-65, the Court directed the plaintiff appellant to deposit
the amount in Court by 22·9·1965; but the appellant filed a revision appli·
cation before the High Court which was dismissed on 8-1-1968. The High
Court granted 3 weeks' time for depositing the amount and again further
time till 8-2-1968. The appellant deposited the money on 6-2-68 and thereupon the vendor defendant No. 1 made an application on ·25·3·1968 request·
ing the Court to draw the final decree so as to enable her to prefer first
appeal. This application was rejected by the Court on 27th March 1968, and
thereafter she preferred First Appeal to the High Court on 11-4-1968 and
filed an application for condonation of delay, if any, on 8·8·1972.
The High Court held that the appeal was barred by limitation; but on the
facts of the case condoned the delay as sufficient cause having been shov.rn,
and examined the appeal on merits and allowed the appeal.
D
E
F
G
H
840
SUPREME
COURT
REPORTS
[1978] 2 S·C·R·
A
Dismissing the plaintiff's appeal, ,by special leave, the Court
B
c
D
E
F
G
H
HELD
(1) '(a) Discretion is conferred on the Court. before which an
application for condonation of delay is made and if the Court after keeping
in view relevant principles exercises its discretion granting relief unless it is
shown to b-e mrinifestly unjust or perverse the Supreme Court would be loathe
to interfere \vith it.
[847 C-D]
(b) It is un'doubt$!dly true that in dealing \vith the question of condc\1ing the delay under.section 5, the party seeking relief has to satisfy the Court
that he had sufficient cause for not preferring the appeal or
making
the
application within the prescribed time and this has always been understood
to mean that the explanation has to cover the , whole period of delay.
However, it is not possible to lay down precisely as to what futs or matters would
constitute "sufficient cause'' under Section 5.
But those
words
Would
be
liberally construed so as to advance substantial justice when no negligence
or any inaction or want of bo11a fides is imputable to a party i.e. the delay
in filing an appeal should not have been for reasons which indicate
the
party's negligence in not tnking necessary ·-steps which he would have
or
should have taken.
What \Vould be such necessary steps iwill again depend
upon the circumstnnces of a particular case.
[847 A-C]
Sifarant Ramacliaran v. M. N. Nagarashana, [1960] 1 SCR 875 @
889
=A.LR. 1960 SC 260 @ pp. 265-66; State of West
Bengal v.
Adrninistrator, Howrah Municipality, [19721 2 S.C.R. 874 ::::: A.LR. 1972 S.C. 749, relied
on.
(c) In the instant case. the High Court took into consideration the fact
that no affidavit in opposition to the application for condoning delay was filed
even though a copy of the application \Vas served on the respondent before
the High Court and accordingly it was concluded that averments in the
application remained unrebutted.
The High Court also took into consideration the relevant fact that plaintiff sought extension of time to deposit balance
of consideration from time to time and this is important because if the deposit
was .not made the suit for specific performance of contract was liable
to
be dismissed as per the decree· of the trial court as well as the order of the
High Court in earlier revision application.
The High Court recapitulated
the events since the judgment of the trial Court and concluded that it was
satisfied that the appellant before it had sufficient cause for nOt preferring the
nppeal within the period as prescribed in la'v and accordingly condoned the
delay in preferring the appeal.
These are vital and relevant consideratio•ns,
\vhile considering the prayer for condoning the delay in preferring the appeal
and thus no case }-:.n!; been made out for interfering with the sa·mc. {847 E-G]
(d) To contend that_..,nssuming that there 'vas delay' on the part of the
plaintiIT in Perforn1ing p.er part of the contract once she was put in possession
Of a substantial portion Of the property, \Vhich \Vas· intended to be purchased
a decree for specific performance should not be refused is not always correct
and again it depends on lhe facts of each case. [850 G-H]
~Villian1s v. Greatrex. [1956] All. E.R. 705 quoted with approval,
2. (a) Tn a suit for specific performance of contrnct for sr.te of immovable property it is incumbent upon the plaintiff to affirmati,;ely establish that
all throughout he or she, as the casei may Pe, was \Villing to perform bis or
her part of the ,contract, and that the failure on the part of the 'plaintiff to
petform the contract or willingness to perform her part of the contract may
in an appropriate case disentitle her to relief, one such situation being where
there is ·inordinale ·delay on the part of the plaintiff to perform his or her
'part of the contract. [849 B-Cl
(b) The question 'vhether relief .of specific performaTice of the contract
for 'the purchase of immovable property should be granted or not always
depends on the facts and circumstances of each case and the Court would
not grant such a relief if it gives the plnintlff (an unfair advantage over the
defend•nt. [850 A-BJ
'
•
SANDHYA RANI v. SUDHA RANI (Desai, !.) .
841
(c) In the instant case, by the terms of the contract the. Yeondor had to
put the purchaser in possession of the. property when conveyance is executed and balance of consideration is paid 1and that was to be done by the end
of April 1956. Even though the plaintiff purchaser had failed to perform
any portion of her part of the contract by the end of April 1956, the vendor
put the plaintiff in actual possession of the first and second floors of the
premises to be sold pn 28th April 1956, and the plaintiff is in possession of
the same till today that is after a lapse of more than 20 years.
On the other
hand he deposited after struggle and procrastination the balance of consideration on· 6th Febru:i1ry 1968 that is nearly 12 years after the date of agreement. The plaintiff thus enjoyed actual '\Possess.ion of the property from
April 1956 to February 1968 when she parted with consideration without
paying a farthing for the use and occupation of the premises which, on a
reasonable
construction
of the ccntract, she was not entitled to at all, till
she parted with the full consid'eration and took the conveyance. The stages
within which the contract was to be completed were actually demarcated,
and set out in the contract itself and: by the land of April 1956, the· transaction
was to. be completed. In her anxiety to see that the transaction was completed, the defendant vendor put the plaintiff in possession of a substantial
portion of the property even when the plaintiff had not paid a major part
of the consideration. The procrastination on the part of the :plaintiff put the
defendant in such a disadvantageous position that she was forced to sell the
adjacent property to raise enough money to pay off the dues in respect oil
the properly which the plaintiff desired to purchase. [849 D·H, 850 E-FJ
(d ) The High Court was justified in refusing the decree for specific performance of the contract, on the ground that while the defendant did everything within her power to meet the requests made by the plaintiff, the latter
avoided performing her part of the contract under one or the other pretext.
[850 F-G]
(e) The contract was to be completed by April 1956. It was not completed till 1957, even though the defendant after satisfying the queries of
the plaintiff fixed different dates on different occasions calling upon the plaintiff to complete the transaction.
Thereafter the plaintiff filed a
suit. The
suit was decreed on 30th April 1962. The Plaintiff by that decree
was
called upon to deposit. the balance of consideration within 30 days of the date
of the decree. She did not deposit the amount by the stipulated date. She
asked for extension of time. lIL fact, it prominently appeared /that the plaintiff put off performing her part of the contract presumably because she had
not the necessary wherewithals to take the conveyance when she could be
obliged to pay the balance of consideration and having obtained possession
hung on to it without meeting her obligation. If in this background
the
High Court interfered within the decree of the trial Court, there was nothing
objectiona.ble in it. [853 C-G]
Jitendra Natl! Roy v. Smt. Malieshwari Bose, A.f.R. 1965 Cal. 45, Bank of
India Lrd. v. Jamsetj,i A . H . Chinoy and' A.nr., 77 IA, 76 discussed.
3. To assert that the decree made in a .suit for specific performance :of
contract for sale of immovable property calling upon the purchasers to deposit
the balance of consideration within the time stipulated in the decree with
super ;added condition that in the event of default the suit would stand dis·
missed, is a preliminary decree, is to ignore the relevant provisions of the
Code of Civil Procedure which require in certain types- of suits to pass preliml··
nary decree. Such a suit when contested, each party would be accusing the
opposite party of committing breach of contract.
TJie
right to
ask
for
specific performa•nce of contract would be adjudicated
ur.~1n and i•.1 fact in
this case it was adjudicated upon. The trial court did call .upon the defendant to execute the conveyance on receipt of consideration. Such a decree
could never be said to be preliminw:y decree. [841 E·OJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1389 of 1976.
Appeal by Special Leave from the Judgment and Order dated
6-6-74 of the Calcutta High Court in Appeal from Original Decree
No. 1056 of 1968.
·
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B
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D
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G
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842
SUPREME
COURT
REPORTS
[1978] 2 s.c.R
A
Purushottam Chatterjee and Rathin Das, for the Appellant.
0. M. Mukherjee and N. R. Chowdhury, for the Respondents.
The Judgment of the Court was delivered by
~ESAI, J.-This appeal by special leave by the original plaintiff
questions the correctness of the decree dismissing her suit for specific
B
performance of contract for sale of premises No. 88-A, Rash Behari
A venue, Calcutta, entered into between her and deceased Smt. Paribala
Das on 8.th February 1956 for a consideration of Rs. 46,000/-. The
agreement of sale, Ext. I, recites that Rs. 1001/- were paid as earnest
money ani:J subsequently the defendant vendor received a further sum
of Rs. 2,000/ - from the plaintiff intending purchaser. Various terms
of agreement would be referred to in the course of this judgment. The
C
plaintiff filed the suit for a decree for specific performance of the contract alleging that even though she is ready and willing to perform
her part of the contract the defendant No. 1 has not completed the transaction and, therefore, a decree for specific performance should be made
in favour of the plaintiff. In this suit she impleaded vendor defendant
No. 1 and her son Hrishikesh Das as defendant No. 2. The suit was
D
E
resisted by the defendanfs, inter alia, contending that the plaintiff was
not ready and willing to perform her part of the contract more particularly saying that the vendor was in urgent need of money to pay off the
mortgage debt and, therefore, she had entered into contract for sale
of property and that time was of the essence of the contract and yet
the plaintiff under one or the other fa)se pretext put off performing
her part ot the contract so that the vendor was compelled to sell another
valuable property bearing No. 86-A, Ra$h Behari A venue, Calcutta.
The trial Court after an elaborate examination of the evidence decreed
the suit on 30th April 1962 directing "defendant No. 1 to execute and
register a deed of sale in favour of the plaintiff in respect of the premises No. 88A, Rash Behari Avenue, Calcutta, on receipt of the balance
of consideration of Rs. 42,999 and a further sum of Rs. 500 if there
be an excess land of 1 cottah 88 sq. ft. beyond 2 cottahs 2 cbittaks
38 sq. feet or any money proportionate to the extent of the excess land,
F
amicably within 30 days, of date, failing which the plaintiff do deposit
in Court the consideration thus due, toge~her with the cost of execution
and registration and the draft of the conveyance with stamp for the
conveyance within 15 days of the expiry of that 30 days for having
the conveyance executed and registered through Court. . . . In case
of default on the part of the p~aintiff in complying with the above
order the suit shall stand dismissed with costs and that the sum of
Rs. . . . . be paid by the . . . . to the . . . . on account of the costs
G
B
of this suit, with interest thereon at the rate of ...... per cent per
annum from this date to date of realii;ation". The decree in terms of
the operative portion hereinabove mentioned was drawn up on 16th
May 1962. Since the date of the decree certain events occurred whici1
would be noticed while examining the first contention on behalf of the
appellant herein. Suffice it to say that the vendor preferred first appeal
to the High Court of Calcutta on 11th April 1968. When the appeal
appeared on the cause list and was taken up for hearing, an appli~a
tion under s. 5 of the Limitation Act supported by an affidavit was
.... __
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\
/
- -t
SANDHYA RANI v. SUDHA RANI (Desai, J.)
843
I filed on 8th August 1972 requesting the Court that in case the appeal
A
is found to be barred by limitation the appellant- before the High Court
was prevented by a sufficient cause from preferring the appeal in time
and, therefore, the delay should be condoned. The application for condonation of delay and the appeal were heard together and the High
Court while holding that the appeal was barred by limitatlon, was
further of the opinion that the vendor appellant before it was pre-
, vented by a sufficient cause from preferring the appeal in time, and
B
accordingly condoned the delay. On merits, the High Court held thaf
the vendor was always ready and willing to perform her part of tile
contract but the plaintiff purchaser u~der one pretext or the other
deferred performing her part of the contract beyond reasonable time
and was, therefore, not entitled to a decree for specific performance.
Ac~r~ingly, the ~igh. Court allow~ the appeal and dismissed the
C
plaintiff purchaser s smt. Hence this appeal by the plaintiff purchaser.
The first contention raised on behalf of the appellant is that the
appeal before the High Court preferred by the respondent vendor was
barred by limitation and the vendor bad failed to make out any cause,
much leis a £ufficient cause, preventing her from preferring the appeal
in time and the High Court was in error in exercising the discretion
D
condoning the delay and admitting the appeal to file.
On behalf of
the vendor rCipondent it was submitted that the appeal before the
High Court walil in time and at any rate the discretion exerci'sed by the
High Court could not be styled as perverse or unreasonable and this
Court shOuld not interfere with the same. Simultaneously, it was submitted that tho material on record would unquestionably establish that
the appellant before the High Court was prevented by a sufficient cause
E
from preferring the appeal in time.
Some relevant and material dates may now be noticed. Agreement
of 'sale, Ext. I on which suit was founded was executed on 8th February
1956. Suit for specific perfonnance of this agreement was instituted
on 28th January 1957. It was decreed on 30th April 1962. The
decree was drawn up on 25th May 1962, the first appeal was preferred
p
on 11th April 1968. An application under s. 5 of the Limitation Act
supported by an affidavit was presented on 8th August 1972. There
are certain events that occurred after the decree was drawn up on 25th
May 1962 and before 11th April 1968 when appeal was preferred by
the vendor of which brief note would be necessary.
The material
portion o.f the decree has been set out in extenso above and at first
glance it would appear that the purchaser had to pay the amount therein
G
mentioned to the vendor within 30 days from the date of the decree
and the vendor had to execute the deed of conveya,nce failing which
the amount was to be deposited in the Court within 15 days from the
expiry of the first mentioned 30 days and submit the draft of conveyance
to the Court for getting it executed and registered through the Court.
The decree further directed that if the purchaser failed to deposit the
amount within the stipulated time the suit would stand dismissed. The
H
vendor interpreted the decree to be a preliminary decree and awaited
the purchaser to perform her part of the decree by depo'siting the amount
in the Court. The purcha11er failed to deposit the amount within the
844
SUPREME
COURT
REPORTS
[1978) 2 S·C·R•
A
stipulated time but ~n 14th June 1962 she sought iOtne directions from
the Co~rt for makmg the deposit. There was some dispu~e between
· the parties abou! ~he. extra ~and which was to be sold and its price. An
or~er . was made by the tnal Court on 14th May 1964 directing the
plamt1ff ~urchaser to take steps for appoin_tment of a Commis~ioner
to determme the area of extra land and the price to be paid for such.
l~nd ~nd she W?~ required to take steps by 22nd May 1965. A further
B
dJrect~on was given on 26th August 1965 directing the plaintiff to·
deposit Rs. 42999 plus Rs. 500 by 22nd September 1965 'pursuant to·
the maps and report submitted by the Commissioner.
Plaintiff purchaser preferred Civir Revision Application No. 3195 of 1965 challeng·
ing the repor~ of the Commissioner and the direction of the Court.
The Civil Revision Application was dismissed by the High ·Court on
~th January 1968 and the High Court simultaneously extended the timeC
for depositing the balance of consideration by three weeks from the:
date of the order making it conditional that in the event of default the
suit would stand dismissed. This order wa·s modified by the High Court
on 2nd February 1968 extending the time to make the deposit till 8th
February 1968 retaining the original condition.
The purchaser deposited the balance of consideration on 6th February 1968 whereupon
the vendor defendant No. 1 made an application on 25th March 1968
D
requesting the Court to draw the final decree so as to enable her to
prefer first appeal. This application was rejected by the Court on 27th
March 1968 and thereafter the appeal was preferred to the High Court
on 11th April 1968. As stated earlier, an application reque'sting the
Court to condone the delay in preferring the appeal was filed on 8th
Augu~t 1972.
Ef.
°The appeal against the decree dated 30th April 1962 preferred on
11th Ap):'il 1968 was obviously barred by limitation. To assert that
the decree made in a suit for specific performance of contract for sale
of immovable property
calling upon the purchaser to
deposit the
balance of consideration within the time stipulated in .the decree with
super added. cc ndition that in the event of default the suit would stand
dismissed, is a preliminary decree, is to ignore the relevant provisions
·F
of the Code of Civil Procedure which require in certain types -of suits
to pass preliminary decree.
Such a suit when contested, each party
would be accusing the opposite party of committing breach of contract.
The right to ask for specific performance of contract would be adjudicated upon and in fact in this case it was adjudicated upon. The trial
court did call upon the defendant to execute the conveyance on receipt
of consideration. Such a decree could never be said to be preliminary
G
decree. If defendant vendor was contesting the right of the plaintiff to
ask for 'specific .performance and that was concluded adverse to her
and if the vendor wanted to challenge the finding, -it was incumbent
upon her to prefer an appeal within the prescribed period of limitation.
Similarly, it is also not possible to entertain the contention that the
orders extending the time to deposit the balance of consideration would
result in amending the decree and as the appeal is preferred after such
H
last amendment the appeal would be in time. Reliance was placed on
Sm. Soudrimini Das v. Nabalak Mia Bhuiya and others,( 1) but that
(1) A.1.R. 1931 Calcutta 578.
·-
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·I
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(
SANDHYA RANI v. SUDllA RANI (Desai, !.)
845
decision would no! assist the respondent and in fact the High Court
treated that fact as sufficient ~or extension of time under s. 5. The
decision in Jagat Dhish Bhargava v. Jawarhar Lal
Bhargava and
others( J) proceeds on the basis that litigant deserves to be protected
against the default committed or negligence shown by the Court or its
officers in the discharge of their duties. In that case litigant had applied
for certified copy of the decree ·soon after judgment was pronounced
but as the certified copy was not given, appeal was filed without producing certified copy of the decree and it was contended that under
the relevant rules appeal was not competent. Such is not the case.
Present respondent, if she wanted to question the clecre~ directing her
to execute conveyance, ought to have preferred appeal against the decree
dated 30th April 1962. That has not been done a,nd obviously the
appeal preferred on 11th April 1968 was barred by limitation.
The High Court rightly held that the appeal was barred by limitation, and then proceeded to examine the submis'sion of the appellant
before it that the appellant was prevented by a sufficient cause from
preferring the appeal in time and the delay should be condoned. The
High Court having examined all the relevant materials placed before
it, has exercised its discretion in favour of the appellant by condoning
the delay and admitting the appeal to file. In the facts and circumstances of this case, could it be said that the High Court committed an
error in exercising its discretion in favour of the appellant before it ?
At the outset it was urged that the cause shown by the respondent
which prevented her from preferring the appeal in time is not the one
accepted by the High Court, but the High Court has made out entirely
a different ground not pleaded for condoning delay. We have gone
through the application filed by the appellant before the High Court
praying for condoning delay. It was asserted that the appeal, is within
time and alternatively it was prayed that delay, if any, be condoned.
The High Court examined both limbs of the contention. We see no
contradiction in what is stated in the application and what the High
Court found as a fact. The contention i's that decree was a preliminary
decree and on deposit it became a final decree. Alternatively it was
contended that various events that occurred since the decree did create
an impression in the mind of the vendor appellant that till the balance
of purchase price was deposited the right to tile an appeal did not arise
and that a final decree would be made. That was pleaded and that
has been a::cepted. Therefore, there is no merit in this con:ention.
Very serious exception is taken to one observation of the High Court
that an application for condoning the delay was submitted simultaneously with filing the appeal though in fact it was done nearly four
years after filing of the appeal, and that -the office of the High Court
was misled by certain _averments made in the Memo of Appeal which
the Registry prima facie accepted and numbered the appeal without
insisting upon an application for condonation of delay or bringing that
fact to the notice of the Court on whose cause list the appeal was
listed for admission. Now, it is undoubtedly true that the application
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(1) A.T.R. 1961 S.C. 832.
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A for condoning the delay was i:nade OJ! 8th August 1972 and there is
some factual error in· stating in the judgment that the application was
simultaneously filed with the appeal. But this aspect is not very material as the delay had to be explained till the date of filing of the appeal
and not at any rate after filing of the appeal or till the application for
condoning the delay was made. It is true that in the Memo of
Appeal it has been stated that the appeal is directed against the judgB
ment and decree dated 30th April J962 as amended and/or modified by
orders dated 8th January 1968 and 2nd February 1968.
The averments are factually correct and, therefore, it could not be said that they
were made with a vie~ to misleading the Registry of the High Court.
By the ~ecree dated _30th April 1962 purchaser was. p~cted to
deposit the balance of consideration within the stipulated time and
at the request of the purchaser the time was first extended by the
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trial Court and then by the High Court in Civil Revis.ion Application
No. 3195 of 1965 on two different occasions, viz.; on 8th January 1968
and 2nd Febru~ry 1968. Therefore, no exception can be taken to
those avertments which are factually correct though the appeal would
lie obviously against the decree dated 30th April 1962. It, however,
appears that as the appeal was numbered and was even admitted, though
the application for condoning delay was not made till the appeal was
D placed on the cause list and was adually taken up for hearing when
an objection was raised that the appeal was barred by limitation. It
is obviously at that stage that the application for condoning delay was
made.
. The appellant before the High Court did honestly believe that the
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decree was a preliminary decree and only after the deposit as directed
th~rein was made by the plaintiff purchaser that ~ final decree would
be made; The learned trial judge has also styled it as a preliminary
decree.
Subsequent steps which have been listed in detail above clearly
show that the plaintiff purchaser did not deposit the amount and in
fact got a Commissioner appointed for determining the area of excess
Ian~ and when the repO!t of the Commissioner was accepted by the
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trial Court, that decision was questioned by the plaintiff- in Civil Revision
No. 3195/65. If since the decree the plaintiff sought extension of
time for depositing the amount which was the obligation imposed by
the decree the performance of which will make the decree executable
against judgment-debtor, the judgment-debtor may honestly,
though
erroneously, believe that there was no decree against which she could
appeal unless the deposit was made.
The decree also provided that
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failure to deposit would entail dismissal of the suit.
The defendant may
honestly believe that if the consideration is not deposited the suit would
stand dismissed and it would not be necessary to prefer an appeal at
all.
Such a contention may. not stand the scrutiny of a law Court but
the question to which we must address ourselves is whether the denfendant vendor on account of this peculiar situation could be said to be
prevented by a sufficient cause from preferring an appeal in time ?
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Soon after the deposit was made she first requested the Court to draw
up a final decree which request was turned down and she immediately
preferred the appeal.
These are relevant considerations while examining a request for condoning the delay in preferring an appeal . and on
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SANDHYA RANI v. SUDHA RANI (Desai, J.)
847
these relevant considerations if the High Cour.t is satisfied simultaneously
keeping in view the conduct of the plaintiff since the date of the decree,
a case for condoning t}le delay is made out, and no exception can be
taken to it. It is undoubtedly true that in dealing with the question
of condoning the delay under s. 5 of the Limitation Act the party
see)cing relief has to satisfy the Court that he had sufficient cause for
not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the e4planation has to cover the whole period of
delay,
vide
Sitaran~
Rancharan etc. v. M. N. Nagarshana & Others( 1). However, it is not
possible to lay down precisely as to what facts or matters
would
constitute 'sufficient cause' under s. 5 of the Limitation Act.
But those
words should be liberally construed so as to a_dvance substantial justice
when no negligence or any inaction or want of bona fides is imputa\Jle
to a party, i.e., the delay in filing an appeal should not have been for
reasons which indicate the party's negligence in not taking necessary
steps which he would have or should have taken.
What would be
such necessary steps will again depend upon the circumstances of a
particular case (vide State of West Bengal v. Administrator, H!YWrah
MuniCipality and others('). Discretion is conferred on the Court
before which an application for condoning delay is made and if the
Court after keeping in view relevant principles exercises its discretion
granting relief unless it is shown to be manifestly unjust or perverse,
this Court would be loathe to interfere with it.
The High Court took into consideration the fact that no affidavit
in o_pposition to the application for condoning delay was filed even
though copy of the application was served on the present appellant who
was respondent before the High Court and accordingly it was concluded that averments in the application remained unrebutted. The
High Court _also took into consideration the relevant fact that plaintiff
spught extension of time tci deposit balance of consideration from time
to time and this is important because if the deposit was not made the
suit was likely to be dismissed as per the decree of the trial Court as
well as the order of the High Court in Civil Revision Application No.
3195 of 1965. The High Court recapitulated the events since the judgment of the trial Court and concluded that it was satisfied that the
appellant before it had sufficient cause for not preferring the appeal
within the period as prescribed in law and accordingly condoned the
delay in preferring the ap11eal.
In our opinion these are vital and
relevai;it considerations whll~ considering the prayer for condoning the
delay m preferring the appeal and no case is made out for interfering
with the same.
And now to the merits of the contentions raised in the appeal.
Plaintiff's suit for specific performance had been decreed by the trial
Court and on appeal by the vendor _defendant, the suit has been dismissed.
Plaintiff is here be.fore us praying for a decree for specific
(I) [19701 I S.C.R. 875 at 889.
(2)
(19721 2 S.C.R. 874.
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performance of the contract.
Let it be recalled that the contract of
which plaintiff seeks performance is dated 8th February 1956 and the
parties ·had agreed to complete the transaction by the end of April
1956.
The contract provided that within a week from the date of
the agreement the vendor shall give to the purchaser for proper inspection all original documents of title and other papers connected therewith
and necessary information and the purchaser shall within a period of
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one and half months from such inspection of the documents lJcnd other
papers and receipt of other particulars and information complete her
searches in respect of the property and the vendor's title being proved
good and marketable Jo the satisfaction of the purchaser the deed of
conveyance will be executed and registered within fifteen days _thereof
in favour of the purchaser or her nominee or nominees at tlie cost of
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the purchaser or such nominee or nominees.
The vendor also agreed
and undertook to deliver to the purchaser vacant and peaceful possession of the property to be sold with the execution of the deed of con-
· veyance.
Keeping in view these important terms,
Mr. Purshottam
Chatterjee contended that the High Court was in error in holding that
the vendor complied with all the requests of the purchaser and it was
submitted that the vendor had committed a default in complying with
the requests. It was submitted that the plaintiff purchaser wanted to
inspect title deeds as evidenced by Ext. 2 dated 17th February 1956
to which a reply was sent on behalf of the defendant vendor that these
documents were filed in title suit No. 10 of 1956 and were jyiiig in
the Third Court of the Sub-Judge at Alipore and that it was as late
as 9th August 1956 that the defendant vendor asked the purchaser
to inspect the documents in the Court and also failed either to produce the original documents or certified copies as undertaken in the
contract for_ sale of property. It was, therefore, contended that the
vendor committed a breach of the terms of the agreement wnen she
failed to produce the title deeds for inspection of the purchaser within
the prescribed time schedule. It appears that the cpntention in the
form it was canvassed before ns was not ra)sed before the High Court.
Nor does it appear to have been contended before the trial Court.
However, it must be stated that in a slightly different form this contention was pressed before the trial Court in support of the submission that the plaintiff was entitled as per terms of the contract to one
foot of land to the north of the property to be purchased and the trial
Court which had in fact decreed the plaintiff's suit, had on this point
held against the plaintiff.
Mr. Mukherjee for the respondent submitted that title was approved by the plaintiff by 30th April 1956 and
then she was put in possession of a substantial portion of the premises.
At any rate, during the extended period the title of the vendor was
accepted by the plaintiff and the draft of conveyance deecj prepared by
her attorney was accepted by the vendor and yet the plaintiff failed to
take conveyance by the date next fixed for the same and-raised an
untenable controversy about 1 foot of land to the north of the property
to be sold to her.
Therefore, even if vendor failed to submit title
deeds in time it loses all significance. Save this, the finding of the
High Court that the defendant had complied with all the requests made
by the plaintiff to complete the transaction in time could not
be
assailed.
SANDIIYA RANI v. SUDHA RANI (Desai, !. )
849
The High Court reversed the decree of the trial Court holding that
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the plaintiff purchaser had under one pretext or other put off the taking
of the deed of conveyance and delayed performing her part of the
contract.
The correctness of this finding was seriously assailed on
behalf of the appellant. lt was urged that the High Court itself has
found in this case that time was not the essence of the contract nor
was it made essence of the contract because the date for performance
was extended on number of occasions.
It was urged that this disB
closes a self-contradictory approach on the part of the High Court
when on the one hand it holds that time was neither the essence of the
contract nor was it made essence of the contract but on the other
refuses decree for specific performance on the onJy ground that the
plaintiff delayed performing her part of the contract. It is undoubtedly
true that the High Court has recorded a finding (p. 32) that time was
not the essence of the contract nor was it made essence of the contract
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by a specific notice, but it is equally true that the plaintiff seeks relief
for specific performance of contract and it is incumbent upon the plaiuc
tiff to affirmatively establish tha_t .all throughout he or she, as the case
may be, was willing to perform his or her part of the contract, and that
the failure on the part of the plaintiff to perform the contract or willingness to perform her part of the contract may in an appropriate case
disentitle her to relief, one such situation being where there is inordiD
uate delay on the part of the plaintiff to perform his or her part of the
contract and that is how the High' Court has approached the matter
in this case.
One aspect of the case which deserves notice is that by
the terms of the contract the vendor had to put the purchase in possession of the property when conveyance is executed and balance
of
consideration is paid and that was to be done by the end of April 1956.
Even though the plaintiff purchaser had failed to perform any portion
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of her part of the contract by the end of April 1956, the vendor put
the plaintiff in actual possession of the first and second floors of the
premises to be sold on 28th April 1956 and the plaintiff is in possession of the same till today that is after a lapse of more than 20 years.
On the other hand, she deposited after struggle and procrastination the
balance of consideration on 6th February 1968 that is nearly 12 years
after the date of agreement.
The plaintiff thus enjoyed actual possesp
sion of the property from April 1956 to February 1968 when
she
parted with consideration without paying a farthing for the use and'
occupation of the premises which, on a reasonable construction of the
contract, she was not entitled at all, till she parted with the full consideration and took the conveyance.
This has undoubtedly
weighed
with the High Court in coming to the conclusion that the plaintiff is
disentitled to a relief of specific performance of contract.
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Mr.