Punjab-Haryana High Court
Smt. Ralli And Ors. vs Smt. Satinderjit Kaur on 29 September, 1997
Equivalent citations: (1998)118PLR666
JUDGMENT V.K. Jhanji, J.
1. This is defendant's second appeal directed against the judgment and decree of the Courts below whereby suit for possession by way of specific performance of sale agreement dated 2.6.1979 has been decreed.
2. Plaintiff (respondent herein) filed suit for possession by way of specific performance of sale agreement dated 2.6.1979 of land measuring 13 kanals 14 marlas situated at village Dhandari Kalan, Tehsil and District Ludhiana, on payment of Rs. 2,09,715/- as remaining sale consideration or in the alternative for the recovery of Rs. 42,000/- towards earnest money and damages thereon. Suit was filed on the plea that Gahi, Geeto and Meeto were the owners of land measuring 36 kanals 6 marlas and they entered into agreement to sell dated 2.6.1979 of land measuring 20 kanals 11 marlas for a sum of Rs. 3,35,610/- i.e. @ Rs. 27/- per sq. yard. The land was to be, sold by way of two sale-deeds, to be completed on or before 31.8.1979 and 31.12.1979. The earnest money of Rs. 21,000/- was to be adjusted in the second sale deed. The vendors were to get permission from the Prescribed Authority under the Urban Land Ceiling Act and the sale-deeds were to be executed within one month from the date of obtaining the requisite permission. In case the Prescribed Authority declined permission, it was stipulated that the agreement shall stand cancelled and the vendors would be liable to return the earnest money at the rate of 18 per cent per annum as interest. Plaintiffs pleaded that one of the vendors, namely Geeto expected a sale-deed of his share of the land measuring 6 kanals 7 marlas for a consideration of Rs. 1,11,895/-, but the other two vendors manipulated the refusal of permission from the Prescribed Authority under the Urban Land Ceiling Act. The permission was declined on 25.2.1981. It was further pleaded that the plaintiff had filed suit for injunction but the same was dismissed being not maintainable. Plaintiff further pleaded that she had been ready and willing to perform her part of the agreement. She thus, prayed that the suit for possession by way of specific performance of agreement of sale be decreed. Defendants, Gahi and Mehta sons of Sawan against whom suit had been filed, contested the suit. In their written statement, they averred that they had always been ready and willing to perform their part of the agreement and to execute the sale-deed in favour of the plaintiff, out it was the plaintiff who always avoided to perform her part of the contract and to get the sale-deed executed. They averred that notices were sent to the plaintiff from time to time for execution or the sale-deed, but the plaintiff failed to perform her part of the contract. It was further submitted by them that even now, they are ready and willing to perform their part of the contract on payment of balance sale consideration. In regard to the permission which was to be obtained from the Authority appointed under the Urban Land Ceiling Act, defendants averred that the said permission was applied for but was refused. Defendants, however, admitted that such a permission was not required for as the land in question being an agricultural land was outside the purview of the Urban Land Ceiling Act. In the prayer clause, defendants submitted that suit for specific performance may be decreed but plaintiff be advised to get the sale-deed executed immediately on payment of balance sale consideration, failing which the amount of earnest money shall be forfeited. Plaintiff instead of offering to pay the balance sale consideration as asked for by the defendants in their written statement, filed replication reiterating that they are ready and willing to perform their part of the contract. trial Court on the basis of pleadings of the parties framed the following issues:
(1) Whether the plaintiff is entitled to specific performance of agreement dated 2.6.1979 ? OPP. (2) Whether the plaintiff is entitled to get possession of the disputed property ? OPP. (3) Relief.
During the pendency of the suit, Firstly, defendant Meeta died and on his death, his legal representatives were brought on record. Subsequently, the other defendant, namely, Gahi also died and his legal representatives too were brought on record by the plaintiff. Plaintiff after implementing legal representatives of original defendants filed amended plaint. The legal representatives in response to the amended plaint, filed amended written statement. They pleaded therein that the suit is barred under Order 2 Rule 2, Code of Civil Procedure, and that the plaintiff was never ready and willing to perform her part of the contract. Plaintiff in her replication pleaded that the legal representatives of the deceased-defendants are bound to adopt the written statement of the latter and the additional pleas taken by them are of no consequence. On the amended pleas, no fresh issues were framed by the trial Court.
3. Parties lead their oral as well as and documentary evidence. Trial Court did not permit the legal representatives to urge the plea in regard to suit being barred by time or barred by principles of res-judicata or under Order 2 Rule 2, Code of Civil Procedure. Trial Court took the view that the legal representatives are bound to adopt the written statement already filed by the deceased-defendants and the additional pleas taken by the legal representatives cannot be taken into consideration. Trial Court decreed the suit simply on the basis of concession given by the deceased-defandants in their written statement whereby the plaintiff was asked to get the sale-deed executed on payment of balance sale consideration, failing which the earnest money was liable to be forfeited. This statement was taken to be the admission on the part of the deceased-defendants, admitting the claim of the plaintiff. In appeal by the defendants, judgment and decree of the trial Court has been affirmed by the learned Additional District Judge, Hence, the second appeal by the defendants.
4. Mr. H.L. Sibal, Sr. Advocate, counsel for the defendants, contended that the approach of the Courts below in not permitting the legal representatives to take the plea regarding the suit being barred by time or barred under Order 2 Rule 2, and Section 11, Code of Civil Procedure, is clearly erroneous. Counsel contended that the pleas on merits taken by the deceased-defendants and the legal representatives remained the same and only additional legal pleas were taken. He contended that the legal representatives can urge all contentions which the deceased could have urged except those personal to the deceased. According to him, there is no legal bar in the way of the legal representative to take the pleas which are not personal to the deceased' defendants. Mr. Sibal contended that the suit for specific performance is barred under Order 2 Rule 2, Code of Civil Procedure, inasmuch as the plaintiff filed suit for injunction on 19.5.1981 when a right had accrued to her to sue for specific performance of the contract on account of breach allegedly committed by the defendants in not executing the sale-deed on or before the dates fixed under the agreement. Counsel contended that one of the issues in the suit for injunction was in regard to readiness as willingness on the part of the plaintiff to perform her part of the contract. The finding oh that issue Was returned against the plaintiff and it was held that she was not ready to perform her part of the contract. Counsel contended that in view of the finding recorded on this issue, suit for specific performance cannot be decreed as the finding in regard to willingness on the part of the plaintiff to perform her obligation under the contract would operate as res-judicata. Counsel further contended that the suit is patently barred by time inasmuch as the last date fixed in the agreement for execution of the sale-deed was 31.12.1979 and so, the suit for specific performance could have been brought within three years from the date so fixed, but the suit has been brought much beyond the period prescribe under Article 54 of the Limitation Act. It is next urged by Mr. Sibal that the agreement of sale provided that in the event of refusal of sanction by the Competent Authority appointed under the Urban Land Ceiling Act, agreement of sale shall stand cancelled and the plaintiff would be entitled only to the return of earnest money along with interest at the rate of 18 per cent per annum with effect from the date of execution of the agreement. Counsel contended that on account of refusal by the Competent Authority to grant sanction, the contract became frustrated and so, the suit for specific performance was not competent. It is finally urged by Mr. Sibal that the plaintiff is not entitled to the equitable relief of specific performance of the contract.
5. In answer to the submissions of counsel for defendants, Mr. Rajiv bhalla, Advocate, counsel for the plaintiff urged that the defendants are not entitled to urge the plea of res-judicata or the suit being barred under Order 2 Rule 2, Code Of Civil Procedure, or being barred by time because the pleas have not been properly raised by the pleadings or in the issues. He further contended that the legal representatives cannot take a plea inconsistent with the pleas taken by the deceased-defendant in his written statement. He contended that if a legal representative wants to raise a new plea which the deceased could have taken, he must get himself impleaded in his personal capacity and only then, he can assert his independent title to the property. Mr. Bhalla contended that the cause of action in the earlier suit differs from the one in the present suit which is for specific performance of agreement of sale and so, it is not barred under Order 2 Rule 2, Code of Civil Procedure. In regard to the plea of the res-judicata, counsel contended that the earlier suit was dismissed being not maintainable and thus, any finding recorded therein cannot operate as res-judicata. As regards the allegation of suit being barred by time, counsel contended that the suit has been filed within three years from the date of refusal of the defendants to execute the sale-deed and so, the suit is within time. Mr. Bhalla contended that at no stage the plaintiff waived her right to sue for specific performance of the contract. In the end, he contended that merely because suit has been filed on the last day of limitation, is no ground to deny the relief of specific performance particularly when under the law of limitation, the period prescribed is three years from the date the plaintiff has notice that performance is refused.
6. On going through the record and hearing the counsel for the parties at length. I am of the view that the Courts below have acted erroneously in not permitting the legal representatives to raise the plea of res-judicata or suit being barred under Order 2 Rule 2, Code of Civil Procedure, and being barred by time. Sub-rule (2) of rule 4 of Order 22, Code of Civil Procedure, authorises a legal representative to take any defence appropriate to his character as legal representative of the deceased-defendant. In other words, it authorises a legal representative to file additional writ ten statement, raising all pleas which the deceased-defendants had or could have raised except those which were personal to the deceased. Under the rule, there is no prohibition for raising pure questions, of law which go to the very root of the matter and are in the nature of questions of jurisdiction. In Vidya Wati v. Manmohan and Ors., (1996-1)112 P.L.R. 97 (S.C.), the apex Court reiterated the view taken in earlier two decisions, namely, Bal Krishan v. Om Parkash and Anr., A.I.R. 1986 SC 1952 and Jagdish Chander Chatterjee and Ors. v. Sri Krishan and Anr., 1973(1) S.C.R. 850, and held that all rights and defences available to the deceased-defendant become available to the legal representatives. In the present case, it is not the case of the plaintiff that the pleas on merits taken by the legal representatives are contrary and inconsistent to the pleas taken by the deceased-defendant. Deceased-defendants in the written statement specifically urged that the plaintiff had not been ready and willing to perform her part of the contract, whereas they had always been ready and willing to execute the sale-deed on receipt of balance sale consideration. The legal representatives have not departed from or contradicted the position taken by the defendants whose legal representatives they are. In my view, there is no prohibition for taking additional pleas by the legal representatives regarding res-judicata, suit being barred by time or barred under Order 2 Rule 2, Code of Civil Procedure, being pure questions of law. The law permits legal representatives to raise all contentions except those which are personal to the deceased. The pleas sought to be raised being not personal to the deceased, should have been allowed to be raised.
7. Faced with this situation, counsel for the plaintiff contended that the plea of Order 2 Rule 2 and Section 11, Code of Civil Procedure cannot be presumed merely on inferences. Counsel contended that plea of bar under Order 2, rule 2 and Section 11, Code of Civil Procedure, can be established only if defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the causes of action in the two suits. He contended that in absence of former pleadings, plea should not be allowed to be raised. It is true that the pleadings of the previous. suit were not produced by the defendants. But omission to produce pleadings is, not so material in the present case. The judgment in the previous case contains a summary of those pleadings. The plea of bar under Order 2 Rule 2, Code of Civil Procedure, and of res-judicata can be established on record on the basis of the judgment given in the previous suit and not necessarily on the production of pleadings. To prove the pleas of a bar under Order 2 Rule 2, Code of Civil Procedure, counsel for the defendants contended that in the plaint filed in the present suit, plaintiff in para 10 has specifically pleaded "that cause of action arose to the plaintiff against the defendants when the defendants served a notice on the plaintiff dated 21.4.1981 declining to execute the sale-deed as per sale agreement on the false pretext that the requisite permission was not available.......". Counsel contended that from a reading of para 10 of the plaint, it is clear that cause of action accrued to the plaintiff on 21.4.1981, but instead of filing suit for specific performance the plaintiff filed suit for permanent injunction restraining the defendants from transferring alienating or disposing of the land in suit in any manner in favour of anyone else other than the plaintiff. In answer to those submissions, counsel for the plaintiff referred to judgments in Sardari Mal v. Hirde Nath and Ors., A.I.R. 1925 Lahore 459(2), and Bhagwan Kaur v. Harinder Pal Singh, 1991 P.L.J. 681 and contended that the cause of action in the earlier suit was distinct from the one in the present suit and therefore, the bar of Order 2 Rule 2, Code of Civil Procedure, is not applicable. Counsel also contended that the relief sought for in the earlier suit was for injunction whereas the relief sought for in the present case is for specific performance of the contract, and on that count as well the present suit is not barred under Order 2 Rule 2, Code of Civil Procedure. I find no merit in the contention of counsel for the plaintiff. Order 2 Rule 2, Code of Civil Procedure, reads as under:-
"2. Suit to include the whole claim-
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation - For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively-to-constitute but one cause of action."
The rule contained in this provision is designed to counteract two evils, namely; splitting up claims and splitting up remedies. For the applicability of this provision, two conditions are precedent; firstly, that the earlier suit and the second suit must arise from same cause of action; and secondly, the two suits must be between two parties. The test for finding out whether subsequent suit would be barred because of an earlier one is whether the claim in the subsequent suit is infact, founded on the cause of action distinct from that which was the foundation of the former suit. In Sidramappa v. Rajashetty and Ors., A.I.R. 1970 SC 1059, the Apex Court on reference to decision in Mohd. Hafiz v. Mohd. Zakaria, A.I.R. 1922 Privy Council 23, held that the requirement of Order 2 Rule 2, Code of Civil Procedure, is that every suit should include the whole of the claim which the plaintiff is entitled to mate in respect of a cause of action. 'Cause of action' means the cause of action for which the suit was brought'. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Reference may also be mage to judgment in Mohammad Khalil Khan and Ors. v. Mahbub Ali Mian and Ors., The Law Reports (Indians Appeals), Vol. 75, 1947-48 121, wherein one of the principles laid down by the Privy Council is that the cause of action has no relation whatsoever to the defence that may be taken by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. It is thus, dear that simply because the relief sought for by the plaintiff in the previous suit was for injunction, would not mean that the relief of specific performance sought for in the subsequent suit is founded on a cause of action distinct from that which was the foundation of the previous suit. In fact, a reading of para 10 of this suit makes it clear that on 19.5.1981 when suit for injunction was filed, a right had already accrued to the plaintiff to sue for specific performance of the contract on account of breach committed by the defendants in not executing the sale-deed on or before the date fixed in the agreement/Foundation of the previous suit for permanent injunction was the agreement to sell dated 2.6.1979 and refusal by the defendants to execute the sale-deed in favour of the plaintiff. The basis of the suit for specific performance of the contract is again the agreement to sell dated 2.6.1979 and the breach of contract committed by the defendants. Plaintiff in this case not only omitted to sue for specific performance of the contract or for recovery of earnest money/liquidated damages, but also did not seek leave of the Court to sue for such relief afterwards.
8. As regards the judgments cited by counsel for the plaintiff, it is true that in Sardari Mal's and Bhagwan Kaur's cases (supra) despite the filing of suits for injunction, subsequent suits for specific performance of the agreement were held to be maintainable and Order 2 Rule 2, of the Code was ruled as no bar to the maintainability of suits for specific performance. But in my view, plaintiff cannot derive any help from the decisions in those cases because of the law on the subject settled by the Apex Court in Sidramappa's ease (supra). In Bhagwan Kaur's case (supra), the judgment of the Apex Court in Sidramappa's case (supra) was not noticed. As already seen, foundation in both the suits being the same and leave having not been sought from the Court to sue for such relief afterwards, suit for specific performance is clearly barred under Order 2 Rule 2, Code of Civil Procedure.
9. Regarding the plea of res-judicata, counsel for the defendants contended that to get a decree for specific performance, condition precedent is the proving of readiness and willingness on the part of plaintiff to perform her part of the contract. Counsel contended that in the former suit for injunction, one of the issue was in regard to willingness on the part of the plaintiff to perform her part of the contract. He contended that the said issue was decided against the plaintiff and it was held that the plaintiff was not ready to perform her part of the contract. Counsel contended that the findings on this issue would operate as res-judicata in the suit for specific performance. Against this, counsel for the plaintiff contended that in the suit for injunction, it was not necessary for the plaintiff to prove her readiness and willingness to perform her part of the contract and so, the finding given on the said issue in the suit for injunction would have no effect in the suit filed for specific performance.
10. The principle contained in Section 11, Code of Civil Procedure, is that a Court shall not try any suit or issue in which the matter, directly and substantially in issue, has been decided in an earlier suit between the same parties. In Satydhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr., A.I.R. 1960 SC 941, their Lordships of the Supreme Court have held that the principle of res-judicata is based on the need of giving a finality to judicial decision. When a matter-whether on the question of fact or question of law has been decided between the parties in one suit or proceedings and the decision is final, either because no appeal was taken to the higher Court or because the appeal was dismissed or no appeal lies, neither party will be allowed in a future suit or proceedings between the same parties to canvas the matter again. In Syed Mohd. Salie Labbai (Dead) v. Mohd. Hanifa (Dead), A.I.R. 1976 SC 1569, the Hon'ble Supreme Court held that the best method to decide the question of res-judicata is, first to determine the case of the parties as put forward in their respective pleadings of the previous suit and then to find out as to what had been decided in the judgment which operates as res-judicata. A reading of the judgment dated 2.5.1983 rendered in suit for injunction shows that in her plaint, after setting out terms and conditions contained in the agreement, plaintiff alleged that "she was always ready and willing to perform her part of the contract and she is still ready and willing to perform her part of the contract but defendants 1 to 3 have never expressed their readiness and willingness to perform their part of the agreement". Defendants in their written statement, as is evident from para 2 of the judgment, denied that they were not ready to perform their part of the contract as alleged by the plaintiff. On the pleadings of the parties, trial Court framed as many as five issues and issue No.3 was "Whether the plaintiff was and is willing to perform her part of the contract ? OPP." Trial Court decided issue No.3 against the plaintiff and held that 'it is proved that defendants were ready and willing to perform their part of the contract but on the other hand plaintiff has not produced any evidence to prove that she made any efforts with defendants 1 to 3 to get permission for the sale of land. Therefore, I decide this issue against the plaintiff that she was not ready to perform her part of the contract." Trial Court on the basis of finding on issue No.3 and on other issues, out of which one was in regard to maintainability of the suit, dismissed the suit clause (c) of Section 16 of the Specific Relief Act lays down that performance of contract cannot be enforced in favour of a person who has not averred in the pleadings and who has not proved that he on his part was ready and willing to perform his part of the contract, in its essential terms excepting only when the plaintiff proves that defendant himself waived or prevented the performance of the terms of the contract. Clause (c) of Section 16 reads as under :-
"16. Personal bars to relief-
Specific performance of a contract cannot be enforced in favour of a person -
(a) xx xx xx xx
(b) xx xx xx xx
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendant."
A perusal of Clause (c) leaves no room for doubt that suit for specific performance would fail if the plaintiff fails to plead and prove his readiness and willingness to perform his part of the contract. Plaintiff cannot get a decree of specific performance unless it is affirmatively established that all throughout he or she, as the case may be, was willing to perform his or her part of the contract. As noticed, in the suit for injunction, issue regarding willingness on the part of the plaintiff to perform her part of the contract was decided against her. In my view, it is erroneous for the counsel for plaintiff to contend that the said issue was not directly and substantially in issue in the former suit. The expression "directly and substantially in issue" was interpreted by the Supreme Court in Lonankutty v. Thomman and Anr., A.I.R. 1976 SC 1645. The Hon'ble Supreme Court held that the expression "directly and substantially in issue" means an issue alleged by one party and denied or admitted by the other either expressly or by necessary implication. In the present case, plaintiff in the former suit had alleged that she was ready and willing to perform her part of the contract but the defendants denied the said allegation. The matter was put in issue and was decided against the plaintiff. The mere fact that one of the issues in the former suit with regard to maintainability of the suit for injunction was also decided against the plaintiff and the suit was dismissed on finding that suit for specific performance alone was maintainable, would not mean that finding on the issue of plaintiff's readiness and willingness to perform her part of the contract was not necessary. In fact, on the proper construction of the pleadings as set out in the judgment given in the suit for injunction, it was necessary to decide all issues arising in the case to grant relief to the plaintiff. The decision on the said issue did not arise incidently but directly. Accordingly, finding given on the said issue in the first suit is conclusive and would operate as res-judicata and it has to be held that the plaintiff was not ready and willing to perform her part of the contract.
11. It is now to be seen whether the suit was filed within the prescribed period of limitation. Article 54 of the limitation Act prescribes three years' limitation from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. In the agreement of sale, the last date fixed for execution of sale-deed was 31.12.1979. Taking three years from the said date, the limitation to file suit for specific performance was to expire on 30.12.1982, whereas the suit for specific performance was filed on 25.2.1984 which on the face of it was beyond the prescribed period of limitation. Counsel for the plaintiff contended that limitation to file suit was not to begin from 31.12.1979 but from the date when permission was refused by the Prescribed Authority under the Urban Land Ceiling Act as in the agreement it had been provided that the defendants would execute the sale-deed within one month of the grant of sanction, but permission was refused on 26.2.1981 and therefore, suit having been filed on 25.2.1984 was within limitation as the same was filed on the last day of the period of limitation prescribed for filing suit for specific performance. I find no merit in this contention of counsel for the plaintiff. It is the case of the plaintiff herself that the land in question being an agricultural land was outside the purview of Urban Land Ceiling Act and no permission from the Prescribed Authority was required. This being so, plaintiff is estopped from saying that the limitation to file suit for specific performance was to begin from the date when permission was declined. It may be observed at this stage that one of the vendors namely, Geeto had executed sale-deed of his share of the land measuring 6 kanals 7 marlas for a consideration of Rs. 1,11,895/- in favour of the plaintiff, without permission having been obtained from the Prescribed Authority. Plaintiff thus, was all along aware that no permission of the Prescribed Authority was required for the sale of the land, being an agricultural land. In view of this, it has to be held that the suit having not been filed within the period of three years from the date last fixed for executing of the sale-deed, is barred by time.
12. Lastly, it has been contended by Mr. Sibal, counsel for the defendants, that even if the defendants are not permitted to urge the plea of res-judicata, bar of Order 2 Rule 2, Code of Civil Procedure, or suit being barred by time, still the plaintiff is not entitled to equatable relief of specific performance of the contract. Section 20 of the Specific Relief Act shows 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. Of course, this discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of Appeal. Clauses (a), (b) and (c) of Sub-section (2) of this section contain cases in which Court will properly decline to exercise its jurisdiction. But these principles are not exhaustive and the Court's discretion in order to grant specific performance is not confined to them. In special cases, when there are some good and reasonable grounds for not exercising this discretion in favour of the plaintiff, the Court will not hesitate to exercise that discretion against the plaintiff. Mr. Rajive Bhalla, counsel for the plaintiff is right in saying that mere delay itself is no ground to deny the relief of specific performance especially when suit is filed within the prescribed period of limitation. But in my view, plaintiff who is guilty of delay and gross negligence, is not entitled to decree for specific performance. In a case where it appears to the Court that granting of plaintiff's claim for specific performance would cause hardship to the defendant, the Courts are entitled to exercise their discretion and refuse the plaintiff relief prayed for. In this case, the last date for execution of sale-deed was 31.12.1979. It is the case of plaintiff herself in the plaint that the defendants served notice dated 21.4.1981 on the plaintiff declining to execute the sale-deed but still the suit for specific performance was not filed; rather suit for injunction was filed. Suit for injunction was dismissed on 2.5.1983 and appeal against the said judgment was preferred before the Additional District Judge, Ludhiana and during the pendency of the said appeal, suit for specific performance was filed on 25.2.1984. Plaintiff has not explained as to why she waited till February 1984 to file suit when according to her case, defendants had declined to execute the sale-deed in April, 1981. Not only the delay, but by her conduct also the plaintiff has made herself disentitled to the relief of specific performance. As already observed, defendants on notice of the suit showed their willingness to execute the sale-deed in favour of the plaintiff and for that matter, specifically averred in their written statement that they are prepared to execute the sale-deed in favour of the plaintiff or any of her nominee on payment of balance sale consideration provided payment is immediately made. Plaintiff instead of accepting the said offer, decided to contest the suit. The facts speak volumes of the conduct of the plaintiff. The earlier view taken by various courts that every suit for specific performance of the contract (which does not provide specifically that time is of essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time stipulated in the agreement for doing one or other things by one or the other party, has not been approved by their Lordships of the Supreme Court. Their Lordships of the Supreme Court have ruled that if this proposition is accepted that would amount to saying that the time limits prescribed by the parties in the agreement have no significance or value or that they mean nothing in K.S. Vidyanadam and Ors. v. Vairavan, A.I.R. 1997 SC 1751, it has been held that "the rigor of the rule involved by Courts that time is not of the essence of the contract in the case of immovable properties-evolved in times when prices and values were stable and inflation was unknown-requires to be relaxed, if the modified, particularly in the case of urban immovable properties. It is high time, the Court do so. In the instant case may be, the parties knew of the circumstances regarding rising prices but they have also specific six months as the period within which the transaction should be completed. The said time-limit may not amount to making time the essence of the contract but it must yet have meaning. Not for nothing could such time limit would have been prescribed. Can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they are as good as non-existing ? All this only means that while exercising its discretion, the court should also bear in mind that when the parties prescribe certain time-limit(s) for taking steps by one or the other party, it must have some significance and that the said time-limit(s) cannot be ignored altogether on the ground that time has not been made the essence of the contract (relating to immovable properties)." In K.S. Vidyanadam's case (supra) the plaintiff therein from the date of agreement of sale till the date of suit which was filed more than 2-1/2 years of the date of agreement, was sitting quite without taking any steps to perform his part of the contract under the agreement, though the agreement provided period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the vendors to execute the sale-deed and deliver possession of the property. The delay was coupled with substantial rise in prices. The delay brought about a situation where it was inequitable to give the relief of specific performance to the purchaser. The facts if this case are almost pari-materia to the facts of K.S. Vidyanadam's case (supra). In this case, agreement provided 31.12.1979 as the last date for execution of the sale-deed. Plaintiff was served with notice dated 21.4.1981 by the defendants showing their unwillingness to execute the sale-deed, but no steps were taken by the plaintiff to seek specific performance of the contract and the suit was filed only on 25.2.1984, which according to the plaintiff herself was the last day of the limitation prescribed for filing of the suit. In my view, there are no equities in favour of the plaintiff and the suit filed by her , deserves to be dismissed with costs.
13. Consequently, the appeal is allowed and the judgment and decree of the Court below is set aside. Resultantly, the suit of the plaintiff shall stand dismissed with costs, which are quantified at Rs. 5,000/-.