Calcutta High Court
Ram Narayan Mondal vs Maniklal Sadhu And Another on 19 February, 1991
Equivalent citations: AIR1991CAL388, AIR 1991 CALCUTTA 388
ORDER
1. After hearing the ld. Advocates for the parties, we condone the delay in filing the revisional application.
2. The application under Section 5 of the Limitation Act is allowed. The revisional application is now taken up for hearing.
3. The revisional application is directed against an order No. 76 dated 26-7-90 passed by the ld. Asstt. District Judge, Durgapur, in Title Suit No. 160/87
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74/84.
4. The facts, which are necessary for disposal of this revision petition, may be briefly staled as follows:
The present petitioner brought the above title suit before the ld. trial Judge for specific performance of contract for sale. The suit was decreed on 29-9-88 in favour of the present petitioner on contest with cost whereby the plaintiff was directed to deposit a sum of Rs. 4,000/- as the balance consideration money within 30 days from the date of the judgment and on such deposit the defendants-opposite parties were directed to execute a registered kobala in respect of the suit property as mentioned in the schedule to the plaint and at his cost. In default, the plaintiff was given the liberty to apply before the Court to have the kobala executed and registered through Court. There was also a further condition in the decree that if the plaintiff failed to do so, the suit would stand dismissed.
5. The present petitioner has filed an application on 30-1-89 before the ld. trial Judge praying for time to deposit the balance consideration money by extending the time stating inter alia that he was not aware of the contents of the judgment and decree passed by the ld. trial Judge, that on 30-9-88 he was intimated by the lawyer's clerk that the suit was decreed on contest with cost, that in the cause list the direction regarding the deposit of money was not indicated, that the petitioner thereafter instructed the lawyer's clerk to apply for certified copy of the judgment and decree, that the decree was drawn up on 3-10-88 and the lawyer's clerk applied for certified copy on 5-10-88, that thereafter even though he was going to the Advocate's clerk to enquire as to whether the certified copy was obtained, the certified copy could not be obtained from the Court prior to the middle of January 1989, that on 16-1-89 the petitioner received the certified copy from the lawyer's clerk, that he went to the lawyer's residence on 22-1-89 but could not contact him, that he again went to the place of residence of the Advocate on 29-1-89 and only on that date from the Advocate the petitioner came to know that he was to deposit the money within one month of the date of the judgment, that the Advocate then advised him to file an application for extension of time stating all these facts and that, therefore, he has applied before the Court to extend the period of time to enable him to deposit the sum of Rs. 4,000/- as directed by the judgment dated 29-9-88.
6. The said application was filed under Section 148 read with Section 151 of the Code of Civil Procedure.
7. The defendants-opposite parties contested the said application contending inter alia that the decree passed by the Court below being a conditional decree and the petitioner not having applied for extension of time before the expiry of the period of one month, the Court has become functus officio and, therefore, had no jurisdiction to extend the time.
8. Before the ld. Judge the petitioner as well as the lawyer's clerk gave their evidence. The ld. Judge on considering the said evidence came to the finding that when the judgment was delivered in open Court, then his lawyer must have been present and the petitioner must have constructive knowledge about the judgment as well as the condition regarding the deposit of the balance consideration money within one month from the date of the judgment, that his case that he came to know about it only on 29-1-89 was not a bona fide contention and that the Court having lost seisin of the case after the expiry of the period of one month the decree being a conditional decree, the Court, has become functus officio and has, therefore, no jurisdiction to extend the time.
8A. Being aggrieved, the petitioner has moved this Court in revision. It is submitted that the ld. trial Judge has refused to exercise jurisdiction illegally, that it is now well settled by the decision of the Supreme Court and followed by a Division Bench of our Court in the case of Tapan Kr. Chatterjee v. Kalyani Debi, , that the initial decree directing the defendant to execute a registered sale deed on the plaintiff depositing the balance consideration money, is not a conditional decree but in the nature of a preliminary decree, that the Court has power to extend the time even after the -- expiry of the period of one month as specified in the judgment of the trial Court and that the provision of Section 28 of the Specific Relief Act lends support to the view that the Court even after passing the decree in a suit for specific performance of contract for sale has the power to extend the time to pay the balance consideration money and, in the circumstances, the ld. Judge committed a grave error of jurisdiction by refusing to extend the time. It is also contended that the !d. Judge was not justified in taking the view that the petitioner had the constructive knowledge when the judgment was delivered as regards the contents of the judgment through his Advocate and that the evidence adduced by the petitioner as well as his witness being the Advocate's clerk, were sufficient before the ld. Judge to come to the conclusion that the petitioner could not know about the contents of the judgment prior to 29-1-89 when the Advocate on perusing the certified copy of the judgment intimated about his obligation to deposit the balance consideration money within one month of the judgment and that is why on the following day he got the application for extension of time prepared and filed by his Advocate.
9. The revision petition is contested by the opposite parties and it is contended that the order of the ld. Judge was proper and that even if it be conceded that it was not a conditional decree, yet the application for extension of time was barred by time and the ld. Judge was perfectly justified in dismissing the said application.
10. We have carefully considered the submissions made by the ld. Advocates for the parties. On behalf of the opposite parties some decisions of our High Court reported in AIR 1962 Cal 648, (1967) 71 Cal WN 1034, , and the Supreme Court decision in , have been referred to.
11. We have carefully considered the above decisions. But we are of the view that all these decisions were taken into consideration by the Division Bench of our Court in the case of Tapan Kr. Chatterjee . The Division Bench of our High Court, in view of the clear decision of the Supreme Court in Hunger-ford Investment Trust Ltd. v. Haridas Mundhra, , has held that it is now a settled principle that the decree which a Court passes in a suit for specific performance of contract is in the, nature of a preliminary decree or, to be more precise, riot final in character leaving ample jurisdiction in the Court to pass appropriate orders that may be necessary in such a suit.
12. The Division Bench has also taken into consideration that subsequent to the above decisions cited by the opposite parties and which were all considered by the Division Bench in Tapan Kumar's case. Section 28 of the Specific Relief Act has been enacted which contemplates a default and provides for extension of time in appropriate cases. The Division Bench on construing the provision of Section 28 of the Act has observed that when the Court passes a final decree rescinding the contract anticipating a default, then and then only the plaintiff would lose the relief by way of extension of time provided by the statute even where he could otherwise establish a good case for such relief. The Division Bench has also relied upon, the Supreme Court decision in Saraswati v. Somasundaram, . In that case the trial Court in decreeing the suit for specific performance prescribed a time limit for payment of the balance consideration and incorporated a default clause to the effect that in default the suit will stand dismissed. On an appeal by the purchaser the Division Bench of the Madras High Court vacated the default clause on the view that the Court had no jurisdiction to impose such a default clause in the decree for specific performance making the prescription as to time -- peremptory. Even thereafter the purchaser having failed to pay the balance consideration, the contract was rescinded on an application by the vendor and the purchaser's prayer for extension of time was dismissed on its merits. On a further appeal to the Supreme Court, the Supreme Court allowed the purchaser's prayer for extension and reversed the High Court's decision to rescind the contract. Therefore, according to the Division Bench, the Supreme Court approved and upheld the earlier decision of the division Bench of the Madras High Court vacating the default clause as one not within the jurisdiction of the Court to impose at the time of passing the initial decree in a suit for specific performance of contract.
13. On carefully considering the Division Bench judgment in the case of Tapan Kumar Chatterjee v. Kalyani Debi, , we are in respectful agreement with the views expressed therein. Therefore, the finding of the ld. trial Court that the decree was a conditional one is an invalid finding. The ld. Judge has refused to exercise jurisdiction treating the initial decree passed in a suit for specific performance of contract as a conditional decree and the same is illegal.
14. On behalf of the opposite parties it is submitted that if this Court finds that the initial decree passed by the ld. Judge was not a conditional decree but a preliminary decree, then this Court should give direction to the Id.
Judge to consider the petitioner's application for extension of time on merits.
15. He has also submitted that the failure of the petitioner to apply for extension of time within a period of one month from the date of the judgment has rendered this application barred by limitation.
16. We are of the view that such a contention is hot sustainable in view of the decision of the Division Bench of our Court in Tapan Kumar's case, , as well as the decision of the Supreme Court in .
17. In the Division Bench case also long after the expiry of the period of one month fixed initially by the ld. Judge, the application for extension was made. In that case the Division Bench set aside the order of the ld. Judge who took the view that it had become functus officio to entertain the application. The application was remanded back for a reconsideration by the !d. Judge on its merits.
18. The question now remains to be decided is as to whether we would also refer the matter back to the ld. trial Judge to dispose of the application on merits or not.
19. We are of the view that when the trial Judge even considered the evidence adduced by the petitioner and the lawyer's clerk and observed as regards the merits of the application, it will not be proper to send the matter back to the ld. Judge for a fresh decision. The petitioner and the lawyer's clerk were examined. The ld. Judge commented that the petitioner did not examine his Advocate and, therefore, he drew an adverse presumption against the case of the petitioner. On behalf of the petitioner it is submitted that the self-same Advocate moved the said application before the ld. Judge. Therefore, it was not possible for the petitioner to examine him who was appearing before the ld. Judge. He also submits that it was the Advocate's clerk who was in the know of the whole facts and the said clerk was examined. We are of the view that, even if there was some negligence on the part of the Advocate or his clerk to intimate the petitioner about the exact nature of the judgment promptly so that he could take appropriate steps to make the application for extension of time the petitioner must not suffer. The Supreme Court in several decisions expressed the view that when there are no laches on the part of the client, the laches on the part of the Advocate would not disentitle him to appropriate relief. We are, of the view that the ld. Judge ought to have allowed the petitioner's application for extension of time and by refusing to do so on improper grounds has committed an error of jurisdiction.
20. In the result, the revision petition is allowed. The impugned order is set aside. The ld. trial Judge shall give the petitioner a fortnight's time from the date of communication of this order to deposit the balance amount and if within that period the petitioner deposits the balance consideration money of Rs. 4,000/-, the defendants shall execute and register sale deed at the cost of the petitioner and if in spite of such deposit the opposite parties fail and neglect to execute a registered sale deed in terms of the initial judgment passed by the ld. Judge, then the ld. Judge shall get a sale deed executed and registered through Court.
21. No order is made as to costs in this revisional application.
22. Let this order be communicated to the Court below forthwith.
23. Let xerox copy of this order be given to the ld. Advocates for the parties on the usual terms.
24. Revision allowed.