P. N. Bhagwati, J. - (1.) This is an unfortunate litigation where a widow has been kept out of her monies for over six years by reason of wrong application of law by the courts. Much of the travail of the widow could have been avoided if the courts had taken a common sense view of the law instead of adopting a rather technical and unimaginative approach. The facts giving rise to this litigation are few and may be briefly stated as follows.
(2.) The respondent is the owner of a residential quarter bearing No. 1/20 situate at Old Rajendra Nagar, New Delhi. He wanted a loan for the purpose of repaying an earlier debt and he, therefore, approached the appellant and as a result of negotiations between them, an agreement dated 27 th September, 1967 was entered into between the parties. This agreement recited that a sum of Rs. 7500/- was lent and advanced by the appellant to the respondent and it provided that in lieu of interest on this amount of Rs. 7500/-, the respondent would give to the appellant a portion of his residential quarter (hereinafter referred to as the premises) for temporary residence. The agreement went on to say, and we are setting out the precise terms of the agreement since they are material for the decision of the controversy between the parties: "On the expiry of two years as stated above the second party shall give one month's notice in writing to the first party for the said room.... If after the expiry of two years fixed period, the first party wants to pay the amount he shall give one month's notice in writing to the second party. When the first party repays the above stated loan to the second party, then the second party shall vacate the room etc. under temporary residence and give it to the first party .....If the first party pays the amount of Rs. 7500/- and the second party does not give possession of the room etc. under her use, then the second party shall be liable to pay Rs. 110/- per month as damages. If the first party does not pay the amount of Rs. 7500/- to the second party on the expiry of the two years period, the first party will not be entitled to recover damages of Rs. 110/- per month from the second party and the second party shall be entitled to take legal proceedings against the first party ....... and also if the first party pays the amount of Rs. 7500/- and the second party does not give possession, the first party shall be entitled to take the legal proceedings regarding vacation of the room etc. under the use of the second party." Pursuant to the agreement, the respondent handed over possession of the premises to the appellant and the appellant started occupying the same against interest on the loan of Rs. 7500/- advanced by her to the respondent.
(3.) The period of the agreement expired on 27th September, 1969 and according to the terms of the agreement, the respondent could thereafter repay the loan of Rupees 7500/- to the appellant and claim back possession of the premises from her. The case of the respondent was that he addressed a notice dated 26th August, 1969 to the appellant and tendered a sum of Rs. 7500/- to her in repayment of the loan, but the appellant refused to accept the same. The respondent also addressed another notice dated 4th May, 1970 to the appellant but this notice also had no effect on her. The respondent thereupon filed Suit No. 123 of 1973 in the Court of Sub-judge, 1st Class, Delhi seeking to recover possession of the premises from the appellant. The appellant did not appear to contest the suit and it was decreed ex parte by a judgment dated 22nd May 1973. The learned Sub-Judge passed a decree for possession of the premises in favour of the respondent but added the following rider: "The plaintiff is ordered to tender the amount of Rs. 7500/- to the defendant within a period of 30 days from today in cash. If the defendant refuses to accept the money, it should be deposited in the Court with notice to the defendant within the aforesaid period." Now, it appears that prior to the filing of this suit by the respondent, the appellant had filed a suit against the respondent for recovery of the loan of Rs. 7500/- advanced by her to the respondent. The respondent had filed his defence to the suit and various grounds were taken by him, one of which was that the claim was barred by limitation. This suit was pending on 22nd May, 1973 when the ex parte decree was passed against the appellant.;