Deoki Nandan, J. - (1.) This is a plaintiffs second appeal in a suit for specific performance of a contract to reconvey the property in suit which is in the nature of a house and a shop situate at Hamirpur.
(2.) The plaintiffs case was that they "borrowed a sum of Rs. 10,500/- from Jagat Prasad, defendant, since deceased and now represented by his heirs and legal representatives, and executed a sale-deed in his favour, of the property in suit on 31st May, 1960, and an agreement of re-conveyance was executed by Jagat Prasad on the 1st June, 1960, agreeing to reconvey the property in suit to the plaintiffs on payment of Rs. 10,500/- within five years. The property, however, continued to remain in their possession as before the sale. It was then alleged that Jagat Prasad was a very clever person and had given considerable amounts of money on loan and was given to harassing his debtors by all kinds of wrong methods; that many a time the plaintiffs asked Jagat Prasad to execute the sale-deed but he evaded doing so, whereupon the plaintiffs went to Jagat Prasad on 10th May, 1965, along with certain respectable persons and offered the money to Jagat Prasad but he said that he was not well and could not go to court; and although he was prepared to receive the money then and there he only promised to execute the sale-deed later on to which the plaintiffs did not agree and said that the money would be paid on execution of the sale-deed. It was then alleged that the second plaintiff who is the younger brother of the first plaintiff, and was originally impleaded as the second defendant pro forma, was imprisoned in Orai Jail under the Opium Act and could not, therefore, join in the filing of the suit which was filed on the 29th May, 1965. It was also alleged that the first plaintiff had again gone to Jagat Prasad on 18th May, 1965, with the whole amount of money along with certain respectable persons and even produced the money but Jagat Prasad had refused to receive the same and said that he could not go to court unless he became well and that he would also not receive the money. Under my orders dated 2nd May, 1979, the plaintiffs were permitted to amend their plaint by adding an allegation to the effect that they were, in pursuance of the conditions of the agreement depositing the sum of Rupees 10,500/- in court, and were and are ready and willing to perform the same. It was lastly alleged that a notice dated 25th May, 1965, was sent through counsel to Jagat Prasad but he did not give any reply from which it appeared that his intention was dishonest and he wanted to grab the property, hence the suit.
(3.) As noticed above, the suit was filed on 29th May, 1965, the date on which the plaint was presented. It was, however, stated in the plaint that although the court fees payable was Rs. 1,199/-, only the court-fees of Rs. 50/- was being paid that day. A tender for payment into court of the sum of Rs. 10,500/-, as the consideration for the sale, also accompanied the plaint. The plaintiffs had applied for time to make good the deficiency in court fees. The reason given for non-payment of the full court fees was that the first plaintiffs wife had suddenly suffered an abortion and she was admitted in the hospital and was ill and the said plaintiff was, therefore, unable to deposit the full court fees as a lot of money had been spent on her illness and she was even then not out of danger. It was also stated that the said plaintiff would deposit the full court fees on the reopening of the courts after the summer vacation. The application was duly supported by an affidavit dated 31st May, 1965, as required by the court, and the court, thereupon, granted time to deposit the court fees by 10th July, 1965. On the 10th July, 1965, an application was made on behalf of the said plaintiff, saying that he had gone with the necessary money to purchase the court fees stamps from the Government treasury, but the treasury was unable to supply the court fees stamps that day because the Collector of the district was under orders of transfer; and the stamps of the requisite value could not be had from the stamp vendors; and since the 11th and 12th July, 1965, were holidays, and since it was possible that handing over of the charge by the Collector may also continue on the 13th July, 1965, it was prayed that the time for depositing the court fees may be extended up to 15th July, 1965. This application was also duly supported by the affidavit of first plaintiff and was allowed by the court by an order dated 10th July, 1965. The deficiency in court fees was, thereafter, made good on 15th July, 1965, within the time allowed by the court. The suit was ordered to be registered the same day and the tender for payment of Rupees 10,500/- into the court on account of the sale consideration appears to have been passed by the court on 17th July, 1965, and the amount of Rs. 10,500/-appears to have been duly deposited thereafter in due course.;