Salil Kumar Datta, J. - (1.) This Rule was issued at the instance of the plaintiff in Title Suit No. 357 of 1967 in the Court of 1st Mun-sif, Tamluk against the order No. 47 dated Sep. 21, 1973, whereby the suit was dismissed after contest in terms of Sole-nama which was made a part of the decree. The relevant facts are as follows : The plaintiff filed the above Title Suit for declaration of title and recovery of possession of the suit property on eviction therefrom of the defendant the opposite party No. 1 and the State of West Bengal. It was stated that the opposite party No. 1 was allowed to live in the suit property as the licensee and as he failed to vacate on demand the suit was instituted for recovery of possession on declaration of title. The opposite party No. 1 filed a written statement stating that he was a tenant under the plaintiff's father since 1347 B. S. and his right was also perfected by adverse possession and his name was duly entered in the record of rights as a raiyat under the State. A written statement was also filed on behalf of the State of West Bengal stating that the opposite party No. 1 was a tenant under the State. The suit became ready for hearing on April 16, 1969 when both the parties namely the petitioner and the opposite party No. 1 submitted that they would file a petition of compromise. Thereafter on April 17, 1969 both parties filed a petition of compromise. The terms of Solenama in English rendering are as follows :-- "1. We the plaintiff and the defendant No. 1 on the advice of our well-wishers and considering all circumstances have decided to settle the suit amicably on compromise on the following terms.
(2.) We the plaintiff and the opposite party No. 1 hereby mutually admit and egree that (i) each term of solenama is consideration of the other, (ii) in this compromise the time is the essence of the contract, (iii) the plaintiff within April 26, 1969 will execute as vendor on behalf of his youngest minor son Kristo Prasad Bera, a kobala for about 6 cottas of land of Rs. 1,500 and register the same and endorse the registration receipt of the kobala in the name of the defendant No. 1 and deposit it in the Court and on that account pay Rs. 1.100 to the defendant No. 1 and inform Court accordingly. If the plaintiff complies with all these he will be entitled to a decree in the suit without cost and the opposite party No. 1 will deliver amicably khas possession of the decretal property to the plaintiff, (iv) if the plaintiff do not perform the acts mentioned above within the time aforesaid the suit will be dismissed. (v) the suit will be dismissed against defendant No. 1, (vi) the Solenama will be a part of the decree and if the defendant No. 1 is unable to vacate the plaintiff will toe entitled to take possession with the aid of the Court and he will be liable to pay Rs. 200 as compensation, (vii) accordingly we the plaintiff and .defendant No. 1 pray that the suit be fixed for May 27, 1969 for disposal in accordance with the terms of the Solenama." According to the plaintiff petitioner's case the Kobala was executed on April 25, 1969 and he tendered the money to the lawyer of the said opposite party and also to the opposite party; on their refusal to accept and inform the court accordingly, it became necessary that the amount should be deposited in Court. He accordingly filed an application on May 13, 1969 for deposit of money in Court. On this application the Court permitted the plaintiff to deposit the amount at his risk and thereafter it appears the amount was deposited. The plaintiff filed an application on May 27, 1969 for disposal of the suit in terms of Solenama. The opposite party No. 1 thereupon submitted that the deed should be perused and the final order be passed after few days. The suit was adjourned to June 2, 1969 and on that day the defendant No. 1 filed a petition for dismissing the suit according to the terms of the Solenama. It was stated therein that the plaintiff did not act in terms of the Solenama, he failed to endorse the registration receipt and to pay Rs. 1,100 and inform to the Court of such acts within April 26, 1969 as agreed and accordingly the suit was to be dismissed. By order dated June 5, 1969 the learned Munsif held that both execution of the kobala and the payment was to be made within April 26, 1969 and as the payment had been made beyond the time, the suit was to be dismissed in terms of the Solenama. Accordingly, the suit was dismissed. 2. The plaintiff moved this Court in revision against this order being Civil Rule No. 3342 of 1969 and it was held by this Court that the learned Munsif did not give reasons in support of his conclusion. Accordingly by order dated November 26, 1971 the impugned order was set aside and the case was sent back to the trial Court for decision in accordance with law. Thereafter the matter came up for hearing and the learned Munsif toy his order No. 47 dated September 21. 1973 after considering all aspects held that the suit was liable to be dismissed in terms of the Solenama. The suit was accordingly dismissed after contest in terms of the Solenama filed on April 17, 1969. This rule as already stated, is againsl this decision.
(3.) Mr. Gopal Chandra Mukherjee, learned Advocate appearing for the petitioner, submitted that the trial court should have held on the interpretation of the Solenama that time was not essence of the. contract; further even if it were so, in view of the substantial compliance of the provisions of the contract by the plaintiff end on equitable consideration the court should have granted the relief to the plaintiff by decreeing the suit in terms of the Solenama instead of dismissing the same. He further submitted that in any event the contract in the Solenama was a voidable one and the opposite party No. 1 did not even avoid the contract by any overt act. He was accordingly not entitled to challenge the compromise contract. For all this reasons it was submitted that the judgment challenged in the rule should be set aside and suit should be decreed in favour of the plaintiff in terms of the Solenama. Mr. Tapas Roy learned Advocate appearing for the opposite party No. 1 contended that time was the essence of the contract and the plaintiff failed to perform his part of the contract as required and was not entitled to any relief.;