- (1.) THIS appeal has arisen out of a suit for possession by specific performance. It is directed against the judgment and decree of the Courts below dismissing the suit by recording a concurrent finding.
(2.) THE sole controversy in this appeal is whether time was the essence of the contract and the suit is barred by time. In order to understand the controversy, it will be apposite to notice some facts. Teja Singh, defendant purchased suit land from the Rehabilitation Department in auction held on August 12, 1986. He paid the entire consideration. He either did not get the sale certificate or obtained the same from the Rehabilitation authorities. Teja Singh vide agreement dated August 1, 1973, Exhibit P -1 agreed to sell this land measuring 46 kanals 13 marlas to Bhagwan Singh plaintiff for a sum of Rs. 30,000/ -. Under the agreement, it was the responsibility of Teja Singh to obtain the sale certificate from the Rahabilitation Department and also to get a path of the size of 9 marlas from Amar Singh and Ram Chander. A sum of Rs. 11,500/ - was received by Teja Singh as earnest money on the date of agreement and executed a receipt for the same in token thereof. It was further agreed that sale deed would be executed by August 15, 1976 at all costs. A further sum of Rs, 1000/ - was paid to Teja Singh out of the remaining sale consideration on February 18, 1974. Bhagwan Singh also pleaded that he was always ready and willing to perform his part of the agreement whereas Teja Singh failed to do so inasmuch as he did not obtain sale certificate and did not inform him about it till the filing of suit. It is also the case of Bhagwan Singh that he paid another sum of Rs. 5015/ - in a suit titled 'Puran Chand v. Teja Singh' (Civil Suit No. 647 of 1974) on behalf of Teja Singh in order to save a part of the suit land from sale in execution of the decree. Notice sent to Teja Singh to execute sale deed evoked no response. This is what forced Bhagwan Singh to file the suit on the above allegations. Teja Singh defendant contested the suit. Few preliminary objections were raised. It was also pleaded that the suit was premature as some of the provisions in the agreement, though denied, were conditions precedent for execution of the sale deed and the said conditions did not exist even at the time of filing of the suit. On merits, it was pleaded that only a sum of Rs. 5000/ - was received at the time of agreement and that the obligations, as detailed in the agreement were to be performed by the defendant before August 15, 1976 and the sale was to be completed by August 15, 1976 at all costs. In the circumstances, it was pleaded that the time was essence of contract. Defendant also pleaded that specific performance of the agreement would cause hardship to him.
(3.) ON the pleadings of the parties the following issues were framed : 1. Whether the defendant agreed to sell land measuring 46 kanals 13 marlas mentioned in para No. 1 of the plaint to the plaintiff vide agreement dated 31 -8 -1973 for Rs. 30,000/ - ? If so, to what effect ? OPD 2. Whether the sale deed was to be executed by 15 -8 -76 subject to the conditions mentioned in the agreement dated 31 -8 -1973 ? OPD 3. Whether the suit is within time? OPD 4. Whether the suit is not maintainable being premature? OPD 5. Whether the specific performance of the contract shall cause acute hardship to the defendant ? If so, to what effect? OPD 6. Whether the plaintiff deposited a sum of Rs. 5015/ - in execution of civil suit No. 647 of 1974 ? If so, to what effect ? OPD 7. Relief. ;