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K. Krishnan Nair & 3 Others v. K. Parameswaran Pillai And 23 Others.
Factual and Procedural Background
This appeal arises from two suits originating in the Subordinate Judge's Court, Kuzhithurai / Padmanabhapuram / Nagercoil: (1) a suit for partition (O.S. No. 43 of 1979) and (2) a suit for specific performance (O.S. No. 33 of 1979). The central dispute concerns certain suit properties purchased by the first appellant, the first respondent and the second respondent from Govindan Nambudhiri on 7.3.1962. The purchase deed referred to a decree in O.S. No. 380 of 1950 (for possession). Possession was obtained on 9.2.1963 but was contested by Pathan Nadan and others leading to proceedings under S.145 Cr.P.C. (initially M.C. No. 7 of 1964, later M.C. No. 33 of 1964).
On 9.4.1964 an agreement (Ex. B-1) was executed by which respondents 1 and 2 agreed to sell their two-thirds share in a key plot (Survey No. 2204-8-B, "item No.1") to the first appellant for Rs. 17,967 (with specific advance payments recorded). The agreement fixed the period for purchase as one month after the "final order" in the S.145 Cr.P.C. proceeding. The S.145 proceeding ultimately resulted in a final order on 30.7.1964 declaring possession with the opposing party ("B" party). Subsequent litigation followed: a civil suit to set aside that order (O.S. No. 24 of 1964 → O.S. No. 27 of 1965) which underwent appeal and second appeal before being remanded and finally decreed in favour of the plaintiffs on 19.2.1973. Thereafter, various appeals and second appeals were pursued; a second appeal S.A. No. 73 of 1978 was dismissed in limine on 10.1.1978.
Execution of decree and delivery took place: execution proceedings were filed 17.1.1978 and delivery effected 23.1.1978; the first respondent took delivery for himself and on behalf of the first appellant and second respondent on 16.5.1979. The first appellant sent a notice to the first respondent to perform the contract; after a reply, the first appellant filed O.S. No. 33 of 1979 seeking specific performance (praying that the defendant execute a sale deed in respect of his one-third share for a total consideration of Rs. 8,983.50).
In response, on 30.8.1979 the first respondent filed O.S. No. 43 of 1979 for partition and separate possession of his one-third share (item No.1 and item No.2 — Survey No. 2204-9-B). Defendants 3 to 5 were impleaded because they had obtained a sale deed from the second respondent on 26.9.1974. Defendants 6 to 11 were impleaded as tappers working on rubber trees. Both suits were tried together and disposed of by a common judgment at trial: the trial Court found that advance under the agreement was not returned but held that (a) the agreement had been abandoned by the first appellant because of inordinate delay, (b) the agreement had never taken effect and was unenforceable, and (c) the suit was barred by limitation. The trial Court dismissed the suit for specific performance (O.S. No. 33 of 1979) and granted partition in O.S. No. 43 of 1979.
Appeals were filed (A.S. No. 348 of 1982 and Transfer Appeal No. 765 of 1985). During pendency of the appeals some parties died and legal representatives were brought on record; some of the legal representatives did not appear and were set ex parte.
Legal Issues Presented
- What was the time fixed by the parties under Ex. B-1 for performance of the contract (i.e., meaning of the term "final order" used in the agreement) — one month from the final order in M.C. No. 7 of 1964 or one month from the final termination of all subsequent proceedings?
- Whether the first appellant abandoned the contract by inordinate delay in seeking specific performance.
- Whether the suit for specific performance is barred by limitation (calculation of limitation from the date fixed for performance).
- Whether the plaintiff (first appellant) can enforce a sale of only one-third share when the agreement contemplated sale of two-thirds share (i.e., maintainability of the suit under S.12(1) of the Specific Relief Act — whether the suit impermissibly seeks specific performance of a part of the contract or a different contract).
- Whether the first appellant is disentitled to equitable relief because he did not come to Court with clean hands (allegation that first appellant falsely claimed exclusive possession).
- As to item No. 2 (Survey No. 2204-9-B): whether defendants/appellants 3 to 5 (and their predecessors) hold exclusive tenancy/leasehold rights such that partition division must account for that tenancy.
Arguments of the Parties
Appellants' Arguments
- The time fixed by the parties for specific performance under Ex. B-1 should begin to run only upon final conclusion of all proceedings arising out of M.C. No. 7 of 1964 (i.e., after dismissal of S.A. No. 73 of 1978 on 10.1.1978), so there was no abandonment.
- The suit is not barred by limitation because the limitation period began only when S.A. No. 73 of 1978 was dismissed (10.1.1978).
- The first appellant was always ready and willing to perform his part of the contract; the agreement and the passing of part consideration are not in dispute; therefore, a decree for specific performance should be granted.
- With respect to item No. 2, appellants (2 to 4) are in exclusive possession as tenants and that tenancy/right should be recognized at division.
Respondents' Arguments
- The suit for specific performance is not maintainable because of the provisions of S.12(1) of the Specific Relief Act (i.e., the relief sought impermissibly seeks a different or partial contract enforcement).
- The suit is barred by limitation.
- The first appellant is not entitled to equitable relief because he has not come to Court with clean hands (alleged false claim as to exclusive possession and other misleading assertions).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jhunamal v. State of Madhya Pradesh (AIR 1988 S.C. 1973) | Order under S.145 Cr.P.C. deals only with factum of possession as on particular day and should not be set aside merely because civil suit is pending; S.145 order is not superseded by concurrent civil proceedings. | Cited to support the conclusion that a suit to set aside the S.145 order is not a "continuation" of the S.145 proceeding and that the "final order" in the S.145 matter is the relevant event fixed by the parties. |
| Nagabhushanayya v. Kotayya (59 L.W 289 = AIR 1946 Madras 444) | For the purposes of Art. 47 (Limitation Act of 1908), an order in revision may not be the "final order" and limitation may begin from the Magistrate's order. | Referred to by respondent's counsel on interpretation of "final order", but the Court held that S.145 Cr.P.C. contemplates preliminary and final orders and that the expression in Ex. B-1 referred to the final order in the S.145 proceeding (M.C. No. 7 of 1964). |
| Sawai Singhai v. Union of India (AIR 1966 S.C. 1068) | Proceeding under one procedural rule is not necessarily a continuation of proceedings under another; analogous rule regarding exclusion of time/continuation. | Used as an analog to reject the argument that subsequent proceedings were a continuation requiring the time for performance to be fixed after final determination of all further proceedings. |
| Muniswami Goundar v. Shamanna Gouda (1956 II MLJ 163) | The words "date fixed" include a date ascertainable with reference to an event certain to happen (so limitation begins from ascertainable event). | Applied to hold that the date fixed under Ex. B-1 (one month from final order in M.C. No.7 of 1964) is an ascertainable date (final order 30.7.1964) and limitation runs from its expiry. |
| Kantilal C. Shah v. Devarajulu Reddiar (1977-II-MLJ 484) | Unexplained and wanton delay permits inference of abandonment; burden on plaintiff in case of unexplained delay is heavy to show purpose and not design. | Followed to conclude that unexplained inordinate delay justified inferring abandonment of the contract by the first appellant in the present case. |
| Varudayammal v. Balasubramania Gounder (92 L.W. 92) | Authority following the proposition that unexplained/wanton delay may justify inference of abandonment. | Referred to as supportive authority for the proposition that inordinate delay can lead to inference of abandonment. |
| Phoenix Mills, Ltd. v. M.H. Dinshaw & Co. (AIR 1946 Bombay 469) | Rule that a promisee can dispense with performance of a promise only by a voluntary conscious act; abandonment requires a voluntary act. | Relied upon by appellants to argue against inferring abandonment; Court considered but found facts (delay, conduct, independent sale by second respondent) sufficient to infer abandonment despite lack of a single positive act. |
| Sankaralinga v. Ratnaswami (AIR 1952 Madras 389) | Mere delay does not by itself preclude specific performance if suit is otherwise in time; delay must support inference of abandonment or changed circumstances causing prejudice. | Distinguished: court held present case involved an unexplained inordinate delay (not mere delay) and changed circumstances (substantial rise in property value), justifying refusal of specific performance. |
| Neminath Appayya v. Jambooran (AIR 1966 Mysore 154) | Burden to prove abandonment lies on the defendant. | Noted by the Court, but Court found on the facts that the delay and other circumstances sufficed to permit inference of abandonment despite the general burden rule. |
| Kartar Singh v. Harjinder Singh (AIR 1990 S.C. 854) | Permits enforcement of valid part of a contract where the contracting party had agreed to sell his entire property though a co-owner did not join; not covered by S.12 where the contract so permits. | Distinguished: Court held that the present contract envisaged a single sale-deed for the two-third share of respondents 1 and 2 and the plaintiff could not split the contract and seek enforcement in respect of only one-third; Kartar Singh did not apply. |
| Chelliah Nadar v. Periathambi Nadar (1993 2 L.W. 84) and Nallaya Gounder v. P. Ramaswami Gounder (1993 (2) L.W. 86) | Principle that a plaintiff who comes to Court with unclean hands (false allegations, especially regarding delivery of possession) is not entitled to equitable relief like specific performance. | Applied: Court found the first appellant's claim of exclusive possession inadequately supported and possibly false; therefore, the appellant had not come with clean hands and was disentitled to specific performance. |
Court's Reasoning and Analysis
The Court proceeded by identifying the primary question: the meaning of "final order" in Ex. B-1 and the time fixed by the parties for performance. The Court examined the language of Ex. B-1 (including the Tamil transliteration agreed by parties) and concluded the expression referred specifically to the final order in M.C. No. 7 of 1964 (the S.145 Cr.P.C. proceedings), not to the final termination of every consequential proceeding that might follow. The Court relied on contemporaneous circumstances (a preliminary order was then in force; parties expected a final order shortly) and on P.W.1's (first respondent's) evidence that the agreement required execution of a sale deed within one month from disposal of the M.C. case. There was no cross-examination on that point and no contrary plea or evidence by the first appellant in pleadings or evidence that the time should be measured from the final termination of all subsequent litigation.
Having fixed the contractual period as one month from the final order dated 30.7.1964, the Court applied Art. 54 of the Limitation Act, 1963 (three years for specific performance from the date fixed for performance). The Court held that the plaintiff should have sued within three years from 30.8.1964. Since the suit was filed on 18.7.1979, it was barred by limitation.
The Court addressed abandonment: although appellants argued abandonment requires a positive/voluntary act (citing Phoenix Mills), the Court found the facts showed unexplained, inordinate delay and conduct inconsistent with intent to enforce the agreement. The first appellant collaborated with respondents 1 and 2 in litigation over the years and did not take steps (e.g., obtaining a sale deed independently) that would demonstrate insistence on performance. Further, the second respondent executed an apparent independent sale (Ex. B-25) of his one-third share to defendants 3–5 in 1974 for a consideration inconsistent with Ex. B-1; the recitals in Ex. B-25 did not reference Ex. B-1 and the Court refused to accept evidence contradicting Ex. B-25. These circumstances permitted the Court to infer abandonment.
On the maintainability under S.12(1) Specific Relief Act, the Court held that O.S. No. 33 of 1979 sought enforcement of a different contract (or a different mode of performance) than Ex. B-1. Ex. B-1 contemplated a single sale deed for the two-third share of respondents 1 and 2, with a specific arrangement about depositing Rs.14,000/- in Court if the respondents failed to execute. The suit sought a decree for execution of a sale deed of only one-third share at a sum different from the contract — this, the Court found, was not authorized under S.12(1) as framed by the parties and therefore was not maintainable.
Concerning the doctrine of clean hands, the Court accepted the trial Court's finding that the first appellant's asserted exclusive possession was not adequately supported by evidence and that the first appellant had, in effect, advanced a false case regarding delivery of possession. The Court relied on established authorities to hold that a plaintiff who approaches equity with unclean hands is not entitled to equitable relief like specific performance.
With respect to item No. 2 (the alleged leasehold/tenancy and exclusive possession), the Court carefully reviewed the documentary and oral evidence (Ex. A-3, Ex. B-42 and D.W.2's testimony). The trial Court's adverse credibility findings about D.W.2 (Damodharan Nair) — lack of detailed knowledge about the property, inability to account for expenditures or planting, failure of the second appellant to give evidence — were accepted on appeal. The appellate Court found the attempted proof of exclusive tenancy/possession unestablished and affirmed the trial Court's rejection of that claim.
Holding and Implications
Holding: The appeals fail and are dismissed. Specifically, A.S. No. 348 of 1982 is dismissed with costs; in Transfer Appeal No. 765 of 1985 there will be no order as to costs.
Implications and direct effects:
- The Court held that the contractual time for performance (Ex. B-1) was one month from the final order in M.C. No. 7 of 1964 (final order dated 30.7.1964) and, applying Art. 54 of the Limitation Act, 1963, a suit for specific performance had to be filed within three years from 30.8.1964. The specific performance suit filed in 1979 was therefore time-barred.
- The Court inferred abandonment of the agreement by the first appellant because of unexplained, inordinate delay and other factual circumstances (including the second respondent's independent sale under Ex. B-25), and held that in the circumstances specific performance should not be granted.
- The suit for specific performance as framed (seeking enforcement as to one-third share and a different consideration) was held not maintainable under S.12(1) of the Specific Relief Act because it sought enforcement inconsistent with the contract as executed (which envisaged a single sale deed for two-thirds share).
- The first appellant was found to have approached the Court without clean hands (false or unsupported claim of exclusive possession), which disentitled him to equitable relief.
- The trial Court's finding rejecting the tenancy/exclusive possession claim as to item No. 2 was affirmed; the appellants failed to establish the alleged leasehold/tenancy by credible evidence.
- No new legal proposition beyond application of existing authorities was laid down; the decision applies established principles (interpretation of contractual time, limitation, abandonment/inordinate delay, S.12(1) constraints, and clean hands doctrine) to the facts of this case.
Result recorded in the opinion: appeals dismissed (A.S. No. 348 of 1982 with costs; Transfer Appeal No. 765 of 1985 — no order as to costs).
JUDGMENT — Srinivasan, J.
The farmer appeal arises out of the suit for partition in O.S No. 43 of 1979 on the file of the Subordinate Judge, Kuzhithurai and the latter appeal arises out of the suit for specific performance filed by the first defendant in the other suit, as O.S No. 33 of 1979 on the file of the same Court. Defendant 1 and 3 to 5 in O.S No. 43 of 1979 are the appellants in the former appeal and the plaintiff in O.S No. 33 of 1979 is the appellant in the latter appeal. The parties will be referred to by their ranks in A.S No. 348 of 1982.
2. The first appellant, the first respondent and the second respondent purchased for a sum of Rs. 7,000/- certain properties including the suit properties from one Govindan Nambudhiri on 7.3.1962 In the document of purchase, reference was made to a decree in O.S No. 380 of 1950 on the file of the District Munsif's Court, Kuzhithurai, for possession. The vendor had assured the purhasers that he would get delivery of possession in execution of the said decree and hand over possession of the same to the purchasers. The purchasers got possession of the properties on 9.2.1963 One Pathan Nadan and others sought to disturb the possession of purchasers which resulted in a proceeding under S. 145, Cr. P.C The parties hereto were shown as ‘A’ party and Pathan Nadan and others were shown as ‘B’ party. A preliminary order Was passed in the said proceedings on 9.12.1963 by the Executive 1 Class Magistrate, Padman abhapuram. The subject matter of the said proceedings was suit item No. 1 comprising of 11 acres 22 cents in Survey No. 2204-8-B. When that proceeding was pending, an agreement was brought into existence by the first appelant and respondents 1 and 2 on 9.4.1964 under which respondents 1 and 2 agreed to sell their 2/3rd share in suit item No. 1 to the first appellant for a total consideration of Rs. 17,967/-. The agreement also referred to a right to enjoy Survey No. 2204-8-C, which is a poramboke land of an extent of 2 acres 64 cents, adjacent to suit item No. 1. Out of the total consideration a sum of Rs. 1,983.50 was paid to each of respondents 1 and 2. As regards the balance of Rs. 14,000/- it was agreed that each should be paid Rs. 7,000/-. Respondents 1 and 2 agreed to sell their two-third share in the said property. The period for purchase of the property was fixed as one month after final order in M.C No. 7 of 1964, which was the proceeding under S. 145, Cr. P.C referred to earlier. That proceeding was later transferred to the file of the District Magistrate (Judicial) Court, Nagercoil and numbered as M.C No. 33 of 1964. A final order was passed on 30.7.1964 declaring the possession of the property to be with ‘B’ party therein, namely Pathan Nadas and others. Thus, the proceeding in M.C No. 3 of 1964/33 of 1964 ended against the parties to the suit. A suit was filed by the first appellant as well as respondents 1 and 2 together on 2.9.1964 for declaration of the their title to the property and to set aside the order passed by the District Magistrate (Judicial) in M.C No. 33 of 1964. That suit was numbered as O.S No. 24 of 1964 on the file of the Subordinate Court, Padmanabhapuram. It was later transferred to Subordinate Court, Nagercoil and numbered as O.S No. 27 of 1965. The suit was dismissed on 15.4.1966 The appeal to the District Court was numbered as O.S No. 373 of 1966. It was allowed on 27.1.1968 and the suit was decreed. During the pendency of the appeal, Pathan Nadan died and his legal representatives were impleaded as parties. Second appeal was filed by them in this Court in S.A No. 404 of 1968. That was allowed by this court and the matter was remanded on 6.7.1971 to the District Court for fresh disposal. The District Court in turn remanded the matter to the Sub-Court by orders dated 23.8.1972 On 19.2.1973, the Sub-Court decreed the suit in favour of the plaintiffs. Thereafter, the second respondent herein sold his share of the property to defendants 3 to 5 on 26.9.1974 for a sum of Rs. 4,000/-. An appeal was filed by Pathan Nadan's legal representatives against the decree passed by the Subordinate Judge and it was numbered as A.S No. 159 of 1973 on the file of the District Court, Nagercoil and that appeal was dismissed on 9.9.1977 The second appeal to this Court in S.A No. 73 of 1978 was dismissed in limine on 10.1.1978
3. On 17.1.1978 execution proceeding was filed and delivery was effected on 23.1.1978 The first respondent took delivery of the property for himself and on behalf of the first appeallant and the second respondent on 16.5.1979 The first appellant sent a notice through lawyer to the first respondent calling upon him to perform the contract specifically. A reply was sent by the first respondent on 15.6.1979 The first appellant filed O.S No. 33 of 1979 for specific performance of the agreemennt for sale against the defendant in suit who is the first respondent herein. The prayer in the suit is for a direction to the defendant to execute a sale deed in respect of his one-third share of the suit property for a total consideration of Rs. 8,983.50.
4. The first respondent filed O.S No. 43 of 1979 on 30.8.1979 for partition and separate possession of his one-third share. The first item is Survey No. 2204-8-B which is the subject matter of the suit for specific performance4. The second item is Survey No. 2204-9-B of an extent of 3 acres 56 cents. Defendants 3 to 5 have been impleaded as they have obtained a sale deed from the second defendant as referred to earlier on 26.9.1974 Defendants 6 to 11 are impleaded as parties as they are tappers working on the rubber trees in the rubber plantation in the suit properties. The contentions regarding item No. 1 in the partition suit as well as the suit for specific performance as between the parties are the same.
5. It is the case of the first respondent that there was no enforceable agreement and the amount received by way of advance on the dale of the agreement had already been returned to the first appellant. It is also contended that the suit is barred by limitation and after the final order in M.C No. 33 of 1964, the agreement lapsed and it could not be enforced. It is not necessary to refer to the other defences. With regard to item No. 2 in the partition suit, it is the contention of defendants 3 to 5 that they have leasehold rights therein and at the time of division, provision regarding the said leasehold right should be made. According to them, they are in exclusive possession of the said property.
6. Both the suits were tried together and disposed of by a common judgment. The trial Court found that the advance paid under the agreement to respondents 1 and 2 was not returned. It held that the agreement had been abandoned by the first appellant and that the inordinate delay in seeking to enforce the greement leads to the inference of abandonment, it is also held by the trial Court that the agreement had never taken effect and therefore, unenforceable. The suit was held to be barred by limitation. The claim of the second respondent herein was left open by the trial Court. The trial Court also held that the contention of the first appellant that the suit filed by the parties to set aside the order in M.C No. 33 of 1964 and the subsequent proceedings leading to second appeals in this Court were only continuation of the summary proceedings under S. 145. Cr. P.C and therefore, the cause of action for enforcing the agreement arose only after the termination of such proceedings, was not acceptable. As regards item No. 2, the trial Court negatived the contention of defendants 6 to 11 that they are in exclusive possession as tenants. Consequently, the trial Court dismissed O.S No. 33 of 1979 and granted a decree for partition in O.S No. 43 of 1979 as prayed for. There is no appeal by the second respondent as against the conclusion of the trial Court. During the pendency of A.S No. 348 of 1982, second respondent died and his legal representatives have been brought on record as respondents 18 to 24. Even while notices were being taken to the said respondents, 18th respondent died and respondents 19 to 24 being her children are her legal representatives. The Counsel who was appearing for second respondent reported to the Court that he had not received any instruction from the legal representatives of the second respondent and that he was not in a position to represent them. Respondents 19 to 24 having been served with notices are set ex parte as they nave not chosen to enter appearance. First respondent died and his legal representatives have been brought on record as respondents 9 to 17.
7. In these appeals, following contentions are raised by learned Senior Counsel for the appellants:
(1) The suit to set aside the order in the proceedings under S. 145 Cr. P.C is not a continuation of the said proceedings and the time fixed by the parties for specific performance would begin to run only at the conclusion of all the proceedings after the dismissal of S.A No. 73 of 1978. Hence, there is no question of abandonment of the agreement on the part of the first appellant.
2. The suit is not barred by limitation in view of the fact that the time began to run only when S.A No. 73 of 1978 was dismissed on 10.1.1978
3. The first appellant was always ready and willing to perform His part of the contract and the truth of the agreement or the passing of part of consideration not being in dispute, a decree for specific performance had to be granted; and
4. In so far as item No. 2 is concerned, appellants 2 to 4 are in exclusive possession as tenants and that should have been upheld by the Court below.”
8. Learned Senior counsel for the legal representatives of the first respondent has contended that the suit is not maintainable because of the provisions of S. 12(1) of the Specific Relief Act, the suit is barred by limitation and the first appellant is not entitled to get equitable relief of specific performance as he has not come to Court with clean hands.
9. The first question to be decided is what is the time fixed by the parties for the performance of the contract in Ex. B-1. On the decision of that question, the answers to the other two questions with regard to the abandonment of the contract as well as the bar of limitation will depend. Ex. B-1 in the agreement dated 9.4.1964 The translation of the same is found at page 47 of the paper book prepared by the High Court. But, we find that the translation is erroneous on several aspects. We propose to read the Tamil transliteration of the document filed in the Court below to which all the parties ahve consented. The relevant part of the document reads as follows:
As per the said clause, the sale deed has to be executed by the second party, namely respondents 1 and 2 herein, and to be taken by the first party, namely the first appellant, after the second party receives Rs. 7,000/- each, in one month after the final order in M.C No. 7 of 1964 which is a case pending in the Court of the I Class Magistrate, Kuzhitnurai, with reference to the schedule property. The crucial words are The expression has been translated by the Registry as final disposal. In our view, the expression means “final order”. There is no difficulty in holding that the sale deed has to be executed within one month from the dale of the final order. The contention of the appellants is that “final Order” means the final determination of all the proceedings which may arise out of the order passed in M.C No. 7 of 1964. The contention of the first respondent is that “final order” means final order in M.C No. 7 of 1964. We have no doubt that the expression finds in the document would refer only to the final order passed in M.C No. 7 of 1964 and not to any order which may be made in the found subsequent proceedings. It is admitted that the first respondent was a Vakil's clerk and he wrote the document. Obviously he was aware of the fact that in proceedings under S. 145 Cr. P.C, there will be a preliminary order in the first instance and a final order at the end. Thus, he used the expression “final order” in the document in order to indicate the final order which will be passed in the said proceedings in continuation of the preliminary order already passed. On the date when the agreement was entered into between the parties, a preliminary order was in force and the matter was pending before the Court. A final order was expected lobe passed in a short time, it was at that stage, respondents 1 and 2 agreed to sell their two-third share to the first appellant. In the circumstances of the case, the only conclusion that is possible is that the parties intended to fix the time or performance of the contract as one month from the date of the final order in M.C No. 7 of 1964.
10. There is also evidence on record to support the said conclusion. The first respondent has given evidence as P.W 1. He has stated categorically in chief examination that the agreement was to execute a sale deed within one month from the dale of disposal of M.C case. He has also stated that the parties were at that time thinking that the case would end in their favour. There is no cross examination on this aspect of the matter by the first appellant; nor has D.W 1 (first appellant) stated anything about it in his evidence. It should be noted that in the written statement filed by him in O.S No. 43 of 1979 or in the plaint or in the reply statement filed by him in O.S No. 33 of 1979, no plea was raised by him that the time for performance of the contract was to be calculated from the date of final termination of all the proceedings which were instituted subsequent to the order made in M.C No. 33 of 1964 for setting aside that order. Hence, we have no hesitation to hold that the time fixed in Ex. B-1 was one month from the date of the final order in M.C No. 7 of 1964 which was 30.7.1964
11. We are unable to accept the contention that the suit to set aside the order in M.C No. 33 of 1964 is only a continuation of the proceedings under S. 145 Cr. P.C for two reasons. One, we cannot assume or infer that the parties wanted to fix an indefinite or uncertain dale in a distant future. On the other hand, it is clear on the facts of the case that the parties fixed a definite date for specific performance of the contract and it was within a short time after entering into the contract. Secondly, in law, a suit to set aside the order under S. 145, Cr. P.C is not a continuation of the proceedings under S. 145. Cr. P.C It is too well known that the order passed under S. 145 Cr. P.C determines only the factum of possession as on the date referred to and it becomes final in so far as that question is concerned until it is set aside in revision by a higher Court. The question to be decided in the suit filed by the parties is a question relating to title and that will not in any way affect the determination of the Magistrate that such and such party was in possession and on the basis of title established in the suit, certainly the party gets a decree for possession.
12. This positon is also recognised in Jhunamal v. State of Madhya Pradesh (AIR 1988 S.C 1973). In that case an order was made under S. 145 Cr. P.C in respect of a shop premises. A suit was filed by the unsuccessful party for injunction. He also obtained a temporary injunction which was later vacated on appeal. The unsuccessful party filed a proceeding in the High court to quash the proceedings under S. 145 Cr. P.C The High Court allowed the petition on the ground that the civil suit was pending and the dispute between the parties should be determined in the civil proceedings, with the result, the order passed by the crimnal Court was set aside. The matter was taken to the Supreme Court and it was held that the High Court was in error in setting aside the order under S. 145 Cr. P.C merely because a proceeding in the civil Court was pending. The Court said,
“we fail to understand how the High Court in this case took advantage of the decision of this Court in Ram Sumer's case. The ratio of the said decision is that a party should not be permitted to litigate before the criminal Court when the civil suit is pending in respect of the same subject matter. That does not mean that a concluded order under S. 145 Cr. P.C made by the Magistrate of competent jurisdiction should be set at naught merely because the unsuccessful party has approached the civil Court. An order made under S. 145, Cr. P.C deals only with the factum of possession of the party as on a particular day. It confers no title to remain in possession of the disputed property.”
13. Learned Senior Counsel for the first respondent referred to the judgment in Nagabhushanayya v. Kotayya (59 L.W 289 = AIR 1946 Madras 444). In that case, an order was passed by the Magistrate under S. 145, Cr. P.C and a revision was filed against the same which was rejected in limine. It was held that for the purposes of Art. 47 of the Limitation Act of 1908, order in the revision was not the final order and the order passed by the Magistrate was the final order, from the date of which limitation began to run. Learned Counsel made a reference to Art. 47 of the Limitation Act, 1908 and drew attention to the expression “final Order” used in the third column, It was submitted that the first respondent would have had in mind being otherwise clear, expression used in the third column and introduced the words in Ex. B-1. It is not necessary for us to go that extent as we have already pointed out that S. 145, Cr. P.C contemplates a preliminary order and a final order.
14. Learned counsel also refers to the judgment of the Supreme Court in Sawai Singhai v. Union of India (AIR 1966 S.C 1068). That case related to a proceeding under O. 21, R. 63, C.P.C The contention that a proceeding under O. 21, R. 63, C.P.C was only a continuation of the proceedings under O. 21, R. 58, C.P.C and the period of notice under S. 80 C.P.C could not be excluded, was rejected. The Court held that the said proceeding cannot be said to be a continuation and the period of notice should be excluded under S. 15 of the Limitation Act.
15. As we have held that the parties fixed the time for purchase at one month from the date of the final order in M.C No. 7 of 1964, the limitation begins on the expiry of one month from 30.7.1964 Art. 54 of the Limitation Act, 1963 prescribed a period of three years for a suit for specific performance of a contract from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that performance is refused. In the present case, the date is fixed by the parties. Though actual date is not fixed, the parties have clearly mentioned the time within which the contract should be performed. It has been held in Muniswami Goundar v. Shamanna Gouda (1956 II MLJ. 163) that the words “date fixed” are comprehensive to include a date which can be ascertained with reference to an event certain to happen, in the present case, certain event is fixed and that is the final order in M.C No. 7 of 1964 and that happened on 30.7.64 Hence, the suit should have been filed within three years from 30.8.1964 The suit having been filed only on 18.7.1979 is clearly barred by limitation.
16. There is no explanation on the part of the first appellant for the inordinate delay in filing the suit after the disposal of M.C No. 7 of 1964. The only explanation offered is that the said proceeding under S. 145, Cr. P.C ended against the parties and there was a necessity to institute a suit to set aside the order and that litigation continued upto 10.1.1978 when S.A No. 73 of 1978 was dismissed by this Court. We have already referred to the fact that there is no plea or evidence on the side of the appellants that it was intended by the parties that the contract should be performed within one month after the final conclusion of all the proceedings which may arise out of M.C No. 7 of 1964. In the absence of any such plea or evidence, it is not open to the first appellant to contend that he was waiting for the conclusion of the proceedings which followed the institution of O.S No. 27 of 1965. It is argued that the first appellant could not have taken a sale deed from respondents 1 and 2 when the order in M.C No. 7 of 1964 was against the parties. There is no substance in this argument. The first appellant could well have obtained a sale deed from respondents 1 and 2 and instituted all the subsequent proceedings as the exclusive owner of the properties. Instead, he chose to have the assistance of respondents 1 and 2 and also utilise their finances for taking proceedings till 1978. In those circumstances, the Court can easily infer that the first appellant had abandoned the contract. We also noticed that the second respondent has sold his one-third share under Ex. B-25 dated 26.9.1974 in favour of appellants 2 to 4. That sale deed does not make any reference whatever to Ex. B-1. It is the contention of the appellants that the said sale deed was taken only in pursuance of the agreement Ex. B-1. That contention is wholly unsustainable. We find that the consideration mentioned in Ex. B-25 is entirely different from that fixed in Ex. B-1. The total consideration under Ex. B-25 is only Rs. 4,000/- and there is no reference whatever to the advance paid in Ex. B-1. Learned counsel for the appellants pointed out that there is evidence on record to show that the amount received from the second respondent was Rs. 7,000/- though the document mentioned only Rs. 4,000/-. We cannot accept the evidence which runs counter to the recitals in Ex. B-25. Moreover the entire case in the pleadings as well as the evidence was proceeding only as if appellants 2 to 4 are the owners of one-third share which belonged to the second respondent and which was conveyed under Ex. B-25. It was never even pretended by the first appellant that he became the owner of one-third share of the second respondent under Ex. B-25. In those circumstances, the fact that the second respondent executed a sale deed in respect of his one third shine in favour of the appellants 2 to 4 independent of Ex. B-1 is a circumstance clearly indicating that Ex. B-1 was abandoned by the parties.
17. It is contended by learned counsel that unless there is a positive act on the part of the first appellant, no abandonment can he inferred. Learned counsel relies on the judgment of Bombay High Court in Phoenix Mills, Ltd.…Plaintiffs; v. M.H Dinshaw & Co.…Defendants. (AIR 1946 Bombay 469). It is stated therein that a promisee can only dispense with the performance of the promise by a voluntary conscious act. It is contended that there is no voluntary or conscious act on the part of the first appellant, so as to enable the Court to hold that the contract has been given up. Learned counsel also relied on the judgement or this Court in Sankaralinga v. Ratnaswami (AIR 1952 Madras 389). A Division Bench of this Court held.
“Mere delay does not by itself preclude the plaintiff from obtaining specific performance, if the suit is otherwise in time. The delay must be such that it may be property inferred that the plaintiff has abandoned his right or on account of delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant.”
18. Reference is also made to the judgment of Mysore High Court in Neminath Appayya v. Jambooran (AIR 1966 Mysore 154) in support of the contention of learned counsel that the burden to prove the abandonment of contract is on the defendant. On the facts we find that this is not a case of mere delay, but this is a case of unexplained inordinate delay on the part of the first appellant. A Division Bench of this Court has considered the question in Kantilal C. Shah v. Devarajulu Reddiar (1977-II-MLJ 484) and held that unexplained, as well as, wanton delay cannot be equated to mere delay and in such ease, the burden is very heavy on the plaintiff to show that he had a purpose and not a design when he kept silent arid did not demand performance. The said judgment has been referred to and followed by Ismail, J. (as he then was) in Varudayammal v. Balasubramania Gounder (92 L.W 92). We have also followed the said judgment in our judgment dated 11.3.1993 in A.S Nos. 85 and 89 of 1983 (Viswanathan v. Lakshmi Ammal and others). We have also referred to the said proposition in Chettiah Nadar v. Periathambi Nadar (1993 2 L.W 84). Moreover, in the present case, the delay on the part of the first appellant has led to the situation where if the contract is specifically enforced, the First respondent will be put to undue hardship as the value of the property has risen beyond the imagination of the parties. It is seen from the facts of the case that on the date of the contract, there were only rubber saplings which were hardly of any value and in 1974 when the suit was filed, they had become full grown rubber plantation and the value was enhanced by several times. The first appellant cannot acquire that property for the same consideration which was fixed in 1964. Hence, we hold that in the present ease, the facts and circumstances are sufficient to enable the Court to infer abandonment of the contract by the first appellant.
19. The contention urged by learned Senior Counsel for the respondents that the suit is not maintainable as it seeks to enforce a contract different from that what was entered into between the parties, is well founded. Learned counsel draws our attention to S. 12(1) of the Specific Relief Act which provides that except as otherwise provided in that Section, the Court shall not direct specific performance of apart of the contract. We are of the view that what is sought to be enforced is not a part of the contract entered into between the parties, but a different contract altogether. We have already referred to the prayer in the suit. The first appellant has prayed for a direction to the defendant to execute a sale deed of one-third share of property for a total consideration of Rs. 8,983.50. Under Ex. B-1, respondents 1 and 2 agreed to execute a sale deed in respect of their two-third share in favour of the first appellant. The contemplation of the parties was to have only one sale deed with respect to the two-third share of respondents 1 and 2. No doubt the amount of consideration has been divided into two halves as payable to each one of them. But, when setting out the terms of the contract, it is clearly stated that if respondents 1 and 2 failed to execute a sale deed, the first appellant should deposit the entire sum of Rs. 14.000/- in the Court and seek the relief of specific performance. We have already extracted condition No. 1 set out in Ex. B-1. That condition also refers to the payment of balance of Rs. 14,000/- payable. A reading of Ex. B-1 shows that the parties intended to have only one sale deed in favour of the first appellant for the entire two-third share of respondents 1 and 2. What is sought to be enforced in O.S No. 33 of 1979 is clearly different from that contract and the plaintiff is not entitled to have the relief. Learned Senior Counsel for the appellants contends that the second respondent having executed a sale deed with respect to his one-third share, is not a necessary party to the present suit and it is open to the first appellant to confine his prayer to the remaining one-third share of the first respondent. We are unable to agree. The contract does not give any such liberty to the first appellant to split it and seek relief with regard to one portion thereof or seek to enforce a different contract. Learned counsel relies on the judgment of the Supreme Court in Kartar Singh v. Harjinder Singh (AIR 1990 SC. 854). The respondent before the Supreme Court and his sister owned some properties and the respondent entered into a written agreement with the appellant for himself and on behalf of his sister for the sale of all the properties for a consideration of Rs. 20,000/- He undertook to get the signature of his sister in the sale deed. But, his sister refused to sell her share. In a suit for specific performance against both, the Court granted a decree with respect to the half share of the respondent. That was set aside by the High Court taking into account that the provisions of S. 12 of the Specific Relief Act. On appeal the Supreme Court held that the matter was not covered by S. 12. It was held that the case was not one for performance of a part of the contract, but it was one for performance of whole of the contract so far as the contracting party, namely, the respondent therein was concerned. It was pointed out that under the agreement he had contracted to sell whole of his property and the contract in so far as the sister's share was concerned, she was not a party. Hence, the plaintiff in that case was held to be entitled to enforce the valid part of the contract which related to the share of the respondent. The above ruling will have no application for the present case. Hence, we hold that the suit for specific performance as framed by the first appellant is not maintainable.
20. Learned counsel for the respondents contended that the first appellant has not come to Court with clean hands as he had falsely stated that he is in exclusive possession of the entire property. According to the first appellant, possession was surrendered by respondents 1 and 2 in his favour on 25.9.1978 It is submitted that the evidence on record does not support the case and it is found to be false by the Court below. No attempt has been made before us by the appellants' counsel to challenge such a finding. We find that the evidence on record is hardly sufficient to uphold the case of handing over possession by respondents 1 and 2 to the first appellant. Hence, it is clear that the first appellant has not come to Court with clean hands, we have held in Chelliah NadarD v. Periasami Nadar (1993 2 L.W 84) and Nallaya Gounder v. P. Ramaswami Gounder (1993 (2) L.W 86) that a plaintiff who comes to Court with unclean hands by putting forward a false case in particular with regard to delivery of possession, is not entitled to gel the equitable relief of specific performance. In the present case, we hold that the plaintiff has approached the Court with a false case regarding delivery of possession and hence, he is not entitled to gel a decree for specific performance.
21. The only question that remains to be considered relates to item No. 2 in the partition suit. It is the contention of the appellants that appellants 3 to 5 are in exclusive possession as tenants thereof. Reliance is placed on Ex. A-3 dated 23.3.1963 which is an assignment of pattom and kuzhikkanam executed by one Gangadharan Nair in favour of Damodharan Nair, who ha been examined as D.W 2 in this case and Ex. B-42 dated 3.9.1975 under which the said Damodharan Nair has purported to assign the pattom and kuzhikkanam right in favour of the second appellant Sukumari Amma. The trial Court has refused to accept the case of the appellants and the reasoning of the trial Court is that Ex. A-3 was produced by the first respondent herein. It is the case of the first respondent that Damodharan Nair got the assignment of pattom and kuzhikkanam right benami for the benefit of the parties to these proceedings and the appellants have taken fraudulently an assignment under Ex. B-42. The trial Court has also held that the evidence of Damodharan Nair did not evoke any confidence and he did not appear to be a lessee. The Court has referred to the circumstance that the third defendant (second appellant) has not entered into the witness box to give evidence in support of her case. Damodharan Nair has not been able to tell the Court as to who assisted him in planting the trees, how many trees he planted and how many withered away. He has no accounts for the amount spent by him. Me could not also tell who drafted the sale deed; nor can he tell approximately the amount spent by him till the leasehold right was assigned in favour of the second appellant. He could not mention the names of the adjacent owners; nor could he mention the names of the properties. The Court held that Damodharan Nair had no knowledge whatever of the suit properties. In those circumstances, the trial Court refused to accept the case of the second appellant.
22. We have gone through the pleadings as well as the evidence on record. We are entirely in agreement with the trial Court in so far as the credibility of the evidence of D.W 2 Damodharan Nair is concerned. A perusal of his evidence shows that it is wholly unacceptable. If really he had been in possession of the property, he would have given the various details regarding the property, and the amount said to have been spent by him. There is no explanation as to why the second appellant has failed to give evidence in support of her ease. Just because Ex. A-3 refers to the property in question as having been assigned to Damodharan Nair and Ex. B-42 purports to assign the right of Damodharan Nair in favour of the second appellant, the documents cannot be accepted on their face value and the case of the appellants cannot be upheld. The case of the first respondent is probabilised by the various facts and circumstances of the case. The exclusive possession of item No. 2 with the second appellant after 1975 and before that with D.W 2, has not been established by evidence. The Court below is justified in holding that the case of tenancy put forward by the second appellant is not true. We affirm the said finding and hold that the second appellant cannot claim any equity on the basis of the alleged tenancy in her favour.
23. In the result, the appeals fail and they are dismissed with costs in A.S No. 348 of 1982. There will be no order as to costs in Transfer Appeal No. 765 of 1985.
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