I.D Dua, J.:— This is a plaintiff's first appeal from the judgment and decree of a learned Subordinate Judge 1st Class, Amritsar, dismissing this suit for specific performance of the agreement to sell relating to bungalow No. 6, Hukam Singh Road, Amritsar. The suit was instituted in May, 1960 on the allegations that on 8-7-1957 the plaintiff had made an oral offer to Sent Singh, defendant No. 2, for purchasing the bungalow in suit from Lt. Col. Lakhbir Singh for a consideration of Rs. 16,500/-. A cheque for a sum of Rs. 2000/- was handed over to defendant No. 2 by way of earnest money for which a receipt was granted to the plaintiff. This offer was conveyed by defendant No. 2 to defendant No. 1 along with the cheque for his acceptance.
2. According to the plaintiff's offer, the execution of the sale-deed and its registration was to be effected within three months from the date of the offer. Defendant No. 1 only duly accepted the offer and also encashed the cheque. On such acceptance a binding agreement came into existence between the plaintiff and defendant No. 1 whereby the latter agreed to sell and the plaintiff agreed to buy the bungalow in question for a consideration of Rs. 16,500/-; the balance of the sale money was to be paid at the time of the registration of the sale-deed. The bungalow or the house in question was at the time of the agreement to sell in occupation of two tenants; Dr. M.L Gauba, a Dentist, and Shri Kharaiti Lal, a businessman. About the middle of July, 1957, Dr. Gauba vacated the portion occupied by him whereupon the plaintiff met defendant No. 2 and insisted on being delivered actual physical possession of this portion; the plaintiff also demanded that Shri Kharaiti Lal should be asked to vacate the portion in his possession so that actual physical possession of that portion too may be given to the plaintiff before execution and registration of the sale-deed. Defendant No. 2 on receiving an extra sum of Rs. 375/- as per cheque dated 19-7-1957 put the plaintiff in actual possession of the portion vacated by Dr. Gauba; he was also required to pay for the use and occupation of this portion from 15-7-1957 up to the time of completion of the transaction of sale in accordance with law. To this suggestion, the plaintiff agreed. Defendant No. 2 also promised to get the portion occupied by Shri Kharaiti Lal vacated and to ask defendant No. 1 to accept this condition put forth by the plaintiff.
3. As three months fixed for the completion of the sale-deed were about to expire with no prospects of Shri Kharaiti Lal vacating his portion by 7-10-1957, Sant Singh approached the plaintiff on 5-10-1957 and informed him that Kharaiti Lal had not been able to find an alternative accommodation for himself with the result that he would require some more time for vacating the portion in his possession. Accordingly the plaintiff was requested to agree to the extension of the period for completing the sale transaction tentatively up to 30-11-1957. The plaintiff agreed to this proposal.
4. Acting as Lt. Col. Lakhbir Singh's agent, Sant Singh thereupon executed a document dated 5-10-1957 whereby the parties mutually agreed to extend the date of registration of the sale-deed up to 30-11-1957. The suggestion by defendant No. 1 in his notice to the plaintiff that this extension had been secured by the plaintiff for arranging money has been described in the plaint to be untrue, and it has been asserted that the plaintiff had all along sufficient money with him for performing his part of the contract.
5. On or about the third week of November, 1957, defendant No. 1 came to Amritsar and met the plaintiff in the house of defendant No. 2 and the plaintiff for the first time saw defendant No. 1. The plaintiff informed Col. Lakhbir Singh that he had already paid Rs. 375/- in addition to the settled sale price through his uncle end agent Sant Singh defendant No. 2 and that the plaintiff desired as an essential condition of the bargain the delivery of actual physical possession of the whole house before receiving the balance of the sale price and completing the sale transaction. Defendant No. 1 replied that-he had already for this very purpose suggested and agreed to the extension of the time for performing the contract up to 30-11-1957 and that he would without doubt get the portion occupied by Kharaiti Lal vacated as soon as possible.
6. Defendant No. 1 also assured the plaintiff about the soundness of his title which was stated to be free from charge or encumbrance or any other defect. Defendant No. 1 after giving this assurance immediately asked defendant No. 2 to send for Kharaiti Lal who also arrived there and was asked by defendant No. 1 to vacate the premises by 30-11-1957 so as to enable him to deliver actual possession of the remaining portion of the house to the plaintiff. Kharaiti Lal expressed his inability to vacate the premises within the time suggested and offered to vacate the same by 304-1958. The plaintiff was accordingly requested to wait till 304-1958 and a definite promise was held out that as soon as Kharaiti Lal vacated the-portion in his possession by the end of April, 1958, the same would be handed over to the plaintiff. In these circumstances, the original agreement, according to the plaintiff, was kept alive till 30-4-1958.
7. At some stage, a proposal for having a consjnt ejectment decree against Kharaiti Lal was also out forth but on Sant Singh having expressed full confidence and faith in Kharaiti Lal's word this proposal was dropped. On 274-1958 defendant No. 1 again visited Amritsar and met Kharaiti Lal in the presence of both the plaintiff and defendant No. 2. At that time also Kharaiti Lal assured that he would vacate the premises in about two or three weeks' time. The plaintiff was for this reason asked by the defendants to wait for some more time. In these circumstances, according to the plaintiff's case, the original agreement was kept alive even beyond 30-4-1953 uptill the time the premises were vacated by Kharaiti Lal, who actually vacated the premises on 6-7-1958 and the possession of that portion was thereupon delivered to the plaintiff by defendant No. 2 on behalf of defendant No. 1.
8. Defendant No. 1 came to Amritsar on 3-8-1958 when the plaintiff asked him to execute the sale-deed and get the same registered in accordance with law on receipt of the balance of the sale price but the former pleaded his inability to do so on the ground that he was otherwise busy with some family affairs and that he would do the needful by November or December, 1958. The plaintiff agreed to this request.
9. During the course of time, prices of immovable property had according to the plaintiff, gone up in the locality with the result that defendant No. 2 in December,. 1958, informed the plaintiff that the sale transaction could be completed only if the plaintiff paid Rs. 20,000/- Page: 377instead of Rs. 16,500/-. The plaintiff declined to accept this demand.
10. Thereafter defendant No. 1 secured an order of ejectment under Section 13 of the Rent Act against Shri Munshi Ram pleading therein that Shri Munshi Ram, tenant of defendant No. 1, had sublet the house to the plaintiff without the landlord's written consent. Having secured an order of ejectment in those proceedings, the defendant tried to eject the plaintiff in execution proceedings. The plaintiff's attempt to become a party to those proceedings was defeated on account of opposition from defendant No. 1. The order of ejectment has also been attacked in the plaint to be void by which the plaintiff is not bound.
11. The parties then exchanged some notices and ultimately the plaintiff instituted the present suit as already noticed in May, 1960, for specific performance of the agreement to sell and also for permanent injunction restraining defendant No. 1 from taking possession of the property in question in execution of the fictitious and collusive ejectment order against Munshi Ram.
12. Written statement was filed only by Lt. Col. Lakhbir Singh, defendant No. 1. The preliminary objections relating to the frame of the suit, misjoinder of causes of action and the defective drafting of the plaint do not concern us at this stage.
13. On the merits, it was pleaded that the plaintiff hart in July, 1957, approached defendant No. 2 for the purchase of the house in question and offered to pay Rs. 16,500/- for the purpose; he also gave a cheque for Rs. 2,000/- by way of earnest money. Defendant No. 2 who was not a lawfully constituted attorney of defendant No. 1 informed the plaintiff that he would convey the offer to the owner and it was up to him to accept the offer. The offer was accepted on the explicit condition that the sale-deed must be executed within a period of three months from 8-7-1957 and that time was of the essence, of the contract; in case the sale-deed was not executed within the stipulated period of three months, the earnest money amounting to Rs. 2,000/- would stand automatically forfeited.
14. According to this defendant, the entire house including the various quarters was in occupation of Shri Munshi Ram as a tenant who had sublet certain portions of the premises to sub-tenants without the written or oral consent of the replying defendant. Dr. Gauba, according to the written statement, was never a tenant under defendant No. 1 nor was there any agreement of giving actual physical possession, to the plaintiff; as a matter of fact he has denied all knowledge) about any tenant having vacated any part of the bungalow in question.
15. The averments in the plaint about the plaintiff having approached the defendant to get the portion occupied by Kharaiti Lal vacated was emphatically denied; so was the allegation that the defendant had got a sum of Rs. 375/- and had put the plaintiff in possession of a portion of the house. According to the defence plea, the plaintiff had taken on sub-lease from Munshi Ram without the consent of defendant No. 1 a portion of the bungalow in question which had been vacated by some tenants and the, plaintiff started paying rent to Munshi Ram; the averment of agreement between the plaintiff and the defendant whereby the plaintiff offered to pay for the use and occupation of the portion in his possession to the defendant as also receipt of such amount by the defendant from the plaintiff was categorically denied.
16. Similarly, the allegation of promise by defendant No. 2 to get the portion in Kharaiti Lal's occupation vacated by him and to put the plaintiff in possession thereof was also controverted. It was emphatically asserted that there was no condition, nor was there any agreement to give the plaintiff actual physical possession, and indeed it was denied that defendant No. 2 had ever approached the plaintiff for extension of time for the execution of the sale-deed or had any authority to extend time on behalf of defendant No. 1. It was the plaintiff who had approached defendant No. 2 for extension of time to which.; suggestion defendant No. 2 agreed and pressed defendant No. 1 also to agree. The extension was thus granted up to 30-11-1957 on the explicit understanding that time was of the essence of the contract and if the sale-deed was not executed and registered by that day, the earnest: money would stand forfeited without any notice.
17. Prices of immovable property, according to the defence plea, had fallen considerably in 1957-1958 on account of panic created by Kashmir situation and it was perhaps in this account that the plaintiff felt reluctant in buying the property; the plaintiff in addition wanted more time for arranging the balance of the price. There was a categorical denial of any extension having been given to the plaintiff after 30-11-1957. Defendant No. 1 also denied having met the plaintiff in the third week of August, 1958, as also that any talk had taken place between them about the extension of time for the execution: of the sale-deed.
18. The ejectment order against Munshi Ram was pleaded to have been lawfully and correctly secured because he had actually admitted having kept the plaintiff as a subtenant without the landlord's consent; averment of the collusive and fictitious nature of the eviction order was denied. These were in substance the pleas taken by defendant No. 1.
19. In the replication, the plaintiff reiterated the pleas taken by him in the plain.
20. The pleadings gave rise to the following issues:—
1. Has the plaintiff been ready and willing to perform his part of the contract?
2. Has the agreement to sell come to an end as: alleged in the written statement?
3. Is the plaintiff entitled to the injunction prayed for?
4. Relief.
21. The trial Court after a fairly lengthy discussion, on issue No. 1, which has been described by it to be the main issue in the case, came to the conclusion that the plaintiff was not ready and willing to perform his part of the contract. Issue No. 2 was decided in the affirmative with the observation that the agreement had come to an end with the service of the notice by defendant No. 2 through his counsel on the plaintiff. Under issue No. 3, the plaintiff was held disentitled to the injunction prayed for. In the discussion under this issue, the Court observed that the plaintiff had given some-cheques to Munshi Ram and the counter full, Exhibit D. i.e of one of the cheques constituted an admission on the part of the plaintiff that he was a sub-tenant of Munshi Ram. As the earnest money amounting to Rs. 2,000/- had already been forfeited by the defendant, the parties were left to bear their own costs.
22. On appeal in this Court, the plaintiff-appellant's learned counsel has taken us through the relevant evidence on that record and his main contention has been that time was not of the essence of the contract in the case in hand, mere recital in the sale-deed not being conclusive or even sufficient to rebut the initial presumption of time not being of the essence of a contract of sale of immovable property.
23. In support of his contention he has relied on a number of decided cases. The first case cited is a Bench decision of this Court in Madan Mohan…(Plaintiff) v. Jawala Parshad…(Defendant) ., AIR 1950 EP 278, in which it has been observed that in the case of a contract for the sale of a house, the circumstances that the house was required for the personal residence of the purchaser and he wanted vacant possession, that a period was specified within which vacant possession was to be given, that the purchaser had given on previous occasion one extension and that liquidated damages had been settled upon in case of default are not sufficient to make time as the essence of the contract and that a Court has to see the contract as it was entered into, the subsequent conduct of the parties being irrelevant to find out whether time was of the essence.
24. Jamshed v. Burjorji, ILR 40 Bom 289 : (AIR 1915 PC 83), a Privy Council decision, which was relied upon by this Court, has also been referred to on behalf of the appellant. Reference has next been made to another Bench decision of this Court in Amba Lal v. L. Harish Chander, AIR 1955 Punj. 189 which followed the earlier decision in Madan Mohan's case, AIR 1950 EP 278.
25. Subayya Chaudary v. Veeraya, (S) AIR 1957 Andh-Pra 307, has been relied upon for the proposition that it is open to one of the parties to make time of the essence the contract by calling upon the other party who has been guilty of unreasonable delay to perform the contract within a stated time by giving him reasonable notice. No such notice was given in the present case, says the counsel.
26. Reliance has also been placed on this decision for the submission that it a suit for specific performance of a contract of sale of immovable property by a vendee, the latter need not establish that he had the required money with him or arrangements had been made for financing the transaction, what is required of him is to show that he was ready and willing to fulfil his terms of the agreement. Badruddin v. Tufail Ahmed, AIR 1963 Madh Pra. 31, has also been cited as following the earlier Andhra Pradesh decision. Reference has next been made to F. Edridge v. Rustomji Danjibhoy, AIR 1933 PC 233, where it is laid down that the subsequent conduct of a party is irrelevant for the purpose of construing the agreement and that the construction of an agreement must depend on the intention of the parties when it was made because it is to be ascertained from its terms read in the light of the facts known to both parties when it was concluded.
27. A Bench decision of the Calcutta High Court in Nanik Lal Karmarkar v. Shankar Lal Shah, AIR 1962 Cal 103 has been cited in support of the contention that the ordinary rule governing vendors and purchasers is that the payment of the consideration is to be simultaneous with the execution of the deed and is to be made at the time when the conveyance is executed by the vendor, though in a given case the parties may agree to deviate from the ordinary rule and apart from special contract it is not the law that the consideration money must be tendered as a condition precedent by the party aspiring for specific performance of a contract of sale.
28. Support from this decision has further been sought for the argument that the delay in completing the transaction was due to the attitude of the defendant himself and that, therefore, in spite of the stipulation as to time for the performance of the contract, the surrounding circumstances are such that the plaintiff should not be held disentitled to the relief of specific performance on ground of delay on his part. This contention has been based on the assumption that this Court concludes in favour of time, being of the essence. During the course of arguments, the appellant's learned counsel has also laid stress on the defendants having never demanded back the title-deeds from the plaintiff to whom they had been handed over for scrutiny and on the non-production of the correspondence between the two defendants.
29. On behalf of the respondent, it has been ion-tended that the plaintiff had declined to execute the agreement as entered into between the parties, and had insisted on delivery of actual possession with the result that he must be held not to have been ready and willing to perform his part of the contract. Reference has been made to a Privy Council decision in Bindeshri Prasad v. Jairam Gir, ILR 9 All 705. In the course of the opinion of the Board prepared by Sir R. Couch, the following observations occur:
“Thus he was insisting upon having that which he had no right to have, and he delayed performing his part of the agreement for the payment of the purchase-money on the account. Under such circumstances as these, it certainly is not a case in which it would be right for this. Committee to advise Her Majesty to make any decree for specific performance.”
30. After referring us to Ardeshir Mama v. Flora Sassoon, ILR 52 Bom 597 : (AIR 1928 PC 208), our attention has been drawn to Narinjan v. Muhammed Yunus, 1932-1933 Pun LR 188 : (AIR 1932 Lah 265), for the proposition that it is the plaintiff's duty before he can obtain relief by way of specific performance to allege and prove that from the date of the contract to the time of the hearing he was willing and ready to perform his part of the contract as it really was and not as he thought it to be. Relying on this ratio, Shri Manchanda has emphasised that the moment the plaintiff admits that the original contract did not contain the term of vacant possession, and if he is not seeking specific performance of any later contract, then he must fail.
31. Elaborate arguments have been addressed on behalf of both sides on the question whether or not the plaintiff became the defendant's tenant. The plaintiff has tried to show that defendant No. 2 actually inducted the plaintiff into the house in question as the vendor's tenant on taking some extra money on behalf of the vendor. The defendant-respondent has on the other hand argued that the story of the plaintiff becoming the vendor's tenant is false and that in fact he was a tenant of Munshi I am and that this contention finds ample support from the fact that since July, 1958, the plaintiff has not paid any rent to any one.
32. Pointed reference has also been made to the plaintiff's assertion in the witness box at P. 31, line 35 of the printed paper-book that he had taken possession as a Page: 379vendee and not as a tenant. Shri Manchanda has also asserted that it is nowhere shown that defendant No. 2 was authorised by defendant No. 1 to hand over possession to the plaintiff as a vendee.
33. A further contention raised by the respondents is based on Sections 91 and 92 of the Indian Evidence Act. According to Shri Manchanda no oral evidence can be led in proof of a variation in the terms of the original agreement to sell, whereas according to the appellant's learned counsel, the evidence of a subsequent oral agreement that vacant possession should be delivered to the vendee is admissible under proviso (2) of Sec. 92 and also under proviso (4). Mr. Tuli has in this connection contended that the document Exhibit P-2 containing the original agreement is so informal and sketchy that its silence on the question of vacant possession does not show that this condition is inconsistent with the other terms. I do not consider it necessary to express any considered opinion on this point because, as would be shown later, I am not at all impressed with the evidence that the vendor had agreed to deliver vacant possession of the house to the plaintiff as a term of the agreement to jell.
34. The respondent's learned counsel has taken us through the judgment of the Court below on issue No. 1 and has placed reliance on the conclusion that no agreement between the parties regarding actual physical possession of the house before the execution of the sals-deed has been established on this record. This finding, according to the respondent, is based on the oral evidence of the parties and the circumstances of the case-and that unless the appellant shows it to be clearly erroneous, this Court should not interfere on appeal. We have also been taken through the evidence of the plaintiff and of the two defendants. Defendant No. 2 who was the man at the spot has categorically asserted on oath that he had never delivered possession of any portion of the house to the plaintiff and also that there was no condition regarding the giving of vacant possession of the house, as indeed he has proceeded to assert emphatically that there was no question of delivering vacant possession because the plaintiff knew that there were tenants living in the house and the vendor could not eject them. Indeed, according to this witness, no talk had ever taken place regarding possession and the plaintiff had settled no condition with him regarding taking of possession of the vacant house. It is worth noting that it is not the plaintiff's case that he had settled this condition with defendant No. 1.
35. In so far as the plaintiff's testimony is concerned, indisputably, he had contacted Sant Singh, defendant No. 2, for the purpose of negotiation in regard to the purchase of the house in question. When Exhibit P-2, which the plaintiff describes to be a receipt, was given by Sant Singh and was shown by the plaintiff to a lawyer friend of his, the said lawyer enquired from him whether, he was purchasing the house for his personal residence or for giving it out on rent. On being told that it was required for personal residence, the lawyer pointed out to the plaintiff that there was no mention of delivery of vacant possession of the house in the receipt and he also gave advice of scrutinising the title-deeds.
36. On 19-7-1957, the plaintiff went to Sant Singh and learnt that defendant No. 1 had accepted the plaintiff's offer. It was then that the plaintiff is stated to have informed Sant Singh that the former wanted vacant possession of the house and that he would not purchase it otherwise. On this, Sant Singh, according to the plaintiff's version, told him that he would in that case have to pay more price for the kothi. The plaintiff after so stating soon corrected himself and again stated, that Sant Singh really demanded another sum of Rs. 375/- by way of agree which amounted to three months' rent. The rent, according to the plaintiff, was to commence from 15-7-1957.
37. Sant Singh is also stated to have told the plaintiff that so long as Kharaiti Lal did not vacate the portion-in his possession, the plaintiff would have to pay a rent of Rs. 90/- per month for the portion which had been occupied by Dr. Gauba. The portion occupied by Dr. Gauba, according to the plaintiff's statement, was handsd over to him on 19-7-1957. In September, 1957, Sant Singh is again stated to have taken from the plaintiff a sum of Rs. 180/- in cash on atcount of rent for two months.
38. The evidence on which reliance has been placed for the version that the vendor had agreed to hand over vacant possession of the house to the vendee under the agreement to sell appears to me to be unimpressive and insufficient to sustain a positive finding in the plaintiff's favour. It is noteworthy that the lawyer who is stated to have advised the plaintiff has not been produced and indeed even his name has not been, disclosed. In this connection, it would not be inappropriate or irrelevant to note that according to the plaintiff's testimony, soma quarters in the house in question are still occupied by and Laxmi Narain, as the plaintiff puts it, with his permission, and indeed the said Laxmi Narain was residing there before the plaintiff took possession of the house. The plaintiff, however, has expressed ignorance as to whether or not the said Laxmi Narain pays any rent to Munshi Ram. The plaintiff has admitted having not given any money to defendant No. 1 for purchasing stamp paper and the reason given is that he had been unaware of the vendor's address.
39. The testimony of the plaintiff is, in my opinion, wholly insufficient to establish the condition of vacant possession being either a term of the original agreement or having been agreed to later, by defendant No. 1 through defendant No. 2, so as to bind the true owner. Evaluating his own testimony in the background of the plaintiff it throws considerable suspicion on this condition being one of the terms of the agreement to which both the parties can be safely held to have agreed.
40. According to the plaintiff's own statement in Court, even before the extension was given to him, he had clearly pointed out to defendant No. 2 that he would not get the sale-deed registered so long as actual possession was not delivered to him. Now if the story of oral agreement between the plaintiff and defendant No. 2 for the execution of the sale-deed after getting the kothil vacated is not believed by us, then the plaintiff's suit must inevitably fail, for, on his own showing he was not willing and ready to perform his part of the agreement without getting actual physical possession. At p. 33 of the printed paper-book, the plaintiff has stated as follows:
“After the deed of agreement, marked as Exhibit P. 2 was written I received the consent of defendant No. 1 through defendant No. 2. I had been ready to get the sale-deed registered according to the agreement dated the 8th of July, 1957. There was an oral agreement with defendant No. 2 for the execution of the sale-deed after Page: 380getting the kothi vacated. Defendant No. 2 was acting as Mukhtiar on behalf of defendant No. 1. I had no direct talk with defendant No. 1. It was pointed out to defendant No. 2 before the extension was given that 1 would not get the sale-deed registered so long as actual possession was not delivered to me. When the second deed of agreement, marked as Exhibit P. 6, was written, even then nothing was written regarding the vacation (of the house). I asked him to make a mention regarding possession. But he said that possession of half the portion had been delivered and that possession of the remaining portion would be delivered.”
41. This part of the plaintiff's statement is, in my opinion, ??? from significance and it serves considerably to demolish the basis of his story. If as stated by the plaintiff at p. 30 of the printed paper-book, on showing the receipt Exhibit P. 2 to his lawyer, he had been advised to insist on vacant possession, it is extremely difficult to believe the explanation offered for non-inclusion of the condition of vacant possession in Exhibit P-6. As a matter of fact, the question of extension of time would appear to me to be wholly irrelevant and no occasion for having any writing for this purpose would arise because all that need have been said was that “the sale-deed would be executed only after the tenants are ejected”.
42. On 5-10-1957, fixing 30-11-1957 as the date for the registration of the deed, in case delivery of vacant possession was a term of the agreement, is not easy to appreciate or even to understand, for, even the most optimistic and resourceful landlord could scarcely hope to evict his tenant within two months.
43. It may be argued that the tenant had probably promised to vacate the premises by 30-11-1957, but, even so, a vendor of ordinary prudence would have insisted on inserting in Exhibit P-6 that sale-deed would be registered when the tenant vacates the premises. Indeed, it would also be expected of the plaintiff in his own interest to have this term incorporated in Exhibit P-6 because he was not willing to purchase the house without its vacant possessor And then, this would have not only represented the correct position but would also have been to the best interests of both the parties. No cogent reason has been suggested by the appellant as to why this course was not adopted and the true position inserted in Exhibit P. 6. It may be remembered that the plaintiff profess as to have been in touch with his lawyer friend who and advised him of the desirability of a writing about the delivery of vacant possession. Considering all the aspects of the case, I am unable to sustain the plaintiff-appellant's contention that delivery of vacant possession was a term of the agreement to sell.
44. Once the delivery of vacant possession is held not to constitute a term of the contract to sell, as I am inclined to and do hereby hold, the appellant must be held to have expressly repudiated the contract when he declined to perform his part of the agreement without securing vacant possession and the appellant must fail. It would in that event be unnecessary to decide whether or not the plaintiff is a tenant of the defendant and this Court need not advert to the arguments addressed on that point; nor would it be necessary to advert to the effect of the proceeding said to have been initiated by the respondent in another Court against the plaintiff for recovery of amount on account of rent or for use and occupation.
45. On this view, even the question whether time was of the essence of the contract would hardly arise. I may, however, observe that the question whether time is of the essence of a contract normally depends on its terms, which may be express or implied. In case of sale of Immovable property, however, stipulation as to time is regarded less strict and merely because a party is out offline, specific performance may not be refused, provided, of course, such a course is not considered inequitable. This rule though originating in the Courts of equity has now been adopted by our Courts in this country which are both Courts of law and equity. This initial presumption, it may be emphasised, is capable of being negatived or rebutted by showing that the parties did actually intend, time to be of the essence. This can be done in a variety of ways which is neither practicable nor wise to attempt to define exhaustively, for, it must depend on terms and conditions of a given contract construed in the background of all the attending circumstances. It is true that one of the unequivocal ways is where a party to a contract, has unduly delayed performance beyond the given time, the other party may give notice making time of the essence, but then this is not the only way, for, a contract may clearly show at its inception that time was of the essence. The normal initial presumption of time, not ordinarily being of the essence in case of sale of immovable property, is not statutory nor is it absolute and irrebuttable and circumstances of a given contract may clearly negative it.
46. On the facts and circumstances of the case in hand, time was presumably of the essence and this view seems to find additional support from the subsequent conduct of the parties. The fact that the vendor granted soma extension for specified period would not seem to detract from the intention of making time of the essence; it may on the contrary support the existence of such an intention. But as I have observed earlier, in view of the finding that there was no term of delivery of vacant possession, and that the plaintiff-appellant had repudiated performance of his part of the contract without getting vacant possession it is unnecessary to express any considered view on this point.
47. The respondent's learned counsel has raised quite a number of other points for affirming the judgment and decree of the trial Court dismissing the plaintiff's suit and has also cited authorities in support thereof. He has submitted, inter alia, that the order declining specific performance is discretionary and, therefore, should not be interfered with on appeal, unless the discretion is shown be perverse or contrary to any well-recognised principles or is unsustainable on the evidence. This point has been developed from several aspects. I consider it equally unnecessary to express any considered opinion on this point, in this case. It may, however, be observed that the discretion has to be exercised on well-recognised principles and it is judicial and legal, not arbitrary, fanciful and absolute; though it does not run on a fixed set of iron rails. And then, it is worthnoting that the appellate jurisdiction is statutory which imposes no limitation about, appeals from orders involving discretion, though as a matter of practice it is considered undesirable normally to interfere with the exercise of the discretion of the Court below except on grounds of law or if on other grounds the impugned decision would result in injustice being done; in the latter case, the appellate Court must in my opinion, be held to have both the power and the duty to remedy.
48. Besides in case of sale of immovable property, it may be remembered that usually specific performance is allowed but as already observed, this matter need not be persued further. It is similarly unnecessary to express any opinion on the controversy regarding the admissibility of Exhibit P. 8, a written statement filed by Munshi Ram in eviction proceedings initiated by defendant No. 1, to which both sides tried to refer to support their respective contentions.
49. Attempts, it may be observed, have also been made by both sides to assert the falling or rising trend of prices of immovable property in Amritsar at different points of time during the relevant period to support their respective contentions charging the opposite party with breach of contract, but on the view taken by me earlier on the question of the condition of delivery of possession, his aspect loses its importance.
50. For the foregoing reasons, this appeal fails and is hereby dismissed but in the peculiar circumstances of the case 1 would leave the parties to bear their own costs in this Court.
51. Jindra Lal, J.:— I agree.
FH/HGP/R.G.D
52. Appeal dismissed.
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