1. Plaintiff is the appellant in this Second appeal. He brought the suit for specific performance of the agreement dated 4th November 1914, Exhibit A, executed in his favour by the 1st defendant.
2. Under Exhibit A the 1st defendant agreed to execute a sale deed for Rs. 400 in favour of the plaintiff within a month and to receive Rs. 360 out of the Rs. 400 (purchase money) after so executing the sale-deed, the remaining Rs. 40 having been received by the 1st defendant in advance.
3. The suit was brought on 2nd December 1907 just within three years from the expiry of the one month's time fixed by the agreement for the execution of the sale deed by the 1st defendant. The learned District Munsif gave a decree in plaintiff's favour. The learned Subordinate Judge on appeal, reversed the Munsif's decision and dismissed the plaintiffs suit with costs on the following findings and reasonings:
(a) though the plaintiff made more than one statement that he was always ready to pay the balance of Rs. 360 as soon as the 1st defendant executed the sale-deed the probabilities is that the plaintiff never had Rs. 360 ready in his hands to make such a payment.
(b) As the plaintiff delayed for nearly 3 years in bringing this suit for specific performance, he has been guilty of laches and hence the Court in its discretion ought to refuse the relief of specific performance prayed for by the plaintiff.
(c) Not only has the plaintiff been guilty of laches but the said negligence of the plaintiff itself amounts to a waiver or abandonment of his right under the contract on the part of the plaintiff and hence also the plaintiff's suit ought to be dismissed. I think that the Subordinate Judge's finding of fact that the plaintiff had not got Rs. 360 ready with him to be paid whenever the 1st defendant was ready with a properly executed document is based upon no legal evidence. The Subordinate Judge may be entitled to find on the evidence on the record that the plaintiff has not proved that he would have been ready with the money if the sale-deed had been executed and tendered to him, but he was not entitled to go further and say that the plaintiff was not ready with the money as there is no evidence on the record to show that the plaintiff had not enough money with him on any of the occasions when the 1st defendant or the prior mortgagee, P.W. 4 applied to the plaintiff for payment of money to the plaintiff's 4th witness. The plaintiff cannot be said to have broken his part of the contract evidenced by Exhibit A until the 1st defendant had performed 1st defendant's own part of the contract, namely the execution of a proper sale-deed. Then as regards the alleged laches on the part of the plaintiff, he cannot be legally charged with any laches in the performance of his part of the contract till the 1st defendant has performed his own part of the contract. As the 1st defendant did not execute the sale-deed within the one month's period which he himself fixed in Exhibit A for the execution by him of the sale-deed and had not executed it even till the date of the suit, there could have been no laches on the plaintiff's part in the performance of his part of the contract.
4. As regards the delay in bringing this suit for specific performance, the learned Subordinate Judge relies upon the case of Nawab Begam v. A.H. Creet (1905) I.L.R. 27 A. 678 for the position that such delay in bringing the suit would itself justify the court in the exercise of its discretion to refuse relief in a suit for specific performance. In that case, however, the defendant had definitely refused to perform his part of the contract nearly 3 years before the suit was brought. In this case, the 1st defendant is not proved to have definitely refused to execute the sale-deed to plaintiff. In his registered notice Exhibit C. he merely asked the plaintiff to give effect to all the terms of the agreement, Exhibit A within a week from the date of that notice (which was dated the 6th January 1905). It is only if the plaintiff did not give effect to all the terms of Exhibit A within one week that the 1st defendant said in that notice that he will treat the agreement as at an end. The plaintiff replied to this notice by Exhibit C and he pointed out in that reply that he was always ready to perform all the terms of the agreement Exhibit A but that the 1st defendant had first to perform his part of the agreement, namely, the execution of the sale-deed and that, then, the plaintiff was ready and willing to perform his own part of the contract. As I said, the 1st defendant merely threatened to break the agreement if the plaintiff did not conform to the terms of the agreement. When the plaintiff sent his reply that he was ready to perform his part of the agreement, it cannot be said that under the terms of the notice Exhibit C, the 1st defendant must be deemed to have definitely broken the contract as soon as he received the plaintiff's reply. Further, having regard to the case in Athikarath Nanu Menon v. Erathanikat Komu Nayar (1897) I.L.R. 21 M.42 Kissen Gopal Sadaney v. Kally Prosonno Sett (1905) I.L.R. 33 C. 633 I am not satisfied that the decision in Nawab Begam v. A.H. Creet (1905) I.L.R. 27 A. 678 has not been expressed in rather too wide and general language. The decision in that particular case might be justified on the facts of that case as the defendants in that case seems to have spent a considerable sum of money in improving the property after he had definitely broken the contract which breach had taken place nearly three years before the suit and the refusal of specific performance might be justified under Clause 2 of Section 22 of the Specific Relief Act. The plaintiff brought his suit within two months of the sale made to 2nd defendant of the property to be sold to the plaintiff. I am therefore of opinion that there has been no such laches on the part of the plaintiff either in performing his part of the contract or in bringing the suit which could justify the court in the exercise of its judicial discretion in dismissing the suit for specific performance.
5. Then as regards the finding of the Subordinate Judge that the laches itself amounts to a waiver or abandonment, I think it is an error of law to hold that mere delay amounts to a waiver or abandonment apart from other facts or circumstances or conduct of the plaintiff indicating that the delay was due to a waiver or abandonment of the contract on the plaintiff's part, In this case there are no such circumstances proved. In the result, I would reverse the decision of the Subordinate Judge and restore that of the Munsif. But I would make a slight modification in the decree of the District Munsif (as it is not in strict accordance with law.) The object of adding the 2nd defendant (subsequent purchaser with notice of the plaintiff's contract) as a party was to enforce specific performance of the plaintiff's contract as against him, he having become the legal owner of the property since date of the contract to sell the property made with the plaintiff. The conveyance in favour of the plaintiff as regards the plaint land ought therefore to be executed by him in order to convey the title to the plaintiff and the Munsif's decree which directs defendants 1,3, and 4 to execute the sale-deed to plaintiff will be modified by substituting the direction that the 2nd defendant do execute the conveyance in the plaintiffs favour, within one month from the reopening of the Munsif's Court after the summer vacation. The Munsif's decree will stand in other respects. The defendants must pay the costs of the plaintiff in all courts.
Seshagiri Aiyar, J.
6. I agree with my learned brother's conclusion that the plaintiff was not at fault in performing his part of the agreement, and that the defendant ought to have executed the sale-deed before claiming the money. There is no allegation or proof in this case that the defendant had executed the document and called upon the plaintiff to pay the money, nor any suggestion that the defendant was willing to execute the document and that the plaintiff did not perform his part of the contract. Therefore I cannot accept the finding of the Subordinate Judge given under a misapprehension regarding the nature of the contract between the parties. The Subordinate Judge also comes to the conclusion that the delay in bringing the suit is fatal to specific performance being granted. Ever since the decision of Lindsay Petroleum Co. v. Hurd (1873) I.L.R. 5 P.C. 221 it has been the settled law that mere laches on the part of a person in bringing asuit for the specific performance will be no defence in law, and that has been followed in this Presidency in Athikarth Nanu Menon v. Erathanikat Komu Nayar (1897) I.L.R. 2l M. 42 Kissen Gopal Sadaney v. Kalley Prosonno Setti (1906) I.L.R. 33 C. 633 accepts that principle. The same has been affirmed in Peer Mahomed Dewji v. Mahomed Ibrahim (1901) I.L.R.29 B. 234.
7. There is nothing in the Specific Relief Act which says that laches in bringing a suit will by itself be a ground for refusing specific performance. The only section dealing with the discretion of the Court is Section 22 and under that section the discretion must be judicially exercised. A few illustrations are given which are intended to guide the courts in either granting or refusing relief. Laches is not one of the grounds mentioned as disentitling a party to a contract, to specific performance. Having regard to the fact that a special period of limitation has been fixed for bringing a suit for specific performance, I think the legislature has not intended that mere laches should be one of the grounds for refusing specific performance.
8. On these grounds I concur with my learned brother in his conclusion and in the decree which he has proposed.
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