1. The question to be decided in this second appeal is as follows : Can a plaintiff who has repudiated a contract for sale of land without justifiable reason sue to recover the purchase money from the defendant (vendor) who objects to the repudiation and is willing to perform the contract? The question sufficiently states the facts. In the plaint the plaintiff claimed the recovery of money which he had paid as an advance of the purchase money for the purchase of certain property and alleged that he rightly repudiated the contract and hence was entitled to recover the money. The written statement of the second defendant, who is the only defendant who matters in this case, states that the contract has been broken by the plaintiff and that he (the second defendant) has always been ready and willing to perform his part of the contract. He says that the suit is not maintainable against him and that the plaintiff has no cause of action against him. The defence, therefore, is a defence which shows the second defendant's intention to regard the contract as still in existence. It is beyond dispute that, if any party to a contract repudiates the contract, the other party can still regard the contract as existing. That is what the second defendant has done in this case. Unfortunately for the plaintiff's case, he did not take the trouble to get the necessary issues framed relying purely and simply upon his justification in repudiating the contract and regarding that as quite sufficient, if proved, to enable him to get a return of the money. That is not so when it is remembered that the other party to the contract is entitled to regard the contract as still existing and that when the date for the completion of the contract arrives, if any date is fixed he may then regard the contract as at an end and sue for damages for breach of contract or he can treat the contract as being in existence still and sue for specific performance of it. No such point was raised by the plaintiff; and there has been no finding recorded by either of the Courts on the question as to whether the time for completion of the contract had arrived, that is to say, whether a date had been reached upon which it was reasonably incumbent upon the second defendant to make a decision either to treat the contract as at an end or regard it as alive and immediately to sue for specific performance. All they say is that the plaintiff filed his suit founding his claim upon the allegations to which reference has already been made.
2. We must not be taken as intending to decide in this case that, whenever money is paid by way of advance of the purchase price and the contract is broken by the would-be purchaser, he is precluded from recovering the money so advanced. That is not so. He most certainly is not to be prevented from recovering it; but it must be shown that the defendant has regarded the contract as at an end or that a reasonable time has elapsed beyond which it was not right for the defendant to sit down and do nothing, either indicative of his intention to treat the contract as still in existence or to treat it as at an end or to sue for specific performance. In such a case as that, the plaintiff would be entitled to recover back the advance of purchase price; but none of these facts have been proved nor were they put in issue in the case; and in second appeal we are not going to allow an entirely new case to be set up here. The trial Court found that the repudiation of the contract by the plaintiff was not justified. The lower appellate Court agreed in that finding but, relying upon the decision of the Privy Council in Kunwar Chiranjit Singh v. Rai Bahadur Harswarup (1925) 24 A.L.J. 248 : 1925 50 M.L.J. 629 (P.C.), reversed the trial Court's decree and held that the plaintiff was entitled to recover the money. The judgment of their Lordships of the Privy Council is exceedingly brief and the facts are not fully stated and there is nothing to show whether in that case the defendant (the vendor) from whom the money was sought to be recovered had treated the contract as at an end or subsisting which, in our view makes a difference. We, therefore, think that the lower appellate Court wrongly relied upon that decision in support of its judgment. In our view, the trial Court's view of the matter was correct and, therefore, this appeal must be allowed with costs throughout and the decree of the lower appellate Court set aside and that of the trial Court restored. We have to add this, however, that, although it is very unfortunate that there has been a lapse of 10 years between the date of the filing of the suit and now, the second defendant is not entitled to keep both the money and the property and accordingly within 4 months from this date the plaintiff will be at liberty to tender a conveyance deed and the balance amount to the second defendant who will execute the conveyance and have it registered at the expense of the plaintiff. If within 4 months the plaintiff ;does not do this, the case will be posted for further orders.