R.P. Mookerjee, J.
1. The plaintiff appellant filed a suit for the specific performance of a contract, the terms of which are contained in a compromise petition which had been filed in an earlier suit between the parties. The plaintiff had paid either the whole or a substantial portion of the consideration money for a certain property under the terms agreed upon, and the plaintiff was required to pay an additional amount of Rs. 28 within one month from the date of the compromise, namely, 18th November 1943, and the defendants were required to execute the conveyance according to the agreement. The plaintiff's case was that after the compromise had been entered into, he had attempted to pay the money and to get the conveyance, but without success. Hence, the present suit for specific performance of the contract and for getting a conveyance from the defendants. It may be stated further that out of the properties which were to be conveyed under that agreement, possession of one of them had been delivered to the plaintiff already. The plaintiff continued in possession of that plot and is still continuing in possession thereof. Delivery of possession is also prayed for in respect of the property of which delivery of possession had not been given. The defence in the main was that the allegation of tender as made by the plaintiff was not true. The payment not having been made within the stipulated period of one mouth, the contract was neither operative nor enforceable. It is not necessary for our present purpose to refer to other points which had been raised in the pleadings.
2. The learned Munsif decreed the plaintiff's suit holding in favour of the plaintiff on all the material points. On an appeal being taken by the defendants to the Court of the Subordinate Judge, the suit was dismissed. It has been found by the learned Subordinate Judge that (1) time was not the essence of this contract; (2) the plaintiff has not proved that he was all along ready and willing to fulfil his part of the contract; and (3) the plaintiff did not pay the money as stipulated in the contract. On these findings, the plaintiff's suit was dismissed. Hence this appeal by the plaintiff to this Court.
3. The short question for decision in the present appeal is whether in a ease where the Court comes to the conclusion that time is not the essence of the contract, the failure by the plaintiff to fulfil the condition required of him under the contract within the stipulated period will ipso facto, disentitle him to get a decree for specific performance.
4. It is now well settled that a plaintiff who seeks specific performance of a contract has to show first that he has performed or been ready and willing to perform the terms of the contract on his part to be then performed and secondly that he is ready and willing to do all matters and things on his part thereafter to be done. If there is a default on his part in either of these two respects, that furnishes a ground upon which the plaintiff's claim may be resisted. Manik Chandra v. Abhoy Charan, 24 C. L. J. 90 : (A. I. R. (4) 1917 Cal. 283).
5. If it is found that time is not the essence of the contract then the non-fulfilment of the condition within the time fixed is not by itself destructive of the claim for specific performance. In the circumstances of a particular case the Court has to enquire whether the delay which has taken place is properly explained by the plaintiff. The mere fact that there has been some delay is not sufficient to put him out of Court. Reference may in this connection be made to the observations of the Judicial Committee in the case of Meenakshi Naidoo v. Subramaniya Sastri, 14 I. A. 160 : (11 Mad. 26 P.C.) Their Lordships pointed out the circumstances under which lapse of time and delay are most material for determining the rights of the plaintiff to obtain specific performance in the following terms:
'Where it would be practically unjust to give a remedy either because the party has by his conduct done that which might clearly be regarded as equivalent to a waiver of it; where by his conduct and neglect he has, though perhaps not waived that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted; in either of these cases lapse of time and delay are most material.'
6. The question whether the lapse of time destroys the plaintiff's right has also to be considered with reference to other attendant circumstances. If the plaintiff has been in substantial possession of the benefits under the contract and is in effect claiming the completion of the legal estate, delay will not, if properly explained, affect his right to obtain specific performance. In the case of Clarke v. Moore, 1 Jo. & Lat. 723: (7 Ir. Eq. R. 515), the Lord Chancellor had explained that the circumstances under which the fact of the plaintiff being in possession materially affected and assisted the plaintiff in obtaining specific performance even though such prayer was made after lapse of time. This view has been accepted in the case of Arjuna Mudaliar v. Lakshmi Ammal, (1948) 2 M. L. J. 271: (A. I. R. (36) 1949 Mad. 265), where a Division Bench of the Madras High Court observed that mere delay does not by itself preclude the plaintiff from obtaining specific performance if his suit is otherwise in time. The delay must be such that it may be properly inferred that the plaintiff has abandoned his right, or on account of the delay there must ham been such a change of circumstances that the grant of specific performance would prejudice the defendant as from long delay alone, without anything further an abandonment of rights would be presumed. Reference may in this connection be also made to Sections 473 and 474 of 31 Halsbury's Laws of England, Hailsham Edition, pp. 404 to 405.
7. This principle, however, is subject to a proviso. If the fact that the plaintiff has been in possession is used in extenuation of the delay which has taken place in filing the suit for specific performance, such possession must, in order to have that effect, be a possession under the contract and such that the vendor must know or be taken to know that the purchaser claims to be in possession under the contrast. Mills v. Haywood (1877) 6 Ch. D. 196.
8. In the present case, it is an admitted fact that the plaintiff is in possession and had been in possession. It is, however, stated that the plaintiff had been in possession from before the compromise which had been filed in the earlier suit. What has been the nature of the possession from after the filing of the compromise has neither been enquired into by either of the Court nor any finding arrived at. If the proposition, as enunciated above, be given effect to there has to be a further enquiry as to the nature of the possession by the plaintiff from after the filing of the compromise in the earlier suit to ascertain whether the conditions laid down in the case of Mills v. Haywood, (1877) 6 Ch. D. 196, are satisfied.
8a. To the application of this principle an objection hag, however, been raised on behalf of the respondents. It is contended that Section 65, T. P. Act read with Sections 51 and 52, Contract Act provides the law which is applicable in the present case and the principle as stated above is inconsistent with the same. Reliance is placed upon Sub-section (3) of Section 55, T. P. Act, which provides that where the whole of the purchase-money has been paid to the seller he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller's possession or power. This sub-section is not attracted on the facts of the present case. Reference is also made to Clause (d) of Sub-section (1) of Section 55, T. P. Act. Material portion of the section is in the following terms :
'In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities and rights mentioned in the Rules next following, or such of them as are applicable to the property sold. ....
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(1) (d) on payment or tender of the amount due in respect of the price to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place.'
There is no question that these provisions are apposite but they do not in my view in any way contradict or run counter to the propositions to which I have made reference in the earlier part of this judgment. It is only on payment or tender of the amount due by the buyer that the seller is to execute the document. The whole question in this case is whether such payment or tender by the buyer has been at a proper time and place. In determining that question, the Court has to consider whether the lapse of time from the date of the contract to the date of payment is properly explained or not and whether the dealy that has taken place is excusable, or not.
9. Similarly, the provisions contained in Sections 51 and 52, Contract Act do not in any way affect the application of the principles. Section 51 simply provides that a promisor is not bound to perform his part of the contract unless the reciprocal promisee is ready and willing to perform the same. I shall deal with another part of the objection raised by the respondents as to the frame of the suit and the existence of the cause of action on the date the suit was filed. Section 52, Contract Act also provides for the order in which the reciprocal promises by the respective parties are to be performed. This section also does not in any way affect the application of the principles stated already.
10. Lastly, it is contended on behalf of the respondents that the plaintiff had not, even on the date that the suit was filed, been ready or had actually deposited Rs. 28 which under the contract he was required to pay within a month of the filing of the compromise. The learned Munsif points out, and I think rightly, that although the deposit had not been made on the date that the suit had been filed, there are sufficient indications in the plaint to show the desire and readiness of the plaintiff on that day to fulfil his part of the contract. The cause of action is to be determined with reference to the pleadings and not the subsequent finding which may be reached by the Court. That there was a cause of action on which the suit had been filed by the plaintiff is beyond question. The deposit which had actually been made by the plaintiff was on 8th January 1946, two months before the suit had been disposed of and within three years of the filing of the compromise in November 1943. Even if the suit had been filed on 8th January 1946, or be deemed to have been filed on this latter date, such a suit will still be within time and there can be no objection to the prayer as made in the plaint being allowed if otherwise the plaintiff is within time, or if the relief has not otherwise become barred. That the plaintiff had a cause of action on the date the suit was filed cannot, therefore, be controverted.
11. The plaintiff is entitled to relief provided it can be shown that the possession which he had exercised over a substantial portion of the property in suit was under the contract. This fact has not been enquired into, as I have already stated.
12. The reads, therefore, is that the appeal is allowed, the judgment and decree of the Court of appeal below are set aside and the case is remitted to that Court for a decision on the point as to what was the nature and character of the possession which had been exercised by the plaintiff in respect of Dag No. 564 and particularly whether that possession was a possession under the contract and such that the vendor must know or be taken to know that the plaintiff claimed to be in possession under the contract. If the answer be in the affirmative, the plaintiff is entitled to a decree in the present suit. If it is found against the plaintiff the suit will have to be dismissed. As this specific point had not been raised or considered in the form in which it has been done in this Court, both the parties will be entitled to lead evidence on this point only. Costs of this Court will abide the result.