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Jindu and ors. Vs. Mahant Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 22 of 1978
Judge
Reported inAIR1985HP25
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 148
AppellantJindu and ors.
RespondentMahant Ram
Appellant Advocate Indar Singh, Adv.
Respondent Advocate K.D. Sood and; Deepak Gupta, Advs.
DispositionPetition dismissed
Cases ReferredManindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee
Excerpt:
- .....compromise. the high court dismissed the application on the ground that the court could not extend time where time had been stipulated by the parties themselves in the compromise arrived at between them. the supreme court reversed that view. the relevant observations made by the supreme court are like this (at p. 431) :'the parties, however, entered into a compromise and invited the court to make an order in terms of the compromise, which the court did. the time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases. of course, time would not be extended ordinarily, nor for the mere asking. it would be granted in rare cases to prevent manifest injustice. true, the court would not rewrite a.....
Judgment:
ORDER

T.R. Handa, J.

1. The present revision petition filed under Section 115, C. P. C., has arisen in the following circumstances.

2. On the allegations that they were the owners of an area of agricultural land measuring 8-1 bighas and comprised in Khasra Nos. 758/1 and 759/1 situate in village Kot, Pargna Ajmerpur, Tehsil Ghumarwin, and had mortgaged the same with possession in favour of the respondent for a consideration of Rs. 500A the petitioners herein filed a suit against the respondent for possession of the suit land by redemption. The respondent contested that suit. The various pleas raised by the respondent would be apparent from the following issues which were struck by the trial Court on the pleadings of the parties :

1. Whether relationship of mortgagor andmortgagee exist between the parties quathe suit property? O.P.P.

2. What is the mortgage money? O.P.P.

3. Whether the plaintiffs are entitled toredeem the suit property on paymentof Rs. 500/- ? O.P.P.

4. Whether the defendant is a tenant over the suit property as alleged? O.P.D,

5. Whether this Court has no jurisdiction? O.P.D.

6. Whether the suit is properly valued forcourt-fee and jurisdiction? O.P.P.

7. In case the plaintiffs fail on issue 1, arethey still entitled to the possession of thesuit property? O.P.P.

8. In case the plaintiffs succeed on issues 1& 3, are they not entitled to theredemption and possession of the suitproperty? O.P.D.

9. Relief.

3. The evidence in, the suit had been partly recorded when on 29-9-1975 the parties informed the Court that they had compromised the suit and prayed that a decree be passed in terms of the compromise. The trial Court duly recorded the statements of the parties concerning the compromise. As is apparent from the statements of theparties recorded by the trial Court the petitioner-plaintiffs offered to transfer their rights in the suit land in favour of the respondent-defendant on the latter paying a consideration of Rs, 9600/- by 1-12-1975. In case, however, the respondent defendant failed to pay the aforesaid amount by the stipulated date, the petitioners-plaintiffs prayed that their suit for possession be decreed. This offer of the petitioners-plaintiffs was accepted by the respondent-defendant. The Court accordingly on 29-9-1975 passed a decree for possession of the land in dispute in favour of the petitioners-plaintiffs subject to the condition that in case the respondent-defendant paid Rs. 9600/- to the petitioners-plaintiffs on or before 1-12-1975 the suit of the petitioners-plaintiffs shall be treated as dismissed.

4. It appears that the respondent-defendant could not pay the stipulated amount within the stipulated period. He, therefore, on 2-2-1976 made an application under Section 148 read with Section 151, C.P.C., before the trial Court alleging therein that on account of his continued illness during the period 22-11-1975 to 15-1-1976 and the fact that all of his sons were employed in the Army, he could not deposit the agreed amount of Rs. 9600/- within the stipulated period. He further stated that he had then made necessary arrangements and was in a position to deposit the amount and prayed that the time for such deposit be accordingly enlarged.

5. That application was opposed on behalf of the petitioners-plaintiffs according to whom neither such application for enlargement of time was maintainable nor was there any sufficient cause for extending the period in favour of the respondent-defendant.

6. After affording the parties an opportunity to lead their evidence in support of their respective contentions on the aforesaid application, the learned trial Court came to the conclusion that there was good and sufficient cause for extending the time for making payment in favour of the respondent-defendant. The learned trial Court, therefore, vide its order DA 3-10-1977 allowed the respondent-defendant to deposit the aforesaid amountof Rs. 9600/- within 7 days from the date of its order failing which the application was deemed to have been dismissed. It is this order of the trial 'Court passed on 3-10-1977 which has been challenged by the petitioners-plaintiffs in the present proceedings.

7. The first contention raised on behalf of the petitioners by their learned counsel Shri Indar Singh is that the date 1-12-1975 which was fixed as the last date for payment of Rs. 9600/- in the decree was in terms of the compromise arrived at between the parties of their own accord and in these circumstances the trial Court had no jurisdiction to alter the same except with the consent of the parties. The Court could proceed the argument, certainly, in exercise of its powers under Section 148, C.P.C, extend time granted for the performance of a particular act on sufficient cause being shown but this jurisdiction can be exercised only where the time was earlier granted by the order of the Court itself and not by mutual consent of the parties. A complete answer to this argument will be found in a recent decision of the Supreme Court given in the case of Smt. Periyakkal v. Smt. Dakshyani reported in AIR 1983 SC 428. In that case the respondent Smt. Dakshyani had obtained a money decree against the appellants. Later in execution of that decree certain property belonging to the appellants was brought to sale, and the decree-holder herself purchased that property for a sum of Rs. 28,000/-. The appellants (before the Supreme Court) who were judgment-debtors then filed an application under Order XXI, Rule 90, C.P.C., for ssetting aside the sale on various grounds. The executing Court dismissed the application but on appeal the sale was set aside. The respondent Smt. Dakshyani (decree-holder) then filed a second appeal in the High Court of Karnataka. At the hearing of that appeal, the parties entered into a compromise. The relevant terms of that compromise were that the judgment debtors agreed to deposit and the decree-holder agreed to receive a sum of Rs. 60,0007- in full and final settlement of the decree. It was further agreed that if the deposit of the aforesaid amount of Rs. 60,000/- was made on or before 30-11-1966 the sale which though already confirmed by the executing Court but set aside by the appellate Court was to stand set aside and the second appeal of the respondent (decree-holder) was to stand dismissed. It was also agreed that if the amount of Rs. 60,000/- was not deposited on or before 30-11-1966, the second appeal was to stand allowed and the sale was to stand confirmed. Time was stated to be the essence of the contract between the parties. The judgment-debtors failed to pay the agreed amount of Rs. 60,000/-within the stipulated period. They later filed an application under Section 148 read with Section 151, C. P. C, in the High Court for extension of time for deposit of Rs. 60,000/- in terms of the compromise. The High Court dismissed the application on the ground that the Court could not extend time where time had been stipulated by the parties themselves in the compromise arrived at between them. The Supreme Court reversed that view. The relevant observations made by the Supreme Court are like this (at p. 431) :

'The parties, however, entered into a compromise and invited the Court to make an order in terms of the compromise, which the Court did. The time for deposit stipulated by the parties became the time allowed by the Court and this gave the Court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily, nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True, the Court would not rewrite a contract between the parties but the Court would relieve against a forfeiture clause; and. where the contract of the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed.'

It is thus obvious from the aforesaid observations of the Supreme Court that the trial Court had the jurisdiction to extend the time for depositing the amount of Rs. 9600/- if such extension was required to further the ends of justice or to relieve against a forfeiture clause.

8. Now the facts of the instant case as already stated show that whereasaccording to the petitioner-plaintiffs the respondent-defendant was a mortgagee in possession of the land in dispute for a consideration of Rs. 500/-, t&e; contention of the respondent-defendant was that he was a tenant and as such was not liable for ejectment. The parties, however, later on instead of seeking adjudication on their respective contentions entered into a compromise on the lines suggested above. The true construction of the terms of the compromise decree in the light of the surrounding circumstances, as stated above, would be that in ease the respondent defendant paid Rs. 9600/- to the petitioner-plaintiffs by 1-12-1975, the right, title and interest of the plaintiff-petitioners in the suit land would stand transferred to the respondent-defendant and the suit treated as dismissed. In case the respondent-defendant failed to so deposit the amount by the stipulated period, the rights of the respondent in the suit land whether those of a mortgagee as asserted by the petitioners-plaintiffs or of a tenant as claimed by the respondent-defendant, were to stand forfeited and the petitioners-plaintiffs were to be entitled to possession without paying any compensation or any mortgage money. It clearly shows that the compromise between the parties was in fact an agreement of sale and the object of the clause providing for payment of sale consideration on or before 1-12-1975 was simply to secure prompt payment under threat of the respondent losing his mortgage or as the case may be, tenancy rights. This to my mind was a penal clause and could be relieved against provided the respondent could show that he made no wilful default in making the payment and provided further that he offered to discharge the obligation under the contract of decree within a reasonable period.

9. The next and the last contention of Shri Indar Singh, the learned counsel fox the petitioners, is that even if the trial Court had the jurisdiction to enlarge the time, it was not a fit case for the exercise of that jurisdiction and that the trial Court committed illegality and in any case material irregularity in exercising jurisdiction in favour of the respondent. I find no substance in this second contention either.

The trial Court after appreciation of the evidence adduced before it has come to the conclusion that there was a good and sufficient cause for granting the respondent extension of time for making payment of the agreed amount; This is certainly a finding of fact recorded by a Court of competent jurisdiction. Such a finding of fact recorded by the trial Court cannot form subject matter of challenge in a petition filed under Section 115, C.P.C. In this connection the following observations of the Supreme Court made in the case of Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee reported in AIR 1964 SC 1336, are relevant.

'It is not open to the High Court to question the findings of fact recorded by a subordinate Court in the exercise of its revisional jurisdiction under Section 115 of the Code which, it is well settled, applies to cases involving questions of jurisdiction, i.e., questions regarding the irregular exercise or non-exereise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or of fact in which questions of jurisdiction are not involved.

10. I thus find no scope for interference in the impugned order recorded by the trial Court and accordingly dismiss this petition.


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