GURUVACHAN SINGH v. MANJIT SINGH — 1999 DIGILAW 940 (MP)

V. K. AGARWAL, J. ( 1 ) THIS appeal is directed against the judgment and decree dated 29-8-1992 by I Additional District Judge, raigarh in Civil Suit No. 7-A/1986 whereby the suit of the plaintiff/respondent for possession of the suit-house and damages for use and occupation was decreed. ( 2 ) UNDISPUTABLY, the suit-house, bears house No. 200/1 Ward No. 17, Sonarpara, nazul Sheet No. 300 Plot No. 43 area 1054 sq. ft. , and is fully described in the map attached to the plaint. The suit- house was of the ownership of the respondent/plaintiff. He had agreed to sell it to the appellant/defendant by agreement dated 7-8-1982 for a total consideration of Rs. 25,000/ -. An amount of Rs. 5,000/- was paid, as advance, by the defendant/appellant to the plaintiff/respondent. The plaintiff/respondent also delivered possession of the suit-house on the same date. i. e. , on 7-8-1982 to the defendant/appellant. It was agreed between the parties that the balance amount of price, i. e. , Rs. 20,000/- would be paid by the defendant/appellant to the plaintiff/respondent by 21-9-1982, upon which the plaintiff/respondent would execute the sale-deed of the suit-house in favour of the defendant/appellant It was further agreed that on default as above, the advance amount of Rs. 5,000/- paid by the defendant/appellant would be forfeited by the plaintiff/respondent. The sale-deed in terms as above could not be executed and the parties exchanged notices. ( 3 ) THE plaintiff/respondent in the plaint averred that the defendant/appellant was not ready and willing to perform his part of the contract of sale. Therefore, a notice was sent by the plaintiff on 16-9-1982 to the defendant/appellant by registered post calling upon him to get the sale-deed executed failing which the advance amount paid by the defendant/ appellant to the plaintiff/respondent would be forfeited and that the defendant/appellant would further be liable to pay damages @ Rs. 10/- per day for the use and occupation of the suit-house. A reply dated 18-9-1982 was sent by the defendant/appellant to the plaintiff/respondent. It was further averred by the plaintiff/respondent that on the stipulated date agreed to between the parties for the registration of the sale-deed, i. e. , on 21-9-1982, he had gone to the office of the Sub-Registrar, raigarh, but the defendant did not fulfil his part of the contract and did not get the sale-deed executed. It was further averred by the plaintiff/respondent that on the stipulated date agreed to between the parties for the registration of the sale-deed, i. e. , on 21-9-1982, he had gone to the office of the Sub-Registrar, raigarh, but the defendant did not fulfil his part of the contract and did not get the sale-deed executed. It has further been averred that the plaintiff/respondent was entitled to forfeit the amount of Rs. 5,000/- and was also entitled to recover possession and also damages @ Rs. 10/- per day from the defendant/appellant. ( 4 ) THE suit was resisted by the defendant/appellant. It was alleged by him that the suit house was a part of the bigger building occupied by other persons. In the agreement dated 7-8-1982 entered into by the parties, there was a condition to the effect that the defendant would be entitled to raise a compound wall on the boundary of the suit-house and only on construction of such a wall, the defendant would purchase the house, otherwise not. It was further alleged that the above condition for carrying on necessary changes in the house was agreed to by the respondent/plaintiff. However, when the defendant/ appellant engaged masons and labours for construction of the wall as agreed to, the plaintiff/respondent abused them and made them to go away. Thus, the defendant/appellant was not in a position to raise the wall. It was further averred that the plaintiff/respondent did not perform his part of the contract and avoided to get executed the sale-deed after receiving the balance amount of Rs. 20,000/ -. It was averred that the defendant/appellant was always ready and willing to perform his part of the contract, but could not do so on account of conduct as above of the plaintiff/respondent. It was therefore, prayed that the suit be dismissed with costs. ( 5 ) THE plain tiff/respondent, by way of amendment, had made an averment that in the original agreement dated 7-8-1982, the defendant/appellant had inserted a clause to the effect that the defendant would be entitled to make necessary construction and changes in the suit-house and the agreement dated 7. 8. 1982 between the parties was thus interpolated by the defendant/appellant. 8. 1982 between the parties was thus interpolated by the defendant/appellant. ( 6 ) THE learned trial Court framed issues as to whether the plaintiff was ready and willing to perform his part of the contract dated 7-8-1982 and also whether the defendant/ appellant was ready and willing to perform his part of the contract. Issue was also framed as to whether there was a term in the agreement dated 7-8-1982 that the defendant would be entitled to effect necessary changes in the suit-house before purchasing the same. It has been held by the learned trial Court that the plaintiff/respondent was ready and willing to perform his part of the contract and had gone with that intent to the office of the Sub-Registrar on 21-9-1982 as was stipulated between the parties. It was also held that it has not been proved by the defendant that the clause regarding necessary alterations in the suit-house before purchase of the same was agreed to between the parties and the contents of agreement in that regard have been subsequently added in the said agreement. It was, therefore, held that the plaintiff did not breach the terms of the contract and that, in fact, it is the defendant, who did not perform his part of the contract as agreed to between the parties. It was, therefore, held that the plaintiff/respondent was entitled to forfeit and retain the advance of Rs. 5,000/- paid to him by the defendant/appellant as was agreed to between the parties and also to recover back the possession of the suit-house, besides damages @ rs, 10/- per day, as was claimed by him. The suit of the respondent/plaintiff was accordingly decreed. ( 7 ) LEARNED counsel for the appellant/defendant has assailed the finding of the learned trial Court that there was interpolation in the agreement dated 7-8-1982 marked as Ex. D/ 1 by the trial Court. It was also submitted that the trial Court's finding that the defendant/ appellant avoided performing his part of the contract, while the plaintiff/respondent was ready and willing to perform his part of the said contract dated 7-8-1982 is also not justified from record. D/ 1 by the trial Court. It was also submitted that the trial Court's finding that the defendant/ appellant avoided performing his part of the contract, while the plaintiff/respondent was ready and willing to perform his part of the said contract dated 7-8-1982 is also not justified from record. It has also been submitted that the time was not the essence of contract and as it is established from the plaintiff's evidence that he was ready and willing to perform his part of the contract, the suit of the plaintiff/respondent should have been dismissed and he should have been directed to execute the sale-deed in terms of the agreement dated 7-8-1982. (Ex. D/1 ). ( 8 ) AS against this, the learned counsel for the respondent/plaintiff supported the judgment and decree of the learned trial Court. It has been urged that there are several circumstances to support the finding of the learned trial Court that there was interpolation in the agreement dated 7-8-1982. It has, therefore, been urged that in view of the alteration in the agreement (Ex. D/l), the same could not be acted upon and was rendered ineffective from the time of the interpolation. Learned counsel for the respondent/plaintiff has relied upon loonkaran Sethia etc. v. Mr. Ivan E. John and others, etc,. It has further been urged that the plaintiff/respondent had been offering to perform his part of the contract and has placed the defendant/appellant in possession of the suit-house from the date of agreement itself. He had also gone to the office of the sub-Registrar on the stipulated date on 21-9-1982 for executing the sale-deed. However, on account of the default committed by the defendant/appellant, the sale-deed could not be executed. Therefore, the plaintiff/respondent was entitled to forfeit the amount of Rs. 5,000/- paid at the time of the agreement in terms thereof. It has further been urged that as the plain tiff/respondent was ready and willing to perform his part of the contract and the defendant/appellant did not care to get the sale-deed executed in pursuance thereof, he cannot now be permitted to urge that time was not the essence of the contract and that the sale-deed should have been directed to be executed in pursuance of the agreement between the parties. ( 9 ) UNDISPUTABLY, the parties had entered into an agreement (Ex. D/1) dated 7-8-1982. ( 9 ) UNDISPUTABLY, the parties had entered into an agreement (Ex. D/1) dated 7-8-1982. It is also not in dispute that in pursuance of the said agreement an amount of Rs. 5,000/- was paid towards advance by the defendant/ appellant to the respondent/plaintiff and the remaining amount of sale consideration of Rs. 20,000/- was agreed to be paid by 21-9-1982 on which date, the plaintiff/respondent was to execute the sale-deed. Further, in pursuance" of the said agreement, the defendant/appellant was put in possession of the suit-house by the plaintiff/respondent. The defendant/appellant resisting the suit of the plaintiff/respondent has averred in his written statement that the suit-house was a part of a bigger house and the remaining portions of the house belonged to other persons. It was further averred by the defendant/appellant that as per the agreement (Ex. D/1) dated 7-8-1982 between the parties, the plaintiff was entitled to make necessary changes and alterations in the suit-house before the execution of the sale-deed. However, when the defendant/appellant sent his masons, etc. for raising the compound wall in pursuance of the said clause of the agreement, the plaintiff/respondent did not permit them to carry out the necessary constructions. The plain tiff/respondent, by way of amendment in his plaint has pleaded that the clause marked as 'a-A' in Ex. D/1 relating to the right of the purchaser/defendant was subsequently added in the said agreement. It has, therefore, been alleged that the said clause was not a part of the agreement entered into between the parties and could not constitute ground of defence, ( 10 ) IN the circumstances, the first question that arises for consideration is as to whether the portion marked as 'a-A' in agreement (Ex. D/1) was part of the original agreement between the parties or was subsequently added and the agreement (Ex. D/1) was thus interpolated? ( 11 ) IT is noticed that the portion marked 'a-A' in agreement (Ex. D/1) dated 7-8-1982 recites that the purchaser shall have a right to carry out necessary alteration after which he will perform his part of the contract. The above portion marked 'a-A' noticeably is in letters of much smaller size than the rest of the contents of the said agreement. Again, the portion marked 'a-A' does not bear correlation with the part just preceding and following the same. The above portion marked 'a-A' noticeably is in letters of much smaller size than the rest of the contents of the said agreement. Again, the portion marked 'a-A' does not bear correlation with the part just preceding and following the same. ( 12 ) IT may further be noticed in the above connection that the said agreement (Ex,d/l)was with the defendant/appellant at the time of filing of the written statement; and though it was the document on which the case of the parties rested, it was not filed along with the written statement on 15-1-1986. It was filed much later along with application dt. 26-6-1986, marked asl. A. No. 7 which was allowed by order dated 27-6-1986 by the trial Court, It may further be noticed that after the agreement (Ex. D/1) as above was admitted in evidence, the plaintiff/respondent filed an application for amendment on 6-12-1986 and raised the objection that the same has been interpolated and the clause relating the defendant's right to make necessary alterations has been inserted later. ( 13 ) IT was also be noticed that prior to the filing of the suit, a notice (Ex. P/1) dated 10-9-1982 was served on behalf of the defendant/appellant to the plaintiff/respondent. In that notice, most of the terms of the agreement (Ex. D/1) have been reiterated and it has further been stated therein that the plaintiff/ respondent is not permitting the defendant/ appellant to raise the wall. However, it is pertinent to note that in notice (Ex. P/1), it has not been stated that the plaintiff had reserved any right to make alterations as per the agreement between the parties. Had there been a clause in the agreement to the above effect, it would certainly have been so stated in notice (Ex. P/ 1) by the defendant/appellant. In his reply to the notice dated 16-9-1982 (Ex. P/2), the plaintiff/respondent categorically stated-that the defendant/appellant had no right to raise the wall till the registered sale-deed is executed. In response to the above communication (Ex. P/2)by the plaintiff/respondent, the defendant gurubachansingh sent a rejoinder (Ex. P/3)dated 18-9-1982 in which a reference has been made by him that prior to the said reply (Ex. P/ 2) dated 16-9-1982, an earlier communication dated 13-9-1982 was also sent by the plaintiff/respondent in which he had asked for a copy of the agreement (Ex. P/2)by the plaintiff/respondent, the defendant gurubachansingh sent a rejoinder (Ex. P/3)dated 18-9-1982 in which a reference has been made by him that prior to the said reply (Ex. P/ 2) dated 16-9-1982, an earlier communication dated 13-9-1982 was also sent by the plaintiff/respondent in which he had asked for a copy of the agreement (Ex. D/1) dated 7-8-1982 and that the plaintiff/respondent also offered to bear the charges for preparation of the copy thereof. The said communication of the plaintiff/respondent is produced on behalf of the defendant and is marked as Ex,d/2. In response thereof, the plaintiff had sent a reply (Ex. P/5) in which a demand of Rs. 20/- inclusive of expenses for preparation of the copy and postal charges was demanded. ( 14 ) IT would thus be clear from the above documents placed on record that despite the demand by the plaintiff/respondent of the copy of the agreement (Ex,d/l), the defendant/appellant had not readily supplied the same to him and was constantly avoiding to do so. Normally, if the agreement was entered into between the parties amicably and as the defendant/appellant was also placed in possession of the suit-house agreed to be sold in pursuance of the said agreement; there could not have been any hesitation on the part of the defendant/appellant to furnish the copy of the agreement dated 7-8-1982 to the plaintiff/respondent on his demand. ( 15 ) IT may further be noticed that the plaintiff/respondent Manjit Singh (P. W. I) on his further examination has categorically stated that portion marked 'a-A' in Ex. D/1 was subsequently added. He has examined. Harpreet singh, who is one of the attesting witness of ex. D/1, who has also supported the above statement of the plaintiff Manjit Singh. The aforesaid attesting witness has deposed that portion marked 'a-A' in Ex. D/1 was not written when the parties entered into the agreement as above. The defendant has not examined other attesting witness or the scribe in support of his contention that the portion marked 'a-A' was written at the time the agreement (Ex. D/1) was executed. ( 16 ) THE material and evidence as "above discloses that the portion marked as 'a-A' in agreement (Ex. D/1) is written in letters much smaller in size than the rest of the contents of the document. It appears to have been inserted in between two lines. D/1) was executed. ( 16 ) THE material and evidence as "above discloses that the portion marked as 'a-A' in agreement (Ex. D/1) is written in letters much smaller in size than the rest of the contents of the document. It appears to have been inserted in between two lines. It bears no relevance to the portion immediately preceding and succeeding it. The defendant/appellant avoided furnishing copy thereof on demand -by the plain tiff/respondent and also did not file it along with the written statement. He has also not led satisfactory evidence to establish that the portion marked 'a-A' was written in the original agreement as entered into by the parties, In the circumstances, the finding of the trial Court, after scrutiny and assessment of evidence and material placed on record, that the said portion 'a-A' in Ex. D/1 is an interpolation, appears to be wholly justified and deserves to be affirmed. ( 17 ) ADMITTEDLY, the document (Ex. D/1)was in possession of the defendant/appellant and the said clause is in his favour. Therefore, he should be held responsible for the above interpolation. Thus the above finding of the learned trial Court is unassailable. ( 18 ) IN view of the above finding, it is clear that the appellant/defendant could not insist upon raising of the wall or making any other alteration in the suit-premises before he performed his part of the contract as was his stand. Firstly, there was no agreement between the parties to the above effect that the defendant/ appellant was entitled to carry out alterations in the suit-house as has been asserted by him and secondly, since he is responsible for the alteration made in the original agreement (Ex. D/1) entered into between the parties, he cannot insist on the compliance of the terms thereof. The said agreement could not be enforced by him. ( 19 ) IN Loonkaran Sethia's case (supra), the Supreme Court quoting paragraph 1378 of Vol. 12 of Halsbury's Laws of England, 4th edition and also referring to the observations by the Privy Council in Nathu Lal v. Mt. Gomti, has observed that if the alterations in the deed substantially vary the rights and liabilities as also the legal position of the parties, such alterations would amount to material alterations and if they have been made without the consent of the parties, they would have the effect of cancelling the deed. Gomti, has observed that if the alterations in the deed substantially vary the rights and liabilities as also the legal position of the parties, such alterations would amount to material alterations and if they have been made without the consent of the parties, they would have the effect of cancelling the deed. ( 20 ) IN the instant case also, since the alteration by way of addition of portion 'a-A' in the agreement (Ex. D/1) materially affects the rights of the parties, the insertion thereof would render the agreement (Ex. D/1) ineffective and, therefore, the defendant/appellant could not have insisted upon the enforcement thereof as against the plaintiff/respondent. Therefore, the insistence of the defendant/appellant that he would carry out his part of the contract only after raising the wall was not a term agreed to between the parties. Hence, the insistence of the defendant to perform his part of the contract, only after carrying out construction was unjustified. Reference in the above connection may be made to Smt, Chand Rani (dead) by lrs. v. Smt. Kamal Rani (dead) by LRs. . Moreover, the term as above having been inserted subsequently has rendered the agreement ineffectual as against the plaintiff/ respondent. Consequently, the defendant/ appellant could not have claimed any right thereunder. ( 21 ) IT may further be noticed that the learned trial Court, on appreciation of evidence-oral testimony of the plaintiff Manjit Singh (P. W. 1) as also the documents produced by him has come to the conclusion that he was ready and willing to perform his part of the contract and had gone to the office of the Sub-Registrar on 21-9-1982 as was agreed to between the parties, The said finding is fully justified from the evidence adduced in the trial Court. It is clear from the material and evidence on record of the trial Court that the defendant/ appellant avoided performance of his contract and though he may have been present near about the office of the Sub-Registrar on 21-9-1982, as has been asserted by him, but he had no intention to carry out his part of the contract. As noticed earlier, the defendant's insistence was that he would get the sale-deed executed only after raising wall on the boundary. This, however, was not the term of the agreement. As noticed earlier, the defendant's insistence was that he would get the sale-deed executed only after raising wall on the boundary. This, however, was not the term of the agreement. ( 22 ) IT, therefore, would appear that the defendant/respondent had not only made interpolation in the agreement (Ex. D/1) relating to construction being made by him, which rendered it ineffectual; but he was also continuously insisting that he will perform his part of the contract after raising of the wall. This clearly amounted to non-performance of the contract by the defendant/appellant. Therefore, the finding in that regard of the learned trial Court is wholly justified and is affirmed. ( 23 ) THE learned counsel for the defendant/appellant has also urged that since the agreement was for the sale of immovable property, time was not the essence of the contract and the defendant/appellant was entitled to get the sale-deed executed even after the stipulated time of agreement (Ex. D/1 ). In Gouind prasad Chaturuedi v. Hari Dutt Shastrt, it has been laid down that the fixation of the period within which the contract has to be performed does not make stipulation as to time the essence of contract. When a contract relates to sale of immovable property, it will normally be presumed that the time is not the essence of the contract (Gomathinayagam Pillat and others v. Palaniswami Nadar ). In chandrani v. Kamal Rani (supra), it has been observed that in the case of sale of immovable property, there is no presumption as to time being the essence of the contract. However, even if it is not the essence of the contract, the Court may infer that it is to be performed in a reasonable time, if the conditions are: (a) from the express terms of the contract; (b) from the nature of property; and (c) from the surrounding circumstances, e. g. , the object of making the contract. ( 24 ) IN K. S. Vidyanadam v. Vairavan, it was observed :-"indeed, we are "inclined to think that the rigor of the rule evolved by Courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. " it was further observed therein that : "can it be stated as a rule of law or rule of prudence that where time is not made the essence of the contract, all stipulations of time provided in the contract have no significance or meaning or that they rre as good as non-existent? All this only means that while exercising its discretion, the Court should also bear in mind that when the parties prescribe certain time-limit (s) for taking steps by one or the other party, it must have some significance and that the said time-limitfs) cannot be ignored altogether on the ground that time has not been made the essence of the contract. " ( 25 ) IT may be reiterated that in 'the instant case, the defendant/appellant did not take steps to perform his part of the contract. Further he made interpolation in the agreement, adding therein a clause to the effect that he would be getting the sale-deed executed after making necessary construction. He also took the stand that he would get the sale-deed executed only after raising wall on the boundary. Obviously, the conduct as above of the defendant/appellant clearly goes to show that he was not ready and willing to perform his part of the contract, as per terms of the original agreement between the parties. In the circumstances, the contention of the learned counsel for appellant that there was no default on his part and that he was entitled to get the sale-deed executed even after the stipulated time in agreement (Ex. D/1) cannot be accepted. ( 26 ) THE defendant/appellant, in the instant case, has neither taken any steps for the specific performance of his contract, nor he was entitled to such a relief in the foregoing circumstances. It is also clear that the defendant/appellant had forfeited his right to recover rs. 5,000/-, which was paid by him to the plaintiff/respondent at the time of agreement. Since the defendant/appellant has failed to perform his part of the contract, he also cannot remain in possession of the suit-house. Reference in this connection can be made to mohan Lal (deceased through his L. Rs, kachru and others v. Mira Abdul Gaffar and another. The trial Court was therefore, justified in granting a decree for possession in favour of the plaintiff/respondent. ( 27 ) THE plaintiff/respondent had demanded payment of Rs. Reference in this connection can be made to mohan Lal (deceased through his L. Rs, kachru and others v. Mira Abdul Gaffar and another. The trial Court was therefore, justified in granting a decree for possession in favour of the plaintiff/respondent. ( 27 ) THE plaintiff/respondent had demanded payment of Rs. 10/- per day as damages for the unauthorised use and occupation of the suit-premises by the defendant/appellant, after failure to perform his part of the contract, as would be clear from the correspondence between the parties including reply of notice (Ex. P/2) sent by the plaintiff/respondent. The above amount is not excessive and appears to be reasonable and was rightly granted by the trial Court. ( 28 ) IN view of the above, the judgment and decree of the trial Court appear to be fully justified and call for no interference. This appeal has no merit and is dismissed. The parties shall, however, bear their own costs of this appeal. Appeal dismissed. .