CIVIL

JUDGEMENT
FORMAT
QUESTION
Plaintiff Kanti executed an agreement to sell a property to
Jitender for Rs. 80,000 out of which Rs. 50,000 was paid as
earnest money and possession was handed over to the
Jitender. The agreement to sell was executed on 01.01.2003.
The sale deed was to be executed within 5 months.
As it could not be done, parties extended the time by mutual
consent for another 5 months. Even after that Jitender did
not turn up for execution.
On 01.01.2004, Kanti gave a notice to Jitedner that
agreement to sell is cancelled. Jitedner did not reply. When
after the constant demands of possession by Kanti, Jitender
failed to hand over possession Kanti filed
present suit for cancellation of agreement to sell, possession
and mesne profits on 01.01.2006.
The defendant pleaded on his written statement that suit for
cancellation of agreement to sell is not maintainable as time
was not the essence of the contract, so it is neither void nor
voidable and moreover suit for cancellation is barred by
limitation as plaintiff failed to file the suit after the expiry of
extended time of five months. He also took the plea that his
possession is protected under section 53A of TPA and asked
for specific performance. He also pleaded that as his
possession was lawful, plaintiff is not entitled to any mesne
profits.
THE COURT OF CIVIL JUDGE SECOND CLASS,
(Presided by...................
CNR No. .....
Civil Suit No. 2017/A
Date of institution:
...........
Kanti, W/o
Age................, R/0
Occupation....
Versus
Jitender, S/o
Age............. R/0
Occupation.........
Present Counsel:
Shri......................Advocate for Plaintiff
Shri....................Advocate for Defendant

JUDGMENT
(Pronounced on...
..day of. .........2017)
1. The present suit has been filed by the plaintiff against the
defendant under section 31 of the Specific Relief Act, 1963
(hereinafter, as 'SRA) for the cancellation of an agreement to
sell and for possession of the suit property and also for
mesne profits.
2. It is an admitted fact in the present case that an
agreement to sell regarding the suit house was entered into
between the parties on 01.01.2003 and defendant is having
possession of the suit house.
3. The facts of the plaintiff's case in nutshell are that plaintiff
executed an agreement to sell her house to the defendant
for sale consideration of Rs. 80,000 of which Rs. 50,000 was
paid in advance and defendant was given possession of the
house. Sale deed was to be executed within 5 months but as
defendant failed to get it executed a further period was
extended by mutual consent for another 5 months. When
defendant again failed to perform his part then on
01.01.2004 plaintiff served a notice upon the defendant
cancelling the said agreement and demanding back the
possession of property. However the defendant refused to
do that and hence the present suit was filed on 01.01.2006.
4. Defendant in his written statement pleaded that time was
not the essence of the contract, so it is neither void nor
voidable as against the plaintiff. He further pleaded that his
possession is protected under section 53A of TPA and
claimed that suit is barred by limitation.
He also claimed that his possession was lawful so plaintiff is
not entitled to get any mesne profits. He also counter
claimed specific performance of contract.
5. On the basis of assertions and denials of parties in their
respective pleadings and in their respective oral examination
under Order 10, rule 2 of Code of Civil Procedure, 1908
(hereinafter referred to as 'CPC) this court frames following
considerable issues:

S.No. Issues Onus of Findings

proof
i. Whether the Defendant Disproved
suit of the
plaintiff is
time barred?
ii. Whether the Plaintiff Proved
written
instrument
of
agreement
to sell is void
or voidable
against the
plaintiff?
iii. Weather Plaintiff Proved
plaintiff is
entitled to
get the relief
of
cancellation
of
agreement
to sell?
iv. Whether Plaintiff Proved
plaintiff is
entitled to
possession
of the suit
property?
v. Whether Plaintiff Proved
plaintiff is
entitled to
the mesne
profits?
vi. Whether Defendant Disproved
defendant is
entitled to
specific
performance
of contract?
vii. Relief and Suit
Cost decreed,
other
Reliefs as
per
judgement

Issues No. I
The preliminary objection as raised by defendant is whether
the suit of plaintiff is time barred. Following the mandate of
Order XIV, Rule 2(2) of Code of Civil Procedure, 1908
(hereinafter, as 'CPC) this issue should be decided first as it
affects the maintainability of suit.
7. Plaintiff as PW1 deposed that they executed the
agreement to sell (Ex.P-1) on 01.01.2003 and the sale deed
was to be executed within 5 months and this time was
further extended by another 5 months by mutual consent of
the parties. PW1 further deposed that since the defendant
failed to perform his part even after the extension of time
period, she served a notice (Ex.P-2) upon him on 01.01.2004
cancelling the agreement to sell and demanding possession
of the property. PW1 further pleaded that suit was filed on
01.01.2006 so it is within limitation. PW1 remained
unrebutted in cross examination.
8. Per contra, defendant as DW1 stated that suit is barred by
limitation as plaintiff failed to file the suit after the expiry of
extended time of five months.
9. As per Article 59 of the Indian Limitation Act, 1963
(hereinafter, as ILA') the plaintiff has to file the suit for
cancellation within 3 years from the date when she first came
to know about the fact which entitles him to cancel that
instruments. In the present factual score, as per Ex.P-1 the
parties initially agreed that defendant shall get sale deed
executed within 5 months and then by mutual agreement
they extended the time for another 5 months. When the
defendant again failed to perform it then on 01.01.2004
notice was sent to him
by the plaintiff regarding cancellation. That extended period
of 5 months ended on 01.11.2003 and this is the date when
PW 1 first came to know of the fact which entitled her to
cancel the impugned contract. The present suit was filed on
01.01.2006 which is within 3 years from 01.11.2003 and
therefore the suit is within limitation. So, issue no. (i) is
accordingly disproved.

Issue Nos. (ii) and (iii)

10. Now the moot question is whether that agreement, to
sell is void or voidable as against the plaintiff. Plaintiff as PW1
deposed that the agreement to to sell (Ex.P-1) was executed,
between the parties the 1.1.2003 and as per its terms the
defendant should have go;
Sale deed executed within 5 months. However as he failed to
do that another 5 months time was given. But the defendant
failed to perform it even within the extended time and it
amounts to breach of contract on the part of the defendant.
Hence on 01.01.2004, a notice (Ex.P-2) was sent to him
regarding cancellation of the agreement in sell. PW1 was
cross examined but remained unrebutted.
11. Per contra, defendant as DW1 deposed that the present
ExP1 is neither void nor voidable and that the time was not
the essence of contract
12. On the perusal of the matter on record, this court is of
the considered view that as per section 55 of the Indian
Contract Act, 1872 (hereinafter, as ICA') when the parties to
the contract agrees to perform it within a specified time and
one party fails to perform it within that time, then the said
contract becomes voidable at the instance of other party.
Also, Hon'ble Supreme Court in recent case of Padma Kumari
and ors. v. Dasayyam and ors, 2015 SC held that when the
intention of the parties is to treat the time as essence of the
contract, then non performance of it by one party within the
time will make it voidable at option of the other party.
13. In case in hand it was the clear intention of parties that
within 5 months defendant was to get the sale deed
executed. So clearly they were rigid on time and accordingly
the extended period of another 5 months will again be
considered as the time within which the contract is to be
performed. So, the extended period is also the essence of
contract and by non performance of contract within time,it
becomes voidable at the instance of PW1 as per section 55 of
the ICA. So, issue no. (ii) is proved.
14. As per section 31 of the SRA, when the written
instrument is void or voidable against a party and it is
adjudged so and if it is left outstanding then it may cause him
serious injury then the party may file for cancellation. In the
present factual matrix, it is already decided that Ex.P-1 is
voidable at instance of PW1 and it has been adjudged so and
it is very manifest that if it is left outstanding then it may
affect her interest. This court is of the view that relief of
cancellation is based on protective justice and cancellation
means removing the written character of a record and to
make it inoperative and invalid. Hence PW1 is clearly entitled
to relief of cancellation as it might be possible that in future
DW1 might misuse Ex.P-1. So, issue no. (iii) is held to be
proved.
Issue No. (iv)
15. Now the main question before this court is whether
plaintiff is entitled to possession of the suit property. Plaintiff
as PW1 claimed that as the agreement to sell has been
cancelled she is entitled to get back the possession of her
property from the defendant.
16. Defendant as DW1 deposed that he is a purchaser for
consideration and has taken the possession in part
performance of contract and is entitled to protect his
possession under section 53A of TPA. However, the
agreement (Ex.P-1) is an unregistered instrument and it is
clear mandate of section 17(1-A) of the Registration Act,
1908 that after 2001 to avail the benefit of section 53A of
TPA, the contract must be registered. Moreover the
agreement to sell on the basis of which the defendant is
claiming the benefit of section 53A TPA stands cancelled as
per the determination of issue no. (iii) Consequently, plaintiff
will be entitled to get the possession of the property back
and DW1 will not be entitled to any such protection claimed
So, issue no. (iv) is proved.
Issue No. (v)
17. Now, the primary question is whether plaintiff is entitled
to mesne profits. According to section 2(12) of the CPC -
Mesne profit is that which the person in the wrongful
possession of an immoveable property has earned or might
with reasonable diligence have earned.
In present case from the date of service of notice (Ex.P-2)
upon the defendant i.e. 01.01.2004, his possession became
illegal and it is no more a legal and permissive possession. So
the claim of defendant that his possession was lawful, and
plaintiff is not entitled to any mesne profits is not tenable.
Accordingly PW1 is entitled to mesne profit from the said
date to the date of delivery of vacant possession. So, issue
no. (v) is proved.
Issue No. (vi)
18. Now, the question before this court is whether defendant
is entitled to specific performance of contract. DW1 has
made this counterclaim under Order 6, rule 6A of CPC and it
is fully valid as for this he may even institute an independent
suit. For this counterclaim he will be considered as plaintiff.
According to section 10 of SRA condition precedent for
getting relief of the specific performance of contract is that
there must be a breach of contract by the defendant and that
plaintiff must be ready and willing to perform his part of
contract. 19. In this case, PW1 (defendant for this
counterclaim) has not committed any breach of contract but
instead he was always ready and willing to perform his part
in the contract. And secondly that DWI was never ready and
willing to perform his part of contract as per section 16(c) of
SRA. Initially he paid Rs. 50,000 but failed to pay another
30,000 Rs. as per the contract. So he was not ready to
perform the contract. Also there is no conduct on his part
which indicates his intention that he wants to perform it, so
he is not willing also. Therefore, as he failed to prove the
essential ingredient so he is held not entitled to specific
performance of contract. Issue no. (vi) is accordingly
disproved.
Issue No. (vii)
20. So, after having decided all the issues, this court passes
the decree of cancellation of written instrument (agreement
to sell), possession of suit property and for mesne profit in
favour of plaintiff and gives the following reliefs:-
(i) Agreement to sell is cancelled and is inoperative from the
date of judgment.
(i) Defendant to give vacant possession of land to plaintiff
within 15 days from date of judgment.
(ii) Description and abuttals of property are
North....South.........East......., West...
(iv) Defendant to give mesne profit to plaintiff at the rate of
6% from 01.01.2004 till delivery of vacant possession of land.
(v) Defendant to bear his own and also the cost of plaintiff in
suit.

(vi) Certified advocates fees to be included in cost of suit.

Decree to be drawn Sign
accordingly. Civil Judge IInd Class

This judgment is dated, signed

and pronounced in the open court.
Sign
Civil Judge IInd Class