P L D 1963 (W (PLP)

In Harkisandas Bhagivandas and others v. Bai Dhanoo (A I R 1934 Born. 171), it was held :‑ Where there is an agreement by the vendee to reconvey the property to the vendor and on the vendor's demanding resale of the property, he (vendee) denies the agreement, his denial amounts to a refusal to perform the agreement within the meaning of Article

113. Kastruchand Okaji Barwadi v. Hari Govind Wagle (A I R 1934 Bom. 491) was also relied upon by the petitioners' counsel. The facts of that case briefly are that the defendant entered into an agreement with the plaintiffs to finance certain litigations and to get a half share in whatever they gained from the suit. The defendant got a decree for rendering such financial assistance and in execution of the decree obtained a sale‑deed of a house and also certain moneys from Court. Plaintiffs demanded account of such transaction with that party in connection with the above litigation but the defendant refused to give them, thereupon plaintiff sued the defendant ; it was held that even if Article 113 applies, as no period was fixed for performance of the contract, the second part of col. 3, Article 113 would apply and time would begin to run when plaintiffs had given notice and when performance was refused.

10. The learned counsel for the respondents urged that it was Part 1 of Article 113 of the Limitation Act which was applicable and limitation was three years from the date fixed for the performance of the contract. Continuing his argument he submitted that according to the terms of the agreement Exh. P. 3, the plaintiffs were entitled to ask the respondents for the resale of the property on receipt of Rs. 2,000 within 16 years or im mediately on the expiry of 16 years. The agreement‑deed Exh. P. 3 was executed on 18th February 1932, and at the latest the plaintiffs could have asked for the resale of the property within three years of 18th February 1932, i.e., up to 18th February 1948, and the suit brought by the plaintiffs on 10th January 1955, was, therefore, clearly barred by time. The respondents had no right to refuse to reconvey the property within sixteen years to the petitioners, but the latter had no right to claim the property after the expiry of that period.

11. For the determination of the point as to whether Part 1 or Part 2 of Article 113 of the Limitation Act is applicable, the relevant clause of the agreement‑deed is to be interpreted which reads as under :‑ When translated into English it would read as under :‑ That if the vendors or Muhammad Gul, Ahmad Gul and Wahid Gul, sons of Farid Gul pay Rs. 2,000 for the above property to us the declarants after the expiry of 16 years or within 16 years, then we will return the said property to them and we shall have no objection whatsoever in this behalf.

12. The learned counsel for the petitioners urged that the words "sixteen years" were introduced in the deed for the benefit of the petitioners not to be compelled, by the respondents to pay the sale money within sixteen years by selling the property to recover the money. From the contents of Exh. P. 3 it, however, appears that no specific date was fixed for the re‑sale of the property and the period mentioned therein, i.e., within 16 years or after the expiry of 16 years, would show that the petitioners were given the choice either to ask for the re‑sale of the property within 16 years or after the expiry of 16 years, and so in view of the authorities cited above, Part 2 of Article 113 of the Limitation Act is applicable to the case and the agreement‑deed Exh. P. 3 was not construed by the lower appellate Court.

13. The learned counsel for the respondents urged that the agreement deed Exh. P. 3 is bad on the following grounds :‑ (1) It is unilateral because it was not accepted by the petitioners. (2) It lacks consideration. (3) It is bad for want of mutuality. (4) The respondents had changed the nature of the suit property within the knowledge of the petitioners by adding other property to it, but they did not object to it.

14. As regards the objection that the document was unila teral, the learned counsel for the respondents contends that it had not been accepted by the petitioners. The endorsement by the Sub‑Registrar on the back of the agreement Exh. P. 3 would, however, show that it was not only signed by Farid Gul, petitioner No. 1, but he had also accepted its contents and, therefore, it is not unilateral. The contention that the document lacked consideration was abandoned by the learned counsel for the respondents at the arguments stage.

15. The learned counsel for the respondents argued that the document was bad for want of mutuality and in support of this contention he relied upon section 2 (i) of the Contract Act, which is to the following effect :‑ "S.

2. In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context. (a) to (h) . (i) An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract." The learned counsel continued that the agreement‑deed Exh. P. 3 was enforceable at the instance of the petitioners only who could sue the defendants for the reconveyance of the property by offering them Rs. 2,000, plus costs of improvements, but the defendants had no option to sue the plaintiff on its basis and, therefore, the agreement was voidable according to section 2 (i) of the Contract Act. In support of his contention he relied upon Amin 'Agencies Ltd. v. Haji Moosa Haji Oomar (P L D 1953 Sind 57) which is to the following effect :‑ "A clause in a contract of sale and purchase of goods reads :‑ In the event of dispute of any nature arising in respect of the said goods or the execution of this contract you are always to have the option of cancelling contract or referring the matter to the arbitration of one or two merchants and I/We agree and bind myself/ourselves to accept the decision of the Arbitrator/Arbitrators as final and should the Arbitrators not agree they are to appoint Umpire whose decision shall be final and binding upon the parties. The party at fault to pay the fee or fees. Held : that such an arbitration agreement was voidable within the meaning of section. 2 (i) of the Contract Act and, therefore, was not enforceable." He further relied upon Jatadhari Prasad and others v. Kishtun Lai Daruka and others (A I R 1950 Pat. 535), where at page 539 it was observed as under :‑ The fundamental rule of equity is that a contract will not be specifically enforced unless it is obligatory on both parties, nor unless both parties at the time it is executed have the right to resort to equity for specific enforcement of it. Therefore, a contract to be specifically enforced by the Court must, as a general rule, be mutual that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other. The Specific Relief Act does not anywhere expressly repudiate the doctrine of mutuality. On the contrary, the language used in respect of the last nine illustrations of clause (b) of section 21, Specific Relief Act supports the position that the doctrine is part of the Indian Law.

16. The learned counsel for the petitioners, on the other hand, urged that lack of mutuality in the contract is not mentioned in the Contract Act and the authorities relied upon by the respondents' counsel were not applicable. The learned counsel for the petitioners relied upon. Chetoomal Bulchand and others v. Shankerdas Girdharilal and others (A I R 1929 Sind 83) where it was held :‑ The doctrine of mutuality which was one of the defenses in English Law to an action for specific performance has been deliberately left out from the Specific Relief Act by the ran Legislature and it is not applicable to India. It was further held that section 2 cannot be invoked as a clause importing the doctrine of "mutuality" into the law of contract in India. The learned counsel for the petitioners relied upon The Province of West Pakistan v. Mistri & Patel Co. etc. (P L D 1959 Kar. 782) which dissents from P L D 1953 Sind 57 (relied upon by the respondents' counsel), where at page 801 it was observed as under : The learned counsel then referred me to a decision of Muhammad Bakhsh, J., in Amin Agencies Ltd. v. Haji Moosa Haji Oomar P L D 1953 Sind 57 to show that the doctrine of mutuality is recognised in our Courts independent of the pro visions of the Contract Act. This decision is not only opposed to the view taken in 5 S L R 61 and A I R 1929 Sind 83 (D. B.) but is also based on the erroneous view that their Lordships of the Privy Council in I L R 39 Cal. 232 had recognised the doctrine of mutuality in Indian cases. That decision related to a case where a contract was entered into on behalf of the minor, which are void contracts. It will be observed that their Lord ships of the Privy Council did not discuss and extend this doctrine to other cases. As observed in 58 Bom. 660, I am not prepared to extend this doctrine outside the provisions of the Contract Act or other relevant enactment. The learned counsel for the petitioners urged that the contract of sale and re‑sale are two simultaneous contracts which are inter dependent and will be considered as one contract. In support of his contention he relied upon Shyampada Singha and others v. Dhirendra Nath Bhadra and others (P L D 1957 Dacca 488) where it was held as under : "Where the kabala and the ekrarnama were executed on the same day and at the same sitting, it was held that they formed contemporaneous agreements and the consideration for the ekrarnama was in part the execution of the kabala and the transfer of the lands thereby made." In another case reported in Ram Das Rae and others v. Brindaban Ram (A I R 193 1 All. 113), it was held as follows :‑ An agreement to reconvey the property cannot be ignored as pudam pactum and as such void of any legal effect. The reciprocity between the parties is evidence of consideration. An agreement of this description is not without consideration and is capable of being specifically enforced.

17. The perusal of the authorities cited by the learned counsel for the petitioners would show that the doctrine of mutuality which was one of the defences in English Law to an action for specific performance has been deliberately left out from the Specific Relief Act, and, therefore, we hold that the agreement does not suffer from lack of mutuality and the authorities relied upon by the respondents' counsel are not applicable.

18. The learned counsel for the respondents urged that the respondents had changed the condition of the property to the knowledge of the plaintiff‑petitioners. In support of this con tention, he referred to the cross‑examination of Farid Gul, plaintiff- petitioner. At page 148 of the file, where he admitted that the defendants had purchased a serai in auction and had added a portion of it to the suit property. He argued that where the status quo does not remain and the value of the property increases, decree for specific performance will not be granted. He relied on section 22 (ii) of the Specific Relief Act which lays down :‑ Section 22.‑The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so ; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principle and capable of correction by a Court of appeal. The following are cases in which the Court may properly exercise a discretion not to decree specific performance (i) . . . . . . . (ii) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non‑performance would involve no such hardship on the plaintiff." He contended that the defendants bad added other property to the suit property within the knowledge of the petitioners and there was change in the value of the property which had occurred by reason of delay, because the value of the property had increased from Rs. 2,000 to Rs. 5,700 and the plaintiffs were, therefore, not entitled to the relief claimed. In support of this contention reliance was placed upon Lekh Singh v. Dwarka Nath and others (A I R 1929 Lab. 249) where it was held as under Even if mere delay does not disentitle a plaintiff to claim specific performance of a contract, nevertheless delay is one of the factors to be considered giving the discretionary relief. Inordinate and unexplained delay coupled with the change of conditions is a sufficient ground for refusing specific per formance. In Muhammad Wazir v. Ch. Jahangir Mal and others (P L D 1949 Lab. l), it was held to the following effect :‑ " ..but on the other hand where a claimant knows that a party against whom he has a claim is altering his position in the belief that the claimant has abandoned or will not enforce his claim and even then, the claimant does nothing, his inaction may bar his claim even within the period of limitation." He urged that Farid Gul petitioner when examined admitted that it was in 1941 that he found that some other property had been added to the suit property and yet he kept quiet for about fourteen years and brought the suit in 1955. It is, therefore, a Fit case to be dismissed under section 22 of the Specific Relief Act.

19. There is not much force in the contention of the learned T counsel for the respondents. Mr. Mahfooz Khan, Advocate was appointed as a Commissioner who submitted his first report on 14th November 1957, which is at page 142 of the file. In para graph 6 of the above‑mentioned report, the Commissioner observed as follows :‑ "After a thorough and detailed observation I have come to the irresistible conclusion that the suit property has undergone very little change since 1932. Its structure and shape are almost the same except for few alterations and repairs carried out by the defendants during the last 25 years or so." From this report it further appears that a portion was carved out) of the suit property and was added to a serai (not in the suit) and a portion of the serai was added to the suit property, and besides these minor changes, there was no material change in the property as found by the Commissioner. The report of the G Commissioner shows that the property in suit had undergone very little change which was also found by the two Courts below against the respondents and, therefore, the law cited by the learned counsel for the respondents is not applicable and section 22 (ii) of the Specific Relief Act is not a bar to the specific performance.

20. The question of laches is a mixed question of law and fact. There is a concurrent finding by the two Courts below that there are no laches or delay. A I R 1929 Lah. 249 relied upon by the learned counsel for the respondents is not applicable, because there is no change in the status of the property and mere delay will, therefore, not defeat the case, nor is it a bar to the plaintiff's claim to the specific performance unless there is acquiescent, abandonment and waiver by him, and on this point, i.e., acquiescence, abandonment and waiver, there are concurrent findings by the two Courts below against the respondents. In a case reported in Allah Ditta and another v. Jamna Das and others (A I R 1929 Lah. 679) it was held as under :‑ "In no case does mere lapse of time deprive the plaintiff of his right to specific performances, unless it be held that there has been abandonment, acquiescence or waiver, or at the least, an alteration in the position of the defendant in that the other party has been put in a situation in which it would not be reasonable to place him, if the remedy were afterwards to be asserted."

21. Delay in some cases may be evidence of abandonment, acquiescence or waiver, but delay which does not the amount to acquiescence, abandonment or waiver and which in no way alters the position of the defendant does not disentitle him to sue for the specific performance where the suit is within time and the delay is not a ground to hold that the plaintiff has disentitled himself under the agreement and the Court will, therefore, not refuse equitable relief. We are, therefore, of the opinion that the agreement‑deed Exh. P. 3 does not suffer from laches, lack of, mutuality, consideration and waiver, nor has there been any material change in the status of the property.

22. As a result of the foregoing discussion and in view of our finding on issue No. 1, we accept this revision petition, set aside the judgment and decree of the learned Additional District Judge, restore that of the learned trial Judge and pass a decree for possession of the suit property along with the improvements found by the Commissioner by way of specific performance of the contract in favour of the plaintiffs against the defendants on payment of Rs. 2,000 as the principal amount and Rs. 3,700 as improvement to the defendants with costs throughout. A. H. Petition accepted.