High Court Kerala High Court

K.Sreedevi vs V.Velayudhan on 23 September, 2010

Kerala High Court
K.Sreedevi vs V.Velayudhan on 23 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 25569 of 2009(O)


1. K.SREEDEVI, D/O.BHARGAVI AMMA,
                      ...  Petitioner

                        Vs



1. V.VELAYUDHAN, S/O.VELU, RESIDING AT
                       ...       Respondent

                For Petitioner  :SRI.V.CHITAMBARESH (SR.)

                For Respondent  :SRI.JOHNSON P.JOHN

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :23/09/2010

 O R D E R
                      HARUN-UL-RASHID,JJ.
              -------------------------------
                     W.P.(C) NO.25569 OF 2009
              -------------------------------
            DATED THIS THE 23RD DAY OF SEPTEMBER, 2010

                               JUDGMENT

Petitioner herein is the plaintiff in O.S.No.333/02 on

the file of the Munsiff’s Court, Alathur. The suit was filed for

specific performance of the contract of sale against the respondent.

Ext.P1 is the copy of the decree passed in the suit. The decree inter

alia directed the plaintiff to deposit the balance sale consideration

of Rs.4,000/- in court within one month taking note of the fact that

a sum of Rs.36,000/- had already been paid as advance. Since

there was no appeal, Ext.P1 decree has become final. The plaintiff

did not deposit the balance sale consideration as directed in the

decree. After five years and three months, he filed I.A.No.994/08

seeking permission of the court to deposit the balance sale

consideration of Rs.4,000/- and to condone the delay of five years

and three months in making the deposit. Ext.P2 is the photocopy of

I.A.No.994/08 .

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2. The learned counsel for the petitioner submitted that

the respondent has not filed any application to rescind the contract

either on account of the delay in making the deposit or on any other

ground under Section 28(1) of the Specific Relief Act. Ext.P4 is the

order passed by the Munsiff’s Court, Alathur in Ext.P2. The court

below, after considering the reasons stated for the delay in

depositing the balance sale consideration, held that there is no just

and sufficient reasons to condone the delay of more than five years

and three months and to permit the petitioner to deposit the balance

sale consideration by enlarging time.

3. It is pointed out by the learned counsel for the

petitioner that the court below did not consider the reasons stated in

the application liberally. The learned counsel also pointed out that

it is settled by decisions that the power to extend the time is inbuilt

in Section 28 of the Specific Relief Act itself, that the power under

Section 28 of the Act is discretionary and the court cannot

ordinarily annulled the decree once passed by it and that the court

does not seize to have the power to extend the time even though the

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WP(C).No.25569/09

decree provides that the payment of balance price to be made by

certain dates. The learned counsel submitted that inbuilt power of

the court to extend the time especially when the court retains

control in a suit for specific performance till the decree is executed

or rescinded ought to have been exercised liberally. He also

pointed out that this is particularly so when no application was filed

by the respondent to have the contract rescinded and the delay in

making the deposit deserves to be condoned. It is also pointed out

that the condonation of delay under Section 28 of the Specific

Relief Act stands on a different footing in contra distinction to the

condonation of delay under Section 5 of the Limitation Act.

According to him, Ext.P4 order suffers from an error of jurisdiction

and deserves to be set at naught in exercise of the power of

superintendence of this Court. Learned counsel for the petitioner

relied on the decisions reported in Joseph George v. Chacko

Thomas (1992 (1) KLT 6), Jayaprakash v. John (1999(2) KLJ

533), Chitambaran v. Viswambharan (AIR 2001 Kerala 205)

and Chanda v. Rattni ((2007) 14 SCC 26) in support of his legal

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contentions.

4. In view of the legal position as pointed out by the

learned counsel for the petitioner this Court is of the view that the

matter requires re-consideration. In the circumstances, the

impugned order (Ext.P4) is set aside. The Munsiff’s Court,

Alathur, after examining the contentions of the parties and after

examining the legal position as laid down in the aforesaid

decisions, shall dispose of I.A.No.994/208 on merits, within a

period of three months from the date of receipt of a copy of this

judgment. The learned counsel for the respondent submitted that he

proposed to file a petition to rescind the contract. The submission

is recorded.

Writ petition is disposed of as above.

HARUN-UL-RASHID,
Judge.

kcv.