C.Ramana And Another vs Bandaru Vijaya Lakshmi
2022 Latest Caselaw 3278 AP

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      THE HON'BLE SRI JUSTICE BATTU DEVANAND

        CIVIL REVISION PETITION NO.828 of 2018

O R D E R:

This Civil Revision Petition has been filed aggrieved by

the order, dated 17.11.2017 in I.A.No.371 of 2010 in

O.S.No.21 of 2007 on the file of the Senior Civil Judge, Kadiri.

2) Heard the learned counsel for the petitioners and the

learned counsel for the respondent. Perused the record.

3) The Petitioners are the plaintiffs and the Respondent is

defendant is the suit in O.S.No.21 of 2017 on the file of the

Senior Civil Judge, Kadiri.

4) The petitioners filed the suit for specific performance of

contract against the respondent. The said suit was decreed in

favour of the petitioners on 31.05.2010 with a direction to

deposit the balance of sale consideration of Rs.2,50,000/- with

interest at 12% per annum from 08.02.2007 within two

months from the date of decree and judgment, dated

31.03.2010. But, the petitioners could not deposit the said

amount.

5) The petitioners filed a petition in I.A.No.371 of 2010 in

O.S.No.21 of 2007 seeking to extend the time from

30.05.2010 to 21.10.2010 to deposit the balance of sale

consideration. The respondent resisted the request of the

petitioners by filing counter. The learned Senior Civil Judge,

Kadiri on consideration of the material available on record,

dismissed the said application by order, dated 17.11.12017.

Aggrieved by the said order, the present Civil Revision Petition

has been filed.

6) The learned counsel for the petitioners submits that the

extension of time is a discretionary power of the court as

contemplated under Section 28 of Specific Relief Act and as

such, the Court below ought to have extended the time in

depositing the amount by exercising the discretionary power,

as there is no inordinate delay on the part of the petitioners.

The learned counsel further submits that the Court below erred

in not considering the bonafidies of the petitioners, as the

petitioners filed demand drafts 8 in number along with a Memo

in C.F.No.2916 of 2010, dated 22.10.2010 . The learned

counsel also brought to the notice of the Court that the 2 nd

Appeal filed by the respondent in S.A.No.732 of 2012 is

pending.

7) The learned counsel for the respondent contends that the

petitioners are not entitled for grant of delay of 144 days in

depositing the amount as per the decree and judgment, dated

31.03.2010. He further submits that if the petitioners

interested to deposit the amount in Court, he should have filed

petition for extension of time in depositing the amount into the

Court on or before 30.05.2010 (i.e.) stipulated time and

sought to dismiss the Civil Revision Petition.

8) The learned counsel for the petitioners relied the

following decisions to support the contention of the petitioners:

(1) Yeshoda vs. K. Nagarajan1

(2) Mandavilli Sujatha v. Bartam Vykuntarao and others2 and

(3) K. Balaraj vs. B. Mallaiah @ Mallesh3.

9) The learned counsel for the respondent also relief the

following decisions to support the contentions of the

respondent:

(1) Ali Jaffar v. V. Venkata Reddy4 and

(2) P. Ravi Prasad Goud v. P. Krishna and others5.

10) We have carefully considered the submissions of the both

the learned counsels appearing for the petitioners and the

respondent and perused the record.

LAWS (SC) 1996 9 29

2000 (1) ALD 237

1996(2) ALT 170

2012(3) ALT 202

2010(6) ALT 197

11) This Court in Mandavilli Sujatha's case (2nd supra) had

dealt with the identical issue allowed the Civil Revision Petition

and held at para Nos.12 and 13 as extracted hereinunder:

12. In fact, Section 28 of the Specific Relief Act specifically mentions about the decree holder depositing the balance of sale consideration within the period prescribed under the decree or such further period as the Court may allow.

13. Thus, it is apparent that the learned Judge erred in holding that he had no power to consider the application for extension of time for payment of balance of sale consideration beyond the period stipulated under the decree. It is obvious that the learned senior Judge failed to exercise the jurisdiction vested in him under Sec. 148 of the CPC and under Sec. 28 of the Specific Relief Act.

12) In K. Balaraj's case (3rd supra) held at para No.11 as

extracted hereinunder:

11. No doubt, the learned Judges while holding as above referred to Nagura Appa's case (1 supra) with great respect, I am unable to agree with the view expressed by the learned Judges. As pointed out in the earlier paragraphs, the case of suit for pre-emption is governed by Order 20 Rule 14, which provides for the consequences to follow if the condition imposed to deposit any amount is not complied with. There is a statutory bar on toe Courts to extend the time limit imposed. Whereas, in the case of suit for specific performance, no provision similar to Order 20 Rule 14 is made. Therefore, there is no statutory bar barring the Courts from extending the time limit imposed for the performance of the contract fixed by the Trial Court. Further, Section 28 of the Specific Relief Act 1963 says "such further period as the Court may allow" thereby empowering the Courts to extend the period for deposit of the amount specified. However, there cannot be any doubt that such extension should be within reasonable limits as the discretion is to be exercised judiciously and not capriciously.

13) The Hon'ble Apex Court in Yeshoda's case (1st supra) held

at para No.2 as extracted hereinunder:

2. It is contended by Mr. Mahale, learned counsel for the petitioners, that after the expiry of the time prescribed by the court, the petitioner has a right to seek rescission of the decree for specific performance for non-compliance. The court, therefore, has no power to enlarge the time. We find no force in the contention. Section 148 Civil Procedure Code gives power to the court to enlarge the time for complying with the orders of the court from time to time. Under those circumstances, the court has correctly exercised the discretion since the amount case to be deposited within three months from the date of dismissal of the application under Section 28.

14) This Court carefully have gone through the judgments

cited by the learned counsel for the respondent. Though, there

is no any dispute with regard to the opinion expressed in the

said judgments, in the considered opinion of this Court, the

findings recorded in the said judgments are not applicable to

the facts and circumstances of the present case.

15) In Ali Jaffar's case (4th supra) the petitioner filed an

application seeking condonation of delay of 1417 days. The

petitioner therein filed the suit 21 years after entering into the

agreement of sale. Considering those facts, the Civil Revision

Petition was dismissed. But, in the present case, there is no

such inordinate delay.

16) In P. Ravi Prasad Goud's case (5th supra) also the facts

are varying with the present case. As such, in our view, the

said judgments are of no help to the respondent.

17) On careful perusal of the rulings cited by the learned

counsel for the petitioners as extracted above, this Court is of

the opinion that the learned Senior Civil Judge, Kadiri erred in

dismissing the petition filed by the petitioners without

extending the time as sought by them. The learned Senior

Civil Judge, Kadiri ought to have exercise the jurisdiction

vested in him under Section 148 of the Civil Procedure Code

and under Section 28 of the Specific Relief Act.

18) In the present case, it is further to be noted that the

petitioners to prove their willingness and readiness filed

demand drafts 8 in number along with a Memo in C.F.No.2916

of 2010, dated 22.10.2010. The said demand drafts are part

of the record in the court of the Senior Civil Judge, Kadiri. It

appears from the order assailed in this Revision Petition there

is no any mention about the demand drafts placed before it.

As such, this Court has no hesitation to come to a conclusion

that the learned Senior Civil Judge, Kadiri failed to consider the

bonafidies of the petitioners.

19) Considering all these aspects, in the result, we have no

hesitation to hold that the order under revision deserves to be

set aside and accordingly it is set aside.

20) Considering the facts and circumstances of the case, the

petitioners are granted time for depositing the balance of sale

consideration within 30 days from the date of receipt of this

order.

21) With the above direction, the Civil Revision Petition is

allowed.

22) There shall be no order as to costs.

As a sequel, miscellaneous petitions, if any, pending in

this petition shall stand closed.

______________________ JUSTICE BATTU DEVANAND Dt.04.07.2022.

Note: Issue CC tomorrow.

B/o PGR

THE HON'BLE SRI JUSTICE BATTU DEVANAND

C.R.P.No.828 of 2018

Dt.04.07.2022

PGR