Gulab C. Gupta, J.
1. This is plaintiff's first appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 9-11-1987 passed by Shri K.K. Shrivastava, II Additional Judge to the Court of District Judge, Surguja at Ambikapur, in Civil Suit No. 2-A of 1987, dismissing the suit for specific performance of agreement dated 3-10-1974 (Ex.P-6).
2. The property in dispute, in the appeal is 2.27 acres of land forming part of Khasra No. 242/2 at village Namna-Kala, district Surguja, admittedly owned by respondent A.K. Dutta in his Bhumiswami right. Though plaint allegations originally did not contain any challenge to the respondent's title, it was amended and the challenge to the title made. In this Court, however, it has been conceded that the respondent is the Bhumiswami of the said land. According to the plaint, the parties entered into an agreement dt. 3-10-1974 (Ex.P-6), to sell the aforesaid land for valuable consideration of Rs. 25,000/-. The appellant claimed to have paid Rs. 1,000/- as earnest money on the date of this agreement. According to this agreement, the sale-deed was to be executed within a period of six months on payment of balance of Rs. 24,000/-. The agreement, however, further provided that in case, the appellant was not able to get the sale-deed executed within six months, be could do so within a further period of six months by paying the additional amount of interest at the rate of 10 per cent per annum on the balance of consideration. The agreement, however, records that the property was in possession of the father of the appellant, Late Hakim Singh who was using the same for running his saw-mill on the basis of lease deed dated 1 -9-1974. Neither party has filed this lease deed dated 1-9-1974. The case of the appellant plaintiff is that the suit land was taken on lease by late Hakim Singh in 1952 and saw-mill had been running thereupon since then. It was also alleged that originally it used to be an agricultural land and was got diverted by appellant's father by order dated 7-6-1966 (Ex.P-5). Case of the appellant is that he has always been ready and willing to pay the balance of consideration and obtain the sale-deed but the respondent has avoided doing so. That is how the appellant has claimed a decree for specific performance. The appellant had specifically alleged that he sent letter, Ex.P-1, on 18-12-1974 to the respondent at his Bhopal address, because the respondent had been transferred to Bhopal and was working there as Assistant Conservator of Forest. According to the appellant, the said letter could not be served on the respondent because the respondent was not available at the address given. The envelope has been filed as Ex.P-2. The case of the appellant-plaintiff also appears to be that the respondent came to Ambikapur in July, 1975 when he again met him and requested him to get the sale-deed executed. It is alleged that the respondent, at that time, only borrowed further amount of Rs. 600/-, on account of the sale and promised to execute the sale-deed later on. Instead of executing sale-deed the respondent filed the suit for eviction and hence the appellant felt it necessary to bring the present suit for specific performance and permanent injunction. The written statement on behalf of the respondent was filed by one R. Chaki claiming to be the power of attorney holder of the respondent. The respondent, by filing his written statement denied all adverse allegations made in the plaint. He specifically denied that Hakim Singh was in possession of the land since 1952 and was running the saw-mill thereupon. The respondent also denied that Hakim Singh got the land diverted in any revenue proceeding. He also denied that the notice was sent to his correct address. In spite of it, he admitted that he was at Bhopal in 1974 and serving the State Government as Assistant Conservator of Forest. According to respondent, his address was widely known to everybody. It was, therefore, submitted that the appellant-plaintiff did not send the letter dt. 18-12-1974, as alleged. The case of the respondent, as set out in the written statement was that the appellant committed breach of agreement by hot offering to pay balance of consideration and getting the sale-deed executed within one year. It was also alleged that Hakim Singh was given the lease of the land with effect from 1-9-1974. The respondent also denied having met the appellant in July, 1974 or borrowiwng Rs. 600/-. It was therefore submitted that it was the appellant -plaintiff who has committed the breach of agreement and therefore, not entitled to any relief. The suit was also claimed to be barred by limitation. The learned trial Judge, on appreciation of evidence adduced by the parties, held that the agreement dt. 3-10-1974 was intentionally and knowingly signed by the parties and the time w as essence thereof. The learned Judge, however, held that the appellant was not ready and willing to perform his part of the agreement within the stipulated period. The learned Judge also held that the suit was barred by limitation. The further findings recorded by the learned Judge are that the respondent is lawful owner of the suit land and the appellant was not entitled to challenge his title. On these findings the suit was dismissed.
3. It may be mentioned that the respondent had filed the suit for eviction of the appellant which was the subject matter of Civil Suit No. 9-A of 1980 renumbered as C.S. No. 42/1986). Because of the findings aforesaid, the said suit was allowed and a decree for eviction of the appellant from the suit 1 and passed on 31 -10-1988. The said judgment is also under challenge before this Court in First Appeal No. 16/1989. Since the consequences of this appeal ( F. A. 51 /1988) are going to affect the decision in First Appeal No. 16/1989, both these appeals have been heard together and are being decided today.
4. The main questions to be decided in this appeal are, (i) who is the guilty of breach of agreement Ex.P-6; and (ii) whether the appellant was and is ready and willing to perform his part of the agreement?
5. Before considering the submissions of the parties on these questions, it is necessary to ascertain whether the suit land was given to the appellant's father on lease for the first time on 4-10-1974 or it was in his possession from 1952 as claimed by the appellant. The appellant has in para 6 of the plaint alleged that his father Hakim Singh received possession of the land in 1 952 and was operating his saw-mill and storing logs of timber after clearing the protected forest thereon. It is also alleged that this land was got diverted by his father on 7-6-1966. The respondent has denied these allegations in his written statement. In spite of it, Shri Ranjit Chaki (DW 1) the Power of Attorney holder of the respondent, admits in his cross-examination that the suit land was in possession of the appellant and his ancestors from 1952-53 and before that it was part of the jungle. In view of this admission, it is not possible to believe that the land, for the first time, given on lease to the appellant's father on 4-10-1974. Krishan Singh (PW-1) has stated on oath that his father Hakim Singh had established his saw-mill in 1952. According t o him, the suit land was jungle at that time and was cleared by his father to establish the saw-mill. Nothing was asked from this witness in his cross-examination on the point. Under the circumstances, there should be no difficulty in holding that the suit land was used by appellant's father for purposes of h is saw-mill since 1952-53. It is obvious that the statement of the respondent in the written statement to the contrary is false. Documentary evidence particularly Exs.P-4 and P-5 further prove that it was Sardar Hakim Singh who was responsible for diversion. Respondent Dutta did not appear to give evidence in this case but has given evidence in the other case, and has denied that he had given any statement before the sub-divisional officer and stated that Hakim Singh was in possession of the suit land in 1960-61. Document Ex.P-5 proves that he has given false statement in the Court. Under the circumstances it is obvious that the respondent has not only taken false plea in his written statement but has also given false statement on oath in the Court. In spite of it, his conduct not being in investigation directly in these cases, is not relevant. The finding that the appellant and his father Late Hakim Singh were in possession of the suit land since 1952-53 and were running their saw-mill, alone is relevant to examine the contents of the agreement in question. It will, therefore appear that agreement Ex.P-6 was signed by the parties because the appellant's father Hakim Singh was already in possession of the suit-land and was operating his saw-mill. A saw-mill usually needs electricity for operation and a shed to establish machine. Under the circumstances, it is reasonable to assume that the appellant's father must have erected at least a temporary structure to establish the saw-mill. This fact indicates that the appellant having established his business on the suit land for such a long time, would not easily like to face eviction.
6. It may now be considered if the appellant is guilty of breach of agreement? According to the learned trial Judge, the appellant not having got the sale-deed executed within the stipulated period of six months, is guilty of breach of agreement (Ex.P-6). Submission of the learned counsel for the appellant, however, is that this finding does not take into consideration his notice (Ex.P-1) sent to the respondent at his Bhopal address and, is, therefore, vitiated. Notice (Ex.P-1) and its envelope (Ex.P-2) considered in the context of statement on oath by Krishan singh (P.W. 1) makes it possible to hold that the appellant sent this notice by registered post to the respondent's address at Bhopal and the notice was returned unserved with the endorsement that the respondent was not available at the address. The submission of the appellant appears to be that since the respondent had left for Bhopal after executing the agreement, he could do nothing more than request him by sending this notice to his address known to him and if for any reason, the notice could not be served on the respondent, he cannot be held guilty of not performing his part of the agreement. It is elementary justice that one of the parties to a n agreement shall not get rid of his responsibilities thereunder by disabling the other party from fulfilling his part of the agreement; as a general rule, w here in an agreement, it appears that both parties have agreed that something should be done, which cannot effectually be done, unless both concur in doing i t, the construction of the agreement is that each agrees to do all that is necessary to be done on his part for carrying out of that thing that there may be no express words to that effect. The aforesaid is based on the well-settled rule of law that no person can take advantage of the non-fulfilment of a condition of performance of which has been hindered by himself. It is also the well-settled rule of English Law of Contract that one of the contracting parties is exonerated from the performance of a contract, when it is prevented and rendered impossible by the wrongful act of the other contracting party. This very rule finds statutory recognition in Section 53 of the Contract Act, which gives the option to the parties so prevented to declare the contract voidable and claim compensation from the other party for any loss, which he may sustain in consequence of the non-performance of the contract. Section 54 of the Contract Act is nothing, but another facet of this fundamental rule. Though neither Section 53 nor Section 54 of the Contract Act is directly attracted in the instant case, the principles underlying therein are important to determine as to which of the two parties to the impugned-agreement has failed to perform it. The facts of the casemay now be examined in the context of these legal principles. Agreement (Ex.P-6) contains the address of the respondent at Arnbikapur, which address is apparently the permanent address of this respondent. It is common ground that the respondent was working as Assistant Conservator o f Forest at Bhopal. Krishansingh (P.W. 1) has deposed on oath that his brother Gurdeepsingh sent notice (Ex.P-1) by registered post to the respondent's Bhopal address, but the same could not be served on him, because postal authorities failed to locate his address. Ex.P-2, the envelope, contains remarks of the postal authorities to that effect. According to this witness, the address given on the envelope (Ex.P-2) was the correct address of the respondent. No question was asked to this witness in his cross-examination about the correct address of the respondent or about the endorsement appearing on Ex.P-2. Ranjeet Chaki (D.W. 1), the only witness of the respondent does not say anything about the address or correctness thereof in Ex.P-2 in his examination-in-chief. However, in his cross-examination, he denies that the address given on the envelope (Ex.P-2) was correct. According to him, the respondent did not live i n T. T. Nagar, Bhopal. A perusal of the envelope (Ex.P-2) would indicate that the letter was sent to the respondent's home address at 116/31, 1464 Quarters, T. T. Nagar, Bhopal. It is well-known that T. T. Nagar, is a big locality of New Bhopal and 1664 Quarters is a part thereof. Though Shri Chaki had denied that the respondent lived in T. T. Nagar, Bhopal, he said nothing about the particular quarter of 1464 Quarters. His silence in the matter may b e interpreted as his acceptance of the correctness of the said address. Then, the respondent had not chosen to give his correct Bhopal address at any time. H e filed his registered address in the trial Court on 7-7 -1979, which is blissfully vague and does not give either the House number or locality. Under the circumstances, the vague denial by Shri Chaki (D.W.1) is not, in the opinion of this Court, to hold that the envelope (Ex.P-2) was not sent to the correct address. That in spite of it, this letter could not be served on the respondent, may be due to several causes and is not relevant for purposes of enquiry into the conduct of the appellant in relation to the contract in question. The only relevance of aforesaid finding is that it reflects bona fide of the appellant and h is intention to perform his part of the agreement. If he was not willing to perform his part of the contract, he would not have sent such a letter. The f act that the suit-land was in possession of his father and saw mill was running thereupon since long, would only reinforce the aforesaid conclusion, as no one would like to risk closure of his old flourishing business, without any reason. Then, the relationship between the parties at that time was cordial and hence, there was no reason why appellant would have sent letter (Ex.P-1) on the wrong address of the respondent. These facts, in the opinion of this Court, lead to the inevitable conclusion that the appellant had expressed his readiness and willingness to get the sale-deed executed by sending this letter to the address of the respondent known to him. Since he could not have done better, he cannot be held guilty of breach of agreement.
7. There is yet another way of looking at things. The agreement, by its very nature, cannot be performed, unless both parties are ready and willing to do their part of the agreement. In such a situation, it was the obligation of the respondent to see that he does not knowingly or otherwise cause any hindrance or prevent performance by the appellant of his part of the agreement. Agreement (Ex.P-6) contains respondent's address at Ambikapur where he was admittedly not available at the relevant time. Since the respondent was not available at Ambikapur, it became his obligation to let the appellant know where he would be available so that the appellant could approach him for the purpose. It is not the respondent's case that he or anyone on his behalf furnished the appellant his contact address to enable him to approach him for execution of sale-deed within the stipulated time. If he did not do so, it was his obligation, in view of peculiar facts and circumstances of the case, to be available at Ambikapur to show his readiness and willingness to execute the sale-deed during the stipulated period. It is not his case that he was available at Ambikapur at any time within the period of six months from the date of agreement to enable the appellant to get the sale-deed registered. This appears to be a case where the respondent simply disappeared from Ambikapur without leaving any address with the appellant to contact. This would, in the opinion of this Court, amount to his preventing or hindering performance by the appellant of his part of the agreement and would make the contract voidable at his option, besides entitling him to claim compensation in terms of Section 53 of the Contract Act. In any case, this would clearly indicate that the parties did not treat time as the essence of the contract. Even otherwise, time is not ordinarily of the essence of a contract of sale of land, unless the parties make it so by express agreement in the contract itself. Indeed, the Supreme Court in Gomathinayagam Pillai and Ors. v. Palaniswami Nadar, AIR 1967 SC 868, seems to be of the view that in the case of contract for sale of immovable property, the presumption is that time is not of the essence of the contract. This also appears to be the view of this Court in Mulla Badruddin v. Master Tufail Ahmed, 1962 MPLJ 517 = AIR 1963 M.P. 31. If the agreement to sell (Ex.P-6) is considered in the context of lease-agreement, it would appear that the interest of the respondent was fully secured by payment of rent and hence the parties could not have intended to make time, the essence of the contract. A similar view was taken in somewhat similar factual situation by a Division Bench of Bombay High Court in Sankalchand Kuberdas v. Jointaram Ranchhod, AIR 1949 Bombay 193. Even otherwise, nothing whatsoever has been brought to the notice of this Court by the respondent to hold that the presumption aforesaid stands rebutted in this case.
8. In view of the discussion aforesaid, it is the considered view of this Court that the appellant is not guilty of performance of his part of the agreement. It is also the considered view of this Court that in view of the peculiar facts and circumstances of the case, the time was not the essence of the contract and hence, the respondent cannot refuse to execute the sale-deed in favour of the appellant on the ground that he had avoided the said contract and was not responsible to perform the same in any manner. In the opinion of this Court, either because of tender in notice (Ex.P-1) or because of the finding that time was not the essence of the contract, the appellant is entitled to pray for specific performance of the agreement.
9. The appellant's claim in the plaint is that the respondent came to Ambikapur in My, 1975 when he approached him to get the sale-deed registered. It is further alleged that at that time, the respondent was not willing t o do so as he had not taken the permission of the State Government for the purpose. The respondent took only Rs. 600/- towards the sale considera-t ion, which amount, he needed and left for Bhopal (paras 10 to 13). These facts are denied in the written statement. The appellant's power of attorney h older Krishansingh (P.W. 1) has deposed on oath that the respondent was paid Rs. 1,000/- and Rs. 600/- towards the agreement. He was not asked anything about it in his cross-examination. This fact is also mentioned in notice (Ex.P-3) dated 1-10-1977. The receipt of this notice is admitted in para 16(a) of the plaint. There is no reply to the allegations. It is, therefore, possible to hold that the appellant had met the respondent in July, 1975 when he was offered the balance of consideration for the sale-deed which was not done. This only reinforces the earlier conclusion that it is not the appellant, but the respondent, who is guilty of breach of agreement.
10. It may, therefore, be considered if the appellant was ready and willing t o pay the balance of consideration and get the sale-deed executed. Notice (Ex.P-1) indicates that the appellant was willing to pay balance of Rs. 23,400/-and get the sale-deed registered. A similar statement is made in the plaint also. Krishansingh as P.W.I has deposed on oath that he had offered the a foresaid amount. The respondent has not appeared as a witness in this case to contradict these statements and, therefore, there is nothing to doubt the correctness thereof. The submission of the learned counsel for the respondent is that offer in the plaint and notice was for only Rs. 23,400/- and not Rs. 2 4,000/- due under agreement (Ex.P-6) and, therefore, this cannot be accepted as sufficient compliance. This Court is unable to find any substance in the submission. It has already been accepted by this Court that the appellant met the respondent and paid Rs. 600/- subsequent to the agreement (Ex.P-6). Under the circumstances, Rs. 23,400/- is the only amount payable. There being offer to pay the said amount, it cannot be accepted that the appellant w as not ready and willing to perform his part of the contract. Indeed, his filing the suit for this purpose is itself indicative of his desire to comply with this part. It is true that by subsequent amendment, the appellant has claimed further declaration that Patta issued in the name of respondent was null and void and that he be declared owner of the suit-land. In spite of it, the original relief for specific performance has not been deleted. Simply because some other pleas have been taken by the appellant in the plaint, it cannot be accepted that he changed his mind subsequently and, therefore, is unwilling to perform h is part of the agreement. Indeed, the fact that he did not delete his claim for specific performance of agreement, from the plaint, it is indicative of his desire to seek this relief through the process of the Court.
11. Very serious arguments were addressed on the question whether the time was essence of the agreement Generally a suit for immovable property and more particularly, when the suit property is not in possession of the seller, time is not the essence of agreement. There is no reason why this general rule should not be followed in the instant case. In spite of it, this question is purely academic and it has already been held that the appellant performed h is part of the agreement within the time limit prescribed therein.
12. It was also strenuously urged that since the appellant has made false a negations against the respondent in the plaint and has even claimed title by adverse possession, he should be held disentitled to equitable relief of specific performance. It is true that relief of specific performance is an equitable relief and no indulgence is permitted in deliberately false suits to award such a relief. T his rule, however, cannot be applied to the facts of this case as the respondent is equally guilty of such conduct. If the appellant has denied his title and claimed benefit of adverse possession, the respondent had made false statement about the occupation of the suit land by Hakimsingh, about giving statement before the S.D.O. and about diversion. In a situation like this, where both parties indulge in falsehood, the aforesaid rule which presupposes honest action on the part of one, cannot be followed. This is more so in this case because the false claim by the appellant appears to be the consequences of respondent's false denial of almost everything in the written statement. It cannot be overlooked that the suit, as originally filed, did not contain any such statement. The offensive statements were added by way of amendment presumably because the respondent denied almost every fact. In this view of the matter, t his Court would think that overall view of the matter will have to be taken and matter decided on the basis of justice, equity and good conscience.
13. The last question requiring consideration of this Court is whether the suit was barred by limitation Admittedly, the matter is governed by Article 5 4 of the Limitation Act, which provides that the period of limitation is counted from the date fixed for performance of the agreement. In the instant case, the appellant was entitled to obtain the sale-deed within a period of one year. He could have done so within six months without paying any penalty, but w as required to pay interest at the rate of 10% during the subsequent period of six months. Simply because the time fixed for performance of agreement is divided in this manner into two parts, it cannot be accepted that the cause of action for filing the suit would arise after six months of the agreement and time will start running against the appellant. In the opinion of this Court, the time will start running after a period of one year, i.e., 3-10-1975. It is not disputed that if the time starts running on this date, the suit is not time barred. The trial Court had by a process of reasoning, which this Court is unable to understand, has held that the suit became barred by time. It appears that according to the learned trial Judge, the time will run against the appellant after six months from the date of agreement, which is not correct. Under the circumstances, this Court is unable to hold that the suit has become barred b y limitation.
14. In view of the discussion aforesaid, the appeal succeeds and is allowed. The impugned judgment and decree are hereby set aside. The respondent is directed to execute the sale-deed of the suit land in favour of the appellant within 90 days of this judgment by accepting Rs. 23,400/- as balance of consideration. The appellant shall pay the costs of registration and other expenses involved in execution of the sale-deed. In case the respondent refuses to do so, the appellant will be entitled to get the sale-deed registered through the trial Court. For the purpose of convenience, the respondent shall give a notice in writing to the appellant giving him at least 15 days E time to be ready with the balance amount of consideration, stamp papers, etc. for the purpose.