BIBI JAIBUNISHA versus JAGDISH PANDIT AND ORS.

Citation: [1997] 1 S.C.R. 1116 · Decided: 10-02-1997 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
BIBI JAIBUNISHA 
v. 
JAGDISH PANDIT AND ORS. 
FEBRUARY 10, 1997 
B 
[K. RAMASWAMY AND G.T. NANAVATI, JJ.] 
Specific JJ.elief Act, 1963 : 
Specific pelfonnance of reconveyance-Suit for-Defence-Time as es-
C sence of Contract-+Villingness of plaintiff to pelf onn his part of con-
tract-Held, there is no express plea in the written statement that time was the 
essence of the contract-Nor any issue is raised in that behalf-T71ere was no 
opportunity to plaintiff to adduce evidence in rebuttal that time was not the 
essence of the contract-Limitation of contract was 20.2.1973 and suit filed 
D on 7.4.1975. i.e. within the presclibed period of limitation-Therefore, courts 
below were wrong in holding that plaintiff had not tendered the amount to 
defendant and that plaintiff was not ready and willing to pelfonn her part of 
contract-Material question is whether plaintiff had capacity to pay the 
money-On this aspect there is no consideration by courts below-Plaintiff 
E would deposit Rs. 40,000 in trial court and defendant would reconvey the 
property--01i failure of defendant to do so, trial court would have the deed 
of reconveyance executed in te1ms of the sale deed. 
F 
Smt. Indira Kaur& Ors. v. Shea Lal Kapoor, (1988) 2 SCC 488, relied 
on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 921 of 
1997. 
From the Judgment and Order dated 23.5.96 of the Patna High Court 
G in A.F.A.D. No. 135 of 1982. 
S.B. Sanyal and Akhilesh Kr. Pandey for the Appellant. 
Uday Sinha, Ms. Vimla Sinha and Gopal Singh for the Respondents. 
H 
The following Order of the Court was delivered : 
1116 
+ 
BIBI JAIBUNISHA v. JAGDISH PANDIT 
1117 
'-+.· 
Leave granted. 
A 
This· appeal by special leave arises from 'the judgment of the High 
-
Court of Patna, made on May 23, 1996 in appeal from appellate decree 
No. 135 of 1982. 
·~ 
The admitted facts are that the appellant had sold the suit property B 
by a registered conveyance dated 21.2.1969 with a contemporaneous agree-
,;.. 
ment of reconveyance for a consideration of Rs. 4,000. The appellant had 
" 
filed the suit on April 7, 1975 for specific performance of reconveyance of 
the property. The Courts below had dismissed the suit on the ground that 
the appellant was not ready and willing to perform her part of the contrad. c 
The trial Court as well as the High Court further dismissed on the ground 
that the time was the essence of the contract and the appellant had not 
performed the contract within the stipulated time and, therefore, the suit 
is barred by limitation. 
"lo( 
The question therefore, is : whether the view taken by the trial Court D 
" 
and the High Court that the time is the essence of the contract is correct 
in law? No doubt, the High Court has framed the point in paragraph 8 of 
the judgment and recorded the finding that the time was the essence of the 
contract. It is an admitted position that the plea was not specifically raised, 
though it was stated in the written statement that the appellant had not E 
performed her terms. of the contract within time. Admittedly, no issue was 
raised in this behalf. The question, therefore, is : whether the High Court 
would be justified in coming to the conclusion that the time was the essence 
+ 
of the contract? It i~ now well settled legal position that in the matter .of 
enforcement of the agreement or agreement of reconveyance, time is not 
F 
always the essence of the contract up.less the agreement specificaHy stipu-
lates and there are special facts and circumstances. in support thereof. It 
must be specifically pleaded and issue raised so that the other party has a 
right to lead evidence. There is no express plea in the written statement 
nor any issue raised in that behalf. Co11sequently, there was no opportunity 
to the appellant to adduce rebuttal evidence that time was not the essence G 
of the contract. 
· This Court in Smt. Indira Kaur & Ors. v. Shea Lal Kapoor, [1988) 2 
sec 488 in paragraph 6 held as under : 
"On the question whether the time is of the essence of the contract H 
,. 
1118 
A 
B 
SUPREME COURT REPORTS 
[1997] 1 S.C.R. 
or not we are satisfied that the High Court was in error in allowing 
the respondents to raise this question in the absence of specific 
pleadings or issues raised before the trial court and when the case 
of time being the essence of the contract was not put forward by 
the respondent~ in the trial court. Apart from the absence of 
pleadings we do not find any basis for the plea
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