RAMESHWAR SWARUP (DEAD) BY LRS. versus SMT. SAROJ TYAGI AND ORS.

Citation: [1998] SUPP. 2 S.C.R. 312 · Decided: 12-10-1998 · Supreme Court of India · Bench: K. VENKATASWAMI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
RAMESHWAR SWARUP (DEAD) BY LRS. 
v. 
SMT. SAROJ TY AGI AND ORS. 
OCTOBER 12, 1998 
[K. VENKATASWAMI AND A.P. MISRA, JJ.] 
Cantonments Act 1924 : 
Cantonment Land Administration Rules, 1937: 
Cantonment Area-Property-agreement for sale of-Provision 
thereunder-Vendee undertook to get sale permission from Military Estate 
Officer-Permission granted subject to undertaking by vendee that he would 
not challenge resumption proceedings-Held vendee not entitled to rescind 
contract on the ground that condition was unjustified-Suit for refund of 
D earnest money by vendee dismissed. 
The appdlant - vendor and the respondent - vendee entered into an 
agreement for sale of a property situated at the Mall Road in the Cantonment 
Area, Meerut. Under the terms of the agreement the vendee undertook to get 
the permission for the transfer of property from the Military Estate Officer. 
E Clause 5 of the Agreement provided that in case the permission was not 
accorded the vendee would be absolved of her liability to purchase the property 
and will be entitled to get her money back. The Military Estate Officer, 
however, granted conditional permission i.e. subject to a certificate by the 
vendee that he has no intention to represent against the resumption 
F proceedings when decided by the competent authority. The vendee filed a suit 
claiming refund of earnest money contending that as the conditional 
permission amounted to no permission at all, he was not obliged to purchase 
the property. The Trial Court decreed the suit. The Appellate Court allowed 
the vendor's appeal and dismissed the suit filed by the vendee. The Trial 
Court as well as the Appellate Court found that the vendee - being fully aware 
G ofthe legal position with regard to resumption in respect of the property in 
respect of the Cantonment area - entered into an agreement. 
The High Court reversed the judgment of the appellate Court holding 
that Military Estate Officer had no right to impose such a condition so as 
H to take away the right of filing objection by the Vendee whenever resumption 
312 
RAMESHW AR SW ARUP v. SMT. SAR OJ [VENKA T ASW AMI, J.] 
313 
was done; as the said condition was not in accordance with any law and wholly A 
unjustified, the Vendee was entitled to rescind the contract and claim.refund 
of the earnest money. 
In appeal to this Court on the question whether the High Court was 
right in construing the condition in the manner it did: 
Allowing the vendor's appeal, yiis Court 
HELD : The conclusion arrived at by the High Court on the nature of 
B 
the condition imposed by Military Estate Officer cannot be sustained. The 
High Court erred in holding that the purchaser was prohibited from 
challenging any future resumption, even if the resumption proceedings were C 
contrary to the provisions of the Cantonment Act and the Rules. It should 
not have construed the condition in a narrow and literal manner. Instead the 
condition should have been read down on the facts of the case. If the 
authorities proceed for resumption contrary to the express provisions of the 
Act and the Rules, it is always open to the aggrieved party to challenge the D 
same. The mere fact that at a future point of time the property in the 
Cantonment Area would be liable for resumption in accordance with law, will 
not clothe the vendee to repudiate the sale Agreement. If the condition is 
construed as not unusual having regard to the situation of the property in 
the Cantonment Ar1>a, the necessary corollary would be that the vendee, on 
the facts of this case, could not have repudiated the Sale Agreement. The suit E 
filed by the respondent-vendee stands dismissed. (317-E-F-G-H; 318-A-B) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3346 of 
1981. 
From the Judgment and Order dated 22.7.81 of the Allahabad High Court F 
in S.A. No. 1103of1973. 
P.S. Mishra, Rajeev Singh, Ms. Ritu Singh and R.P. Singh for the 
Appellants. 
R. Sundarvardan, (A. C.) and Ms. Asha G. Nair for the Respondents. G 
The Judgment of the Court was delivered by 
VENKA T ASW AMI, J. In spite of service of notice, the respondents 
remained unrepresented. Hence, we requested Mr. R. Sundarvardan, learned 
senior Advocate, to assist the Court as Amicus Curiae. 
H 
314 
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R. 
A 
The issue that arises for our consideration out of the judgment dated 
22.7.81 of the Allahabad High Court in S.A. No. 1103173, is : Can a parcy' 
(purchaser) to a sale agreem

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