PETITIONER:
VIDYA VATI
Vs.
RESPONDENT:
DEVI DAS
DATE OF JUDGMENT25/11/1976
BENCH:
BHAGWATI, P.N.
GUPTA, A.C.
SHINGAL, P.N.
CITATION:
1977 AIR 397 1977 SCR (2) 182
1977 SCC (1) 293
ACT
Code of Civil Procedure--S. 115--0. XLIII r. 1
(s)--Scope of--Obligation to repay a loan and obligation to
deliver possession concurrent--Demanding possession before
repayment of loan--If permissible
HEADNOTE
The appellant and the respondent entered into an agreement
by which the appellant advanced money to the respondent and
the respondent in lieu of interest thereon gave a portion of
his house for residence to the appellant for a period of two
years. The other terms were that if after the expiry of the
two-year period, the respondent wished to repay the amount,
he should give one month’s notice in writing; that if after
the payment of the sum, the appellant would not vacate the
house, she would be liable to pay damages and that if the
respondent did not repay the amount on the expiry of the
two-year period, he would not be entitled to recover dam-
ages. The respondent alleged that before the expiry of the
two-year period on September 27, 1969, he addressed a notice
to the appellant and tendered repayment of the loan which
she refused to accept. The respondent’s suit for recovery
of possession of the premises was decreed ex-parte with an
order that he should tender payment to the appellant and
that if she refused to accept the money, it should be depos-
ited in the court. The appellant, on the other hand, filed
a suit for recovery of the loan in which the respondent
contended that the claim was barred by limitation. The
respondent filed a review application before the Subjective
contending that the order directing deposit of money in the
court was clearly an error apparent on the face of the
record. Allowing the review application, the Sub Judge or-
dered the deletion of the direction for depositing the money
in court. The appellant filed a revision application in the
High Court against the order can the review application.
The High Court held that since the order allowing the review
application was appealable, the revision application was not
competent, but on the alternative view that the revision
application lay before the High Court, it held (a) that the
Sub Judge had no jurisdiction to impose a condition requir-
ing deposit of the loan money. particularly when the suit
for recovery of the money was pending before the same court
and (b) since the respondent tendered the money to the
appellant, but it was refused, he was entitled to a decree
for possession.
Allowing the appeal,
HELD: (1) Order XLIII r. 1(s) of the Code of Civil
Procedure, provides an appeal against an order allowing a
review application. Since the order allowing the review
application was made by a Sub Judge, the appeal against it
lay to the District Court and not to the High Court and
since no appeal lay against the order of the Sub-Judge to
the High CoUrt: the revision application could not be re-
jected as incompetent. [186F]
Under s. 115 C.P.C. a revision application cart lie
before the High Court from an order made by a subordinate
court only if no appeal lies from that order to the High
Court. The words of limitation used in that section, name-
ly, "in which no appeal lies thereto" clearly mean that no
appeal must lie to the High Court from the order sought to
be revised because an appeal is a much larger remedy than a
revision application and if an appeal lies that would afford
183
sufficient relief and there would be no reason or justifica-
tion for invoking the revisional jurisdiction. [186D-E]
(2) The High Court and the Sub Judge were in error in
allowing the review application. The direction requiring
the respondent to pay the loan to the appellant or to depos-
it it in the court was a correct and valid direction and was
rightly introduced in the original ex-parte decree. The
courts below were in error-in ordering its deletion. [189 E]
(3) Merely because one party has tendered the amount due
and payable by him and such tender has been wrongly refused
by the other party. does not absolve the first party from
its obligation to make payment and where the obligation to
make payment is concurrent with the obligation to hand over
possession, the claim for recovery of possession must be
accompanied by payment or deposit of the amount. [188C]
Dixon v. Clark (1847) 16 LJ CP 237=136 E.R. 919, referred
to.
In the instant case, the respondent could not validly
tender the amount to the appellant ha repayment of the loan
until September 27, 1969 and the tender made on August 26,
1969 was clearly invalid. If the respondent did not at any
time validly tender payment to the appellant, she was not
liable to hand over possession of the premises and no claim
for damages for wrongful use could be sustained against her.
The respondent was not entitled to possession unless he paid
or deposited the money in court in repayment of the loan.
The respondent could seek to recover possession of the
premises only on condition of making repayment of the loan
because the two obligations were mutual and concurrent and
were required to be simultaneously performed and one could
not get delinked from the reason of the refusal on the
appellant’s part to accept the tender of money. [188E-H]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 501 of
1976.
Appeal by Special Leave from the Judgment and Order
dated the 28th April, 1975 of the Delhi High Court in Civil
Revision No. 186 of 1975.
Hardayal Hardy, S.K. Bagga, (Mrs.) S. Bagga, (Miss)
Yesh Bagga and K.K. Mittal for the Appellant.
Bikramjit Nayar, B.P. Maheshwari and Suresh Sethi for
Respondent.
The Judgment of the Court was delivered by
BHAGWATI, J.---This is an unfortunate litigation where a
widow has been kept out of her monies for over six years by
reason of wrong application of law by the courts. Much of
the travail of the widow could have been avoided if the
courts had taken a common˜ sense view of the law instead of
adopting a rather technical and unimaginative approach.
The facts giving rise to this litigation are few and may be
briefly stated as follows.
The respondent is the owner of a residential quarter
bearing No. 1/20 situate at Old Rajendra Nagar, New Delhi.
He wanted a loan for the purpose of repaying an earlier
debt and he, therefore, approached the appellant and as
a result of negotiations between them, an agreement dated
27th September, 1967 was entered into
184
between the parties. This agreement recited that a sum of
Rs. 7500/was lent and advanced by the appellant to the
respondent and it provided that in lieu of interest on his
amount of Rs. 7500/-, the respondent would give to the
appellant a portion of his residential quarter (hereinafter
referred to as the premises) for temporary residence. The
agreement went on to say, and we are setting out the precise
terms of the agreement since they are material for the
decision of the controversy between the parties:
"On, the expiry of two years as stated
above the second party shall give one month’s
notice in writing to the first party for the
said room... If after the expiry of two years
fixed period, the first party wants to pay the
amount he shall give one month’s notice in
writing to the second party. When the first
party repays the above stated loan to the
second party, then the second party shall
vacate the room etc. under temporary residence
and give it to the first party.. If the first
party pays the amount of Rs. 7500/- and the
second party does not give possession of the
room etc. under her use, then the second party
shall be liable to pay Rs. 110/- per month as
damages. If the first party does not pay the
amount of Rs. 7500/- to the second party on
the expiry of the two years period, the first
party will not be entitled to recover damages
of Rs. 110/- per month from the second party
and the second party shall be entitled to take
legal proceedings against the first party--and
also if the first party pays the amount of Rs.
7500/- and the second party does not give
possession, the first party shall be entitled
to take the legal proceedings regarding
vacation of the room etc. under the use of the
second party."
Pursuant to the agreement, the respondent handed over pos-
session of the premises to the appellant and the appellant
started occupying the same against interest on the loan of
Rs. 7500/- advanced by her to the respondent.
The period of the agreement expired on 27th September,
1969 and according to the terms of the agreement, the.
respondent could thereafter repay the loan of Rs. 7500/- to
the appellant and claim back possession of the premises from
her. The case of the respondent was that he addressed a
notice dated 26th August, 1969 to the appellant and tendered
a ;sum of Rs. 7500/- to her in repayment of the loan, but
the appellant refused to accept the same. The ’respondent
also addressed another-notice dated 4th May, 1970 to the
appellant but this notice also had no effect on her. The
respondent thereupon filed Suit No. 123 of 1973 in the Court
of Sub-Judge, 1st Class, Delhi seeking to recover possession
of the premises from the appellant. The appellant did not
appear to contest the suit and it was decreed ex parte by a
judgment dated 22nd May, 1973. The learned subJudge passed
a decree for possession of the premises in favour of the
respondent but added the following rider:
185
"The plaintiff is ordered to tender the
amount of Rs. 7500/- to the defendant within a
period of 30 days from today in cash. If the
defendant refuses to accept the money, it
should be deposited in the Court with notice
to the defendant within the aforesaid
period."
Now, it appears that prior to the filing of this suit by the
respondent, the appellant had filed a suit against the
respondent for recovery of the loan of Rs. 7500/- advanced
by her to the respondent. The respondent had filed his
defence to the suit and various grounds were taken by him,
one of which was that the claim was barred by limitation.
This suit was pending on 22nd May, 1973 when the ex parte
decree was passed against the appellant.
The respondent had obviously no desire--and perhaps not
even capacity-to repay the loan of Rs. 7500/- to the appel-
lant and he, therefore, preferred an application for review
under Order XLVII, Rule 1 of the Code of Civil Procedure
seeking deletion of the direction given by the learned Sub-
Judge requiring him to deposit the sum of Rs. 7500/-. The
respondent contended that since the appellant has already
filed a suit against him for recovery of the amount of Rs.
7500/’- and he was resisting the suit inter alia on the
ground of limitation, it was not competent to the learned
Sub-Judge to. give such a direction for deposit of the
amount of Rs. 7500/- and the giving of such direction was
clearly an error of law apparent on the face of the record.
The respondent also claimed review on the ground of discov-
ery of new and important matter in the shape of Suit No. 123
of 1973 filed by the appellant against him. The learned
Sub-Judge, by a judgment dated 3rd August, 1973 allowed the
review application and held that the direction for deposit-
ing the amount of Rs. 7500/in court should be deleted from
the ex-parte decree passed against the appellant. The
result was that the respondent became entitled to recover
possession of the premises from the appellant without paying
to the appellant or .depositing in court the amount of Rs.
7500/- in repayment of the loan.
Now, unfortunately this order allowing the review appli-
cation was made by the learned Sub-Judge without issuing
notice to the appellant. That was obviously bad and, there-
fore, on the application of the appellant, the learned Sub-
Judge had to set aside the order and reheat the review
application. The same order was, however, once again made
by the learned Sub-Judge after hearing the appellant and the
direction requiring the respondent to deposit the sum of Rs.
7500/- in court was deleted on the ground that such direc-
tion nullified the effect of the ex-parte decree for posses-
sion and forced the respondent to admit the claim of the
appellant for repayment of the sum of Rs. 7500/-, which,
according to the respondent, was time barred.
The appellant being aggrieved by the order allowing the
review application, preferred a revision application to the
High Court of Delhi under section 115 of the Code of Civil
Procedure. Mr. Justice Avadh Behari, who heard the revision
application, took the view that the order allowing the
review application was appealable and ’hence the revision
application was not competent, but on the alternative view
that the revision application lay before the High Court,
186
he proceeded to consider whether the review had been rightly
granted and held that the respondent having brought a
simple suit for possession, the learned Sub-Judge had no
jurisdiction to impose a condition requiring him to deposit
the sum of Rs. 7500/-, particularly when the appellant’s
suit for recovery of the same was pending in that very court
and that under the terms of the agreement, all that he was
required to do was to tender the sum of Rs. 7500/- and since
that was done by him and the appellant had refused to accept
the same, he was entitled to a decree for possession. The
learned Judge accordingly dismissed the revision applica-
tion. That led to the filing of the present appeal with
special leave obtained from this Court.
When the hearing of ’the appeal commenced a contention
of a preliminary nature was advanced on behalf of the re-
spondent and it was that since the order of the learned
Sub-Judge impugned in revision before the High Court was an
order allowing the review application, it was appealable
under XLIII, rule 1. cl. (s) of the. Code of Civil Procedure
and hence no revision was competent to the High Court under
section 115 of the Code of Civil Procedure and the High
Court was right in rejecting the revision application. Now,
there can be no doubt that under section 115 of the Code of
Civil Procedure a revision application can lie before the
High Court from an order made by a subordinate court only if
no appeal lies from that order to the High Court. The words
of limitation used’ in section 115 are "in which no appeal
lies thereto" and these. words clearly mean that no appeal
must lie to the High Court from the order sought to be
revised, because an appeal is a much larger remedy than a
revision application and if an appeal lies, that would
afford sufficient relief and there would be no reason or
justification for invoking the revisional jurisdiction. The
question, therefore, here is whether an appeal against the
order made by the learned Sub-Judge allowing the review
application lay to the High Court. If it did, the. revision
application would be clearly incompetent. Now Order
XLIII, Rule 1. cI. (s) undoubtedly provides an appeal
against an order allowing a review application, but the
order allowing the review application in the present case
was made by the learned SubJudge, and hence an appeal
against it lay to the District Court and’ not to the High
Court, and, obviously, since no appeal lay against the order
of the learned Sub-Judge to the High Court, the revision
application could not be rejected as incompetent. The
preliminary contention must. in the circumstances, be decid-
ed against the respondent.
That takes us to the merits of the appeal and the ques-
tion which arises for consideration on merits is whether the
direction requiring the respondent to deposit the sum of Rs.
7500/- in court as a condition of recovery of possession of
the premises from the appellant was erroneous in law so as
to justly its deletion on review. The. determination of
this question turns on the true interpretation of the agree-
ment between the parties. If we turn to the agreement it is
clear that the loan of Rs. 7500/- was advanced by the appel-
lant to the respondent for a period of two years and in lieu
of interest on
187
the amount of the loan, the respondent handed over the
possession of the premises to the appellant and the appel-
lant was entitled to occupy the same free of rent. We
have already set out the relevant portions of the agreement
and it appears clearly from those provisions that the re-
spondent was not entitled to repay the amount of the loan
and demand recovery of possession of the premises from the
appellant before the expiry of the period of two years. It
was only of the expiration of the period of two’ years that
the respondent was entitled to repay the amount of the loan
and if he wanted to do so, he was required to give one
month’s notice in writing to the appellant and on such
repayment, the appellant was bound to hand over vacant
possession of the premises to him. If, despite the repay-
ment of the amount of the loan by the respondent, the appel-
lant failed to hand over vacant possession of the premises
to the respondent, she was liable to pay damages at the
rate, of Rs. 110/- per month. But if for any reason the
respondent failed to repay the amount of the loan on the
expiry of the period of two years, he could not claim to
recover any damages from the appellant. Clearly the obliga-
tion of the appellant to hand over vacant possession of the
premises to the respondent was concurrent with the obliga-
tion of the respondent to repay the amount of loan to the
appellant and the respondent could not claim possession of
the premises from the appellant without making repayment of
the amount of the loan. It the respondent tendered a sum of
Rs. 7500/- to the appellant in repayment of the amount of
the loan and yet the appellant refused to accept the same,
the appellant might incur liability to pay to the respondent
damages for wrongful use and occupation of the premises, but
the respondent could not say that he was exonerated from the
obligation to repay the amount of the loan and was entitled
to recover possession of the premises without making repay-
ment of the amount of the loan. The respondent could seek
to recover possession of the premises from the appellant
only ion condition of making repayment of the loan, because
the two obligations were mutual and concurrent and were
required to be simultaneously performed and one could not
get delinked from the other by reason of any refusal on the
part of the appellant to accept the tender of Rs. 7500/-
from the respondent. We may in this connection refer to the
following passage from the judgment in Dixon v. Clark(1)
when it said:
"In action of debt and assumpsit, the
principle of the plea of tender, in our
apprehension is, that the defendant has been
always ready (toujoure prist) to perform
entirely the contract on which the action is
rounded; and that he did perform it, as far as
he was able, by tendering the requisite money;
the plaintiff himself precluded a complete
performances, by refusing to receive it. And,
as in ordinary cases, the debt is not
discharged by such tender and refusal, the
plea must not only go on to. allege that the
defendant is still ready (incore prist) but
must be accompanied by a profort in curiem of
the money tendered. If the defendant can
maintain this plea, although he ,will not
thereby
(1) (1847) 16 L.J.C.P. 237-- 136 E.R. 919.
188
bar the debt (for that would be inconsistent
with uncore prist and profort in curiem) yet
he will answer the action. in the sense that
he will recover judgment for his costs of
defence against the plaintiff in which respect
the plea of tender is essentially different
from that of payment of money into court.
And, as the plea is thus to constitute an
answer to the action, it must, we conceive, be
dificient in none of the requisite qualities
of a good plea in bar.
This decision has been quoted with approval in Leaks on
Contracts, 8th Ed. at page 663 and it establishes beyond
disputation that merely because the plaintiff or the defend-
ant has tendered the amount due and payable by him and such
tender has been wrongly refused by the other party, it does
not absolve the first named party from its obligation to
make payment of the amount and where the obligation to make
payment of the amount is concurrent with the obligation to
hand over possession, the claim for recovery of possession
must be accompanied by payment or deposit of the amount.
The respondent was, therefore, clearly bound to pay or
deposit the amount of loan as a condition of recovery of
possession of the premises from the appellant.
We may point out that in fact, in the present case,
there was no valid tender of the sum of Rs. 7500/- by the
respondent to the appellant. The case of the respondent was
that he tendered the sum of Rs. 7500/- in cash to the appel-
lant on 26th August, 1969 but the appellant refused to
accept the sum. Now’, we will assume for the purpose of
argument that this case of the respondent is factually
correct and that he did tender the sum of Rs. 7500/- in cash
to the appellant on 26th August, 1969, but this was obvious-
ly not a valid tender, because under the terms of the agree-
ment the respondent could repay the amount of the loan to.
the appellant only on the expiry of the period of two years
and the date of the agreement being 27th September, 1967,
the period of two years expired on 26th September, 1969.
The respondent could not validly tender the sum of Rs.
7500/- to the appellant in repayment of the amount of the
loan until 27th September, 1969 and the tender made by him
on 26th August, 1969 was clearly invalid. It may be noted
that it was not the case of the respondent that he made any
fresh tender to the appellant on or after 27th September,
1969 and hence the conclusion must inevitably follow that
the respondent did not at any time make a valid tender to
the appellant of the sum of Rs. 7500/-. Now, if the re-
spondent did not at any time validly tender payment of the
sum of Rs. 7500/- to the appellant, the appellant obviously
did not become liable to hand over possession of the prem-
ises to the respondent and a fortjori no claim for damages
for wrongful use and occupation of the premises could be
sustained by ’the respondent against the appellant. It was
pointed out to us on behalf of the respondent that he had
already filled. suits against the appellant for damages or
compensation for wrongful use and occupation of the premises
and one of the suits, namely Suit No. 800 of 1975 had been
decreed by the Sub-Judge, 1st Class and Civil Appeal No. 9
of 1975 preferred by the appellant against it had been
dismissed by the
189
Additional District Judge, Delhi on the basis that the
respondent had made a valid tender of the sum of Rs. 7500/-
to the appellant and since the appellant had refused to
accept the same, she was in wrongful use and occupation of
the premises from the date of the tender and was, therefore,
liable to pay compensation to the respondent from that date.
This is true, but it cannot preclude us from laying down
what we think to be the correct legal position on a proper
interpretation of the agreement between the parties. More-
over, this decision is under appeal before the High Court.
But, apart from that, we do not think this decision is
correct, because, on the view we have taken, the respondent
was not entitled to tender the sum of Rs. 7500/- to the
appellant before 27th September, 1969 and even if a tender
was made by him on 26th August, 1969 as alleged by him, the
appellant was entitled to refuse to accept the same and she
did not become liable to hand over vacant possession of the
premises to the respondent or to pay compensation to the
respondent in respect of her occupation of the premises. It
is only if the respondent made a valid tender of the sum of
Rs. 7500/- to the appellant on or after 27th September, 1969
that the appellant would be liable to hand over vacant
possession of the premises to the respondent and since that
did not happen in the present case, there was no obligation
on the appellant to deliver possession of the premises to
the respondent. The respondent was not entitled to claim
possession of the premises from the appellant unless he paid
or deposited the sum of Rs. 7500/- in court in repayment of
the amount of the loan. The High Court as well as the
learned Sub-Judge were, therefore, in error in allowing the
review application and ordering that the direction requiring
the respondent to pay to the appellant or to deposit in
court a sum of Rs. 7500/- in repayment of the amount of the
loan should be deleted. It was a correct and valid direc-
tion and it was rightly introduced in the original ex-parte
decree passed by the learned Sub Judge.
We accordingly allow the appeal, set aside the order
allowing the review application passed by the learned Sub-
Judge as also the order of the High Court rejecting the
revision application. The original ex-parte decree for
possession together with the direction requiring the re-
spondent to pay or deposit the sum of Rs. 7500/- in court
will stand, but since possession of the premises has already
been taken over by the respondent in pursuance of the ex-
parte decree for possession, we direct that the respondent
do pay to the appellant the sum of Rs. 7500/together with
interest thereon at the rate of 9 per cent per annum from
the date when possession of the premises was taken by the
respondent up to the date of payment. The respondent will
pay to the appellant costs of the appeal as also costs of
the review application before the Sub-Judge and the revision
application before the High Court.
P.B.R. Appeal
allowed.
190