Judgment

DWIVEDI, J. :- This is an appeal against the judgment and decree of the High Court of Punjab and Haryana, dated January 25, 1966. The High Court reversed the judgment and decree of the Subordinate Judge, 1st Class, Amritsar, dated August 17, 1964. The Subordinate Judge had decreed the plaintiff s suit for possession of the premises by specific performance of the agreement to sell. The High Court dismissed the suit.

2. Brij Mohan Mehra, one of the respondents, was the defendant, and the appellants were the plaintiffs in the suit. There was an agreement between Dr. Jiwan Lal, the first appellant, Shri Kishan Das, the second appellant, and one Bal Kishan Das, the predecessor in interest of the appellants Nos. 3 to 8 and Brij Mohan Mehra. It was concluded on December 9, 1959. By that agreement Brij Mohan Mehra agreed to sell the premises in suit to Dr. Jiwan Lal, Shri Kishan Das and Bal Kishan Das. The sale consideration was Rs. 122500/-. The prospective vendeeds paid Rs. 10,000/- as earnest money. The balance of the sale consideration was to be paid by them at the time of the registration of the sale deed. The material terms incorporated in clauses 5, 6, 7 and 9 of the agreement are set out here :

5. The sale deed shall be executed and registered by the vendor in favour of the purchasers within three months from the date when the premises are vacated by the Income-tax Authorities and intimation is given to the purchasers by the vendor per registered post.

6. In the event of the abovesaid premises, which is the subject-matter of sale not being vacated by the Income-tax Authorities or is subsequently requisitioned by the Government prior to the registration of the sale-deed the vendor shall refund to the purchaser the sum of Rs. 10,000/- (Rupees ten thousand only) received by the vendor as earnest money plus interest at the rate of 6 per cent per annum.

7. If even after the vendor having satisfied the purchasers regarding the title of the premises which are the subject-matter of sale, the Purchasers do not complete the sale-deed and have it registered within the stipulated period as mentioned in clause No. 5 above, the earnest money so paid by the Purchasers to the Vendor shall stand forfeited for non-performance of the contract hereinbefore entered into, and the Vendor shall be at liberty to retain or re-sell the property.

9. From the date from which the abovesaid premises are vacated by the Income-tax Authorities to the date of execution and registration of the sale-deed the Vendor shall effect such repairs as may be necessary with the consent of the purchasers at the expense of the purchasers. The purchasers shall be liable to pay after such repairs etc., are effected, all expenses and incidentals incurred in connection threwith by the vendor before the sale deed is executed and tendered for registration. The purchasers shall also pay for and on account of the Chowkidar to look after and maintain the condition of the premises in good order till the execution and registration of the sale-deed.

3. The premises were requisitioned by the Additional District Magistrate, Amritsar on January 23, 1960. Thereafter Brij Mohan Mehra refused to execute the sale-deed in spite of the requests of the prospective vendees. So the plaintiffs instituted their suit. Their case was that the premises were requisitioned on the manipulation of Brij Mohan Mehra, that clause 6 of the argument was intended to be for the benefit of the prospective vendeeds, that the prospective vendees waived the condition in clause 6, that Brij Mohan Mehtra could not put an end to the contract by relying on clause 6, and that the plaintiffs have always been ready and willing to perform their part of the obligation under the agreement.

4. Brij Mohan Mehra contested their claim. His case was that the agreement was a contigent agreement, that it became void on the requisitioning of the premises, that no contract ever came to existence prior to the requisitioning of the prem