Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 726

IN THE HIGH COURT OF ALLAHABAD
J.J. Munir, J.
Jagdish Mani Tripathi – Appellant
Versus
Braj Bhooshan Tiwari and another – Respondents
Second Appeal No. 895 of 1994
Decided On : 17-08-2021

Advocates:
Advocate Appeared:
For the Appellant : Dinesh Dwivedi, Ashok Pandey, G.M. Tripathi, Gambhir Tripathi, Hausihla Prasad Mishra, V.P.Tripathi
For the Respondent: U.S.M. Tripathi, B.P.Tiwari, Pahaloo, Ram Suphal Shukla

Point of Law: Claim of maintenance - One of the cardinal principles in the construction of contracts is that the entire contract must be taken as constituting an organic synthesis, embodying provisions which balance in the sum of reciprocal rights and obligations

Headnote:
Civil Procedure Code, 1908 - Section 100 - Order 21 - Rule 90 - Contract Act - Section 55 - Indian Contract Act, 1872 - Section 55 - Court’s jurisdiction - Attached property – Claim of maintenance - Plaintiff Mani was twice married was begotten first wife is sole survivor and heir of first wife and mother passed away and after her death married who did not bear him any child death would not inherit any estate in his agricultural holdings and it all went Mani- But after death –
Finding of the Court:
Case of where there was a statutory compulsion to confirm sale on dismissal of application therefore postponement and further postponement of confirmation of sale could only be by consent of parties in case before us there was no statutory compulsion to dismiss application in absence of an agreement between parties court would have then decided appeal arising out of application on merits court jurisdiction to extend time in appropriate cases - Of course time would not be extended ordinarily nor for mere asking- It would be granted in rare cases to prevent manifest injustice - True court would not rewrite a contract between parties but court would relieve against a forfeiture clause and where contract of parties has merged in order of court court's freedom to act to further ends of justice would surely not stand curtailed- Nothing said in case militates against this view substantial question of law would therefore have to be answered in affirmative in terms that provisions of Contract Act about time being essence of contract making it voidable upon breach would apply to a decree of Court founded on compromise in same manner as any other contract –
Result: Appeal allowed

JUDGMENT :

This is a plaintiff's second appeal, arising from a suit for cancellation of sale deed.

2. The facts giving rise to this appeal, according to the plaintiff's case, are these :

The plaintiff Jagdish Mani Tripathi's father, Shiv Pujan Mani, was twice married. Jagdish Mani Tripathi was begotten of Shiv Pujan Mani's first wife. Jagdish Mani is the sole survivor and heir of Shiv Pujan. Shiv Pujan's first wife and Jagdish Mani's mother passed away and after her death, Shiv Pujan married Smt. Kailash Pati, who did not bear him any child. After Shiv Pujan's death, Kailash Pati would not inherit any estate in his agricultural holdings, and it all went to Jagdish Mani. But, after Shiv Pujan's death, Kailash Pati's disposition towards Jagdish Mani turned hostile and unfriendly. It is Jagdish Mani's case that fuelled by the hostility of a step relationship between parties, Smt. Kailash Pati, in conspiracy with members of her native family, devised various ways to harm him. She left her matrimonial home and went back to her parents' place. She sued Jagdish Mani for maintenance before the Court of the Munsif, Court No. 2, Deoria, instituting Original Suit No. 1154 of 1967 for the purpose. The suit aforesaid was decreed in favour of Smt. Kailash Pati. With the assistance of one Virendra Mishra and others from her parents' family, she levied execution of the decree passed in Original Suit No. 1154 of 1967. The execution entailed attachment of Khasra No. 430, admeasuring 34 decimals and Khasra No. 457, admeasuring 58 decimals, situate at Village Basdila, Tappa Dhatura, Parghana Silhat, Teshil and District Deoria. The attached property was then brought to sale and Smt. Kailash Pati purchased that property herself in the auction sale. The facts about the institution of the suit last mentioned, the decree passed therein and the result of the execution is not in issue between parties.

3. The attachment and sale were both objected to by Jagdish Mani Tripathi, but his objections did not succeed. The auction sale was held and proceedings for delivery of possession to the auction purchaser were concluded. Jagdish Mani challenged the entire proceedings of the auction sale as materially irregular, asking them to be set aside through Original Suit No. 404 of 1980, that he instituted before the Court of Munsif, Court No. 8, Deoria. In the said suit, on 14.10.1983, a compromise was recorded between Jagdish Mani, the plaintiff of the suit and Smt. Kailash Pati, the defendant there. In terms of the said compromise, a decree was passed, embodying the following terms :

(I) That Smt. Kailash Pati is being entitled to receive from Jagdish Mani a sum of Rs. 8,000/and in consideration thereof, the land comprising Plot Nos. 430 and 475 that she had purchased in the auction sale, would not be sold, encumbered or given away to any third party on a cropshare arrangement.

(II) That Smt. Kailash Pati's name would continue to be recorded over the Plot Nos. 430 and 475 for satisfaction's sake.

(III) That out of a sum of Rs. 8,000/-, a sum of Rs. 3,000/- have been received by Smt. Kailash Pati on the date of compromise, and the balance of Rs. 5,000/- would be paid by Jagdish Mani Tripathi to Smt. Kailash Pati up to 14.12.1983. If the balance sum of Rs. 5,000/- was not paid up to 14.12.1983, the compromise would be treated as cancelled.

(IV) That Jagdish Mani Tripathi would remain in possession of the plots/fields.

(V) That Jagdish Mani Tripathi would till the fields comprising the two plots and harvest crops, where for, he would take half of the required seeds and manure from Smt. Kailash Pati and in return, deliver up to her half the produce of the fields.

(VI) Once on 14.12.1983, Jagdish Mani pays the balance sum of Rs. 5,000/in terms of the compromise to Smt. Kailash Pati, she would have no further right to execute the decree passed in Original Suit No. 1154 of 1967. Upon Smt. Kailash Pati’s death, Jagdish Mani would perform her last rites and Shradh; and further Jagdi