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1990 Supreme(MP) 296
1991 JLJ 266
R.K. Varma. J.
Madanlal v. Masonic Lodge
M.A. No. 198 of 1987; against the order of Shri CM. Mathur, District Judge, Indore, passed in Civil Suit No. 41 of 1986;
Decided on 8.8.1990.
G.M. Chafekar with R.P.C. Sanghi for appellant; S.L. Garg with H.S. Oberai for respondent.
Headnote:(1) Specific Relief Act, 1963 -- S. 16 --- ordinarily time is not essence of the contract -- intention to make time essence of the contract may be evidenced by express stipulation or by circumstances. AIR 1967 SC 868 and 1972 JLJ 70 relied on. [Para 21
(2) Specific Relief Act, 1963 --- S. 16 -- time specifically stipulated in the contract --- earnest money also returned on expiry of time -- owner of the land cannot be supposed to create a contract for any indefinite period -- time is essence of the contract. AIR 1967 SC 70 relied on. [Para 25
(3) Civil P.C., 1908 -- O. 39, Rr. 1 and 2 -- phrase ‘prima facie case‘ -- has been used to designate legal evidence that is enough to establish a fact unless refuted -- it should be considered in relation to available relevant material on record to examine the probability of plaintiff‘s ultimate success in the suit. 1978 JLJ 51 referred to. [Para 23
¼1½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 16 && lk/kkj.kr% le; lafonk dk rRo ugha gS && le; dks lafonk dk rRo cuk, tkus dk vk‘k; vfHkO;Dr vuqca/k vFkok ifjfLFkfr;k¡ }kjk lkf{;r gks ldrk gSA , vkb vkj 1967 ,l lh 868 ,oa 1972 ts ,y ts 70 voyafcrA ¿ iSjk 21
¼2½ fofufnZ"V vuqrks"k vf/kfu;e] 1963 && /kkjk 16 && lafonk esa le; dk fofufnZ"Vr% vuqca/k fd;k x;k && le; lekfIr ij vfxze /ku Hkh okil dj fn;k x;k && Hkwfe dk Lokeh vfuf‘pr dkykof/k ds fy, lafonk jfpr djsa] ,slk ugha ekuk tk ldrk && le; lafonk dk rRo gSA , vkb vkj 1967 ,l lh 70 voyafcrA ¿ iSjk 25
¼3½ flfoy izfØ;k lafgrk] 1908 && vk- 39] fu- 1 ,oa 2 && okD;ka‘k ^^izFke n`"V~;k ekeyk** && fdlh rF; dks LFkkfir djus ds fy, oS/k lk{;] tc rd fd mldk [kaM u fd;k tk,] vfHkfgr djus ds fy, iz;qDr fd;k x;k gS && ekeys esa oknh dh vafre lQyrk dh laHkkouk dk ijh{k.k djus ds fy, vfHkys[k ij miyC/k lqlaxr lkexzh ds lanHkZ esa ml ij fopkj fd;k tkuk pkfg,A 1978 ts ,y ts 51 fufnZ"VA ¿ iSjk 23
R.K. Varma, J. -- 1. This is an appeal filed by the plaintiff against the order dated 20.10.87 passed by the District Judge, Indore in Civil Suit No. 41 of 1986 whereby the appellant-plaintiff application for grant of temporary injunction against the respondent-defendant Masonic Lodge, a registered society, has been rejected.
2. The facts giving rise to this appeal, briefly, stated, are as follows:
On 30.3.79, the appellant-plaintiff and the respondent Masonic Lodge entered into an agreement whereby the respondent agreed to grant franchise to the appellant to develop at his own cost the respondent's land appurtenant to its building situated on Bombay-Agra Road, as building colony in consideration of deposit of Rs.25,000/- for grant of the privilege and proposal of purchase of the land after it is developed at Rs.13.50 per sq.ft. The respondent also agreed to execute documents which may be necessary for the appellant to obtain clearance from all the authorities concerned including the urban ceiling authorities for the creation, construction and sale as building colony besides execution of power of attorney to act as constituent attorney in that behalf, in favour of the appellant.
3. It was also stipulated in the agreement that the appellant shall obtain requisite sanction or permission necessary for undertaking the development or for building colony within one year of the date of the said agreement or such further time not exceeding four months as the parties may agree in writing in this behalf. It was further provided that time shall be extended upto four months only if it is found that the appellant is genuinely making efforts and the remaining work could be done within four months.
4. In pursuance of the aforesaid agreement, the respondent issued on 9.7.79 a power of attorney in favour of the appellant for the purposes of developing the land plot in such a way that lodge building as well as multi-storeyed building may be constructed thereon and for taking necessary steps to obtain permission for development of the plot by approaching the Town and Country Planning Authorities, Municipal Corporation and any other Government authority for obtaining no objection certificate (NOC) under the M.P. Urban Ceiling Act. The power of attorney authorised the appellant to sign on behalf of the Masonic Lodge and to appear before any authority on behalf of the lodge and to do all acts and things necessary for getting sanction for development work. It was also recited that the said power of attorney is irrevocable.
5. The appellant received the said power of attorney from the worshipful master of the respondent Masonic Lodge on 9.7.79 whereupon the appellant by letter dated 9.7.79 addressed to the respondent stated that the appellant having received the power of attorney on 9.7.79 he could from only that date approach any Government or Semi-Government department with respect to obtaining the NOC from the authority concerned and made it clear to the respondent that the period of 12 months for obtaining the NOC and other clearances from the Government would be effective from that date viz., 9.7.79. The respondent accepted the appellant's stand and by letter dated 20.1.80 informed the appellant that the Masonic Lodge Committee unanimously agreed that the time for completing the work of development of one year from the date of contract be amended to one year commencing from 9th July, 1979, the date on which the appellant was given power of attorney.
6. Before expiry of one year, the appellant made request for granting extension of four months for getting the NOC from the Competent Authority under Urban Land Ceiling Act. The respondent Masonic Lodge acceded to the request and by their letter dated 2.7.80 addressed to the appellant informed him that the lodge, in the regular meeting held on 28.6.80, had approved the extension of the period of four months for obtaining the NOC from the Competent Authority and reiterated their decision that no
