In a contract for the sale of immoveable property, time is not of the essence unless it is shown that the parties intended their rights to depend on the observance of time as the essence of the contract. Subsequent rise or fall in prices is irrelevant for judging the relief of specific performance.

S.P. Bhargava, J.

1. This first appeal arises out of a suit for specific performance of the contract of sale, instituted by the Plaintiff-Respondent in the Court of the Third Additional District Judge, Bhopal. The suit was decreed and, therefore, the Defendant has come up in this appeal.

2. The Defendant contracted with the Plaintiff to sell his house situated in Mohalla Nasarganj, Bhopal, the details whereof are fully given in the plaint for Rs. 23,000 on 30-10-1953. Admittedly, out of this amount, Rs. 15,500 have been received by the Defendant. Ex. P-1 which records this transaction has been very informally and meagerly written. After mentioning the agreed price of sale and the portion paid, it only says that the Plaintiff would call the Defendant from his place of residence, Sironj, after Diwali, that is to say after 6-11-1953, and after payment of the remaining amount, the Defendant would execute the registered sale-deed in favour of the Plaintiff who is called 'Master Sahib'.

3. The Plaintiff's case is that the Defendant had promised to get the house in question redeemed from the mortgage of one Mulla Usuf Ali with whom it was mortgaged for Rs. 6, 000. He did not do so, and there was litigation between the parties. The Plaintiff brought the instant suit for specific performance after sending the notice (Ex. P-2) on 21-5-1956, calling upon the Defendant to execute the conveyance of the property in his favour. The suit was filed on 28-10-1956.

4. The Defendant resisted the suit or following grounds in the lower Court and the same grounds have been reiterated before us:

(1) That the contract of sale made on 30-10-1953 was subsequently cancelled by the mutual agreement of the parties;

(2) That the Plaintiff had given no evidence to show that he was always ready and willing to perform his part of the contract and it was incumbent upon him to prove this fact;

(3) That there was inordinate delay and great laches on the part of the Plaintiff which resulted in a complete change of circumstances. There was a great rise in prices of houses at Bhopal on its being selected as the capital of the new State of Madhya Pradesh. The contract, therefore, could not be specifically enforced in favour of the Plaintiff.

5. The lower Court found that the contract subsisted. It held that the Defendant had undertaken to redeem the mortgage of Mulla Usuf Ali by paying him Rs. 6, 000 but that amount was not paid to him. It further held that the possession of the house was given to the Plaintiff by the Defendant. It also found that the Defendant got paid the amount of Rs. 754-4-o to Mulla Usuf Ali but with regard to the amount of Rs. 273 of municipal taxes, it came to the conclusion that no satisfactory evidence of payment was adduced by the Plaintiff. It also came to the conclusion that the Plaintiff had been all the while willing to perform his part of the contract but the Defendant failed to do so. It held that the contract was not cancelled in the first week of December 1953 as alleged by the Defendant. On these conclusions, the trial Court decreed the suit for specific performance of the contract on the condition that the Plaintiff paid in Court the amount of Rs. 6, 745-12-0 for payment to the Defendant.

6. Taking up the first question for consideration, it would be seen that the bargain was struck through one Fida Hussain, who was a (sic) friend the parties. The case of the, Defendant is that as the Plaintiff failed to do any thing up to 9-11-1953. Diwall being on 6-11-1953 he wrote a letter to Fida Hussain complaining of the silence and inaction on the part of the Plaintiff and desiring cancellation of the contract. It is stated that the said Fida Hussain by his reply (Ex. D-3) wrote back to the Defendant on 16-11-1953 that the Plaintiff had no objection to the cancellation of the contract provided the amount paid by him was returned to him. The Defendant has urged that after receiving this letter, he wrote a letter (Ex. D-4) on 5-12-1953 to the