Satyabrata Sinha, J.@mdashThese two applications by the Respondent had been filed, "inter alia, for rescission of contract in terms of Section 28 of the Specific Relief Act, 1963 and for appointment of a ''Receiver''.
2. The facts of the matter shortly stated areas follows.
3. The parties had entered into an agreement of tenancy. The Respondent is running a Cinema theatre in the tenanted premises. On or about May 8, 1974, the Chairman of the Appellant wrote a letter to one Mathuradas Chaturbhuj Shah, Rupali Cinema Company which is to be the following effect:
We are grateful to you for ending your mortgage case against us and for agreeing to adjust your dues out of the rent payable from Rupali Cinema. Your helpful attitude is appreciated by all and confirms beyond any doubts that our long association and friendship is truly genuine. Your money is no doubt blocked for the time being but we assure you that it is not lost and the breathing space allowed to us by this gesture will enable us to rid ourselves of the difficulties facing us.
To remove your anxiety, we confirm that it is agreed between ourselves that in case the cinema is not sold to you outright during the period of the present lease, we shall renew the lease on its expiry for 30 years on the following agreed terms and conditions:
(a) You will pay Rs. 50,000/- lump sum at the time of renewal.
(b) Starting rent will be Rs. 2,500/- monthly and the periodical increase will be 15% after every eight years.
(c) You will be allowed to removate the cinema hall but we will not be responsible for any expense which will be fully met by you out of your own resources.
(d) Other terms and conditions of the lease will remain the same as in the previous lease.
We are sorry that your idea for lease of 99 years is not acceptable but if we decide to sell the cinema certainly you can buy the cinema under our lease and you will be informed about our decision.
4. The Appellant filed a suit for eviction. The Respondent filed a suit for specific performance of contract embodied in the aforementioned letter dated May 8, 1974. The suit of the Appellant was dismissed, whereas the suit of the Respondent was decreed. Only one appeal has been preferred from both the decrees. Being an old appeal it was running under the heading ''For hearing''.
5. The learned Counsel appearing on behalf of the Appellant insisted that these applications be heard forthwith. Even the offer of the Court to hear-out and dispose of the appeals immediately as they are old appeals was turned down, stating that the Appellants at this stage are only interested in the hearing of the petition for rescission of contract. Mr. Mukherjee would urge that assuming that the suit for specific performance of contract has correctly been decreed, as the Court retains jurisdiction over the same even after the passing of the decree having regard to the various acts of omissions and commissions on the part of the Respondent, the Court should grant permission to the Appellant herein to rescind the contract.
6. The alleged acts of omissions and Commissions, vis-a-vis, the rights and obligations of the parties under the contract had been stated in para 6 and 7 of the applications. The allegations made by the Appellant had categorically been denied and disputed by the Respondents. A question of maintainability of the said applications has been raised. Sub-Section (1) of Section 28 of the Specific Relief Act reads thus:
Section 28:
Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed-
(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may by order, rescind the contract either so far as regards the party in default or altogether as the justice of the case may require.
7. The decree of specific performance has not yet attained finality as the appeal, as is well known, is a continuation of the suit. The Appellant itself has questioned the correctness or otherwise of the said decree.
8. Section 28 of the Specific Relief Act will apply in a case where the decree passed by the parties had been accepted and thereafter, having regard to the breach of conditions of the contract in respect whereof a decree for specific performance had been made, an application under the said provision would be maintainable before the learned trial Judge, which had passed the decree, assuming that the same would be maintainable as an order of stay had been granted by this Court. Therefore, an application u/s 28 was maintainable only before the trial Judge. In any event the Appellant having challenged the validity of the decree, in an interlocutory application it cannot be permitted to assume that the decree is correct and obtain the relief prayed for on that basis, as the decree for specific performance of contract may not be sustained in the appeal. If, it does so, it will have to withdraw the appeal and file appropriate application before the learned Trial Judge, inasmuch as so long as this appeal remains pending, the Appellant/applicant cannot be permitted to blow hot and cold. In other words, it cannot both approbate and reprobate. Two-fold contentions by way of a dual case cannot be permitted in law.
9. An application u/s 28 of the Specific Relief Act is filed after the passing of a final decree and not in an interlocutory order pending appeal.
10. It is true that the Court retains its jurisdiction over the subject matter despite the passing of a decree of specific performance of contract. But such Court would be the Court, which had passed the decree and not where the appeal is pending. The Appellant''s remedy, therefore, if any, was before the learned Trial Judge. We, having regard to the provisions of Section 28 of the Specific Relief Act are of the opinion that this application before this Bench is not maintainable.
11. So far as the application for appointment of a ''Receiver'' is concerned, we are of the opinion that the prayers for appointment of Receiver and rescission of contract are contradictory to and inconsistent with each other.
12. No case for passing of an interim order on the Petitioner''s application for appointment of ''Receiver'' has been made out. We, however, are of the opinion that before a final decision is taken in the matter, an Advocate Commissioner may be appointed to take inspection of the suit premises and submit a detailed report before this Court and for the aforementioned purpose, we hereby appoint Mr. Soumen Sen as an Advocate Commissioner, at a consolidated fee of Rs. 2,500.00. Such costs be borne by the Appellant herein. The learned Advocate Commissioner is requested to submit his report before this Court within two weeks from the date of communication of this order and subject to payment of his fees by the Appellant. Despite the statement made at the Bar that the Appellant is not interested in getting the appeal heard, let the appeal be listed under the heading ''For hearing'' three weeks hence.
13. Application for rescission of contract being G.A. No. 5041 of 1999 is, thus, dismissed without any order as to costs.
14. Parties are entitled to have a signed copy of the operative portion of this order on the usual undertaking.
Hrishikesh Banerji, J.
15. I agree.
16. One application dismissed and the other disposed of.
