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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.J. DESAI, J.
Shanabhai Popatbhai Bharwad – Appellant
Versus
Ballard Project Pvt Ltd & others – Respondent
First Appeal No.2812 of 2017 With Civil Application (For Stay) No. 1 of 2017
Decided on : 24-02-2020
Limitation Act, 1963 - Article 54 - Civil Procedure Code,1908 - Section 96 - Appeal has been filed by appellant original plaintiff challenging order passed by Senior Civil Judge below application in Special Civil Suit by which Trial Court has accepted application filed by respondent original defendant rejecting plaint having come to conclusion that suit filed by appellant plaintiff has been filed beyond prescribed period - Civil Suit before Trial Court and prayed for a decree of specific performance of a registered Agreement to sell with regard to an agricultural land bearing Survey of village for which entire amount of sale consideration was paid by plaintiff by executing another supplementary deed on same day - A decree was also prayed that registered Sale Deed having executed by original owners defendant in favor of defendant be declared as null and void - Held, Court had to find date on which plaintiff had notice that performance was refused and on finding that date to see whether suit was filed within three years thereof - Court have explained the position in recent decision in case on hand there is no dispute that no date for performance is fixed in agreement and if so suit could be held to be barred by limitation only on a finding that plaintiffs had notice that defendants were refusing performance of agreement - Court case of that nature normally question of limitation could be decided only after taking evidence and recording a finding as to date on which plaintiff had notice - Court are not unmindful of fact that a statement appears to have been filed on behalf of plaintiffs that they did not want to lead any evidence - Defendants of course took the stand that they also did not want to lead any evidence - As see trial court should have insisted on parties leading evidence on this question or court ought to have postponed consideration of issue of limitation along with other issues arising in suit after a trial - Court is clearly held that in cases falling in second limb of finding can be recorded only after recording evidence - Appeal disposed (Para 8).
Facts of the Case:
Plaintiff filed a Civil Suit, being Special Civil Suit No.708 of 2014 before the learned Trial Court and prayed for a decree of specific performance of a registered Agreement to sell dated 2.5.2007 with regard to an agricultural land bearing Survey No.204 of village Odhav, Tal. City, Dist. Ahmedabad admeasuring 23-5-73 Hectare - RA - Sq. Mts. (23,573 Sq. Mts.) for which entire amount of sale consideration i.e. Rs.10,51,000/- was paid by the plaintiff by executing another supplementary deed on the same day i.e. 2.5.2007. A decree was also prayed that the registered Sale Deed having No.12726 of 2008 dated 23.10.2008 executed by the original owners i.e. defendant Nos.2 to 9 in favour of defendant No.1 be declared as null and void.
Finding of the Court:
Court had to find date on which plaintiff had notice that performance was refused and on finding that date to see whether suit was filed within three years thereof - Court have explained the position in recent decision in case on hand there is no dispute that no date for performance is fixed in agreement and if so suit could be held to be barred by limitation only on a finding that plaintiffs had notice that defendants were refusing performance of agreement - Court case of that nature normally question of limitation could be decided only after taking evidence and recording a finding as to date on which plaintiff had notice - Court are not unmindful of fact that a statement appears to have been filed on behalf of plaintiffs that they did not want to lead any evidence - Defendants of course took the stand that they also did not want to lead any evidence - As see trial court should have insisted on parties leading evidence on this question or court ought to have postponed consideration of issue of limitation along with other issues arising in suit after a trial - Court is clearly held that in cases falling in second limb of finding can be recorded only after recording evidence.
Result: Appeal disposed
JUDGMENT :
1. ADMIT. Learned advocate Mr. Sunil S. Joshi waives service of admission on behalf of defendant No.1. With the consent of learned advocates appearing for the respective parties, the appeal is taken up for final hearing.
2. The present appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) has been filed by the appellant – original plaintiff challenging the order dated 29.8.2016 passed by learned 5th Additional Senior Civil Judge, Ahmedabad (Rural) (hereinafter referred to as ‘the learned Trial Court’) below application Exh.17 in Special Civil Suit No.708 of 2014 by which the learned Trial Court has accepted application Exh.17 filed by the respondent No.1 herein – original defendant No.1 under Order VII, Rule 11 (d) of the Code rejecting the plaint, having come to the conclusion that the suit filed by the appellant – plaintiff has been filed beyond the prescribed period under Article 54 of the Limitation Act, 1963 (hereinafter referred to as ‘Limitation Act’).
3. For the sake of convenience and brevity, the parties to the present proceedings are referred to as per their original position in the suit before the learned Trial Court i.e. appellant – plaintiff and respondent No.1 – defendant No.1, respondent Nos.2 to 9 – defendant Nos.2 to 9.
4. In response to the notice issued by this Court, the respondents have appeared through learned advocates. The defendant No.1 has opposed the appeal through his advocate whereas defendant Nos.2 to 9 have not argued the matter.
5. The facts of the case are that the plaintiff filed a Civil Suit, being Special Civil Suit No.708 of 2014 before the learned Trial Court and prayed for a decree of specific performance of a registered Agreement to sell dated 2.5.2007 with regard to an agricultural land bearing Survey No.204 of village Odhav, Tal. City, Dist. Ahmedabad admeasuring 23-5-73 Hectare – RA – Sq. Mts. (23,573 Sq. Mts.) for which entire amount of sale consideration i.e. Rs.10,51,000/- was paid by the plaintiff by executing another supplementary deed on the same day i.e. 2.5.2007. A decree was also prayed that the registered Sale Deed having No.12726 of 2008 dated 23.10.2008 executed by the original owners i.e. defendant Nos.2 to 9 in favour of defendant No.1 be declared as null and void.
6. The said suit was filed on 8.10.2014. The defendant No.1 filed an application Exh.17 on 20.4.2015 under the provisions of Order VII, Rule 11 (d) of the Code requesting the learned Trial Court to reject the plaint on the ground that the suit has been filed beyond the prescribed period of limitation provided in Article 54 of the Limitation Act.
7. The said application Exh.17 was opposed by the plaintiff. The learned Trial Court after giving opportunity of hearing to the learned advocates appearing for the respective parties, passed the impugned order and rejected the plaint on the ground that the suit was filed beyond the prescribed period of limitation of three years, prescribed under Article 54 of Limitation Act.
8. Hence the present appeal.
9. Mr. Mehul S. Shah, learned Senior Counsel assisted by Mr. K. K. Joshi appearing for the appellant – plaintiff has vehemently submitted that the learned Trial Court has committed grave error in accepting the application of the defendant No.1. He would further submit that the learned Trial Court has committed grave error in coming to the conclusion that the time was the essence of the contract and it was fixed in the agreement to sell entered into between the parties. He would further submit that the learned Trial Court has wrongly interpreted the terms and conditions recorded in the agreement to sell and supplementary deed, both executed on 2.5.2007.
9.1 Mr. Shah would further submit that if the agreement to sell and supplementary deed are closely scrutinized and the conduct of the parties are perused and closely sc
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