Back
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Raj Mohan Singh
CR No.7475 of 2015(O&M)
Narender Kumar Nangia
v.
Harjinder Pal Singh
{Decided on 08/01/2018}
(B) Specific Relief Act, 1963, S.20 – Agreement to Sell – Specific Performance – Limitation – Firstly limitation starts from the date fixed in the agreement, if any and secondly, if no specific time is fixed, from the time when the specific performance is refused by the opposite party-Limitation Act, 1963, Article 54. (Para 11)
(C) Limitation Act, 1963, S.3 – Cause of Action – Once the limitation starts running from first accrual of cause of action, it will not stop by subsequent enlargement of cause of action as per averments in the plaint. (Para 17)
(D) Limitation Act, 1963, Acticle , 54 – Cause of Action – The word “fixed” in essence means having final or crystallized form or character not subject to change or fluctuation – Therefore, expression “date” used in Article 54 of the Limitation Act definitely is suggestive of a specified date in calendar and the cause of action cannot be the subject matter of any intention to be gathered from other circumstances as it was fixed with definite pleadings for doing a particular act. (Para 17)
(E) Civil Procedure Code, 1908, O.7 R.11 – Rejection of Plaint – Averments in the plaint have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law – At this stage, the stand of the defendant in the written statement or in the application for rejection of the plaint is wholly immaterial – It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof, suit appears to be barred under any law, the plaint can be rejected. (Para 12)
(F) Specific Relief Act, 1963, S.20 – Agreement to Sell – Specific Performance – Limitation – Permission from the competent authority is not a condition precedent for grant of decree for specific performance for which limitation has to be computed in terms of Article 54 of the Limitation Act – Limitation Act, 1963, Article 54.
(G) Civil Procedure Code, 1908, O.7 R.1 – Plaint – Material Particulars – Compliance is mandatory – The plaint shall contain the following particulars:-
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court fees, so far as the case admits. (Para 15)
(H) Civil Procedure Code, 1908, O.7 R.1 – Plaint – Cause of Action should be specifically pleaded in the plaint. (Para 6)
Mr. Raj Mohan Singh, J.:- Petitioner has assailed the order dated 29.09.2015passed by Civil Judge (Junior Division), Gurgaon vide whichapplication under Order 7 Rule 11 CPC filed by the petitioner inCivil Suit No.48NK dated 08.02.2015 titled S. Harjinder Pal SinghVs. Narinder Nangia and another was dismissed.
2. Plaintiff filed a suit for specific performance,possession and permanent injunction. The suit was filed on08.02.2012. Para Nos.29 and 30 of the suit are to the followingeffect:-
“29. That it is submitted that the plaintiff has been alwaysready and willing and is still ready and willing to fulfill itsobligation as contained in the said agreement to sell dated26.07.2007, but it is the defendant No.1 having malafide,ulterior and greedy intention refused to perform his part ofthe contract. The defendant No.1 further knowingly anddeliberately misrepresented to the plaintiff and by givingfalse assurances all through out. The plaintiff has got theentire funds available with it in order to incur all expensesfor the stamp duty and registration charges required forexecution of the sale deed and thus there is no impedimentat the end of the plaintiff in fulfilling its obligations.
30. The cause of action arose for the first time on26.07.2007 when the plaintiff and defendant No.1 enteredinto a written contract vide agreement to sell. The cause ofaction again arose on December 2008, when the defendantNo.1 on misrepresentation took back the original documentsfrom the plaintiff. The cause of action arose on June 2008,January 2009, February 2010 and on various dates whenthe plaintiff enquired about the fate of the NOC from theauthority. The cause of action again arose on 04.07.2011when the plaintiff for the first time came to know that thedefendant No.1 had mortgaged the suit property withdefendant No.2 and there are cases pending in Ld. DebtRecovery Tribunal and Hon’ble High Court and on inquirythe defendant No.1 refused to get NOC from HSIDC andexecute the sale deed. The cause of action again arose infavour of the plaintiff and against the defendant when on16.01.2012 the plaintiff came to know that both thedefendants are trying to dispose off the suit property infavour of a third party in order to deprive the plaintiff of itsright and interest under the agreement to sell. The cause ofaction is still continuing and subsisting.”
3. Defendant No.1/petitioner filed an application underOrder 7 Rule 11 CPC preliminary on the ground that the plaintdoes not disclose any cause of action and therefore, the plaint isliable to be rejected under Order 7 Rule 11(a) CPC. DefendantNo.1 relied upon Article 54 of the Limitation Act to contend thatthe suit is time barred as the plaintiff seeks to enforce the allegedagreement to sell dated 26.07.2007. Defendant No.1 alsoassailed the plaint on other grounds i.e. the plaintiff has not paidthe Court fee for the relief claimed and also the allegedagreement to sell being unregistered.
4. Learned Senior Counsel for the petitioner submittedthat the plaintiff filed a suit for specific performance andpermanent injunction in respect of property bearing Industrial PlotNo.64, Sector-6, Industrial Estate, CH. Devi Lal, IMT Manesar,District Gurgaon measuring 1012.5 sq. mtrs. Plaintiff/respondentsought issuance of direction against the defendant/petitioner toexecute the sale deed in his favour. Defendant/petitionerappeared in the suit and thereafter, filed an application forrejection of the plaint primarily on the ground that under Article 54of the Limitation Act, the suit is time barred and the allegedagreement to sell dated 26.07.2007 cannot be enforced. The suitis liable to be dismissed for want of proper Court fee as well asthe agreement being unregistered in nature.
5. By relying upon para Nos.29 and 30 of the plaint,learned Senior Counsel contended that the suit does not discloseany cause of action and as per averments in the aforesaidparagraphs, the cause of action itself is barred by limitation.Plaintiff him
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
