The main legal point established in the judgment is that the limitation period for filing a suit for specific performance starts from the date of refusal of performance or from the agreed date for performance when time is the essence of the contract.

Pramod Kumar Srivastava, J. –

Heard the arguments of learned counsel for the parties and perused the records.

2. Original suit no. 2315 of 1986 (Smt. Ahmadun Nisha v. Smt. Jubeda) was filed for specific performance of contract. The plaint case in brief was that registered agreement to sell dated 05.03.1973 was executed between the parties, by which defendant Smt. Jubeda had agreed to sell her property in question to plaintiff Smt. Ahmadunnisa for a consideration of Rs. 4,000/- and had received advance consideration of Rs. 2,000/-. It was agreed that defendant will execute the sale-deed of this property to plaintiff after withdrawal of ban of sale of urban property by government. But later on, defendant had not executed the sale-deed in spite of reminder, then plaintiff had sent her legal notice dated 03.03.1980 and also orally requested. The plaintiff has been ready ad willing to perform his part of contract by paying remaining consideration for getting the sale-deed executed but defendant was not willing to perform her part of contract, therefore, plaintiff had filed suit for specific performance of aforesaid registered agreement for sale.

3. Defendant Smt. had filed written statement in original suit, by which plaint case was not denied. It was further pleaded that defendant had no intention to sell her property nor she had executed any agreement for sale, and not received any advance consideration. In fact plaintiff's husband needed a house for rent and he showed his willingness to defendant for taking her house on tenancy for which defendant was ready. But defendant's husband had asked to get the document of tenancy prepared and registered, for which plaintiff came with her husband to court. The defendant received Rs. 2000/- as advance rent. The plaintiff's husband, with ulterior motive, colluded with scribe and witnesses who prepared the document. In place of document of tenancy, they prepared the document of agreement for sale by playing fraud on defendant and her husband. Plaintiff had filed this suit for specific performance of contract on basis of incorrect facts. This suit is time barred and is liable to be dismissed.

4. After framing issues, accepting evidences and affording opportunity of hearing to parties, the Court of 4th Additional Munsif, Gorakhpur had decreed the original suit by its judgment dated 18.01.1988 and directed the defendant to receive remaining consideration of Rs. 2,000/- from plaintiff and execute the sale-deed of disputed property, failing which plaintiff would be entitled to get the sale-deed executed through court.

5. In this judgment, trial court had appreciated the evidences and contentions of the parties and gave specific finding that in this matter execution of registered deed of contract of sale and receiving of Rs. 2000/- has been admitted by defendant. But it is not proved that plaintiff had taken any house on rent from defendant, or that any such amount was ever returned by defendant to plaintiff. Trial court held that defence of defendant is concocted version.

6. The trial court had also held that in this matter registered agreement to sell was executed in presence of husband of defendant who is Government official and had played active role in the transaction in question; and also that there is no evidence that transaction in question was for tenancy, or that any amount of Rs. 2,000/- was refunded by defendant. Trial court had given finding that document in question was executed by conscious mind, and there is no evidence that any forgery was committed by plaintiff. On the basis of evidences the trial court had also given finding that the plaintiff has been ready and willing to perform is part of contract regarding execution of sale-deed, which is proved from evidences. On the basis of these findings, trial court had decreed the original suit.

7. Against the judgment of trial court, Civil Appeal no. 64 of 1988 (Smt. Jubeda v. Smt. Ahmadun Nisha) was preferred by defendant of the or