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2020 Supreme(All) 917
IN THE HIGH COURT OF ALLAHABAD
RAVI NATH TILHARI, J.
Braj Bhushan Mittal – Appellant
Versus
Jeet Singh – Respondent
Second Appeal No.1111 of 2009
Decided on : 07-08-2020
Advocate Appeared:
For the Appellant : Vijaya Prakash
Point of law: Contract when initially made had a fixed date for the performance but the Court was of the view that in the events that happened, the agreement though started with fixation of a period for the completion of the transaction became one without such period. If it became one in which no time was fixed for its performance, the limitation which was originally covered by the first part of Article 113 of the Limitation Act, 1908(old) would fall under the second part of that Article because of the very circumstances of that case. The present case, falls in the second part of Article 54 since the very beginning. There is no supervening circumstance to convert the agreement from the first part to the second part of Article 54, Limitation Act.
Headnote:
Limitation Act – Article 54 – Code of Civil Procedure, 1908 – Order XLI Rule 11, Order VII Rule 11 – Rejection of Plaint Challenged – Second appeal has been filed challenging the judgment and the decree passed by the learned Additional District Judge, Court No.11, Meerut in Regular Civil Appeal dismissing the appeal arising out of O.S., filed by the plaintiff-appellant which was dismissed by the learned Civil Judge (Junior Division), City Meerut vide the judgment and the decree rejecting the plaint as barred by the provisions of Order VII Rule 11 of Code of Civil Procedure, 1908 –
Finding of the Court:
Meaning of the words “date” and “fixed” appearing in Article 54. The Hon'ble Supreme Court considered the judgment in S. Brahmanand (supra) and held that when a date is fixed, it means a definite date fixed for doing a particular act. – Therefore, there is no question of finding intention from other circumstances. – Thus, this Court is of the considered view that the intention/conduct of the defendant-respondent, as per the plaint pleadings i.e. giving assurance etc., is of no importance so far as the period of limitation is concerned or the time from which it starts running. – Next submission of the learned counsel for the appellant that the possession of the property had already been delivered to plaintiff-appellant in pursuance of the registered agreement to sell and, therefore, Article 54 of the Limitation Act should not bar institution of the suit, also deserves rejection. – Article 54 of the Limitation Act which provides for a period of 3 years for institution of the suit, does not make any distinction between suits for specific performance of contract, on the basis of delivery of possession, pursuant to agreement to sell or part performance of agreement. – Here, the judgment of the Hon'ble Apex Court, on this point in the case of Fatehji and others(supra) paragraph 6 thereof requires reference, in which it has been held that the fact that the plaintiff was put in possession of the property agreed to be sold on the date of agreement, would not make any difference with regard to limitation for filing a suit for specific performance of contract. – Article 54 of the Limitation Act does not make any difference between the cases where the property had been delivered in part performance of the agreement or otherwise and the cases where it has not been so delivered. – Enquiry under Order VII rule 11 C.P.C. is only on institutional defects. – If the Court finds that the suit is barred by law of limitation on the averments made in the plaint, the plaint shall be rejected. There shall be no occasion for the Court to proceed to decide the suit on merits after allowing the parties to lead evidence. – In view thereof, the submission of the learned counsel for the plaintiff-appellant that the Trial Court should have decided the suit on merits after evidence also deserves rejection. –
Result :Appeal Dismissed
JUDGMENT :
1. This second appeal has been filed challenging the judgment dated 18.7.2009 and the decree dated 22.7.2009 passed by the learned Additional District Judge, Court No.11, Meerut in Regular Civil Appeal No.41 of 2008 (Braj Bhooshan Mithal vs. Jeet Singh) dismissing the appeal arising out of O.S. No.130 of 2008, filed by the plaintiff-appellant which was dismissed by the learned Civil Judge (Junior Division), City Meerut vide the judgment dated 11.3.2008 and the decree dated 17.3.2008, rejecting the plaint as barred by the provisions of Order VII Rule 11 of Code of Civil Procedure, 1908(CPC).
2. The facts of the case are that the plaintiff-appellant had instituted O.S. No.130 of 2001(Braj Bhooshan Mithal vs. Jeet Singh) before Civil Judge (Junior Division), City, Meerut for specific performance of contract, directing the defendant-respondent to execute the sale deed in pursuance of the registered agreement to sell dated 04.01.1983, in favour of the plaintiff-appellant in respect of land of Khata No.39, Khasra No.27, area 0-15-0, Khata No.33/1, area 2-0-0 and Khasra No. 84/12 Min. area 1-10-00; total 3 numbers, total area 4-5-0, situated in village Mohammadpur Goomi, pargana, tehsil and district Meerut, after receiving the balance of the sale consideration of Rs.2000/ from the appellant out of the total sale consideration of Rs.17000/-, as an amount of Rs.15,000/-had already been paid to the defendant-respondent, at the time of registration of agreement to sell. The plaintiff-appellant's case is that as per the agreement to sell the defendant-respondent had to obtain permission from the competent authority(Ceiling), Meerut and intimate the plaintiff-appellant through registered post, and the plaintiff-appellant had to get the sale deed executed, within a period of one year from the date of receipt of said registered intimation after making payment of the balance of the sale consideration. The plaintiff-appellant sent a notice to the defendant-respondent on 31.12.1993, requesting him to be present at the office of Sub Registrar, Meerut on 28.1.1994 for execution of sale deed but the defendant-respondent did not accept notice sent through registered post. However, notice sent through UPC was served upon the defendant-respondent. On 28.1.1994, the plaintiff-appellant remained present at the office of Sub Registrar, Meerut for execution/registration of the sale deed but the defendant-respondent did not turn up. On the next day the defendant-respondent approached plaintiff-appellant; offered excuses and assured that he would execute the sale deed after completing the requisite formalities but he did not execute the sale deed in spite of many oral and written requests. The plaintiff-appellant as such sent another notice dated 4.1.2001, requesting the defendant-respondent to be present at the office of Sub Registrar, Meerut for execution of the sale deed on 30.1.2001 but on that date also defendant-respondent did not appear and sent an evasive reply. It was also pleaded that time was not the essence of contract and the possession of the land had already been delivered to the plaintiff-appellant at the time of registration of the agreement to sell. The plaintiff-appellant had always been and is still ready and willing to perform his part of the contract.
3. The defendant-respondent filed written statement. He denied execution of agreement to sell in favour of plaintiff-appellant. He pleaded that the value of the land in question is Rs.20-00 lac and in the year 1983 it was about Rs.5-00 lac, therefore, question of execution of registered agreement to sell for a sale consideration of Rs.17,000/-did not arise. The defendant-respondent pleaded that the suit was barred by time and the plaint was liable to be rejected under Order VII Rule 11 C.P.C.
4. Learned trial court on 12.7.2004 framed issues in the suit. Issue No.4 as framed,
