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2024 Supreme(Online)(KER) 12670
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 22ND DAY OF JANUARY 2024 / 2ND MAGHA, 1945 AS NO. 36 OF 2002 AGAINST THE COMMON JUDGMENT AND DECREE DATED 31.05.2001 IN O.S.NO.547 OF 1996 OF THE SUB COURT, PALAKKAD APPELLANTS:
1 SMT.KUNHILAKSHMI (DIED), W/O.KARUNAKARAN, RESIDING AT THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTOOR TALUK,PALGHAT DISTRICT.
2 SRI.SAJEEVAN (DIED), S/O.KARUNAKARAN THEKKETHARA HOUSE, AMBATTUPALAYAM,CHITTOOR,, CHITTOOR TALUK,PALGHAT DISTRICT.
3 SRI.RAJIVAN, S/O.KARUNAKARAN THEKKETHARA HOUSE, AMBATTUPALAYAM,CHITTOOR,, CHITTOOR TALUK,PALGHAT DISTRICT.
4 JAGATH JEEVAN, AGED 56 YEARS, S/O.(LATE) KARUNAKARAN, THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTUR TALUK, PALAKKAD DISTRICT.
5 AMAR JEEVAN AGED 46 YEARS, S/O.(LATE)KARUNAKARAN, THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTUR TALUK, PALAKKAD DISTRICT.
(LEGAL HEIRS OF THE DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL A4 AND ADDL A5 AS PER ORDER DATED 15/12/2017 IN IA NO 2297/2017 AND 2301/2017 ADDITIONAL A6 TO A8 SOUTH TO BE IMPLEADED
6 SHEEBA C.R AGED 51 YEARS, W/O.SAJEEVAN , RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT.
7 JITHEESH JEEVAN, AGED 26 YEARS, S/O. LATE SAJEEVAN , RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT.
8 THEJESH JEEVAN, AGED 24 YEARS, S/O. LATE SAJEEVAN , RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT.
(LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 6 TO 8 VIDE ORDER DATED 30/7/2019 IN IA1/2019)
BY ADVS.
SRI.M.C.GOPI – FOR A3 TO A8 AJITH VISWANATHAN – FOR A3 RESPONDENTS:
1 SRI.A.PONNU (DIED), S/O.ARUMUGHAN, RESIDING AT L.G.PALAYAM, ERATTAKULAM,ELAPPALLY VILLAGE, PALAKKAD TALUK,PALAKKAD DISTRICT.
2 SRI.SUBRAMANIAN, S/O.KANDAN, NADUVIL HOUSE ATHIKODE, PANAYUR AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT 3 SMT.DEVAKY, W/O.LATE PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT.
4 SRI.RADHAKRISHNAN, S/O.LATE SRI.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. 5 SMT.SOBHANA D/O.SRI.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT.
6 SRI.SURESH KUMAR S/O.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT.
(LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL. R3 TO R6 AS PER ORDER DATED 02/06/2015 IN IA 4480/2004.)
BY ADVS.
SRI.G.SREEKUMAR (CHELUR)- FOR R4 SMT.S.CHITHRA - FOR R3 TO R6 SRI.A.R.GANGADAS – FOR R3 TO R6 SRI.GEORGE KURUVILLA – FOR R3 TO R6 SRI.GEORGE KUTTY MATHEW SRI.T.M.SUNIL FOR R3 TO R6 THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 22.01.2024, ALONG WITH AS.38/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 22ND DAY OF JANUARY 2024 / 2ND MAGHA, 1945 AS NO. 38 OF 2002 AGAINST THE COMMON JUDGMENT AND DECREE DATED 31.05.2001 IN O.S.NO.174 OF 1996 OF THE SUB COURT, PALAKKAD APPELLANT/S:
1 SMT.KUNHILAKSHMI (DIED), W/O.KARUNAKARAN, RESIDING AT THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTOOR TALUK,PALGHAT DISTRICT.
2 SRI.SAJIVAN (DIED), S/O.KARUNAKARAN THEKKETHARA HOUSE, AMBATTUPALAYAM,CHITTOOR, CHITTOOR TALUK,PALGHAT DISTRICT.
3 SRI.RATHJEEVAN, S/O.KARUNAKARAN THEKKETHARA HOUSE, AMBATTUPALAYAM,CHITTOOR, CHITTOOR TALUK,PALGHAT DISTRICT.
4 JAGATH JEEVAN AGED 56 YEARS, S/O.(LATE)KARUNAKARAN, THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTUR TALUK, PALAKKAD DISTRICT.
5 AMAR JEEVAN, AGED 46 YEARS, S/O.(LATE)KARUNAKARAN, THEKKETHARA HOUSE, AMBATTUPALAYAM, CHITTUR TALUK, PALAKKAD DISTRICT.
(LEGAL HEIRS OF THE DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL A4 AND ADDL A5 AS PER ORDER DATED 15/12/2017 IN IA 2298/2017 AND IA
2302/2017.) ADDITIONAL A6 TO A8 SOUGHT TO BE IMPLEADED.
6 SHEEBA C.R.
AGED 51 YEARS, W/O.SAJEEVAN , RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT.
7 JITHEESH JEEVAN, AGED 26 YEARS, S/O.LATE SAJEEVAN, RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT.
8 THEJESH JEEVAN, AGED 24 YEARS, S/O. LATE SAJEEVAN , RESIDING AT THEKKETHARA HOUSE, CHARAMPADOM, VALAKKAVU DESOM, MULAYAM P.O., THRISSUR TALUK, THRISSUR DISTRICT.
(LEGAL REPRESENTATIVES OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 6 TO 8 VIDE ORDER DATED 30/7/2019 IN IA 1/2019.)
BY ADVS.
SRI.M.C.GOPI – FOR A3 TO A8 AJITH VISWANATHAN – FOR A3 RESPONDENTS:
1 SRI.A. PONNU (DIED)
S/O.ARUMUGHAN, RESIDING AT L.G.PALAYAM, ERATTAKULAM., ELAPPULLY VILLAGE, PALAKKAD TALUK,, PALAKKAD DISTRICT.
2 SRI.SUBRAMANIAN, S/O. KANDAN, NADUVIL HOUSE, ATHIKODE, PANAYUR AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.
3 SMT.DEVAKY, W/O.LATE PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT.
4 SRI.RADHAKRISHNAN, S/O.LATE SRI.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT. 5 SMT.SOBHANA D/O.SRI.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT.
6 SRI.SURESH KUMAR S/O.PONNU, RESIDING AT L.G.PALAYAM, ERATTAKULAM, ELAPPULLY VILLAGE, PALGHAT TALUK, PALGHAT DISTRICT.
(LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL.R3 TO R6 AS PER ORDER DATED 02/06/2015 IN IA 4485/2004.)
BY ADVS.
SRI.G.SREEKUMAR (CHELUR) – FOR R4 SMT.S.CHITHRA – FOR R3 TO R6 SRI.A.R.GANGADAS – FOR R3 TO R6 SRI.GEORGE KURUVILLA – FOR R3 TO R6 SRI.T.C.MOHANDAS – FOR R3 TO R6 SRI.T.M.SUNIL – FOR R3 TO R6 THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 22.01.2024, ALONG WITH AS.36/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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Dated this the 22nd day of January, 2024
JUDGMENT
A.S.No.38 of 2002 arises from O.S.No.174 of 1996, a suit for specific performance. The suit was decreed by the trial court against which the defendants 1 to 3 are in appeal.
2. A.S.No.36 of 2002 arises from O.S.No.547 of
1996. It is a suit for recovery of possession on the strength of title and for damages. The defendants 1 to 3 in O.S.No.174 of 1996 are the plaintiffs in the suit. It is a suit is filed against the plaintiff and the 4th defendant in O.S.No.174 of 1996. The suit was dismissed by the trial court and the plaintiffs are in appeal. 3. The trial court considered O.S.No.174 of 1996 namely, the suit for specific performance, as the leading case. For the sake of convenience, these appeals are also been considered accordingly. Parties are being referred to as per their status in O.S.No.174 of 1996.
4. On 21.05.1987, Ext.A1 agreement for sale was entered into between the plaintiff and the 4th defendant on one part and defendants 1 to 3 on the other part. As per Ext.A1, an extent of 8.98 acres of property out of a larger extent of 9.18 acres was agreed to be conveyed to the plaintiff and the 4th respondent at the rate of Rs.15,000/- per acre. An amount of Rs.50,000/- was paid towards advance sale consideration. The property was in possession of the plaintiff and the 4th defendant. The period fixed for performance was one year. The ceiling cases pending in respect of the property was to be got disposed of by defendants 1 to 3 in the meanwhile. The period for performance was extended on 20.05.1988 for a further period of two years, which expired on 21.05.1990. The 4th defendant conveyed his rights under the agreement to the plaintiff. Alleging that the defendants are postponing the performance of the agreement under one guise or the other, the suit was filed seeking specific performance.
5. The defendants pleaded that the suit is barred by limitation. It was contended that the plaintiff was not ready and willing to go ahead with the transaction. It was also alleged that the plaintiff has committed waste in the property resulting in damages. It was also pleaded that, there has been a steep escalation in the price of the property from the date of Ext.A1 till the date of suit, dis-entitling the plaintiff for the relief of specific performance. In O.S.No.547 of 1996, recovery possession of the property was sought along with damages. The claim was opposed relying on Section 53A of the Transfer of Property Act, 1882.
6. The trial court held that the agreement is liable to be specifically enforced and accordingly, decreed O.S.No.174 of 1996 and dismissed O.S.No.547 of
1996.
7. I have heard the learned Senior Counsel, Shri.P.Viswanathan, on behalf of the appellants and Shri.G. Sreekumar Chelur, the learned counsel for the respondents.
8. The points that arise for determination in the appeals are;
i) Is the suit for specific performance barred by limitation?
ii) On the materials on record is the discretion under Section
20 to be exercised in favour of the plaintiff to grant specific performance ?
iii) Was the trial court right in having dismissed the suit for recovery of possession?
9. The main argument of the appellants is that, the suit for specific performance is barred by limitation. The plaintiffs were not ready and willing to go ahead with the transaction. This resulted in the inordinate delay in seeking specific performance of the agreement. The learned counsel for the respondents would on the other hand contend that, the suit has been filed within the stipulated period. The defendants had not issued any notice of refusal of performance. In the absence of such notice by the defendants, time would not run, it is contended.
10. Article 54 of the Indian Limitation Act, 1963 reads thus;
54 For speficic performance Three The date fixed for the of a contract years performance, or, if no such date is fixed, when the plaintif has notice that performance is refused.
Article 54 contemplates two situations, agreements where date for performan
