IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 09.03.2022

CORAM

THE HONOURABLE MRS. JUSTICE R.HEMALATHA

S.A.No.201 of 2007

1. M. Mukhya Prana Rao (deceased)

2. Pushpalatha M. Rao

3. K.M. Sudha

...Appellants/Plaintiffs

Appellants 2 & 3 brought on record as LRs of the

deceased sole appellant vide order of court dated

16.08.2017 made in CMP Nos. 12146 to 12148/2016 in

S.A. No.201/2007.

Vs.

A.R. Prathaban

... Respondent/Defendant

Prayer : Second Appeal filed under Section 100 CPC, 1908 against

the decree and judgment dated 04.08.2006 passed in A.S. No.87

of 2004, on the file of the I Additional District Court,

Coimbatore, upholding the decree and judgment dated 30.08.2000

passed in C.F.R.(O.S.) No.20031 of 2000, on the file of the

Principal Subordinate Court, Coimbatore.

For Appellants

: Mr.S. Mukunth

for M/s. Sarvabhauman Associates

For Respondents : Mr.R.T. Doraisamy

for Mr. B. Mutharasan

JUDGMENT

The unsuccessful plaintiff before both the courts below

has filed the present second appeal.

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2. The minimum facts that are required for the disposal

of the present appeal are as follows:

The appellant entered into a sale agreement dated

16.11.1987 with the respondent for purchase of the suit

property. The sale consideration was fixed as Rs.2,30,000/-,

out of which Rs.1,00,000/- was paid towards advance on

03.12.1987. The appellant also subsequently paid a sum of

Rs.50,000/- to the respondent. As per the terms of the

contract, the transaction should be completed within six months

and though the appellant was ready and willing to perform his

part of the contract, the respondent failed to execute the sale

deed. However, the respondent issued a legal notice dated

20.09.1997 calling upon the appellant to pay the balance sale

consideration and get the sale deed executed in his favour. The

appellant, on receipt of the said notice, issued a reply notice

dated 13.10.1997 to the respondent. The respondent also filed

a suit for recovery of possession of the suit property in

O.S.No.95 of 1998. Since the respondent failed to perform his

part of the contract and execute the sale deed in favour of the

appellant, the appellant filed the suit for specific performance

before the Principal Subordinate Judge, Coimbatore.

4. The learned Principal Subordinate Judge, Coimbatore,

rejected the plaint vide his order dated 30.08.2000 by observing

that since the suit is filed after a lapse of nearly 15 years,

it is barred by limitation.

5. Aggrieved over the same, the appellant filed an

appeal in A.S. No.87 of 2004 before the Additional

District Court, Coimbatore. The learned Additional District

Judge, Coimbatore, also dismissed the appeal filed by the

appellant vide his decree and judgment dated 04.08.2006 on the

ground that the suit is barred by limitation as per Article 54

of the Limitation Act.

6. Now the present second appeal is filed by the

appellant on the following substantial questions of law :

i. Whether the courts below are right in rejecting the plaint

even at the threshold on the ground of limitation when the

conduct of the respondent/defendant would clearly reflect

acquiescence and novation of the agreement of sale itself.

ii.Whether the courts below are right in applying the first

limb of Article 54 of the Limitation Act when on facts it

is only the second limb that would apply.

iii.Whether the courts below are right in rejecting the plaint

on the ground of limitation when the same is a mixed

question of law and fact and can be established through

evidence.

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7. Heard Mr. S. Mukunth, learned counsel for the

appellant and Mr.R.T. Doraisamy, learned counsel for the

respondent.

8. The contention of the appellant is that he entered

into a