Limitation Act, 1963 – Art. 54 – Specific performance of
contract – Date from which time runs – Held, either from date fixed for
performance of contract, or if no such date fixed, then from date when
plaintiff has notice that performance is refused – Amendment sought
by vendee in suit seeking relief of specific performance – Amendment
opposed by vendors – Held amounted to notice to vendee that
performance is refused, and therefore limitation period began to run
from date of opposition to said amendment.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.208 of 2013
Smt. Kalawatibai wd/o Champatrao Satpute,
... Versus ...
Prakash s/o Vitthalrao Kondawar,
Citation;2014(3) ALL MR 534
CORAM : PRASANNA B. VARALE, J.
DATE : AUGUST 12, 2013.
By the present second appeal, the appellants are challenging
the judgment and decree passed by the learned District Judge1,
Pandharkawada, dated 11/03/2013.
02]
The brief facts giving rise to the present appeal can be summarized
as follows :
The appellants herein filed suit for specific performance of contract
of sale with an alternative prayer of refund of the earnest money under the
provisions of the Specific Relief Act. The subject matter of the proceedings was
the lands having area 3 acres and 23 gunthas from Survey No.14/1 and 11 acres
17 gunthas from Survey No. 14/2 of village Gaurala, Tahsil Moregaon, District
Yavatmal. It was the case of the plaintiff that the defendants agreed to sale the
suit property to the original plaintiff Champatrao for a total consideration of
Rs.67,000/. On the day of the agreement, plaintiff Champatrao paid Rs.10,000/
towards earnest money. SaleDeed was to be executed on 15/04/1982. It was the
further case of the plaintiff that Rs.30,000/ were to be paid on 31/12/1981 and
as such the original plaintiff paid an amount of Rs.24,000/ in cash and issued
three cheques of Rs.2,000/ each. As it came to the knowledge of the plaintiff
that the defendants were in arrears of Rs.1,651.76 ps. towards charges of the
State Electricity Board and as those charges were not paid, the electricity supply
was disconnected. It also came to the knowledge of the plaintiff that as some
house taxes were also due against the defendants, the plaintiff intimated his bank
for stop of payment. Out of the three cheques issued by the plaintiff, two cheques
were encashed. It was the case of the plaintiff that the balance consideration was
to the tune of Rs.27,000/ and the defendants had agreed to execute the saledeed
on or before 15/04/1992 in discharge of their liability. It was further the case of
the plaintiff that the suit lands were mortgaged by defendants with State Bank of
India and the defendants were having an outstanding liability of Rs.14,000/. The
plaintiff submitted that the defendants agreed to him to clear encumbrances
before execution of the saledeed. The plaintiff called upon the defendants by
issuing notice dated 26/04/1982 to discharge their liabilities. In reply dated
17/01/1983, the defendants agreed to discharge their liability before execution of
the saledeed and asked him to remain present in the Office of SubRegistrar on
09/02/1983. But till 09/02/1983, the defendants failed to discharge their liability.
Again a notice dated 22/04/1986 was issued calling upon the defendants to
discharge their liability, but in spite of an oral assurance, the liability was not
discharged by the defendants. It was further the case of the plaintiff that in the
meantime, it came to the knowledge of the plaintiff that a civil suit namely R.C.S.
No.107/1983 before the learned Civil Judge Junior Division, Wani was decreed
against the defendants and on the basis of the decree, execution petition bearing
No.56/1985 was preferred and in the said execution proceedings the suit fields
were attached. The plaintiff, therefore, filed M.J.C. No.5/1985 raising an
objection. The plaintiff by participating in the proceedings, expressed his
readiness and willingness to purchase the suit property, but the defendants were
reluctant to discharge their liability. The plaintiff had also filed a pursis at Exh.33
in the execution proceedings and called upon the defendants to remain present
before the SubRegistrar, Wani on 28/01/1989 and though the plaintiff by
remaining present there with the stamps of Rs.2,350/, the defendants failed to
execute the saledeed. On these grounds, the suit was filed.
The defendants resisted the claim of the plaintiff by filing their
written statement and counter claim. It was the case of the defendants that the
contract between the parties was for 3 acres and 23 gunthas of land from Survey
No.14/1 with well and a constructed farm house. As per the defendants, the total
land was approximately 15 acres. According to the defendants, the contract was
reduced into writing and finalized on 20/06/1981. The document was named
and styled as 'Visarpurva Chitthi'. On 20/06/1981, the plaintiff paid an amount of
Rs.4,000/ as part of the earnest amount by agreeing to pay Rs.6,000/ by
01/08/2081 towards balance of earnest amount. It was the case of the defendants
that as per the terms agreed upon by the parties, on payment of the balance
amount of Rs.6,000/, the document was to be executed in favour of the plaintiff.
It was further the case of the defendants that plaintiff was to pay Rs.30,000/ on
or before 31/12/2081 and the defendants was to place the plaintiff in “Khas
Possession” of the suit property. Thus it was the case of the defendants that
payment of Rs.30,000/ on or before 31/12/1981 was a condition precedent for
delivery of the property. It was further the case of the defendants that on failure
to pay Rs.30,000/ on or before 31/12/1981, they would be entitled to forfeit the
amount of Rs.10,000/ received from the plaintiff. As per the terms, if the
plaintiff would have paid Rs.30,000/ as agreed initially and further would have
paid an amount of Rs.27,000/ on or before 15/04/1982, the plaintiff would have
been entitled to claim saledeed and registration at his costs. The defendants
submitted that as the plaintiff failed to pay Rs.30,000/ before the stipulated
period i.e. on or before 31/12/1981 and also failed to pay Rs.27,000/ on or
before 15/04/1982, the plaintiff was also liable to pay damages of Rs.10,000/ in
failure to pay the above referred amount, and in failure of the terms by the
plaintiff, the defendant was entitled to be restored in possession of the property.
It was also the case of the defendants that they were to be discharged of
encumbrances at the time of execution of registration of sale. It was the case of
the defendants that as per the terms of contract between the parties, the delivery
of the possession was on complying of the terms of payment of the amount of
Rs.30,000/ on or before 31/12/1981. It was also the case of the defendants that
there occurred a mistake in writing the amount in the written contract between
the parties dated 20/06/1981, the defendants emphasized that as the plaintiff
committed default of the terms of contract namely failure in making payment of
Rs.30,000/ on or before 31/12/1981, a communication as a reminder was issued
to the plaintiff on 13/04/1982 calling upon the plaintiff to pay full consideration
amount and get the saledeed executed. It was the case of the defendants that
though the defendants were present in the office of SubRegistrar on 15/04/1982,
the plaintiff did not turn up and as such the defendant by issuing notice dated
16/04/1982 cancelled the contract and informed the plaintiff about it. It was the
case of the defendants that as the amount due toward M.S.E.B. charges and house
taxes was a partly amount and less than Rs.2000/, the plaintiff ought not to have
made any hue and cry of that amount, but the plaintiff himself was not in a
ig
position to clear the amount as agreed in cash. The plaintiff was neither ready
nor willing to perform his part of contract. As the plaintiff failed to comply with
the terms of the agreement between the parties, the defendants by issuing notice
dated 16/04/1982 rescinded the contract and informed the plaintiff about the
same. The defendants also raised the ground that the suit was barred by
limitation. It was also the case of the defendants that they had concealed the fact
of obtaining loan from State Bank of India by mortgaging one of the fields. It was
also the case of the defendants that the defendants were all along in the
possession of the suit lands and possession was never handed over and delivered
to the plaintiff and on the contrary, the plaintiff tried to take forcible possession.
The defendants thus resisted the claim of the plaintiff and also filed a counter
claim.
03]
Issues were framed by the learned Civil Judge Senior Division. The
learned Civil Judge Senior Division, Pandarkawada arrived at a conclusion that
the suit filed by the plaintiff fails on two grounds namely the suit is hopelessly
time barred and the plaintiff failed to prove his readiness and willingness to
perform his part of contract. Accordingly, the suit was dismissed. The counter
claim of the defendants was allowed and the plaintiff was ordered to handover
the possession of the suit lands within three months.
04]
Feeling dissatisfied with the judgment and order passed by the
learned Civil Judge Senior Division, Pandharkawada, the plaintiff preferred appeal
before the learned District Judge1, Pandharkawade. The appeal was also
dismissed with costs by the judgment and order passed by the learned District
ig
Judge, Pandharkawada. The substantial questions raised by the plaintiff viz. Are
the Courts below erred in non suiting the plaintiff on the ground of limitation, the
Courts below erred in holding that the time was essence of the agreement
between the parties.
The learned Civil Judge Senior Division, Pandharkawada, on remand
05]
of the suit, recasted the earlier issues framed and decided the suit along with
additional issues framed by him. The learned Civil Judge Senior Division on the
material issues, viz. Does plaintiff prove that he was ready and willing to perform
his part of contract ?; Does plaintiff prove that defendants had committed breach
of contract ? and Is plaintiff entitled to relief of specific performance i.e. execution
of sale deed of suit lands ?, arrived at negative findings, whereas on the issue that
Are defendants entitled to counter claim for possession as alleged ?, recorded an
affirmative finding. On the additional issues namely Whether suit is barred by
law of Limitation ?, the learned Civil Judge recorded positive finding, whereas
recorded negative finding on the issue that Whether plaintiff is entitled to refund
of earnest amount and damages ?
Feeling aggrieved by the judgment and order passed by the learned
06]
Civil Judge Senior Division, the plaintiff preferred an appeal before the learned
District Judge. The learned District Judge finding no case for showing any
interference dismissed the appeal, whereas the counter claim was allowed. The
plaintiff, who is the appellant before this Court, has raised the following
substantial questions of law :
That the Courts below erred in nonsuiting the plaintiff on the
(A)
ground that the suit for specific performance was barred by
limitation. In Paragraphs 4 and 5 of the plaint, it was averred by
the plaintiff that the suit fields had been attached in a Civil Suit
that was filed by the State Bank of India against the original
defendants in which suit, the plaintiff had filed pursis on
31/03/1989 expressing willingness to purchase the aforesaid
lands pursuant to agreement dated 01/08/1981. In the written
statement, the defendants admitted contents of aforesaid
paragraphs including the cause of action as pleaded by the
plaintiff. In such a situation, when there was no serious contest
on the aspect of the date when the cause of action arise, the
Courts below could not have ignored the aforesaid pleadings for
nonsuiting the plaintiff on the point of limitation. This
erroneous approach gives rise to a substantial question of law.
(B)
That the Courts below fell in error in holding that time was the
essence of the agreement between the parties. The Courts below
failed to notice that the defendants by issuing notice on
10/01/1983 had extended the time to execute the sale deed by
09/02/1983. Further it was not stated in the subsequent
communications after extension of time that the agreement stood
cancelled at the instance of the defendants. Further, there was no
reply to the notice issued by the plaintiff on 22/04/1986. This
clearly established that time was never the essence of the
ig
contract. Hence on account of nonconsideration of relevant
material on record, the findings recorded on the aspect of time
being an essence of the contract as well as on the issue of
limitation are perverse and same gave rise to another substantial
question of law.
(C)
That, the defendants having admitted the cause of action to have
arisen on 28/04/1989 it was clear that the suit as filed was
within limitation. While refusing the decree for specific
performance, the Courts below failed to consider even the
alternate prayer for refund of the earnest amount and the suit in
its entirety has been wrongly dismissed. Assuming without
admitting that the plaintiff was not entitled for decree for specific
performance, the alternate prayer for refund of earnest money
was not barred by limitation and same ought to have been
considered on its merits. Failure to do so, gives rise to another
substantial question of law.
That, the conduct of the defendants in not disclosing the
(D)
encumbrances that had been created by them in the suit lands
and further reluctance to clear the same has not been considered
by the Courts below. On the other hand, the readiness and
willingness of the plaintiff is quite evident from the record in
view of various steps taken by the plaintiff including participating
in the Darkhast proceedings that had been initiated by the State
Bank of India against the defendants for recovery of amounts.
This aspect clearly proved that the plaintiff was always ready and
willing to perform his part of the agreement while defendants
were guilty of suppression of material facts and nondisclosure of
encumbrances on the suit land.
(E)
That, the Courts below erred in decreeing the counter claim that
was filed by the defendants. On a proper appreciation of the
material on record, it is clear that the suit for specific
performance was required to be decreed and the counter claim
was required to be dismissed.
07]
Learned Counsel Mr. Mirza for the appellants vehemently submitted
that both the Courts have erred in arriving at the conclusion that the claim of the
plaintiffs was time barred i.e. suit filed by the plaintiffs (appellant herein) was
time barred. Mr. Mirza further submitted that the defendants though entered into
an agreement, failed to pay the agreed amount. He further submitted that the
plaintiffs initially were not aware to the fact that the property was mortgaged to
financial institute like Bank and execution proceedings were already pending.
Mr. Mirza further submitted that the appellants were ready and willing to deposit
the amount but for the subsequent disclosure of the mortgage, the plaintiffs/
appellants were slow in performance of the agreement. It was the submission of
Mr. Mirza on the backdrop of the provisions of the Limitation Act that though a
date was fixed in the agreement, the same was extended by action of the parties
and that there was no refusal on the part of the plaintiffs. Mr. Mirza also
submitted that a pursis was filed on record and the learned Courts below failed to
appreciate that the receipt was placed on record submitting that the amount was
paid. Mr. Mirza further submitted that by act of the parties, the parties agreed for
extension of the time for performance of the contract and on the backdrop of such
extension of time, the Courts below ought not to have arrived at a conclusion that
the suit filed by the plaintiffs was barred by limitation. Mr. Mirza, in support of
his submission, placed heavy reliance on the following judgments :
(i)
Nathulal vs. Phoolchand, reported in AIR 1970 SUPREME COURT
546(1).
(ii)
Panchanan Dhara and others vs. Monmatha Nath Maity (dead)
through Lrs. and another, reported in (
2006) 5 SCC 340.
(iii)
Agya Rani Dua vs. Vidyagauri J. Tripathi and another reported in
2007(3) Mh.L.J. 480.
08]
Mr. Mirza also submitted that the appellants are raising certain
additional substantial questions of law as follows :
1. Whether the Courts below were justified in dismissing the suit on
the ground of limitation though in terms of Article 54 of the
Limitation Act, the period prescribed therein shall began from the
date fixed for performance or when the plaintiff has noticed that
performance is refused, admittedly in this matter the date was
extended by the defendant and performance was not refused till
filing of suit ?
2. Whether the learned Courts below were justified in holding that, the
plaintiff is not in legal possession of suit field, though section 53A
of Transfer of Property Act protects possession taken by the
Transferee in part performance of the contract ?
3. Whether the learned Courts below have properly construed the
terms of agreement to sale dated 01/08/1981 and further receipt
dated 30/12/1981 executed on same document (Exh.36) ?
4. Whether the parameters applied by Courts below while shifting the
burden of proving readiness and willingness on the plaintiff is as per
the provisions of Section 55 of the Contract Act that too emerging
the fact of suppression of mortgage of suit field by defendant ?
5. Whether the defendantvendor is guilty of suppression of fact of
mortgage and did not perform his obligation of clearing the
mortgage, can be permitted to take advantage of his own wrong and
then to raise the plea of limitation.
09]
Per contra learned Counsel Mr. Madkholkar for the respondents in
his detailed submissions raised the point namely the appeal is not at all
entertainable as it is lacking any substantial question of law. Mr. Madkholkar
submitted that though the appellant has named and styled the substantial
questions of law initially and also subsequently as the additional substantial
questions of law, none of these can be termed to be a substantial question of law.
Mr. Madkholkar further submitted that these so called substantial questions of law
are only a challenge on the factual aspects, which are already raised before the
learned Civil Judge Senior Division while deciding the suit as well as before the
Appellate Court while deciding the appeal. Mr. Madkholkar also submitted that
the learned Civil Judge Senior Division on appreciation of the oral and
documentary evidence arrived at a conclusion that the suit filed by the plaintiffs
was time barred suit. The learned Civil Judge Senior Division as well as the
Appellate Court further arrived at a conclusion that the plaintiff was not in
possession of the property and as such the judgment and order was passed by
both the Courts below against the plaintiff. Mr. Madkholkar further submitted
that in view of the judgment of the Apex Court, the Second Appeal can be
entertained only when the substantial question of law is raised, whereas in the
present appeal, no substantial question of law is involved and the challenge of the
appellants is only on the factual aspect of the case. Mr. Madkholkar further
submitted that even the plaint filed by the appellants/plaintiffs does not satisfy
the form as required under the provisions of the Code of Civil Procedure and the
requirement as per Form No.47 and Form No.48. In a counter to the submissions
of the learned Counsel Mr. Mirza for the appellants that a pursis was filed to
shows that the time was extended by the act of parties, learned Counsel Mr.
Madkholkar for the respondents submitted that as the pursis finds no place in the
Code, the sanctity of the so called document/pursis is hardly of any substance
and, therefore, filing of the pursis in execution proceedings on behalf of the
appellants/plaintiffs has no barring. Mr. Madkholkar, in support of his
submissions ,placed heavy reliance on the following judgments :
1.
T.L. Muddukrishana and another vs. Smt. Lalitha Rammchandra Rao,
reported in AIR 1997 SC 772.
2.
Venkappa Guruppa Hosur vs. Kasawwa c/o. Rangappa Kulgod
,
reported in AIR 1997 SC 2630.
3.
Shakuntala (Smt) vs. Narayan Gundoji Chavan and others, reported
in (1999) 8 SCC 587.
4.
Manjunath Anandappa Urf. Shivappa Hansi vs. Tammanasa and
others, reported in 2003 AIR SCW 1830.
5.
Pukhraj D. Jain and others vs. Gopalakrishna, reported in (2004) 7
SCC 251.
6.
R.K. Parvatharaj Gupta vs. K.C. Jayadeva Reddy,
reported in (2006) 2
SCC 428.
7.
Gunwantbhai Mulchand Shah and others vs. Anton Elis Farel and
others, reported in (2006) 3 SCC 634.
8.
Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. vs. Bibijan and
others, reported in (2009) 5 SCC 462.
9.
Ram Niwas Gupta vs. Mumtaz Hasan and others,
reported in (2008)
17 SCC 362.
10.
Gurdev Kaur and others vs. Kaki and others,
reported in AIR 2006 SC
10]
1975.
On perusal of the judgment of the learned Civil Judge Senior
Division in R.C.S. No.64/2008, it reveals that the saledeed was to be executed on
15/04/1982 and the parties were expected to remain present in the Office of Sub
Registrar, Wani for execution of saledeed on 15/04/1982. The defendants on
13/04/1982 intimated the plaintiff in advance by issuing a communication to
remain present in the office of SubRegistrar, Wani on 15/04/1982 for execution
of saledeed. Though the defendants were present in the Office of SubRegistrar,
Wani on the given date, the plaintiff did not turn up as such the defendants by
issuing notice terminated the contract and resultantly the saledeed was not
executed. It is interesting to note that the plaintiff has not deposited the receipt
of the notice. On the appreciation of the documents placed on record, the learned
Civil Judge Senior Division found that a notice was issued by the defendants
dated 10/01/1983 about extension of time to 09/02/1983 for execution of sale
deed. The notice was replied by the plaintiff. The ground raised by the plaintiff
that he had purchased some stamp paper on 0`9/02/1983, and as such he was
present on the given date was not accepted by the learned Civil Judge Senior
Division on the ground that merely because some stamps purchased on that date
would not lead to a conclusion that the plaintiff was present in the office of the
SubRegistrar. In my opinion, no fault can be found with the view taken by the
learned Civil Judge Senior Division. Though in explanation, it was tried to be
offered by the plaintiff for not performance of the contract on his part because of
a belated disclosure of the mortgage of the property, both the Courts i.e. the
learned Civil Judge Senior Division as well as the Appellant Court, found that the
explanation offered by the plaintiff is neither convincing nor acceptable. The
learned Civil Judge Senior Division on appreciation of the evidence arrived at a
conclusion that the fact that there were certain dues towards M.S.E.B. and house
taxes, the property was mortgaged to the bank was made known to the plaintiff
and as such there was neither misleading nor concealing at the hands of the
The learned Civil Judge Senior Division on appreciation of the
12]
defendants.
evidence found that the possession of the property was never delivered to the
plaintiff and it was with the defendants. Thus, on the factual aspects, on the
backdrop of the oral evidence as well as documentary evidence, both the Courts
found no favour with the case of the plaintiff. Though it was an attempt of
learned Counsel Mr. Mirza for the appellants to submit that as the time was
extended by the act of the parties, the conclusion arrived at by the Courts below
that the suit was time barred is an erroneous conclusion, I am unable to accept
the submission of the learned Counsel Mr. Mirza.
13]
Mr. Madkholkar, learned Counsel for the defendants has made
available the copy of plaint for my perusal. On perusal of the copy of plaint, I find
considerable merit in the submissions of the learned Counsel Mr. Madkholkar that
the plaint fails to satisfy the necessary requirement. Mr. Madkholkar submitted
that though it is stated in the plaint that the defendants did not discharge their
liability till 09/02/1983 and the plaintiff issued notice on 22/04/1986 upon the
defendants and asked them to perform their part of contract. Mr. Madkholkar
further submitted that the plaintiff has kept a convenience silence about his part
for the period from 1983 to 1986. Mr. Madkholkar further submitted on the
backdrop of the fact of the case that the suit filed by the plaintiff itself was barred
by limitation. Mr. Madkholkar also submitted that as the time was essence of the
contract and the plaintiff failed to show his readiness and willingness to perform
the contract, the ultimate result was that the suit was dismissed on account of
these two grounds. Mr. Madkholkar also submitted that as no error can be found
either in appreciation of the evidence or in the conclusion arrived at by the
learned Civil Judge Senior Division as well as the learned Appellate Court, the
appeal is wholly meritless and deserves to be dismissed. Mr. Madkholkar also
submitted that as the plaintiff miserably failed to prove that the suit was within
limitation in absence of the specific pleadings in the suit, his attempt for raising
additional substantial grounds of law, which would lead to an amendment, either
is not sustainable nor acceptable.
14]
Mr. Madkholkar, in support of his submissions, placed heavy reliance
on the judgment of the Apex Court in the case of T.L. Muddukrishana and another
vs. Smt. Lalitha Rammchandra Rao, reported in AIR 1997 SC 772. As the
defendants was successful in establishing his case that the suit filed by the
plaintiff was barred by limitation, it will be necessary to consider the judgment
relied by the learned Counsel Mr. Madkholkar for the defendants in support of his
submissions. Mr. Madkholkar, in support of his submission, has also placed
reliance on the judgment of the Apex Court in case of Venkappa Guruppa Hosur vs.
Kasawwa c/o. Rangappa Kulgod, reported in AIR 1997 SC 2630, wherein it has
been held that, “it could be seen that the suit document itself was denied as early as
in 1960. As a consequence, mere issuance of notice dated August 22, 1972 does not
stop the running of limitation period. Once the same has began to run, it runs its
full course. Therefore, the suit having been filed after the expiry of 3 years from the
date of the knowledge of denial, by operation of Article 54 of the Schedule to the
Limitation Act, 1963, the suit is hopelessly barred by limitation. The High Court,
therefore, is right in dismissing the suit in the second appeal”. The facts of the
present case are nearly identical and as such the learned Counsel Mr. Madkholkar
was justified in placing reliance on those judgments in support of his submission.
Similar is the case in the judgment of the Apex Court in the case of Shakuntala
(Smt) vs. Narayan Gundoji Chavan and others, reported in (1999) 8 SCC 587. The
issue is also dealt in detail in the judgment of the Apex Court in the case of
Manjunath Anandappa Urf. Shivappa Hansi vs. Tammanasa and others, reported in
2003 AIR SCW 1830, wherein the the Apex Court observed thus :
12.
The basic fact of the matter is not in dispute. The agreement
was entered into on or about 1.10.1978. Apart from the vague
statements made in Paragraph 6 of the plaint as noticed hereinbefore,
the plaintiff has not placed any material on record to show that at any
point of time and far less within a period of 3 years from the date of
the said agreement, he ever asked Defendant No. 1 to execute a deed of
sale in his favour or tendered the balance amount of consideration to
her. The plaintiff admittedly served a notice dated 8.8.1984 upon the
Defendant No. 2 alone, that is much after the expiry of the said period
of 3 years. He, only upon having come to learn that Defendant No. 1
had transferred the property in suit in favour of the appellant herein,
filed the suit. Admittedly the Defendant No. 1 did not receive any
notice.
Section 16(c) of the Specific Relief Act reads thus:
13.
"Specific performance of a Contract cannot be enforced in favour of a
person, who fails to aver and prove that he has performed or has
always been ready and willing to perform the essential terms of the
contract which are to be performed by him, other than terms of the
performance of which has been prevented or waived by the defendant."
15.
Forms 47 and 48 of the Appendix A of the Code of Civil
Procedure prescribe the manner in which such averments are required
to be made by the plaintiff. Indisputably, the plaintiff has not made
any averment to that effect. He, as noticed hereinbefore, merely
contended that he called upon defendant No. 2 to bring defendant No.
1 to execute a registered sale deed. Apart from the fact that the date of
the purported demand has not been disclosed, admittedly no such
demand was made upon defendant No. 1. We may notice, at this
juncture, that the plaintiff in his evidence admitted that defendant No.
1 had revoked the power of attorney granted in favour of defendant
No. 2. In his deposition, he merely stated that such revocation took
place after the agreement for sale was executed. If he was aware of the
fact that the power of attorney executed in favour of defendant No. 2
was revoked, the question of any demand by him upon the defendant
No. 2 to bring the defendant No. 1 for execution of the agreement for
sale would not arise at all. Furthermore, indisputably the said power
of attorney was not a registered one. Defendant No. 2, therefore, could
not execute a registered deed of sale in his favour. The demand, if any,
for execution of the deed of sale in terms of the agreement of sale could
have been, thus, made only upon the Defendant No. 1, the owner of
the property. The balance consideration of Rs.10,000/ also could have
tendered only to Defendant No. 1. As indicated hereinbefore, the
purported notice was issued only on 8.8.1984, that is, much after the
expiry of period of three years, within which the agreement of sale was
required to be acted upon.
30.
There is another aspect of the matter which cannot be lost sight
of. The plaintiff filed the suit almost after six years from the date of
entering into the agreement to sell. He did not bring any material on
records to show that he had ever asked defendant No. 1, the owner of
the property, to execute a deed of sale. He filed a suit only after he
came to know that the suit land had already been sold by her in favour
of the appellant herein. Furthermore, it was obligatory on the part of
the plaintiff for obtaining a discretionary relief having regard to
Section 20 of the Act to approach the court within a reasonable time.
Having regard to his conduct, the plaintiff was not entitled to a
15]
discretionary relief.
Thus Mr. Madkhodkar also justified in his submission in respect of
the suit filed by the plaintiff being time barred and also missing the requirement
of the Code under Form Nos. 47 and 48. The Apex Court also in the case of
Pukhraj D. Jain and others vs. Gopalakrishna, reported in (2004) 7 SCC 251 held
“C.
thus :
Limitation Act, 1963 – Art. 54 – Specific performance of
contract – Date from which time runs – Held, either from date fixed for
performance of contract, or if no such date fixed, then from date when
plaintiff has notice that performance is refused – Amendment sought
by vendee in suit seeking relief of specific performance – Amendment
opposed by vendors – Held amounted to notice to vendee that
performance is refused, and therefore limitation period began to run
from date of opposition to said amendment.”
The facts of this case are identical and as such the judgment of the
Apex Court in the case of R.K. Parvatharaj Gupta vs. K.C. Jayadeva Reddy, reported
in (2006) 2 SCC 428 is applicable to the present case, as relied by the learned
Counsel Mr. Molkhodkar.
16]
Learned Counsel Mr. Madkholkar also placed reliance on the
judgment of the Apex Court in the case of Ahmadsahab Abdul Mulla (2) (dead) by
proposed Lrs. vs. Bibijan and others, reported in (2009) 5 SCC 462. He was right in
submitting that the controversy, if any, is set at restby the Apex Court in case of
Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. vs. Bibijan and others,
reported in (2009) 5 SCC 462, the Apex Court, on the backdrop of the earlier
judgments and the word “date”, arrived at a conclusion, which is reflected in
Paras 9, 10, 11, and 12. Learned Counsel Mr. Madkholkar also placed reliance on
the judgment of the Apex Court in the case of Gurdev Kaur and others vs. Kaki and
others, reported in AIR 2006 SC 1975 in support of his submission relating to the
scope of Section 100 of the Code, wherein the Apex Court observed that, the High
Court would have jurisdiction of interfering under S.100, C.P
.C. only in a case where
substantial questions of law are involved and those questions have been clearly
formulated in the memorandum of appeal. It is further observed that it must be
clearly understood that the legislative intention was very clear that legislature never
wanted second appeal to become 'third trial on facts' or 'one more dice in the gamble'
The Apex Court also observed in Para 69 thus :
“Now, after 1976 Amendment, the scope of Section 100 has
been drastically curtailed and narrowed down. The High Courts would
have jurisdiction of interfering under Section 100 C.P
.C. only in a case
where substantial questions of law are involved and those questions
have been clearly formulated in the memorandum of appeal. At the
time of admission of the second appeal, it is the bounden duty and
obligation of the High Court to formulate substantial questions of law
and then only the High Court is permitted to proceed with the case to
decide those questions of law. The language used in the amended
section specifically incorporates the words as "substantial question of
law" which is indicative of the legislative intention. It must be clearly
understood that the legislative intention was very clear that legislature
never wanted second appeal to become "third trial on facts" or "one
more dice in the gamble". The effect of the amendment mainly,
The High Court would be justified in admitting the second appeal
ig
(i)
according to the amended section, was:
only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial
question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on
that question.
17]
Thus on appreciation of the judgment and order passed by the
learned Civil Judge Senior Division and the Appellate Court on the backdrop of
the submission of the learned Counsel Mr. Madkholkar and the judgments of the
Apex Court, in my opinion, the present appeal is devoid of merit. The appellants
have miserably failed to raise any substantial question of law. The appeal thus
being wholly meritless, no indulgence is warranted.
In the result, the appeal is dismissed.
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