The fact that the plaintiffs were put in possession of the
property agreed to be sold on the date of agreement itself
would not make any difference with regard to the limitation of
filing the suit for specific performance. In fact both the courts
below have rightly held that Article 54 of the Limitation Act
does not make any difference between a case where
possession of the property has been delivered in part
performance of the agreement or otherwise. In the same way
the courts below have also concurrently held even if any
permission is to be obtained prior to the
performance/completion of the contract, the mere fact that
the defendants have not obtained the said permission would
not lead to inference that no cause of action for filing the suit
for specific performance would arise. Further it is also not
the case for postponing the performance to a future date
without fixing any further date for performance. The last
extension for a period of six months w.e.f. 1.8.1976 sought for
by the defendants expired on 1.2.1977. The present suit
seeking for specific performance was filed by the plaintiffs on
29.4.1994, much beyond the period of three years.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 3912 OF 2015
[Arising out of Special Leave Petition (Civil) No.35686 of 2013]
Fatehji & Company & Anr. .. Appellants
-vsL.M.
Nagpal & Ors. .. Respondents
Citation;2016(2) MHLJ389
C. NAGAPPAN, J.
1. Leave granted.
2. This appeal is preferred against the judgment and order dated
19.7.2013 in R.F.A. no.350 of 1997 passed by the High Court
of Delhi in which the High Court allowed the Appeal by setting
aside the order dated 7.8.1997 of the Court of Additional
District Judge, Delhi rejecting the plaint in Suit no.87 of
1994.
3. Briefly the facts are as follows : The perpetual lease hold righ
in respect of the suit land as vacant plot was granted in
favour of original lessee Col. A.N. Kapur by registered lease
deed dated 16.4.1962 by the Government of India and he
built two storied building with barsati and he sold his rights
in the said property to the first defendant-Firm by registered
sale deed dated 6.5.1963. The first defendant entered into a
written agreement of sale dated 2.7.1973 in respect of the suit
property with Smt. Ram Pyari. As per the terms of the
agreement the possession of the suit property including the
building was handed over to Smt. Ram Pyari Nagpal on the
date of agreement itself. The date for execution of the sale
deed was fixed for 2.12.1973. Extension of time for execution
of sale deed on the plea of obtaining permission to sell the
property from the lessor was sought by the defendants by way
of letters and the last of such extension was sought for six
months w.e.f. August 1976. The sons of second defendant in
July 1985 filed a suit seeking for declaration that the suit
property is joint family property and the sale made by
defendants in favour of plaintiffs be declared as null and void,
was filed against defendants 2, 3 and the plaintiffs and on
contest the same was dismissed on 5.4.1989. According to
the plaintiffs the final cause of action accrued and arose after
August 1991 when the defendants began hiding themselves
and avoiding the plaintiffs and they filed the suit on
29.4.1994 seeking for a decree for specific performance of the
agreement of sale dated 2.7.1973 against the defendants.
4. The defendants 1 to 3 filed an application under Order VII
Rule 11 CPC on 10.10.1996 seeking for rejection of the plaint
as barred by the law of limitation. The Trial Court after
hearing both sides by a speaking order held that the suit is
patently barred by the law of limitation and allowed the
application by rejecting the plaint. The plaintiffs preferred
appeal in RFA no.350 of 1997 and the High Court by the
impugned judgment allowed the appeal by setting aside the
order of the Trial Court and restored the suit to file. Aggrieved
by the same the defendants have preferred the present
appeal. For the sake of convenience, the parties are
hereinafter referred to as they were arrayed in this suit.
5. The learned senior counsel appearing for the
appellants/defendants submitted that the suit patently
appears to be barred by law of limitation by looking at the
plaint averments and the High Court committed manifest
error in arriving at a finding that the suit has to be tried. He
relied on the decisions of this Court in Ahmadsahab Abdul
Mulla (2)(Dead) by proposed Lrs. vs. Bibijan and ors.
(2009)5 SCC 462 and Church of Christ Charitable Trust
and Educational Charitable Society represented by its
Chairman vs. Ponniamman Educational Trust represented
by its Chairperson/Managing Trustee (2012) 8 SCC 706.
Per contra the learned counsel appearing for the respondents
contended that although the agreement of sale dated 2.7.1973
had a fixed date for performance, the defendants by
subsequent letters sought for extension for obtaining
permission of lessor viz. Land & Development Office (L&DO)
and the said permission was not taken till now and the High
Court has rightly dismissed the claim for rejection of plaint.
He relied on three decisions of this Court in S. Brahmanand
and ors. vs. K.R. Muthugopal (Dead) and ors. (2005) 12 SCC
764, Panchanan Dhara and ors. vs. Monmatha Nath Maity
(Dead) through Lrs. and anr. (2006) 5 SCC 340 and Niranjan
Kumar and ors. vs. Dhyan Singh and anr. (1976) 4 SCC 89.
6. We considered the rival submissions. The specific
performance is claimed of a written agreement of sale dated
2.7.1973 and as per the terms the performance of the contract
was fixed till 2.12.1973. The defendants by subsequent
letters dated 7.4.1975, 1.10.1975 and 1.8.1976 sought for
extension of time to enable them to obtain permission of
lessor and the last extension of six months expired on
1.2.1977. In view of Order VII Rule 11(a) and 11(d) the Court
has to satisfy that the plaint discloses a cause of action and
does not appear to be barred by any law. Article 54 of the
Limitation Act stipulates that the limitation for filing the suit
for specific performance of the contract is three years from the
date fixed for the performance or if no such date is fixed,
when the plaintiff has noticed that performance is refused.
7. The fact that the plaintiffs were put in possession of the
property agreed to be sold on the date of agreement itself
would not make any difference with regard to the limitation of
filing the suit for specific performance. In fact both the courts
below have rightly held that Article 54 of the Limitation Act
does not make any difference between a case where
possession of the property has been delivered in part
performance of the agreement or otherwise. In the same way
the courts below have also concurrently held even if any
permission is to be obtained prior to the
performance/completion of the contract, the mere fact that
the defendants have not obtained the said permission would
not lead to inference that no cause of action for filing the suit
for specific performance would arise. Further it is also not
the case for postponing the performance to a future date
without fixing any further date for performance. The last
extension for a period of six months w.e.f. 1.8.1976 sought for
by the defendants expired on 1.2.1977. The present suit
seeking for specific performance was filed by the plaintiffs on
29.4.1994, much beyond the period of three years.
8. Yet another circumstance was pointed out to prove the laches
on the part of the plaintiffs. The sons of the second
defendant filed a suit in July 1985 against defendants 2, 3
and the plaintiffs seeking for declaration that the present suit
property is their ancestral joint family property and the sale
made by the defendants in favour of the plaintiffs be declared
as null and void. The plaintiffs herein contested the said suit
and it came to be dismissed on 5.4.1989. The suit for specific
performance was not filed within three years from the said
date also.
9. The plaintiffs averred in the plaint that the last and final
cause of action accrued and arose to them after August 1991
when the defendants succeeded in hiding themselves and
started avoiding the plaintiffs and the cause of action being
recurring and continuous one, they filed the suit on
29.4.1994. As already seen the original cause of action
became available to the plaintiffs on 2.12.1973, the date fixed
for the performance of the contract and thereafter the same
stood extended till 1.2.1977 as requested by the defendants.
Though the plaintiffs claimed that oral extension of time was
given, no particulars as to when and how long, were not
mentioned in the plaint. On the other hand even after
knowing the dishonest intention of the sons of the second
defendant with regard to the suit property in the year1985,
the plaintiffs did not file the suit immediately. The suit
having been filed in the year 1994 is barred by limitation
under Article 54 of the Limitation Act.
10.We are of the view that the High Court committed manifest
error in reversing the well considered order of the Trial Court
rejecting the plaint as barred by the law of limitation and the
impugned judgment is liable to be set aside. In the result,
the appeal is allowed and the impugned judgment of the High
Court is set aside and the order of the Trial Court is restored.
No costs.
…………………………….J.
(V. Gopala Gowda)
…………………………….J.
(C. Nagappan)
New Delhi;
April 24, 2015
Print Page
property agreed to be sold on the date of agreement itself
would not make any difference with regard to the limitation of
filing the suit for specific performance. In fact both the courts
below have rightly held that Article 54 of the Limitation Act
does not make any difference between a case where
possession of the property has been delivered in part
performance of the agreement or otherwise. In the same way
the courts below have also concurrently held even if any
permission is to be obtained prior to the
performance/completion of the contract, the mere fact that
the defendants have not obtained the said permission would
not lead to inference that no cause of action for filing the suit
for specific performance would arise. Further it is also not
the case for postponing the performance to a future date
without fixing any further date for performance. The last
extension for a period of six months w.e.f. 1.8.1976 sought for
by the defendants expired on 1.2.1977. The present suit
seeking for specific performance was filed by the plaintiffs on
29.4.1994, much beyond the period of three years.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 3912 OF 2015
[Arising out of Special Leave Petition (Civil) No.35686 of 2013]
Fatehji & Company & Anr. .. Appellants
-vsL.M.
Nagpal & Ors. .. Respondents
Citation;2016(2) MHLJ389
C. NAGAPPAN, J.
1. Leave granted.
2. This appeal is preferred against the judgment and order dated
19.7.2013 in R.F.A. no.350 of 1997 passed by the High Court
of Delhi in which the High Court allowed the Appeal by setting
aside the order dated 7.8.1997 of the Court of Additional
District Judge, Delhi rejecting the plaint in Suit no.87 of
1994.
3. Briefly the facts are as follows : The perpetual lease hold righ
in respect of the suit land as vacant plot was granted in
favour of original lessee Col. A.N. Kapur by registered lease
deed dated 16.4.1962 by the Government of India and he
built two storied building with barsati and he sold his rights
in the said property to the first defendant-Firm by registered
sale deed dated 6.5.1963. The first defendant entered into a
written agreement of sale dated 2.7.1973 in respect of the suit
property with Smt. Ram Pyari. As per the terms of the
agreement the possession of the suit property including the
building was handed over to Smt. Ram Pyari Nagpal on the
date of agreement itself. The date for execution of the sale
deed was fixed for 2.12.1973. Extension of time for execution
of sale deed on the plea of obtaining permission to sell the
property from the lessor was sought by the defendants by way
of letters and the last of such extension was sought for six
months w.e.f. August 1976. The sons of second defendant in
July 1985 filed a suit seeking for declaration that the suit
property is joint family property and the sale made by
defendants in favour of plaintiffs be declared as null and void,
was filed against defendants 2, 3 and the plaintiffs and on
contest the same was dismissed on 5.4.1989. According to
the plaintiffs the final cause of action accrued and arose after
August 1991 when the defendants began hiding themselves
and avoiding the plaintiffs and they filed the suit on
29.4.1994 seeking for a decree for specific performance of the
agreement of sale dated 2.7.1973 against the defendants.
4. The defendants 1 to 3 filed an application under Order VII
Rule 11 CPC on 10.10.1996 seeking for rejection of the plaint
as barred by the law of limitation. The Trial Court after
hearing both sides by a speaking order held that the suit is
patently barred by the law of limitation and allowed the
application by rejecting the plaint. The plaintiffs preferred
appeal in RFA no.350 of 1997 and the High Court by the
impugned judgment allowed the appeal by setting aside the
order of the Trial Court and restored the suit to file. Aggrieved
by the same the defendants have preferred the present
appeal. For the sake of convenience, the parties are
hereinafter referred to as they were arrayed in this suit.
5. The learned senior counsel appearing for the
appellants/defendants submitted that the suit patently
appears to be barred by law of limitation by looking at the
plaint averments and the High Court committed manifest
error in arriving at a finding that the suit has to be tried. He
relied on the decisions of this Court in Ahmadsahab Abdul
Mulla (2)(Dead) by proposed Lrs. vs. Bibijan and ors.
(2009)5 SCC 462 and Church of Christ Charitable Trust
and Educational Charitable Society represented by its
Chairman vs. Ponniamman Educational Trust represented
by its Chairperson/Managing Trustee (2012) 8 SCC 706.
Per contra the learned counsel appearing for the respondents
contended that although the agreement of sale dated 2.7.1973
had a fixed date for performance, the defendants by
subsequent letters sought for extension for obtaining
permission of lessor viz. Land & Development Office (L&DO)
and the said permission was not taken till now and the High
Court has rightly dismissed the claim for rejection of plaint.
He relied on three decisions of this Court in S. Brahmanand
and ors. vs. K.R. Muthugopal (Dead) and ors. (2005) 12 SCC
764, Panchanan Dhara and ors. vs. Monmatha Nath Maity
(Dead) through Lrs. and anr. (2006) 5 SCC 340 and Niranjan
Kumar and ors. vs. Dhyan Singh and anr. (1976) 4 SCC 89.
6. We considered the rival submissions. The specific
performance is claimed of a written agreement of sale dated
2.7.1973 and as per the terms the performance of the contract
was fixed till 2.12.1973. The defendants by subsequent
letters dated 7.4.1975, 1.10.1975 and 1.8.1976 sought for
extension of time to enable them to obtain permission of
lessor and the last extension of six months expired on
1.2.1977. In view of Order VII Rule 11(a) and 11(d) the Court
has to satisfy that the plaint discloses a cause of action and
does not appear to be barred by any law. Article 54 of the
Limitation Act stipulates that the limitation for filing the suit
for specific performance of the contract is three years from the
date fixed for the performance or if no such date is fixed,
when the plaintiff has noticed that performance is refused.
7. The fact that the plaintiffs were put in possession of the
property agreed to be sold on the date of agreement itself
would not make any difference with regard to the limitation of
filing the suit for specific performance. In fact both the courts
below have rightly held that Article 54 of the Limitation Act
does not make any difference between a case where
possession of the property has been delivered in part
performance of the agreement or otherwise. In the same way
the courts below have also concurrently held even if any
permission is to be obtained prior to the
performance/completion of the contract, the mere fact that
the defendants have not obtained the said permission would
not lead to inference that no cause of action for filing the suit
for specific performance would arise. Further it is also not
the case for postponing the performance to a future date
without fixing any further date for performance. The last
extension for a period of six months w.e.f. 1.8.1976 sought for
by the defendants expired on 1.2.1977. The present suit
seeking for specific performance was filed by the plaintiffs on
29.4.1994, much beyond the period of three years.
8. Yet another circumstance was pointed out to prove the laches
on the part of the plaintiffs. The sons of the second
defendant filed a suit in July 1985 against defendants 2, 3
and the plaintiffs seeking for declaration that the present suit
property is their ancestral joint family property and the sale
made by the defendants in favour of the plaintiffs be declared
as null and void. The plaintiffs herein contested the said suit
and it came to be dismissed on 5.4.1989. The suit for specific
performance was not filed within three years from the said
date also.
9. The plaintiffs averred in the plaint that the last and final
cause of action accrued and arose to them after August 1991
when the defendants succeeded in hiding themselves and
started avoiding the plaintiffs and the cause of action being
recurring and continuous one, they filed the suit on
29.4.1994. As already seen the original cause of action
became available to the plaintiffs on 2.12.1973, the date fixed
for the performance of the contract and thereafter the same
stood extended till 1.2.1977 as requested by the defendants.
Though the plaintiffs claimed that oral extension of time was
given, no particulars as to when and how long, were not
mentioned in the plaint. On the other hand even after
knowing the dishonest intention of the sons of the second
defendant with regard to the suit property in the year1985,
the plaintiffs did not file the suit immediately. The suit
having been filed in the year 1994 is barred by limitation
under Article 54 of the Limitation Act.
10.We are of the view that the High Court committed manifest
error in reversing the well considered order of the Trial Court
rejecting the plaint as barred by the law of limitation and the
impugned judgment is liable to be set aside. In the result,
the appeal is allowed and the impugned judgment of the High
Court is set aside and the order of the Trial Court is restored.
No costs.
…………………………….J.
(V. Gopala Gowda)
…………………………….J.
(C. Nagappan)
New Delhi;
April 24, 2015
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