Learned Counsel for the Review Petitioners submits that it is the duty of every court to frame an issue of limitation whether or not the defendant raises it. That is not quite correct. Section 3 of Limitation Act requires the court to dismiss every suit instituted after the prescribed period of limitation, whether or not limitation has been set up as a defence. What this means is that wherever the pleadings of the plaintiff or evidence before the court show that the suit is barred by limitation, it is the duty of the court to dismiss the suit; the defendant need not raise any express plea of limitation. That, however, does not imply that whenever the question of limitation raises issues of facts, the defendant can, without joining issue with the facts stated in the plaint, require the court to frame and decide the issue of limitation. The question of limitation is ordinarily a mixed question of law and facts. When the question is purely of law, capable of determination on the facts admitted or proved before the court, the court is bound to raise the question suo motu and decide it. But where it raises issues of facts not arising from the plaint alone, the defendant must raise such question in his written statement by pleading the requisite facts. Even for an issue of facts or mixed issue of law and facts to arise on the plaint, there must be a denial in the written statement. That is the mandate of Order 8 Rule 2 and Order 14 Rule 1 of the Code of Civil Procedure. The defendant must raise by his pleading all matters which show the suit not to be maintainable including all grounds of defence, which, if not raised, would be likely to take the opponent by surprise, or would raise issues of fact not arising out of plaint. These would, in terms, include matters of limitation. As for the plaintiffs case he must admit or deny the same. The plaintiffs case, in our matter, was that the defendants had denied or refused performance of the contract (which is the starting point of limitation) only in February 2001. If it was the defendants' case that denial of performance came at any earlier point of time, it was for them to make a necessary pleading in that behalf. Only in that case the question of limitation would arise for consideration. Without such pleading, that is to say, without their having joined issues with the plaintiff, in the face of the plaintiffs expressly pleaded time of denial of performance, the courts below had no duty to frame an issue of limitation and consider it. None of the courts below has, accordingly, erred in not having framed or decided the issue of limitation.
IN THE HIGH COURT OF BOMBAY
Review Petition No. 4 of 2019 in Second Appeal No. 665 of 2016
Decided On: 18.03.2019
Chandrabhaga Ananda Kudle Vs. Proposed Sanjay Sahakari Grah Nirman Sanstha Maryadit, Sangli and Ors.
Hon'ble Judges/Coram:
S.C. Gupte, J.
Citation: 2019(6) MHLJ 182
1. Heard learned Counsel for the Review Petitioners. This petition seeks review of an order passed by this Court in a second appeal.
2. The suit was filed by Respondent No. 1 herein as a chief promoter of a proposed co-op. housing society. It was his case that he had entered into an agreement for purchase of the suit property with one Piraji Kudle, who was a predecessor-in-title of the Review Petitioners. By this agreement, Piraji had agreed to sell the property to the Respondent for the use of a society then proposed for a sum of Rs. 15,000/-. Piraji died before the sale could be completed. It was the Respondent's case that in spite of his readiness and willingness to perform his part of the contract by payment of the balance consideration to Piraji's legal heirs, who were the appellants in the second appeal, and who are the Review Petitioners before this Court, the latter had refused to complete the sale and, as a result, the present suit was filed by him seeking specific performance of the agreement for sale dated 12 August 1981. The suit was dismissed by the trial Court on the ground that the proposed society was not a legal entity and, as such, had no locus to file the suit. When the matter was carried before the first appellate Court, the findings of the trial court on the capacity of the appellants to file the suit were reversed by the appellate Court. The Court held in favour of Respondent No. 1 on his locus to file the suit. The matter was then carried before this Court by the Review Petitioners herein in the present second appeal. The appreciation of law on the point of locus by the lower appellate court was found to be unexceptionable by this Court. This Court held that merely because in the cause title of the suit, the name of the proposed society was shown as someone, on whose behalf the promoter had filed the present suit, it could not be said that the suit was filed by an unincorporated association of persons. The judgments cited by the appellants for challenging the impugned order of the first appellate Court were duly considered by this Court and the second appeal was dismissed.
3. Learned Counsel for the Review Petitioners makes two submissions. Firstly, it is submitted that this Court has committed an error in accepting the District Court's decision on locus. It is submitted that none of the other proposed members of the society, on whose behalf the suit was filed, were before the Court and there was no leave sought under Order 1 Rule 8 of the Code of Civil Procedure for filing of the suit on their behalf. The review jurisdiction of this Court cannot be invoked for re-hearing of the matter. The Review Petitioners have not shown any new or important matter or evidence, which, despite due exercise of diligence was not within their knowledge or which could not be produced by them when the original order was passed. So also, there is neither any error apparent on record nor any sufficient reason within the meaning of Order 47 Rule 1 of the Code of Civil Procedure for seeking review of the order dated 3 February 2017. The question of the Respondent's locus in filing the suit was duly debated before, and answered by, this Court after considering the judgments cited at the Bar and no case is made out for taking a different view of the matter in its review jurisdiction.
4. Learned Counsel, secondly, submits that both courts below erred in not framing an issue of limitation. Learned Counsel submits that ex-facie the suit was barred by limitation, since, admittedly, the agreement for sale, of which specific performance was sought by Respondent No. 1, was dated 12 August 1981, whereas the suit was filed in the year 2001. There is no merit in the submission. Respondent No. 1 went before the Court with a specific plea that the legal heirs of deceased Piraji had never refused to perform the suit agreement for sale; the suit agreement was not performed because of the pendency of their application for permission under Maharashtra Land Revenue Code for completing the sale; they had never denied or refused performance of the suit agreement. The plaint was on the footing that on 12 February 2001, Respondent No. 1 came to know of the construction being made on the suit property by a third party with permission from the Review Petitioners, which he treated as denial or refusal of performance. (The construction was being made by Respondent No. 4 to the Review Petition.) Accordingly, the cause of action was claimed to have accrued in favour of Respondent No. 1 in February 2001, whereafter the suit was filed. The plea of Respondent No. 1 on accrual of his cause of action is a plea of facts. The Review Petitioners could not have required the Courts below to frame an issue of limitation on this plea without having joined issue with it; they ought to have contested the case of Respondent No. 1 on the time of accrual of his cause of action as a matter of fact. The Review Petitioners never filed their written statement in the suit or contested the case of Respondent No. 1 on facts.
5. Learned Counsel for the Review Petitioners submits that it is the duty of every court to frame an issue of limitation whether or not the defendant raises it. That is not quite correct. Section 3 of Limitation Act requires the court to dismiss every suit instituted after the prescribed period of limitation, whether or not limitation has been set up as a defence. What this means is that wherever the pleadings of the plaintiff or evidence before the court show that the suit is barred by limitation, it is the duty of the court to dismiss the suit; the defendant need not raise any express plea of limitation. That, however, does not imply that whenever the question of limitation raises issues of facts, the defendant can, without joining issue with the facts stated in the plaint, require the court to frame and decide the issue of limitation. The question of limitation is ordinarily a mixed question of law and facts. When the question is purely of law, capable of determination on the facts admitted or proved before the court, the court is bound to raise the question suo motu and decide it. But where it raises issues of facts not arising from the plaint alone, the defendant must raise such question in his written statement by pleading the requisite facts. Even for an issue of facts or mixed issue of law and facts to arise on the plaint, there must be a denial in the written statement. That is the mandate of Order 8 Rule 2 and Order 14 Rule 1 of the Code of Civil Procedure. The defendant must raise by his pleading all matters which show the suit not to be maintainable including all grounds of defence, which, if not raised, would be likely to take the opponent by surprise, or would raise issues of fact not arising out of plaint. These would, in terms, include matters of limitation. As for the plaintiffs case he must admit or deny the same. The plaintiffs case, in our matter, was that the defendants had denied or refused performance of the contract (which is the starting point of limitation) only in February 2001. If it was the defendants' case that denial of performance came at any earlier point of time, it was for them to make a necessary pleading in that behalf. Only in that case the question of limitation would arise for consideration. Without such pleading, that is to say, without their having joined issues with the plaintiff, in the face of the plaintiffs expressly pleaded time of denial of performance, the courts below had no duty to frame an issue of limitation and consider it. None of the courts below has, accordingly, erred in not having framed or decided the issue of limitation.
6. Learned Counsel for the Review Petitioners submits that Respondent No. 1 had earlier filed a suit in respect of the same land seeking a perpetual injunction but had withdrawn the same in 1987 on account of technical defects; such withdrawal was with liberty to file a separate suit. It submitted that the cause of action had, thus, arisen and a separate suit had to be filed within three years thereafter. Filing of an injunction suit, however, does not imply that the plaintiffs cause of action for filing of the specific performance suit herein had already arisen concurrently with the cause of action in the injunction suit. The injunction suit was on the footing that the defendants were acting contrary to the terms of the suit agreement for sale and that they should, in the premises, be restrained from so acting. A specific performance suit such as the present, on the other hand, is on the footing that the defendants have refused to perform the suit agreement for sale and not that they are acting contrary to such agreement. Every act of the defendant contrary to the agreement for sale need not be viewed as an act of refusal on his part to perform the agreement for sale. In this particular case, as noted above, the plaintiff went to the court with a specific case that the defendants had all the time indicated that they were willing to perform the suit agreement for sale but that only in February 2001, when the construction by a third party was noticed by the plaintiff, the defendants for the first time denied or refused performance of the suit agreement for sale and that is how the cause of action to file a specific performance suit had accrued in favour of the plaintiff.
7. There is, accordingly, no merit in the review petition. The petition is dismissed.
8. In view of the dismissal of the review petition, Civil Application No. 163 of 2017 does not survive and the same is also dismissed.
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