Narayan Sharma vs Devendra Kumar Sharma
2013 Latest Caselaw 5455 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 28.05.2013
 
Delivered on 05.09.2013
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 592 of 2013
 

 
Appellant :- Narayan Sharma
 
Respondent :- Devendra Kumar Sharma
 
Counsel for Appellant :- Vatsal Srivastava,Ashish Kumar Srivastava
 
Counsel for Respondent :- Vipin Kumar
 

 
Hon'ble Sudhir Agarwal,J.

1. This is a defendant's appeal filed under Section 100 C.P.C. which has arisen from the judgment and decree dated 05.04.2012 passed by Smt. Sapna Shukla, Additional Civil Judge (Senior Division), Court No. 8, Meerut decreeing Original suit No. 64 of 2006, which has been affirmed by judgment and decree dated 09.04.2013 passed by Sri V.S. Patel, Additional District and Sessions Judge, Court No. 5, Meerut by dismissing Civil Appeal No. 125 of 2012, filed by defendant.

2. After hearing appeal under Order 41 Rule 11 C.P.C., this Court formulated following substantial question of law:

"(I) Whether the suit in question was barred by time or as held by courts below the time was not essence of the contract and, therefore, the suit filed even after seven years was not barred by limitation."

3. During course of the argument, I found that construction of clauses 2 and 4 of the agreement is also involved in this matter. It is necessary to find out whether a date or time has been fixed in the agreement for performance of contract so as to attract commencement of period of limitation under Article 54 of Limitation Act, 1963 (hereinafter referred to as "L.A. 1963"). Therefore, with the consent of parties, one more substantial question of law which has arisen in this matter, also formulated as under:

"(II) Whether Clauses 2 and 4 of the agreement provides / fixes a date for execution of the sale deed so as to result in commencement of period of limitation after that date."

4. I have heard Sri Vatsal Srivastava and Sri Ashish Kumar Srivastava, Advocates for appellant and Sri Vipin Kumar, Advocate for respondent on the aforesaid questions of law. However, before giving answer of the same, it would be appropriate to have a brief resume of the relevant facts giving rise to aforesaid issues.

5. The plaintiff-respondent (hereinafter referred to as the "plaintiff") and defendant-appellant (hereinafter referred to as the "defendant") both are real brothers, being sons of Late Pandit Birakhram Sharma, resident of Kamalpur, Pargana, Tehsil and District Meerut. The Original Suit No. 64 of 2006 was instituted by plaintiff, vide plaint dated 14.02.2006, for specific performance by enforcing contract for sale, dated 15.04.1998, for consideration of Rs. 24,000/-, in regard to agricultural plot, Khasra No. 213, area 0.904 hectare with tube well No. PT-3-49 situated at Village Kamalpur, District Meerut and 1/4th part of residential house, detailed at the foot of the plaint. The suit was contested by defendant, vide written statement dated 31.08.2006, on the ground of limitation and bar under Sections 16 and 34 of Specific Relief Act, 1963 (hereinafter referred to as the "Act, 1963"); that the plaintiff was not ready and willing for execution of sale deed and the contract for sale, even otherwise, is void. He pleaded that he had no intention of either to sell the property or to execute the sale deed. The defendant Narayan Sharma, in fact, took a plea that he had borrowed some money from plaintiff and the document was executed for satisfaction of plaintiff. There was an understanding between the two that when defendant would return borrowed money, the alleged agreement would be returned to him. Though the defendant returned entire money to the plaintiff, which he borrowed, but neither the plaintiff returned the alleged deed of agreement, nor the defendant, being real brother, demanded the same from the plaintiff, under the belief that the latter will destroy the alleged deed and will never misuse the same. The property in dispute is in possession of the defendant and was never handed over to the plaintiff, since there was no intention of any sale or purchase thereof. Hence, the question of seeking permission did not arise. He also pleaded that the suit is barred by time.

6. The Trial Court (hereinafter referred to as "T.C.") framed seven issues. Issue no.6 related to limitation. It held that time was not the essence and if one of the parties is ready and willing to perform its obligation, time cannot be held to be a deciding factor, and hence, answered the issue against defendant. It decreed the suit vide judgment and decree dated 05.04.2012, whereagainst the defendant preferred appeal. The Lower Appellate Court (hereinafter referred to as 'L.A.C.") considered issue no.6 along with issues no. 2, 3 and 5 and decided aforesaid issues against the defendant and confirmed findings thereon that of T.C.. The appeal was accordingly dismissed. Hence the instant second appeal.

7. It has been argued by learned counsel for the defendant appellant that the agreement itself contemplates a particular period within which the sale deed ought to have been got executed, and therefore, limitation would commence therefrom. In the present case, the suit was filed after expiry of period of limitation, prescribed under Article 54 of L.A. 1963, hence the suit was apparently barred by time but both the courts below have completely misdirected themselves by looking into certain other aspects which were not applicable, in the case in hand, and, have committed patent illegality in decreeing the suit. Therefore, both the judgments of courts below are liable to be set aside and the suit deserves to be dismissed.

8. Per contra, the plaintiff respondent has supported the judgments of courts below for the reasons state therein. From both the sides a number of authorities have been cited which I shall discuss as and when occasion will arise.

9. A copy of the agreement is Annexure-1 to the affidavit filed in support of the application. There are five stipulations/conditions therein and it would be appropriate to reproduce the same as under:

^^1- ;g fd dCtk fgLls c; ryc eqcS;k ij blh le; Qjhd vOoy us Qjhd nks;e dks ns fn;k gS Qjhd nks;e mlls gj rjQ ij eqLrQhn gksus o vius bLrseky esa ykus o d`f"k Hkwfe esa flQZ d`f"k dk;Z djus o fjgk;'k dh tk;nkn dks flQZ fjgk;'k ds fy, gh bLrseky esa ykus ds etkt o gdnkj jgsaxs ftlesa fdlh dks dqN mtz u gksxkA

2- ;g fd vkt dh rkjh[k ls vUnj fe;kn 1 ,d lky ds ftl oDr Hkh Qjhd nks;e pkgsaxs cdk;k jde eqcfyx pkj gtkj :i;s Qjhd vOoy dks vnk djds c;ukek fgLls c; ryc dk Qjhd vOoy ls vius ;k vius uketnk ds gd esa jftLV~h djk ysaxs ftlesa Qjhd vOoy dks dqN mtz u gksxkA vUnj fe;kn etdk lhfyax ls btktr c; gkfly djus ds Qjhd vOoy ikcUn jgsaxsA

3- ;g fd [kpkZ gqlys btktr lc cktEes Qjhd vOoy o [kpkZ LVkEi o jftLV~h c;ukek lc cftEes Qjhd nks;e jgsxkA vkt ds ckn dk V~;wcsy dk fcy vius fgLls ds eqrkfcd vnk djus dh ftEesnkjh Qjhd nks;e dh jgsxhA

4- ;g fd vxj Qjhd vOoy rkds 'kjk;r etwdk vUnj fe;kn etdj cdk;k jde Qjhd nks;e ds vnk djus ij Hkh c;ukek jftLV~h djus esa dqN mtz o ,rjkt ;k budkj djsaxs rks Qjhd nks;e dks ctfj;s vnkyr e; gjtk o [kjpk gj fdLe c;ukek jftLV~h djk ysus dk gd gkfly jgsxk ftlesa Qjhd vOoy dks dqN mtz u gksxkA

5- ;g fd Qjhd nks;e dh nh gqbZ jde dkfcys tcrh u gksxh tqeyk 'kjk;r ds Qjhdsu o okfjlku ikcUn jgsxsA fygktk ;g bdjkjukek ekfgnk c; e; dCtk fy[k fn;k fd lun jgs vkSj oDr t:jr dke vkos QdrAA**

"1. That the First Party has handed over possession of the alleged portion in question to the Second Party. The Second Party shall have right and entitlement to put that portion to personal use and benefit in each & every manner and to use the agricultural land for agricultural purpose only and the residential property for residential purpose only, to which nobody shall have any objection.

2. That the Second Party shall get the sale-deed of that portion registered in his/her favour or that of his/her nominee from the First Party anytime within 1 year from today by paying the balance amount of Rs. 4,000/- (Rupees Four Thousand Only) to the First Party, and the First Party shall have no objection thereto. The First Party shall be bound to seek permission in respect of ceiling from the office concerned within the stipulated time.

3. That the First Party shall be responsible for all expenses related to obtaining permission and the Second Party for stamp duty and all expenses related to registration of the sale-deed. The Second Party shall be responsible for payment of tube-well bill from today as per his/her share.

4. That if the First Party objects or refuses to register the sale-deed even after payment of remaining amount by the Second Party as per conditions within the stipulated period then the Second Party shall have a right to secure registration of the sale-deed and recovery of all costs through court and the First Party shall have no objection on this.

5. That the amount paid by the Second Party shall not be liable to be forfeited and both the parties and their successors shall be bound to the conditions contained herein. Hence, this agreement also stipulating the possession has been written so that it may serve as a certificate if there be such need."

(English Translation by Court)

10. Clauses (2) and (4), ex facie, would leave no doubt that the parties agreed to have execution of sale deed within one year from the date of agreement. Apparently, the agreement was executed on 15.04.1998 and therefore, the agreement must have been got executed by 14.04.1999. The plaintiff was also given a right to get the sale deed executed through Court, if within the period of limitation, despite payment of consideration by the plaintiff, the defendant failed to execute the sale deed. When the terms of the agreement themselves are unambiguous, specific and clear, can the same be diluted or ignored by application of any general principle of law, become necessary to be examined, in order to answer the questions formulated in this case.

11. The relief sought in the plaint are, for a decree to the extent of directing the defendant to execute sale deed in respect to plot no.213 area 0.904 hectare (with tubewell no.PT3-49) situate at Village Kamalpur, Tehsil and District Meerut and a double storey residential house facing east, situate at Village Kamalpur, Meerut, details whereof have been given at the end of the plaint, wherein defendant has one-forth share, after receiving balance consideration of Rs.4,000/- from the plaintiff. In case, defendant failed to execute sale deed within time, the sale deed be executed in favour of the plaintiff in view of the agreement dated 15.4.1998 by the Court itself. In effect, the aforesaid suit is for specific performance of contract for sale executed between the parties on 15.4.1998.

12. Before this Court the concurrent findings recorded by Courts below on the question of execution of aforesaid agreement for sale has not been agitated. Article 54 of L.A.1963 provides period for limitation for specific performance of a contract as "three years". The time, from which the period begins to run, in column 3 Article 54 of L.A. 1963, is, the date fixed for performance, or if no such date is fixed, when plaintiff has notice that performance is refused. The second clause, with respect to commencement of limitation, would be attracted only when no date has been fixed between the parties for performance of the contract. A date does not mean a particular calender date but when a particular length of time namely a week, month or year is mentioned in the agreement and the ascertainment of date is possible, the agreement will be construed as if it contains stipulation fixing a date for performance of contract.

13. In K.Venkoji Rao Vs. M. Abdul Khuddur Kureshi, AIR 1991 Karnataka 119, this aspect came to be considered and Court observed that though the word 'date' is used in Article 54, it should not be taken that a particular date should be specifically stated in the agreement. If it could be ascertained as to when performance of contract has to be made, it will amount to fixing a date for performance of the contract.

14. In Trailckya Nath Das Vs. Kenarain Das, 1961 Calcutta Law Journal 551, the agreement provided for execution of a registered deed within six months. It was held that a suit for enforcement of covenant should be brought within three years of the expiry of six month's period.

15. In a suit for specific performance, limitation and delay or unreasonable laches, both have their own but independent relevance. If the suit is filed after the period of limitation, Section 3 of L.A. 1963 clearly obliges the Court to dismiss it being barred by limitation. Question of discretion does not arise but if the suit is otherwise within the period of limitation, still the Court is not bound to decree the suit by enforcing specific performance of the contract if it finds that there is an unreasonable delay or laches on the part of the plaintiff since the jurisdiction of the Court to decree the suit for specific performance is discretionary though guided by certain legal principles stated in Specific Relief Act, 1963. The application of limitation is mandatory and by operation of law while grant of relief is within the discretionary domain of the Court.

16. The term "date" and "fixed" mentioned in Article 54 of L.A. 1963 came to be considered in Ahmmadsahab Abdul Mulla Vs. Bibijan & Ors., AIR 2009 SC 2193. A three-Judge Bench of the Court considered this matter on a reference made by a Division Bench of two-Judges vide reference order dated 21.4.2008, whether it is suggestive of a specific date in the calender. The Court referred to the meaning of word "date" in Advanced Law Laxicon by P. Ramanatha Aiyier, 3rd Edition 2005 and in para 7, the Court held as under:

"The inevitable conclusion is that the expression `date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on `when the plaintiff has notice that performance is refused'. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression `date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits." (emphasis added)

17. Following the above decision, a Division Bench, in Ramesh Chandra (Dead) substituted by LRs. Vs. Smt. Sarita Rastogi, 2012 (10) ADJ 161 said:

"The word 'date' has been explained. The expression 'date fixed' for the performance is a crystallized notion. While interpreting it has been laid down by the Apex Court that there is a definite point of time, when the plaintiff notices the refusal."

18. Therein, agreement clause 4 contemplates occurrence of contingency whereafter within a particular time, agreement was to be enforced. In view of the Apex Court's decision in Ahmmadsahab Abdul Mulla (supra) the Division bench held that such clause in the agreement cannot be read as if it has fixed a date for performance of the contract.

19. In Janardhanam Prasad Vs. Ramdas, 2007(15) SCC 174= 2007 (3) JT 187, the Court, construing Article 54 and recognizing its rigour, the Court said:

"The Court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation."

20. On behalf of the plaintiff-respondent, reliance has been placed on S.Brahmanand & Ors. Vs. K.R.Muthugopal (Dead) & Ors., (2005) 12 SCC 764 but I do not find any reason to discuss the same since it has already been referred to and discussed by larger Bench in Ahmmadsahab Abdul Mulla (supra) and the aforesaid decision in S.Brahmanand (supra) has been distinguished on the ground that issue with regard to expression "date fixed" under Article 54 of Act, 1963 had not been gone into by the Court therein.

21. Now construing clauses 2 and 4 of the agreement in the light of the above exposition of law, I find that agreement does not talk of any contingency over a period etc. but clearly provides that within one year from the date of agreement, whenever proposed purchaser pays balance consideration, he can get the sale deed executed by registered instrument. This period has been treated to be a limitation by the parties, inasmuch as, the last phrase in clause 2 of the agreement says that "within limitation", Sri Narayan Sharma, the first party shall be bound to receive ceiling permission. Clause 4 then says that, if, despite payment of balance consideration within "limitation period", the first party i.e. Narayan Sharma objects or deny execution of registered deed, the second party i.e. Devendra Kumar Sharma can take redress in Court of law for registration of the document. Therefore, one year from the date of execution of the agreement has been clearly treated by both the parties to be the period of limitation. The commencement of this one year is clearly provided i.e. from the date of execution of agreement i.e. 15.4.1998 and one year completed on 14.4.1999.

22. Moreover, it is not the case of the plaintiff that balance consideration was paid by him within the period of one year from the date of execution of the agreement and yet defendant did not execute the sale deed. On the contrary, what has been pleaded in the plaint that remaining Rs.4,000/- was payable at the time of execution of sale deed. This pleading in para 2 of the plaint is inconsistent to specific and unequivocal stipulation in the agreement. It is not at all pleaded anywhere that within the period of one year from the date of execution of agreement, the plaintiff paid the balance consideration to the defendant.

23. If that be so, from whatever angle the matter is examined, limitation to institute suit would have commenced after one year from the date of execution of agreement and since the suit was not filed within three years thereafter, it was apparently barred by time. When a suit is barred by time, question of laches, delay and also to construe an agreement whether therein time is the essence or not would not arise. Once the suit is apparently barred by time, no other consideration can prevail, inasmuch as, Section 3 of L.A.1963 mandates that the Court shall not entertain a suit which is barred by time and such suit, if entertained, will have to be dismissed on the ground of limitation.

24. In the present case, I am clearly of the view that clauses 2 and 4 leaves no manner of doubt that agreement contains a date fixed for performance of the contract i.e. by 14.4.1999 and since agreement was not sought to be performed within the aforesaid period, a suit for enforcement of aforesaid agreement could have been filed within three years else it would be barred by time. The question No.II therefore, is returned in affirmative and in favour of defendant-appellant.

25. Now I come to the first question. Though as already discussed, once the suit is barred by time, nothing more is required to be seen but even if that is necessary, having gone through the agreement, I have no hesitation in observing that herein time is the essence of contract and plaintiff having failed to abide by requisite steps, which it ought to have taken within time, the suit for specific performance at his instance could not have been decreed.

26. This question would be of relevance in view of Section 55 of Contract Act, 1872 (hereinafter referred to as "Act, 1872"), inasmuch as, if time is not the essence of contract, non observance of performance of some part of contract by one of the party shall render the contract only voidable. The general principle applicable to determine, whether time is the essence of contract or not, one has to read entire agreement/contract between the parties to find out whether, therein time is the essence or not, with reference to performance of contract, as a whole, or, with reference to a particular term or condition of contract, which is allegedly breached.

27. In an agreement for sale relating to immoveable property if time is specified for payment of sale price but not in regard to execution of sale deed, it will become essence only with reference to payment of sale price but not in regard to execution of sale deed. Ordinarily, in relation to agreements to sale of immoveable properties, time is not considered to be the essence of contract unless such an intention can be gathered either from express terms of contract or by necessary implication, if it is or can be borne out from the terms of the contract as to what is the intention of the parties.

28. A Constitution Bench of Apex Court in Chand Rani Vs. Kamal Rani, (1993) 1 SCC 519 explained this principle in para 19 of the judgment as under:

"It is well-accepted principle that in the case of sale of immoveable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language." (emphasis added)

29. Following the aforesaid decision in Saradamani Kandappan Vs. S. Rajalakshmi & Ors., (2011) 12 SCC 18, a two-Judge Bench of Apex Court in para 28 of the judgment held:

"The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. .... Even if the urgent need for the money within the specified time is not set out, if the words used clearly show an intention of the parties to make time the essence of the contract, with reference to payment, time will be held to be the essence of the contract."

30. If this Court construe the agreement in question, I find that part of the consideration was already paid to the defendant at the time of execution of the registered agreement to sale i.e. Rs.20,000/-; and, only Rs.4,000/- remained to be paid for execution of sale deed. Clause 2 of the agreement provides that balance amount shall be paid within one year and thereafter the proposed purchasor can get the sale deed executed within the same time i.e. in the same year. Both these things are contemplated to have been done within one year. Clause 4 further says that if within the limitation, amount is paid but sale deed is not executed, the second party namely the plaintiff, after that one year, can enforce his right for specific performance of contract through the Court, and could get the registered sale deed executed. The agreement also provides that advance already paid at the time of registration of the agreement to sell shall not be forfeited.

31. Having given my anxious consideration to both these clauses very carefully, I am of the view that proposed purchaser i.e. plaintiff could have paid entire balance consideration at any point of time after execution of agreement to sell but the outer limit was one year and on such payment made by him, he could have got the sale deed executed within the same year. After expiry of one year from the date of execution of the agreement, entitlement of plaintiff for payment of balance consideration would cease and simultaneously it will also result in cessation of his right to get the sale deed executed. Therefore, Clauses 2 and 4 of the agreement contemplate a period of limitation for both these aspects. It leaves no manner of doubt that unlike other agreement to sell, the present one is such where it cannot be doubted that time is the essence of contract and having expired, there was no question of extending period by the conduct of parties.

32. Moreover, in the present case, it is not the case of the plaintiff, neither pleaded nor any material is placed on record, to show, that defendant, by conduct, express or implied or otherwise, extended the aforesaid period. In fact, the plaint case set up by plaintiff is something contrary to the terms of agreement to sell. He has set up a case by completely misconstruing the agreement. It is not stated anywhere in the agreement that balance amount of consideration shall be paid to the seller at the time of execution of sale deed. On the contrary, the agreement stipulates that first balance consideration shall be paid by purchaser and that too at any point of time but within a period of one year from the date of execution of the agreement to sell and thereupon he shall be entitled to seek execution of a registered sale deed. The plaint case set up by the plaintiff is totally otherwise and contrary to clear terms of the agreement.

33. Once plaintiff failed to plead that he made such payment within one year, in my view, he could not have succeeded of getting a decree in a suit for specific performance of such contract. I really feel pity on the Courts below in deciding issue no.6 relating to limitation by referring to certain case laws but without appreciating whether they would have any application in the case in hand or not. First of all they failed to understand distinction between limitation and laches and delay. The later aspect is to be considered by Court in granting discretionary relief of specific performance in the light of the provisions contained under Act, 1963. The second aspect could have been relevant only if the suit is within limitation.

34. Moreover, the Courts below have not cared to read clause 2 of the agreement carefully and appears to have swayed by sheer pleadings in the plaint that balance consideration was liable to be paid at the time of execution of sale deed, which is normally the scheme of agreement to sell but was not so, as a matter of fact, in the present case.

35. On behalf of the plaintiff-respondent, in the context of Sections 9, 10, 16 and 20 of Act, 1963 and Section 55 of Act, 1872, certain authorities of Apex Court i.e. Govind Prasad Chaturvedi Vs. Hari Dutt Shastri & Anr., AIR 1977 SC 1005; Veerayee Ammal Vs. Seeni Ammal, (2002) 1 SCC 134; Nirmala Anand Vs. Advent Corporation (P) Ltd. & Ors., (2002) 8 SCC 146; R.K.Parvatharaj Gupta Vs. K.C. Jayadeva Reddy, 2006 (2) AWC 1336; Gunwantbhai Mulchand Shah & Ors. Vs. Anton Elis Farel & Ors., (2006) 3 SCC 634; Panchanan Dhara & Ors. Vs. Monmatha Nath Maity (Dead) through LRs. & Anr., (2006) 5 SCC 340; and Balasaheb Dayandeo Naik (Dead) through LRs & Ors. Vs. Appasaheb Dattatraya Pawar, (2008) 4 SCC 464 have been cited but I find none of them to support his case, inasmuch as, exposition of law laid down therein has no application, as such to the issues discussed above, arising in the case in hand.

36. The question no.I, therefore, is also answered in affirmative i.e. in favour of defendant appellant.

37. In the light of substantial questions of law, returned in favour of defendant-appellant, it is obvious that judgments of Courts below are unsustainable and have to be set aside.

38. In the result, the judgments and decree dated 05.04.2012 passed by Additional Civil Judge (Senior Division), Court No.8, Meerut and 09.04.2013 passed by Additional District and Sessions Judge, Court No.5, Meerut to the extent, they suffer and are otherwise than what held above, are hereby set aside.

39. However, since the plaintiff himself has agreed that he shall willingly refund the amount, received in advance, to the plaintiff-respondent along with interest, as determined by this Court, I allow this appeal partly and modify the judgement and decree of Courts below by directing refund of Rs.20,000/- received by defendant-appellant, as advance, at the time of execution of agreement for sale, to the plaintiff-respondent with compound interest @ 6% p.a. from the date of expiry of one year from 15.4.1998 i.e. date of execution of agreement for sale, till the amount is actually paid. In respect to the relief of specific performance, by enforcing the agreement for sale dated 15.4.1998, the judgment and decree of Courts below are set aside and plaintiff's suit, in respect to aforesaid relief, and to that extent, is dismissed.

40. There shall be no order as to costs.

Order Date :- 05.9.2013

Akn/KA