Mohd. Iliyas And 5 Ors. vs Smt. Ram Dulari And 6 Ors
2016 Latest Caselaw 5471 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High  Court of Judicature at Allahabad
 
Lucknow Bench, Lucknow
 
                             ******************* 	                     AFR
 
Reserved
 
SECOND APPEAL No.  231 of 2008
 

 
Mohd. Iliyas And 5 Ors.
 
vs.
 
Smt. Ram Dulari And 6 Ors
 

 
Counsel for the Appellants:	Mr. Mohiuddin Khan
 
					Mr. Mohd. Aslam Khan
 
					Mr. Mohd. Adil Khan
 
					Mr. Ghaus Beg
 
					Mr. Mohd. Arif Khan, Sr. Advocate
 
Counsel for Respondents:	Apoorva Tiwari & Sunil Pandey
 

 
Hon'ble Ritu Raj Awasthi,J.

1. Heard Mr. Mohd. Arif Khan, learned Senior Advocate assisted by Mr. Mohiuddin Khan, learned counsel appearing on behalf of the appellants as well as Mr. Sunil Pandey and Mr. Apoorva Tewari, learned counsel appearing on behalf of the contesting respondents i.e., respondents no. 1 to 8.

2. No one has put in appearance on behalf of respondents no. 9 to 13. During pendency of appeal, respondents no. 6, 8 and 13 have died. They have been substituted by their legal heirs.

3. The instant second appeal has been filed by the defendants-appellants against the judgment and decree dated 31.5.2008 passed in Regular Civil Appeal No. 154 of 2005 (Smt. Ram Dulari and others vs. Mohd. Ayyub Khan and others) by learned Special Judge (E.C.) Act, Lucknow setting aside the judgment and decree dated 6.10.2005 passed in Regular Suit No. 86 of 1990 (Ram Dulari and others Vs. Mohd. Ayyub Khan and others) by the learned Additional Civil Judge (Junior Division), Lucknow by means of which the Trial Court had dismissed the suit of the respondents-plaintiffs for Specific Performance of Contract for sale.

4. The appeal has been admitted on the following substantial questions of law:

"(i) Whether the suit filed by the respondents on 20.3.1990 on the basis of an agreement for sale dated 7.1.1983 was within limitation?.

(ii) Whether in the absence of any pleadings and evidence on record that the respondents no. 1 to 8 possessed of and are capable of performing their part of contract, the lower appellate Court was justified in law in decreeing the suit, ignoring the law laid down in that behalf by this Hon'ble Court as well as Apex Court?

(iii) Whether there being no order of stay granted by District Judge, Gonda, staying filing of the suit by Tulsi Ram, the learned lower appellate Court was justified in law in granting benefit of Section 15 of the Limitation Act in decreeing the suit filed by him beyond three years?

(iv) Whether the learned lower appellate Court was justified in law in granting the decree for specific performance of contract, ignoring the provisions of Sections 12 and 15 of the Specific Relief Act?"

5. As per the given facts, a registered agreement for sale dated 07.01.1983 of plot measuring 8000 square feet was entered into between late Tulsi Ram (original plaintiff who is now represented by his legal heirs respondents no. 1 to 8) and one Farooq, Mohd. Matin (father of respondents no. 11 & 12) and Jameeluddin (respondent no. 13) - prospective purchasers as first party and Mohd. Ayyub Khan and Mohd. Shoaib Khan (respondents no. 9 & 10) - sellers as second party. A suit for specific performance of contract for sale was filed on 20.3.1990 by Tulsi Ram impleading Mohd. Ayyub Khan and Mohd. Shoaib Khan as defendants who were the owners of the plot in dispute. Respondents no. 11 to 13 and the present appellants were also impleaded as defendants.

6. Respondents no. 9 and 10 were the owners of the plot in dispute on the basis of registered sale-deed dated 25.7.1957. It was the case of the plaintiff that as per said agreement for sale a sum of Rs.50,000/- was paid by the purchasers out of which, Rs.20,000/- was paid by Tulsi Ram, Rs.10,000/- was paid by Farooq, Rs.10,000/- was paid by Mohd. Mateen and Rs.10,000/- was paid by Jameeluddin. They had agreed to purchase definite portions of the plot in dispute by getting individual and separate sale-deeds executed in favour of each individual purchaser.

7. It was also the term of agreement for sale dated 07.01.1983 that the seller would obtain necessary permission from the competent authority under the Act1 and the sale-deed would be executed within a month from grant of permission by the competent authority. The agreement stipulated that the seller would intimate the buyers and call upon them to execute the sale-deed.

8. It was the case of respondents-plaintiffs that sellers had not acted upon their solemn undertaking and despite repeated request and demands to execute the registered sale-deed, the respondents no. 9 and 10 avoided to execute the sale-deed, hence they had filed a suit for specific performance. It was also the case of respondents-plaintiffs that respondents no. 9 & 10 had filed a collusive suit (Regular suit no. 81 of 1981) at Gonda in which the plot in dispute was got attached due to which they had shown their inability to execute the sale-deed.

9. It was also case of the respondents-plaintiffs that subsequent to the agreement for sale, the respondents no. 9 and 10 had delivered actual possession and he was always ready and willing to perform his part of contract and is still ready to pay sale consideration but the respondents no. 9 and 10 avoided to execute the sale-deed which necessitated for filing the suit.

10. It was the case of the respondents-plaintiffs that the respondents no. 9 & 10 (sellers) had not given any intimation to get the sale-deed executed and had extended the period of limitation through oral agreement.

11. The suit was contested by the appellants (defendants no.6 to 10), who were subsequent purchasers from respondents no. 9 and 10 for valuable sale consideration on the ground that the respondents no. 9 and 10 who were arrayed as defendants no. 1 and 2 were in actual possession and they had transferred the actual possession to the present appellants.

12. It has been vehemently contended by the learned counsel for appellants that the first appellate Court has grossly erred in reversing the finding recorded by the Trial Court. The suit was, admittedly, filed beyond the period of limitation as specified under Article 54 of Schedule to Limitation Act. The respondents-plaintiffs have failed to establish their case before the Trial Court. The Trial Court has given its categorical finding that the suit is barred by limitation. The respondents-plaintiffs have not been able to establish their possession over the plot in dispute. The respondents-plaintiffs have not been able to show that they were ready and willing to execute their part of agreement. The Trial Court, relying on the statement of examination-in-chief of Mohd. Farooq, had come to conclusion that the plaintiffs had knowledge of the notice sent by the sellers, however, they had not produced any evidence to show that they were ready to get the sale-deed executed, from the conduct and circumstances, it is evident that the plaintiffs had failed to perform their part of agreement.

13. It is submitted that the first appellate Court has held that the respondents no. 9 & 10 (sellers) had not contested the suit and there is no specific denial that there was an agreement for sale between the respondents-plaintiffs (purchasers) and respondents no. 9 and 10 (sellers), the respondents no. 9 & 10 accepted part of the amount of consideration paid by the plaintiffs along with three other persons, since the plaintiffs had not received the intimation about the permission granted by the urban ceiling authority and the plot in dispute being under attachment in the Court of District Judge, Gonda, there was legal difficulty in execution of sale-deed and respondents no. 9 & 10 had kept on taking time from the plaintiff, hence the extension of period of performance of the contract extends the period of limitation. The said finding of the first appellate Court are not sustainable in the eyes of law. The first appellate Court has erred in coming to conclusion that since there is no specific denial of the appellants who were contesting as respondents in first appeal and rather; it has been admitted by one of the appellants in his statement that the plaintiff has put a wooden kiosk in part of the plot in dispute, hence the finding of the Trial Court that the plaintiffs have failed to establish their possession over the plot in dispute is wrong.

14. It is submitted that the first appellate Court has grossly erred in ignoring the material fact that the permission from urban ceiling authority was applied jointly by sellers and purchasers, it was duly received by M. Hamza, Advocate who was engaged by respondents-plaintiffs themselves and the knowledge of the said permission cannot be denied by the plaintiffs. The first appellate Court has also erred in coming to conclusion that no notice was served on the respondents-plaintiffs for getting the sale-deed executed. Mohd. Farooq, who was also a party to the agreement being one of the purchasers, has stated before the Trial Court that they had received notice sent by the respondents no. 9 & 10, as such, it was evidently clear that the plaintiff along with other prospective purchasers had received notice sent by the respondents no. 9 and 10 (sellers) and, as such, it cannot be said that the respondents no. 9 & 10 had not sent the notice to the plaintiff.

15. It is contended by counsel for the appellants that in absence of any evidence on record the first appellate Court has grossly erred in concluding that respondents-plaintiffs were ready and willing to perform their part of contract.

16. In support of his submissions, learned counsel for appellants has placed reliance on the judgment of the Delhi High Court in the case of Smt. Raj Rani Bhasin & others vs. S. Kartar Singh Mehta2, wherein a distinction has been drawn between the readiness to perform the contract and willingness to perform the contract. Readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial ability to pay the purchase price but for determining his willingness to perform his part of contract, his conduct has to be scrutinized. From the evidence on record, the respondents-plaintiffs could not prove their willingness to perform their part of contract.

17. It is also contended that there was no order or injunction passed against the respondents no. 9 and 10, hence the suit filed by Tulsi Ram, predecessor-in-interest of the respondents no. 1 to 8 on 20.3.1990, in pursuance to the agreement for sale dated 07.01.1983, was admittedly barred by limitation and Trial Court was correct in law in dismissing the suit.

18. In this regard, the appellants have relied upon the judgment of the Apex Court in the case of Director of Inspection of Income Tax (Investigation), New Delhi and another vs. M/s Pooran Mall and Sons and another3 in which it has been laid down by the Apex Court that it is well established principles of judicial procedure that wherein proceedings are stayed by an order of a court, or by an injunction issued by any court only that period should be excluded in computing any period of limitation laid down by law.

19. The appellants have contended that from a bare reading of the submissions made in the plaint, it is very much clear that Tulsi Ram in order to overcome the bar of limitation as the suit was admittedly filed beyond the period of 3 years, had set up a case of oral agreement.

20. It is submitted that the plaintiff has to succeed on the strength of his own case and could not rely upon the weakness of the defence. The case of oral agreement extending the period of limitation, pleaded was not proved by the plaintiff by leading any positive evidence on record, hence the theory as set up regarding extension of the period of limitation is also unequivocal and the finding recorded by the Trial Court could not be held to be perverse.

21. Learned counsel for the respondents no. 1 to 8, on the other hand, vehemently submitted that it was specifically stated in the plaint that the sellers i.e. defendants no. 1 and 2 had applied for permission from the competent authority under the Act but the plaintiff had no knowledge about the grant of any such permission. The plaintiff had not received any notice for getting the sale-deed executed. The sellers i.e., defendants no. 1 & 2 had orally informed their inability to execute the sale-deed as the plot in dispute was under attachment in a case before the District Judge, Gonda. It was further stated in the plaint that the plaintiff was always ready and willing to perform his part of the agreement to sell but the defendants no. 1 and 2 repeatedly extended the period for performance of the contract on the pretext that they were in legal difficulty in executing the sale-deed as the entire property was under attachment as per the order passed in Regular Suit No. 81 of 1981.

22. It is contended that the extension of the period of performance of the contract extends the period of limitation and the cause of action for filing the suit arose to the plaintiff on 31.12.1989 when the plaintiff demanded the execution and registration of sale-deed from defendants no. 1 and 2.

23. It is submitted that defendants no. 1 and 2 despite sufficient notice never appeared before the Trial Court to contest the suit and, thus, the suit was proceeded ex-parte against them. It is submitted that in absence of specific denial of the defendants no. 1 and 2 the contention of the present appellants, who was also defendants in the suit, could not have been accepted as the appellants are the subsequent purchasers and cannot plead before the Trial Court that the plaintiff was not ready and willing to perform his part of agreement for sale and the agreement for sale was cancelled by defendants no. 1 and 2 before the plot in dispute was sold to the present appellants. It is contended that the Trial Court had erred in coming to conclusion that the provision of first part of Article 54 of Schedule to the Limitation Act would be applicable. It is also contended that no specific date was fixed for execution of the sale-deed in the agreement for sale. The said agreement for sale stipulated that the sale-deed would be executed within one month from the date of grant of permission from the competent authority under the Act. In absence of any date fixed in the agreement for sale which was also not ascertainable from the terms of the agreement for sale for the execution of the sale-deed, the second part under Article 54 would apply and the period of limitation shall commence from the date when the plaintiff had the knowledge that performance is refused.

24. In support of his submissions, learned counsel for respondents has relied on the judgment of the Apex Court in the case of Ahmadsahab Abdul Mulla (2) (Dead) vs. Bibijan and others4, particularly Paragraph 10, 11 & 12 where it has been held that the expression date fixed for performance in Article 54 of the Schedule to Limitation Act, 1963 is a crystallized notion which is not subject to any change or fluctuation and in the absence of any such stipulation only the second part of Article 54 shall apply and the period of limitation shall commence from the date when the plaintiff has noticed that the performance is refused.

25. It is contended by learned counsel for respondents that the legal position as regards the notices sent ''Under Certificate of Posting' is no longer res integra and stands concluded by a recent decision of this Court in West Watch Company vs. Additional District Judge, Court No. 5 and others5, particularly Paragraphs 17 & 18, wherein it has been held that in order to raise presumption of service of notice ''Under Certificate of Posting, the employee of the post and telegraph department has to be examined to prove the factum of posting of the notice. It is held that in absence of proof of posting of notice no presumption of service can be drawn.

26. It is submitted that since the defendants no. 1 and 2 had accepted part of the sale consideration after institution of the suit it has to be presumed that they did not refuse their part of performance and had not cancelled the agreement to sale till the filing of the suit. It is further submitted that the first appellate Court has also recorded a finding of fact to the effect that the plaintiff and the defendants no. 1 and 2 had extended the period of performance on account of the plot in dispute being under attachment before the Court i.e., Regular Suit No. 81 of 1981.

27. It is submitted that in view of the law laid down by the Apex Court in the case of Panchanan Dhara and others vs. Monmatha Nath Maity (Dead) Through LRS. And another6, particularly Paragraphs 21 and 22, wherein it has been held that the time for performance of an agreement would extend the period of limitation and it would begin to commence when plaintiff has noticed that performance has been refused.

28. It is also contended that in view of the judgment of the Apex Court in the case of Badat & Co. v. East India Trading Co.7, in the absence of specific denial the pleadings shall be treated to be admitted. Thus, in the absence of the denial of the plaintiff's assertion by the defendants no. 1 and 2 they shall be deemed to have been admitted by them. It is submitted that the plaintiff has proved his assertions regarding extension of time for performance by way of his evidence and the defendants no. 6 to 11 while cross examining him did not controvert or challenge his version.

29. The Apex Court in the case of Muddasani Venkata Narsaiah (D) Th. Lrs. vs. Muddasani Sarojana8, has held that if the version of plaintiff in his examination-in-chief is not challenged in the cross examination the same shall amount to admission.

30. Learned counsel for respondents has also submitted that the application for permission from the competent authority under the Act is required to be applied jointly by the vendor and vendee. In view of the aforesaid, the plaintiff had signed the application along with defendants no. 1 and 2 and also executed Vakalatnama in favour of Mr. M. Hamza, Advocate.

31. It is submitted that the defendants no. 6 to 11 did not lead any evidence to prove that the signatures or the receiving of Mr. M. Hamza, Advocate on the ceiling permission. It was incumbent on the defendants to have proved the signatures by virtue of Section 67 of the Indian Evidence Act and having failed to do so no presumption or inference can be raised against the plaintiff on the said score. Thus, the finding of the first appellate court that the suit for specific performance preferred by the plaintiff was within limitation suffers from no error and the question of law framed in the second appeal is liable to be answered in favour of the respondents-plaintiffs.

32. It is also submitted that the plaintiff has specifically pleaded in the plaint that the plaintiff has been throughout ready and willing to perform his part of agreement. The said assertion was not denied by the defendants no. 1 and 2, therefore, shall stand admitted against them. The defendants no. 6 to 11 have denied the statement in the plaint vaguely and in their evidence admitted to not having any knowledge of the transaction which took place prior to execution of sale-deed in their favour. In the absence of requisite denial and rebuttal or challenge to the evidence of PW-1, the readiness and willingness of the plaintiff to perform his part of the agreement would stand proved.

33. I have considered the submissions made by the parties' counsel and gone through the records.

34. It is the admitted fact that a joint agreement to sale dated 07.01.1983 was executed between the sellers i.e., respondents no. 9 and 10 and the purchasers, namely, Tulsi Ram, Mohd. Farooq, Mohd. Mateen and Jameeluddin for a common piece of land measuring 8000 square feet. As per the understanding between the purchasers, they had agreed to get the sale-deed executed of the separate portions of the plot in favour of individual purchasers. As per the terms of the said agreement for sale, the respondents no. 9 and 10 (sellers) had to obtain the permission from the competent authority under the Act and intimate the purchasers to get the sale-deed executed which was to be done within one month from the date of grant of permission by the competent authority. It is evident from the records that the suit for specific performance was filed by predecessor-in-interest of respondents no. 1 to 8 i.e., late Tulsi Ram on 20.3.1990. Article 54 of Schedule to the Limitation Act provides the period of limitation as three years and the date from which the period of limitation would begin to run would be the date fixed for the performance or, if no such date is fixed, when the plaintiff has noticed that performance is refused. Article 54 of Schedule to the Limitation Act, for convenience, is reproduced below:

THE SCHEDULE

PERIOD OF LIMITATION ACT

Description of Suit

Period of Limitation

Time from which period begins to run

For specific performance of a contract.

Three Years

The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.

35. Learned Trial Court while deciding the suit filed by the respondents-plaintiffs had framed certain issues translation of which on reproduction read as under:

"(1) Whether any agreement between the plaintiff as well as defendants no. 3 to 5 and defendants no. 1 and 2 was entered into for sale of the disputed property, as pleaded in para 5 of the suit?

(2) Whether the possession was delivered by the defendants no. 1 and 2 to the plaintiff of the agreed property in compliance of the agreement to sale?

(3) Whether the plaintiff has followed the agreement to sale and defendants no. 1 and 2 have cancelled the same?

(4) Whether the suit is time barred?

(5) Whether the suit is not maintainable as per the reasons pleaded in para 33 of the written statement?

(6) Whether the plaintiff is entitle to get any relief?"

36. The issue no. 4 relates to whether suit is barred by limitation. The Trial Court while deciding the said issue has held that since as per the terms of the agreement for sale the sellers after obtaining the permission from the competent authority was required to intimate the purchasers and the purchasers were required to get the sale-deed executed within one month from the date of intimation, as such, the period of limitation would be governed by the first part of Article 54 of Schedule to Limitation Act. The learned Trial Court has come to conclusion that the suit for specific performance filed by the respondent-plaintiff was filed beyond period of limitation, hence barred by limitation. The first appellate Court dealing with the said issue has opined that the intimation about the permission from the urban ceiling Authority was to be given by the purchasers and since the land in question was under attachment in a case i.e., Regular Suit No. 81 of 1981, pending before the District Judge, Gonda, as such, there was legal impediment in the execution of the sale-deed, as such, the sellers (respondents no. 9 and 10) had kept on taking time and ultimately after not getting the sale-deed executed the suit was filed by the respondent-plaintiff. The sellers had received Rs. 20,000/- from Tulsi Ram on 26.3.1990, although they had already entered into an agreement to sale dated 09.03.1990 with appellants (defendants no. 6 to 11). The suit for specific performance, as such, was filed within time from the date of refusal.

37. As per the agreement to sale although no specific date was mentioned for execution of sale-deed, however, by reference to the happening of an event, namely, the permission from the competent authority and thereafter intimation by the purchasers to the sellers for execution of the sale-deed within one month clearly would mean that the date of limitation is to be determined as per first part of Article 54 of Schedule to the Limitation Act. The permission from the competent authority is dated 22.1.1983 which was received by Mr. M. Hamza, Advocate on 24.1.1983.

38. The counsel for respondents, Mr. Apoorva Tewari, has argued that in absence of any date fixed in the agreement for sale, which was also not ascertainable from the terms of the agreement for sale for execution of the sale-deed, the second part of Article 54 of Schedule to Limitation Act would apply and the period of limitation shall commence from the date when the plaintiff had the knowledge that performance is refused. In this regard he has relied on the judgment of Apex Court in the case of Ahamdsahab Abdul Mulla (2) (Dead) (supra) where it has been held that the expression date fixed for performance in Article 54 of the Limitation Act, 1963 is a crystallized notion which is not subject to any change or fluctuation and in the absence of any such stipulation only the second part of Article 54 shall apply and the period of limitation shall commence from the date when the plaintiff has noticed the refusal of performance of the contract.

39. In the present case, as has been noted above, by a reference to the happening of a certain event, namely, the date of permission and the date of knowledge about such permission by the plaintiff-purchasers would clinch the issue about the period of limitation and the same would be counted from the date of knowledge. The permission from the competent authority was granted on 22.1.1983 which was received by counsel for the plaintiff Mr. M. Hamza on 24.1.1983, as such, the period of limitation for filing of suit for specific performance would commence from the date of knowledge i.e., 24.1.1983. In this regard, I am supported in my view by the judgment of the Apex Court in the case of Ramzan Vs. Smt. Hussaini9 wherein it has been held that in the agreement the date for defendant-seller to execute the sale-deed was fixed, although by not mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff purchaser, the defendant became liable to execute the sale-deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case was, therefore, covered by the first part of Article 54 and not by the second part of Article 54. The suit was, admittedly, filed in the year 1990, hence barred by limitation. Relevant paragraph 6 of the judgment on reproduction reads as under:

" 6. The relevant provisions in the alleged agreement of sale as quoted in the judgment of the trial court reads as follows:-

"This house is under mortgage with Jethmal Bastimal for Rs. 1000/-. When you will get this house, the description of which is given below, redeemed from M/s Jeth Mat Bastimal and take the papers of the registry in your possession, on that day I will have the sale deed of the said house, written, executed and registered in your favour."

(Emphasis supplied)

The question is whether a date was 'fixed' for the performance of the agreement and in our view the answer is in the affirmative. It is true that a particular date from the calendar was not mentioned in the document and the date was not ascertainable originally, but as soon as the plaintiff redeemed the mortgage, it became an ascertained date. If the plaintiff had, immediately after the redemption, flied the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within the meaning of S. 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R. Muniswami Goundar and Another v. B.M. Shamanna Gouda and Others, AIR 1950 Madras 820 expressed in slightly different circumstances. The doctrine of id certum est quod certum reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. The Brighton Club and Norfolk Hotel Company, [1875] 10 QB 371, relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at Common Law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day, which, when the goods were delivered would be ascertained, and then the money would be payable at a certain time; but rejected the plaintiff's demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be made, and if the time of event was capable of being ascertained, the requirements of the section were satisfied. The same is the position in the case before us. The requirement of Article 113 is not that the actual day should necessarily be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part."

40. It is to be noted that in the application for permission the purchasers had also made their signature along with sellers and Mr. M. Hamza, Advocate was engaged by the plaintiffs for that purpose. The power of attorney of Mr. M. Hamza indicates the signature of purchasers including plaintiff, Tulsi Ram. The said permission from the competent authority was received by Mr. M. Hamza, counsel for the plaintiff. The fact that the permission from the competent authority having been received by Mr. M. Hamza is on record, hence it is the admitted fact that Mr. M. Hamza, Advocate had received the permission on behalf of the purchasers as well as sellers and the said fact has not been denied by the plaintiff. The knowledge of the permission from the competent authority to Mr. M. Hamza, the counsel for the plaintiff would clearly mean that the plaintiff had the knowledge about the grant of permission by the competent authority.

41. The learned Trial Court in its finding has noted that Mr. M. Hamza, Advocate was engaged by the plaintiff. He had accepted the permission from the competent authority issued under Section 26 of the Act dated 22.1.1983 and the same advocate in another case i.e., Regular Suit No. 20 of 1988, Mohd. Mateen vs. Mohd. Ayyub had brought the said documents C-19 and C-20 showing that the same were sent by registered post, which indicates that M. Hamza, Advocate was the lawyer for the plaintiff since 1983 and had sent the same to the plaintiff in the year 1983.

42. The fact that the defendants did not lead any evidence to prove the signature of Mr. M. Hamza, Advocate or the receiving by him would not make any difference as it is the admitted case of parties that Mr. M. Hamza, Advocate was engaged by the respondents for getting permission from the ceiling authorities and the documents relied in this regard by the defendants such as application for permission bearing signature of plaintiff and the power of attorney of M. Hamza, Advocate which also borne the signature of plaintiff, Tulsi Ram, and other purchasers are not denied, as such, the period of limitation for the purpose of filing of a suit for specific performance in the instant case would commence from the date of knowledge of the permission which was duly received by Mr. M. Hamza on 24.1.1983, therefore, the suit filed by the plaintiff on 20.3.1990 on the basis of agreement for sale dated 07.01.1983 was beyond the period of limitation as prescribed under Article 54 of the Schedule to the Limitation Act. The Apex Court in the case of Damodaran Pillai and others vs. South Indian Bank Ltd.10 has observed that knowledge of any proceedings to the Advocate implies presumption of such knowledge on the part of the party.

43. So far as the question of service of notice sent by the sellers to the purchasers (plaintiff) is concerned, it is to be noted that the examination-in-chief Mohd. Farooq (DW-2) in his statement has stated that he as well as other purchasers including plaintiff had received the said notice on 05.03.1983. As per said notice, the sellers had informed that the sale-deed may be executed. Mohd. Farooq had also informed that as per said notice dated 05.03.1983, the suit was to be filed before 05.06.1986.

44. Mohd Farooq was party to the agreement to sale being one of the purchasers. He had also filed a suit for specific performance but had subsequently withdrawn the same after entering into a compromise with the present appellants. However, the fact remains that Mohd. Farooq, who was party to the said agreement for sale and one of the prospective purchasers had admitted that he had received the notice dated 05.03.1983 sent by the sellers along with other purchasers. The statement of Mohd. Farooq can not be set-aside simply because he had subsequently entered into a compromise with the present appellants, particularly in absence of any other evidence contradicting the statement of Mohd. Farooq. It is to be noted that Mohd. Mateen and Jameeluddin, two other persons, who were also party to the agreement to sale along with plaintiff Tulsi Ram, were not produced by Tulsi Ram to contradict the statement of Mohd. Farooq. It is said that the said notice dated 05.03.1983 was sent by respondents no. 9 and 10 (sellers) to the prospective purchasers under certificate of posting. The learned Trial Court on the basis of statement of Mohd. Farooq has accepted the service of said notice on the plaintiff.

45. Learned counsel for respondents has argued that presumption of service of notice sent by 'Under Certificate of Posting' cannot be made and the employee of the post and telegraph department was required to be examined to prove the factum of posting of the notice which was not done. In support his submissions, he has relied on the judgment of the this Court in the case of West Watch Company (supra) wherein it has been held that in order to raise presumption of service of notice 'Under Certificate of Posting', the employee of the post and telegraph department has to be examined to prove the factum of posting. It is held that in absence of proof of posting of notice no presumption of service can be drawn.

46. There is no dispute to the aforesaid legal proposition. In the present case, the Trial Court relying on the statement of Mohd. Farooq has presumed the service of notice on the plaintiff. As observed above, the statement of Mohd. Farooq cannot be set-aside and has to be given weightage. The learned Trial Court was right in coming to conclusion that the plaintiff had received the notice dated 05.03.1983 and as per the said notice the sale-deed was required to be executed by 05.06.1983. The suit instituted in the year 1990 was, therefore, time barred.

47. It has been submitted by the counsel for respondents that the first appellate Court has come to conclusion that the land in question was under attachment in a case pending before the District Judge, Gonda and, therefore, there was legal impediment in execution of the sale-deed and the sellers, as such, had extended time for performance of the contract which had resulted into extension of period of limitation.

48. Learned counsel for the appellants, on the other hand, has contended that the plaintiff has very cleverly and intentionally mentioned in the plaint that by oral agreement the time for performance of contract was extended as the sellers had shown their inability to execute the sale-deed because the land in question was under attachment in a case pending before the District Judge, Gonda. There was no such oral agreement and there was no legal impediment.

49. Section 15 of Limitation Act, 1963 relates to the exclusion of time in certain cases. Section 15 of the Act, for ready reference, is quoted below:

"15. Exclusion of time in certain other cases.--(1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.

Explanation.--In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted.

(3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.

(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.

(5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded."

50. The period of limitation can be extended giving benefit of Section 15 of the Limitation Act only in such cases where stay or injunction order has been passed relating to the subject matter and only in such cases the institution or execution of which has been stayed by injunction order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

51. In the present case, no stay or injunction with respect to the land in question was granted by the concerning Court where the land in question was said to be attached. The first appellate Court as such has fallen in error in coming to conclusion that there was legal impediment in the execution of sale-deed. The Apex Court in the case of Director of Inspection of Income Tax (Investigation), New Delhi and another (supra), has held that it is well established principles of judicial procedure that wherein proceedings are stayed by an order of a court, or by an injunction issued by any court only that period should be excluded in computing period of limitation laid down by law. Relevant paragraph 8 of the judgment on reproduction reads as under:

"8. It was also argued based on Explanation 1 to Section 132 and similar provision in certain other sections which lay down that computing the period of limitation any period during which any proceeding is stayed by an order or injunction of any court shall be excluded, that where it is intended that the period of limitation prescribed by any of the provisions of the Income-tax Act should not be strictly enforced the law itself makes a specific provision. It is a well established principle of judicial procedure that where any proceedings are stayed by an order of a Court that period should be excluded in computing any period of limitation laid down by law. Especially after Limitation Act, 1963, the provisions of which are now applicable to all proceedings, a provision like Explanation 1 to Section 132 is superfluous and no argument can be based on it."

52. So far as the contention of respondents no. 1 to 8 about acceptance of part consideration by respondents no. 9 and 10 (sellers) on 26.3.1990 and thereby there was extension of period of performance of contract is concerned, it is to be noted that as per the given facts, the suit for specific performance was filed by the plaintiff (predecessor-in-interest of respondents no. 1 to 8) on 20.3.1990 and at that time the sellers had already entered into another agreement for sale with the present appellants (defendants no. 6 to 11) on 09.03.1990 and it was fully in the knowledge of plaintiff but in spite of that plaintiff had allegedly given Rs. 20,000/- to respondents no. 9 and 10 on 26.3.1990, meaning thereby that the plaintiff on the one hand had filed a suit for specific performance and on the other hand allegedly given Rs. 20,000/- to the respondents no. 9 and 10 which is hard to believe, particularly when the respondents no. 9 and 10 had already entered into another agreement for sale with the present appellants (defendants no. 6 to 11) on 09.03.1990 and had agreed to sell the land in question and had also handed over possession to them. The document produced in this regard by the plaintiff were not denied by the sellers (respondents no. 9 and 10) as they had not contested the suit because they had lost their interest in the property in question. Subsequent purchasers i.e., present appellants, have denied the said document due to lack of knowledge. In the given circumstances, it is hard to believe that the plaintiff on the one hand had filed a suit for specific performance alleging therein that the sellers have refused to perform their part of contract and have not executed the sale-deed of the land in question and on the other hand had paid handsome amount of Rs. 20,000/- which had substantial value at that time i.e., on 26.3.1990. Learned counsel for respondents in this regard has relied on the judgment of the Apex Court in the case of Badat & Co. (supra) as well as Muddasani Venkata Narsaiah (D) Th. Lrs. (supra) to assert that in the absence of specific denial the pleadings shall be treated to be admitted and, thus, in the absence of the denial of plaintiff's assertions by the defendants no. 1 and 2 (present respondents no. 9 and 10), they shall be deemed to have been admitted by them. It is submitted that the first appellate Court was right in accepting the version of the plaintiff in this regard. However, in the given facts, as have been noted above, the contention of plaintiff that he has given Rs. 20,000/- to respondents no. 9 and 10 on 26.3.1990 cannot be accepted on its face value and creates doubt about the genuineness of the document i.e., GA102/1. The judgments relied by the respondents, as noted above, are of no assistance to them.

53. So far as the question as to whether the plaintiff-respondent had established its readiness and willingness of performing his part of contract is concerned, which is the essential part in a suit for specific performance. Section 16 of the Specific Relief Act, 1963 provides bars when the suit for specific performance of contract cannot be enforced. Section 16 (c) provides that the suit for specific performance of 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 the performance of which has been prevented or waived by the defendant. Section 16 of the Specific Relief Act, 1963, for ready reference, is quoted below:

"16. Personal bars to relief.-- Specific performance of a contract cannot be enforced in favour of a person--

(a) who would not be entitled to recover compensation for its breach; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) 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 the performance of which has been prevented or waived by the defendant.

Explanation.--For the purposes of clause (c),--

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."

54. The learned Trial Court in its finding has specifically recorded that the plaintiff had not produced any evidence and he has also not made any statement in this regard that the purchasers were ready with the total remaining amount of Rs. 1,90,000/- or part amount of Rs. 47,000/- i.e., share of the plaintiff, which goes to show the non-compliance of the terms of the agreement for sale on the part of the purchasers. Witness Radhey Shyam, who was produced by the plaintiff, in his statement has stated that he was not aware as to whether his father (Tulsi Ram), Mohd. Mateen, Jameeluddin and Mohd. Farooq had given any money to the sellers to get the land in question released from attachment. The first appellate Court while reversing the finding of the Trial Court has concluded, without there being any evidence, that plaintiff was ready and willing to perform his part of the agreement for sale. There was no evidence on record to show that the respondent-plaintiff was ready and willing to perform his part of contract. The learned counsel for appellants has placed reliance on the judgment of the Delhi High Court in the case of Smt. Raj Rani Bhasin & others (supra) wherein a distinction has been drawn between the readiness to perform the contract and willingness to perform the contract. Readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial ability to pay the purchase price but for determining his willingness to perform his part of contract, his conduct has to be scrutinized. Relevant paragraph 10 of the judgment on reproduction reads as under:

"10. A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract. This includes his financial ability to pay the purchase price. We will assume for the sake of argument that the plaintiff respondent could have raised the money to pay the purchase price if he wanted to do so. But the more important question is whether he was willing to perform his part of the contract even if 'he had the financial capacity to do so. It is here that the plaintiff's conduct has to be properly scrutinised. In our view, the trial Court has not done so. It has merely concentrated its attention on the financial ability of the plaintiff to raise the money to pay the purchase price but has not noticed the unwillingness of the plaintiff to perform his part of the contract and to present a sale deed on stamp paper for the execution of the defendants and to pay the purchase price from 16-8-1962 to 16-9-1962. The trial Court was under the misapprehension that the defendants complied with the terms of the agreement only on 8-9-1962 when the documents were handed over to the plaintiff respondent as per Exhibit D-38. It failed to notice that the agreement did not require the defendants to hand over any documents as such to the plaintiff. The permission of the Rehabilitation Ministry was with the defendants from 1956 onwards. The certificate of the Wealth Tax Officer was also obtained in good time and the plaintiff did not raise any dispute about it at any time during August September 1962. The plaintiff however, persisted in asking for a copy of the certificate from the District Judge. This was the only document the demand for which could be rested by the plaintiff on the agreement. The trial Court has found that the defendants were not bound to give the certificate from the District Judge to the plaintiff inasmuch as the application for the certificate was dismissed by the District Judge on 21-8-1962 as Chandra Prakash had attained majority on 16-8-1962. The trial Court, however thought that either a registered notice in terms of the agreement or a Personal delivery of the copies of the certificates would amount to compliance with the agreement. The trial Court failed to see that the registered letter of 13-8-1962 complied with the terms of the agreement. For it referred to the school certificate which the trial Court hag rightly held to be a satisfactory evidence of the age of Chandra Parkash. The defendants had already informed the plaintiff that the other two documents namely, the permission of the Rehabilitation Ministry and the certificate of the Wealth Tax Officer had been already obtained by the defendants. The defendants had informed the plaintiff that Chandra Parkash wag to attain majority on 16-8-1962. The plaintiff was not justified in either insisting that the date of the performance of the agreement could not be changed from 8-8-1962 to 16-8-1962 or that the certificate of the District Judge must be obtained even though Chandra Parkash was to become major on 16-8-1962. For, under Section 8 of the Hindu Majority and Guardianship Act, 1956 the question of grant of the certificate by the District Judge could not arise after Chandra Parkash had obtained majority. It is only because the intimation regarding the school certificate was given to the Plaintiff by the registered letter dated 13-81962 that we have to hold that a literal compliance with clause 9 of the agreement was fully made by the defendants on 13-8-1962. Otherwise the substance compliance was made even prior to that date inasmuch as the defendants bad communicated to the plaintiff before that date that Chandra Parkash was to attain majority on 16-8-1962 and not 8-8-1962. As the attitude of the plaintiff even from before 13-8-1962 was dilatory, the defendants were justified in thinking that the plaintiff wag delaying, to pay the purchase Price in time and to buy the Priority. The question of delay on the Dart of the Plaintiff has to be considered in the background of two more pre-existing facts. Firstly the plaintiff was a tenant of the defendants occupying the around-floor of the building in suit. It is because the plaintiff represented to the defendants that he wanted to buy the property that the defendants had refrained from filing a petition for his eviction on the ground that the defendants wanted possession of the building in suit for their own bona fide occupation. The plaintiff had agreed to buy the property in 1961 but because he did not pay the purchase money the said agreement had fallen through and the new agreement of 20th March 1962 wag entered into. The facts regarding the procrastination by the plaintiff had been finally set out in the pleading made by he defendants and the evidence adduce them. They have not been rebutted by the plaintiff. The defendants were found justified in thinking that the plaintiff was interested merely in prolonging his tenancy as much as possible on the pretext that he wag buying the property and the defendants should not take steps to evict him. Later when the defendants took proceedings to evict him, the plaintiff the eviction proceedings staved on the ground that his suit for specific performance was pending. In this manner the plaintiff has managed to stay in the premises from 1961 onwards till now. Secondly, the Plaintiffs conduct shows that he only wanted to have a grip on the suit premises so that the defendants would not be able to transfer them to some other Person. Thereby the plaintiff could ensure the continuance of his stay in the premises. The business of the plaintiff was that of financing purchase of vehicles, etc. He was thus interested only in tying up the property in suit by a Purchase contract and indefinitely prolonging the performance of the same. In the above circumstances, we are of the view that the plaintiff was not willing to perform his part of the contract and this became apparent to the defendants by 13-8-1962."

55. In the case of Faquir Chand and Another vs. Sudesh Kumari11 the Apex Court while considering the import of Section 16 (c) of Specific Performance Act has observed that the plaintiff must aver that he has performed or has always been ready and willing to perform his part of the contract. The compliance with the readiness and willingness has to be in spirit and substance and not in letter and form. Relevant paragraph 4 of the judgment on reproduction reads as under:

"4. The language under Section 16(c) of the Act, in our view, does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been ready and willing to perform his part of the contract. Therefore, the compliance with the readiness and willingness has to be in spirit and substance and not in letter and form. The continuous readiness willingness could very well be seen in the instant case from the conduct of the plaintiff as a whole. The first agreement was entered into between the parties on 17.6.1985 and the last date to execute the sale deed was 14.11.1985. The second agreement was executed on 9.4.1987 and the last date to execute the sale deed was 13.6.1987. Again, the time was extended at the instance of the defendant up 30.10.1987 Since the sale deed was not executed, the respondent herein was compelled to file the suit on 26.11.1987. Thereafter, the appellant herein issued a notice to the plaintiff, respondent herein, on 7.1.1988 and at Exhibit `P-5'. It is also not in dispute that the respondent herein has deposited the entire sale consideration into the Court on 18.5.1999. He was also present in the Registrar's office for registration of the document. However, the appellant-defendant was not present at the Registrar's Office A careful perusal of the pleadings, the evidence and the documents filed in this case would only go to show that the respondent-plaintiff was ever ready and willing to perform his part of the obligation under the agreement. The decree passed by the High Court confirming the decree of the lower courts does not suffer from any infirmities. We, therefore, have no hesitation to dismiss the appeal.

(emphasis supplied)"

56. In the case of Pushparni S. Sundaram and others vs. Pauline Manomani James (Deceased) and others12 the Apex Court while considering the 'readiness and willingness' to perform their part under the contract came to conclusion that the High Court has rightly concluded that willingness and readiness is no doubt pleaded but they led no evidence to prove it. Thus, the plaintiff is not entitle to the decree of specific performance. Relevant paragraph 4 of the judgment on reproduction reads as under:

"4. The only question raised before the High Court, which it considered, to which we are called upon for consideration is, whether the appellants were always ready and willing to perform their part under the contract. The High Court came to the conclusion that willingness and readiness is no doubt pleaded but they led no evidence to prove it. Thus held, that the plaintiff is not entitled to the decree of specific performance. The submission by the learned counsel for the appellants is that the plaintiff was always willing and ready to perform his part under the contract but mere non-leading of any evidence is not sufficient to reject it. Inference of readiness and willingness could be drawn by the conduct of the plaintiff, the circumstances in a particular case in other words to be gathered from the totality of circumstances.

(emphasis supplied)"

57. In the instant case, from the evidence on record, it is evident that the respondent-plaintiff did not prove his willingness to perform his part of contract. He had not produced any evidence even to show his readiness, as such, the finding of the first appellate Court in this regard was perverse and not sustainable in the eyes of law.

58. So far as the question as to whether the learned appellate Court was justified in granting specific performance of contract ignoring the provisions of Sections 12 and 15 of the Act is concerned, I am in agreement with the finding recorded by the Trial Court that as per terms of the agreement to sale Sections 12 and 15 of the Act would not be applicable.

59. So far as the question of possession of plaintiff over the land in question is concerned, the learned Trial Court has categorically recorded that the plaintiff has failed to establish his possession over the land in question, it is to be noted that the sellers (respondents no. 9 and 10) have not contested the suit filed by the plaintiff, Tulsi Ram (predecessor-in-interest of respondents no. 1 to 8). They had not contested the first appeal filed by the plaintiff and have also not appeared before this court. Subsequent purchaser, one of the appellants, in his statement before the Trial Court has admitted that a wooden kiosk was put by late Tulsi Ram in a part of the land in question. Since, from the facts and circumstances of the case, it is clear that when the plaintiff had failed to get the sale-deed executed, the respondents no. 9 and 10 (sellers) had cancelled his agreement for sale and entered into another agreement for sale with the appellants and had executed a sale-deed in favour of the present appellants for the land in question and handed over the possession of the land in question, as such, the wooden kiosk put by the plaintiff was unauthorized and he has no right to claim his possession on the basis of such wooden kiosk.

60. In view of the aforesaid discussions, I am of the considered view that the impugned judgment and decree passed by the first appellate Court is not sustainable in the eyes of law. As such, the second appeal is allowed. The judgment and decree dated 31.5.2008 passed in Regular Civil Appeal No. 154 of 2005 is hereby set aside. The judgment and decree dated 06.10.2005 passed by the Trial Court in Regular Suit No. 86 of 1990 is upheld.

[Ritu Raj Awasthi, J.]

Order dated: 24th August, 2016

Santosh/-