Abu Zar Rehman Khan Mobinuddin ... vs Prakashchandra Shriram Gotmare ...
2017 Latest Caselaw 3045 Bom

 cra70.14.J.odt                         1



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 NAGPUR BENCH, NAGPUR

          CIVIL REVISION APPLICATION NO.70 OF 2014

          Abu Zar Rehman Khan
          Mobinuddin Khan,
          Aged about 45 years,
          Occ: Agriculturist,
          R/o Pimpalgaon Raja,
          Tahsil Khamgaon,
          District Buldhana.                            ....... APPLICANT

                                ...V E R S U S...

 1]       Prakashchandra Shriram Gotmare,
          Aged about 64 years,
          R/o Dhamangaon, Tah. Sangrampur,
          District Buldhana.

 2]      Gangaram Namdeo Wankhede,
         Aged about 74 years,
         Occ: Agriculturist,
         R/o Dhamangaon, presently at
         Shevga, Tah. Sangrampur,
         District Buldhana.                      ....... RESPONDENTS
 -------------------------------------------------------------------------------------
         Shri Abdul Subhan, Advocate for Applicant.
         None for Respondents.
 -------------------------------------------------------------------------------------

          CORAM:  SMT. DR. SHALINI PHANSALKAR-JOSHI, J.

th DATE: 12 JUNE, 2017.

ORAL JUDGMENT

1] By this revision, petitioner is challenging the order

dated 07.02.2014 passed by the Civil Judge, Junior Division,

Sangrampur in Regular Civil Suit No.17/2012, thereby

rejecting the petitioner's application filed under Order 7 Rule

11(d) of the Code of Civil Procedure.

2] Facts, which are relevant, for deciding this

revision can be stated, in, brief as follows:

The suit property which is a agricultural land was

originally owned by the father of respondent No.2.

On 08.05.1973, the father of respondent No.2 entered into an

agreement to sell the said property to respondent No.1 and

his mother Subhdrabai for a consideration of Rs.1,375/-.

The sale-deed was to be executed after obtaining necessary

permission from the competent authority.

3] Thereafter in the year 1995 respondent No.2 filed

a suit for possession against the respondent No.1 bearing

Regular Civil Suit No.35/1985. The said suit came to be

dismissed on 23.05.1993, and the appeal preferred against

the judgment and order, bearing Regular Civil Appeal

No.17/1993, came to be dismissed on 06.11.1998.

Thereafter, several years, respondent No.1 filed a suit against

the respondent No.2, bearing Regular Civil Suit No.12/2011,

which came to be withdrawn with liberty to file a separate

suit on the same cause of action, and then the suit

No.17/2012 came to be filed for specific performance of the

agreement dated 08.05.1973.

4] Meanwhile the suit property was purchased by the

petitioner from respondent No.2 on 10.02.2011, vide

registered sale-deed for a total consideration of

Rs.2,30,000/-. The petitioner therefore, appeared in the suit

and filed an application under Order 7, Rule 11 of C.P.C. for

rejection of the plaint on two grounds, firstly that the Court

fee stamp is not paid properly and, secondly on the count that

the suit is barred by limitation. The learned Trial Court vide

its order dated 26.06.2012 allowed the said application

partly, directing respondent No.1 to pay the Court fee as per

the valuation of the suit property. However, as regards the

petitioner's prayer relating to framing of preliminary issue on

the aspect of limitation, the Trial Court did not pass any

order. The applicant has therefore, filed Civil Revision

Application No.64/2013 in this Court, which was allowed by

this Court, vide its judgment and order dated 17.09.2013.

It was specifically held by this Court that prima facie it

appears that the issue whether the Civil Court can entertain

the suit beyond the period of limitation goes to the root of the

matter and the said issue being one of jurisdiction, it should

be tried as a preliminary issue. The Trial Court was

accordingly directed to frame an issue of limitation and to

decide the same as preliminary issue.

5] Pursuant to the order passed by this Court, the

Trial Court framed the issue of limitation as preliminary issue

and decided the same vide its impugned order dated

17.02.2014, holding that the suit is within limitation and

hence, maintainable.

6] This order of the Trial Court is challenged in this

revision by learned counsel for the petitioner by submitting

that the said order cannot survive or cannot be called as legal

and valid, having regard to the long line of earlier litigation.

It is submitted that as per the averment made in the clause

relating to the limitation, as to the cause of action for filing

the suit, it was specifically stated that the cause of action

arose on 08.05.1973 i.e. on the date of alleged agreement to

sell and thereafter it arose on 23.02.1993 and 06.11.1998 on

dismissal of the suit and the appeal respectively. Lastly, it

arose on 24.01.2011, when the respondent No.2 sold the suit

property to the petitioner. It is submitted that even this

averment in the plaint, as made by the respondent No.1

makes it clear that the suit was apparently barred by

limitation. It is urged that the Trial Court has therefore,

committed an error in holding that the suit is within the

limitation. According to learned counsel for the petitioner,

the Trial Court has failed to properly appreciate the

provisions of Article 54 of the Limitation Act, which provide

that the suit for specific performance has to be filed within

three years from the date fixed for the performance or if no

such date is fixed, then when the plaintiff had knowledge that

performance is refused. Here in the case it is urged that when

the earlier suit for possession was filed by the respondent

No.2 against the respondent No.1, at that time itself the

intention of respondent No.2 was made very clear that he was

refusing to execute the specific performance of the contract.

Therefore, in the year 1985 itself respondent No.1 was made

aware of the refusal on the part of respondent No.2, to

execute the specific performance of the contract. It is

submitted that respondent No.1 should have filed the suit

within three years from filing of that suit. If not, at least

within 3 years from the date of dismissal of the said suit or its

appeal, the suit should have been filed. However, the suit is

filed in the year 2012. Hence, as apparently it was barred by

limitation, the Trial Court has committed a gross error in

holding that it was within the limitation. According to learned

counsel for petitioner, therefore, the impugned order passed

by the Trial Court being illegal and perverse, needs to be

quashed and set aside.

7] Though respondent Nos.1 and 2 are duly served,

respondent No.2 has remained absent. Respondent No.1 has

engaged the counsel, however, at the time of hearing on the

last day and today also, learned counsel for respondent No.1

has remained absent. Hence, the issue involved in the instant

revision being legal one and on the basis of the factual

position, which is recorded in the earlier proceeding and in

this proceeding also, this Court is deciding this revision after

going through the record of the same.

8] It is undisputed position that respondent No.2 has

filed the suit for possession against the respondent No.1 and

the said suit came to be dismissed on 23.02.1993. The appeal

preferred against the said judgment and decree also came to

be dismissed on 06.11.1998. Thus, the very filing of that suit

by the respondent No.2 against the respondent No.1 makes it

necessary to that infer respondent No.2 has made his

intentions clear that he did not want to execute the

agreement of sale. The very fact that respondent No.2 was

claiming possession of the suit property on the ground that

the agreement of sale was a false and fake document hence it

was not binding on him, was amounting to indication and

knowledge to the respondent No.1 about refusal of

respondent No.2 to execute specific performance of contract.

Hence suit should have been filed by respondent No.1 within

three years from filing of that suit. Now what can be the

relevant period for filing a specific performance of the

contract is laid down in Article 54 of the Limitation Act.

According to said Article, such suit has to be filed within

three years from the date fixed for the performance and if no

such date is fixed, then from the date the plaintiff has notice

that performance is refused.

9] In the instant case, as stated above, the

respondent No.2 had got the knowledge that respondent No.1

was not ready to perform the agreement, as he had filed the

suit for possession of the suit property. Hence respondent

No.1 should have filed the suit for specific performance

within three years from the date of filing of suit by

respondent No.2 in the year 1993 or least within three years

from the dismissal of the suit and the appeal respectively in

the year 1998. However, respondent No.1 has filed such suit

in the year 2012. It is pertinent to note that the agreement of

sale was executed on 08.05.1973 and suit is filed in the year

2012. Despite that, the Trial Court has held the suit to be

within the limitation, only on the ground that the agreement

of sale has not fixed any date for specific performance.

The Trial Court held that as the sale-deed was to be executed

after obtaining the requisite permission from Competent

Authority and as no such permission was obtained till the

date of filing the suit, the suit was required to be held as filed

within limitation. However, this reasoning and finding

adopted by the Trial Court being against the express

provision of Article 54 of the Limitation Act, it becomes

perverse. According to said provision, the time limitation

period of three years is to start running from the date fixed

for performance and if no date is fixed then when the plaintiff

has notice that performance is refused. In the instant case, no

specific date was fixed for performance of the agreement, as

the agreement was to be executed after the receipt of

permission from Competent Authority. In view thereof, the

second clause of Article 54 has to be applied, according to

which the period of three years was to commence running

from the date, the plaintiff has notice that performance is

refused.

10] In the instant case, respondent No.1 has notice in

the year 1993 itself that respondent No.2 was not ready to

execute the sale-deed as he has filed the suit for possession of

the suit land, seeking cancellation of the alleged agreement of

sale. In view thereof, the suit should have been filed

immediately after such suit was filed by the respondent No.2

against the respondent No.1. However, respondent No.1 has

not done so. The present suit which is filed in the year 2012,

therefore, being beyond the period of limitation three years

and hence barred by limitation, the suit needs to be dismissed

on this very ground itself. The impugned judgment and order

therefore, passed by the Trial Court it is therefore quashed

and set aside.

11] Accordingly, the Regular Civil Suit No.17/2012

instituted by respondent No.1 being barred by limitation, it

stands dismissed. The revision is allowed accordingly.

JUDGE

NSN