Smt. Naseem vs Ali Mohd.
2010 Latest Caselaw 3442 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment : 23rd July, 2010


+      RSA No.141/2010 & CM No.12757/2010



SMT. NASEEM                                 ...........Appellant
                            Through:   Mr.Sunil Satyarithi &
                                       Mr. Raman Ghandhi, Advocates.

                     Versus

ALI MOHD.                                  ..........Respondents

Through: Nemo.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest?

Yes

INDERMEET KAUR, J.(Oral)

CM No.12758/2010 (for exemption)

Allowed subject to just exceptions.

RSA No.141/2010 & CM No.12757/2010

1. This second appeal has been directed against the judgment

dated 20.4.2010 wherein the finding of the Trial Judge dated

3.4.2008 had been endorsed; the application of the

defendant/respondent under order 7 Rule 11 CPC had been

allowed and the plaint had been rejected amounting to a dismissal

of the suit.

2. Briefly stated the facts of the case are as follows:-

(i) Plaintiff/appellant had filed a suit for specific performance

of an agreement to sell dated 15.11.1996 qua the suit

property bearing No.D-74, Welcome, Seelampur, Delhi for a

consideration of Rs.2,34,000/-. A sum of Rs.1,03,000/- was

paid by the plaintiff to the defendant as earnest money.

Vacant and peaceful possession of the suit property had been

handed over to the plaintiff on the same day. Parties had

agreed to execute a sale deed and get it registered before the

concerned Registrar on or before 15.11.1998. As 15.11.1998

was a holiday, parties had agreed to reach the office of Sub

Registrar on 16.11.1998 for executing the title deed and also

for payment of balance amount of Rs.1,21,000/-.

(ii) Plaintiff reached the office of the Sub Registrar on

16.11.1998. Defendant failed to reach there. Legal notice

was served by the plaintiff upon the defendant asking him

either to execute the sale deed or return the double amount

of Rs.1,03,000/- as agreed between them.

(iii) Plaintiff was ready and willing to perform her part of

contract but the defendant was evading.

(iv) In the plaint, the cause of action has been described in

para no.11 which states that the cause of action accrued

firstly on 16.11.1998 when the defendant did not reach the

office of Sub Registrar, it again accrued when the legal

notice was served and lastly on 9.5.2002 when the defendant

flatly refused to execute the title deed and refused to pay the

double amount of the earnest money.

(v) Suit was filed on 03.6.2002. Along with the suit, the

plaintiff had also filed an application under Section 5 of the

Limitation Act seeking condonation of delay in filing the said

suit. It is relevant to state that in this second appeal, the

application under Section 5 of Limitation Act has not been

placed on record.

(vi) Defendant contested the suit by filing an application

under Order 7 Rule 11 CPC. First contention was that the

suit filed by the plaintiff on 3.6.2002 is time barred

(although in the application the defendant has stated the

date of filing of suit as 22.5.2002). In the reply filed by the

plaintiff to this application there has been no denial

whatsoever that the suit is not time barred; it is merely

stated that the counsel for the plaintiff has played a fraued

upon her.

(vii) On 20.10.2007 a preliminary issue, was framed,

whether the suit filed by the plaintiff is barred by limitation

and whether the delay, if any, can be condoned at the stage

of institution?

(viii) On 17.12.2007 plaintiff filed an application under Order

23 Rule 1 CPC seeking permission of the Court to withdraw

the suit with liberty to file a fresh suit. The said application

under Order 23 Rule 1 CPC has also not been placed on the

record of this Court.

(ix) On a perusal of the judgment dated 3.4.2008 passed by

the Trial Judge it has been noted that in this application the

plaintiff had averred that she wishes to withdraw the suit on

the ground of a technicality; in the additional affidavit filed

by her, she had specifically stated that her suit for specific

performance had been filed after the period of limitation and

hence she wishes to withdraw the suit with liberty to institute

a fresh suit. This was not treated as a formal defect;

accordingly bar of limitation not being a formal defect the

application of the plaintiff under Order 23 Rule 1 CPC was

rejected.

(x) Trial Judge relied upon the provisions of Article 54 of the

Indian Limitation Act 1963 and held that the present suit

filed by the plaintiff on 3.6.2002 was timed barred. It had

concluded that the suit for specific performance had been

based on an agreement to sell wherein it has been agreed

between the parties that the sale deed of the property would

be executed by the defendant in favour of the plaintiff on

16.11.1998 on which date the balance payment would also be

made. Suit filed on 3.6.2002 was after expiry of three years.

Plaint was rejected.

(xi) The Appellate Court vide judgment dated 20.04.2010

had endorsed the finding of the Trial Court. It was held that

Article 54 of the Limitation Act is attracted. Suit being time

barred, the plaint had rightly been rejected. Application

under Section 5 of the Limitation Act which had accompanied

the suit is not maintainable; Section 5 of Limitation Act does

not apply to suits.

3. In this second appeal, it has been averred that the finding of

both the Courts below in rejecting the plaint of the plaintiff and

thereby dismissing the suit of the plaintiff was an illegality; the

provisions of Article 54 of the Limitation Act had not been correctly

construed by both the Court below. It is stated that admittedly

there was an agreement to sell which had postulated that on

16.11.1998 the parties would perform the agreement and the sale

deed would be executed on the said date but thereafter the

defendant had extended the time in favour of the plaintiff and this

is evident from the plaint filed by the defendant in a suit for

possession which he had filed against the plaintiff and in which he

himself had made this admission. Attention has been drawn to the

certified copy of the said plaint (pages 102 -103 of the paper book).

This was a suit for recovery of possession of the aforenoted suit

property. On page 3 and again on page 4 of the plaint, it has been

stated by the plaintiff (defendant herein) that Ali Mohd had allowed

two months further time to execute the sale deed which two

months were to be counted from 15.11.1998 thereby extending the

period up to 15.1.1999; thereafter another 10 days extension was

granted enlarging the period up to 8.2.1999. These admissions

even as per the appellant at best extend the period to execute the

sale deed up to 8.2.1999. This suit has been filed on 3.6.2002

which is again after the expiry of the period of three years.

4. Learned counsel for appellant has placed reliance upon the

second part of Article 54 of the Limitation Act which inter alia

reads as follows:-

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

5. Contention of the appellant is that although admittedly there

was an agreement to sell between the parties and in terms of the

that agreement the parties had agreed to execute the title deed on

16.11.1998 but the subsequent enlargement of time by defendant

up to 8.2.1999 had clearly changed the date of performance and

as such applying latter condition as contained in Article 54, if no

such date is fixed, the period of limitation of three years would be

counted from the date when the plaintiff has noticed that

performance is refused. For this proposition, he has placed

reliance upon a judgment of the Supreme Court reported in JT

2007(3) SC 187 Janardhanam Prasad Vs. Ramdas. The ratio of this

judgment does not in any manner help the plaintiff. In this

judgment the Supreme Court had held when no time for

performance is fixed, in that eventuality the Court would find out

the date on which the performance was refused to the

plaintiff/appellant. That is not so in the instant case. Second

judgment relied upon by the appellant, AIR 2006 SC 2281

Pancharan Dhara & Ors. Vs. Monmatha Nath Maity, is also of no

help to the appellant. In this case the Court had held that

limitation in a suit for specific performance of a contract would be

computed from the period fixed for the execution of the sale deed

which has subsequently been extended by the conduct of the

parties. The appellant in this case has failed to show as to which

part of the conduct of the parties had enlarged the period of

limitation after 8.2.1999. The later part of Article 54 is not

applicable; there was a specific date of performance between the

parties.

6. Both the Courts below had on the averments of fact made in

the pleadings endorsed the view that the suit of the plaintiff filed

on 3.6.2002 was time barred. Plaint had been rejected on the

pleadings contained therein. The Court had also kept in mind that

along with the suit an application under Section 5 of the Limitation

Act had been filed by the plaintiff; the plaintiff himself being aware

of the fact that his suit was time barred; yet deliberately and for

reasons best known to the appellant, the said application has not

been filed along with this memo of appeal. The Courts below had

also noted that the application filed by the appellant/plaintiff under

Order 23 Rule 1 CPC had specifically averred that the plaintiff

seeks permission of the Court to withdraw the suit; in the

additional affidavit which he had filed it had been averred that his

suit is time barred, his application under Order 23 Rule 1 CPC had

accordingly been dismissed on the ground that the plea of

limitation is not a formal defect. All these admissions had been

made by the appellant/plaintiff himself admitting that his suit was

time barred.

7. The record before this Court shows that in terms of the

agreement to sell the parties had last agreed to perform the terms

of the contract by 16.11.1998. In the suit filed by the

defendant/respondent for possession the admissions in the plaint

extended the limitation up to 8.2.1999 for the purpose of

performance of their agreement. The period of limitation has thus

at best to be counted from 8.2.1999; suit filed on 3.6.2002 was

much after the period of three years as prescribed under Article 54

of the Limitation Act. Suit was timed barred and the finding of the

Courts below cannot be faulted with. No question of law much less

any substantial question of law has arisen in this matter. Appeal

and the application are dismissed in limine. File be consigned to

record room.

INDERMEET KAUR, J.

JULY 23, 2010 nandan