Sh Om Dutt Sharma vs Sh Dheeraj & Anr
2013 Latest Caselaw 5573 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 2nd December, 2013

+                                     RFA 297/2013
       SH OM DUTT SHARMA                                           ..... Appellant
                    Through:                 Mr. V.P. Rana, Adv.
                                       versus
    SH DHEERAJ & ANR                         ..... Respondents

Through: Mr. Parvinder Chauhan, Adv. for R-2.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns a judgment and decree dated 11th February, 2013

of the Court of the Addl. District Judge-06 Central Delhi, of dismissal on the

preliminary issue of limitation, of CS 136/2011 (Unique ID

No.02401C0989222007) filed by the appellant.

2. Notice of the appeal was issued and after service of the respondent

no.2 and proceeding ex parte against the respondent no.1, the appeal

admitted for hearing and considering that if the appeal were to be allowed,

the parties will have to go through the trial, hearing of the appeal was

expedited. The counsel for the appellant and the counsel for the respondent

no.2 have been heard.

3. The appellant on 3rd October, 2007 instituted the suit from which this

appeal arises, for specific performance of an Agreement of Sale of

immovable property, pleading:-

(a) that the two respondents, vide written Agreement dated 8th

April, 2003 had agreed to sell their agricultural land to the

appellant/plaintiff;

(b) that as per the said Agreement, the sale was to be completed

within a period of six months from the date thereof;

(c) that the respondents/defendants were however liable to obtain

the necessary sale permissions;

(d) that the appellant/plaintiff out of the total agreed sale

consideration of Rs.5 lacs had paid a sum of Rs.50,000/- at the

time of Agreement to Sell and in furtherance of the Agreement

and on the request of the respondents/defendants paid a further

sum of Rs.75,000/- on 7th December, 2005 and another sum of

Rs.75,000/- on 8th May, 2006 and which amounts were

acknowledged by the respondents/defendants vide separate

receipts; and,

(e) that the respondents/defendants did not obtain the requisite

permissions.

in the cause of action paragraphs it was pleaded that the cause of

action, besides on the date of execution of the Agreement to Sell, also

accrued on 7th December, 2005 and 8th May, 2006 when the sums of

Rs.75,000/- as aforesaid were paid.

4. The respondents/defendants contested the suit by filing a written

statement, inter alia on the ground of the suit claim being barred by time.

5. The learned Addl. District Judge vide order dated 19th November,

2010 framed the following preliminary issue:-

"Whether suit of the plaintiff is within limitation? OPP"

6. The learned Addl. District Judge, vide the impugned judgment, has

held that since the limitation, for a suit for specific performance governed by

Article 54 of the Schedule to the Limitation Act, 1963, is of three years

commencing from the date fixed for performance or if no such date is fixed

when the plaintiff first has notice that performance is refused and that since

in the instant case the agreement fixed the date of performance as within six

months from the date of Agreement dated 8th April, 2003, the said date

would be 7th October, 2003 and the suit had not been instituted within three

years thereform.

7. The sole contention of the counsel for the appellant is that the learned

Addl. District Judge has ignored the plea of the appellant/plaintiff of the

cause of action having also accrued on 7th December, 2005 and 8th May,

2006 when the sums of Rs.75,000/- were paid to the respondents/defendants

and if the period of limitation is to be counted therefrom, the suit was

admittedly within time.

8. The counsel for the respondent /defendant no.2 has contended that the

receipts relied upon by the appellant/plaintiff as evidence payment of

Rs.75,000/- on 7th December, 2005 and 8th May, 2006 do not mention the

extension of time and even though the learned Addl. District Judge may not

have dealt with the said receipts, but they are of no avail.

9. I am unable to agree. Both the receipts are of a date beyond six

months after 7th October, 2003 being the date fixed as per the written

Agreement to Sell for completion of the sale. If the said receipts are to be

believed, then the same may show of the time for completion of the

agreement/sale having indeed been extended by the parties.

10. I may notice that the counsel for the respondent/defendant no.2 has

also denied the agreement and raised certain other contentions but which are

not material at this stage and it is thus clarified that any observation in this

order which is confined only to the aspect whether the suit, without

evidence, can be said to be barred by time, would not come in the way of

final adjudication.

11. The settled principle of law is that at a preliminary stage, the pleas of

the plaintiff are to be treated as gospel truth and maintainability including on

the ground of limitation is to be decided on the basis thereof except in a case

where there may be some other documents to show the falsity of such pleas.

There is no such document till now at least in the present case. The

impugned judgment and decree holding the suit filed by the

appellant/plaintiff, at the preliminary stage, to be barred by time thus cannot

be sustained and is set aside. The appeal succeeds. The suit is remanded to

the Addl. District Judge-06 Central Delhi for proceeding further in

accordance with law, leaving it open to the respondents/defendants to raise

all defences as may be available to them.

12. The parties to appear before the concerned Court on 20th January,

2014.

13. In the circumstances no costs.

14. Decree sheet be drawn up.

15. The Trial Court file which had been requisitioned to this Court be

returned forthwith.

RAJIV SAHAI ENDLAW, J

DECEMBER 02, 2013 pp