Gujarat High Court
Babubhai Kohyabhai Saraliya vs Heirs And Lrs Of Decd Sheshrav Shravan ... on 21 June, 2024
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C/FA/4940/2023 ORDER DATED: 21/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4940 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4940 of 2023
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BABUBHAI KOHYABHAI SARALIYA
Versus
HEIRS AND LRS OF DECD SHESHRAV SHRAVAN SARONDE & ORS.
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Appearance:
MR NV GANDHI(1693) for the Appellant(s) No. 1
for the Defendant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 21/06/2024
ORAL ORDER
ORDER IN FIRST APPEAL:-
1. This appeal is filed under Section 96 of the Code of Civil
Procedure, 1908 challenging the judgment and decree passed by
the learned City Civil Court, Ahmedabad on 05.09.2023 in Civil
Suit No.1690 of 2007.
2. Heard learned advocate for the appellant.
3. The brief facts of the case are as under:-
4. The appellant-plaintiff filed a suit for the property bearing
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Tenament No.A/51 Part-II situated in Shri padamsali
Cooperative Housing Society Limited situated in Revenue
Survey No.289/2 in the sim of Village Odhav, City,
Ahmedabad. An unregistered agreement to sell dated
01.06.1999 came to be executed between the plaintiff-defendant
and as a part payment, the appellant paid Rs.5,000/- to the
respondent. Total sale consideration was agreed on Rs.93,439/-.
Along with the agreement to sell, an irrevocable general power
of attorney dated 16.01.1990 was also executed by the defendant
in favour of the plaintiff. Defendant did not execute the
registered sale deed in favour of the plaintiff and instead of
selling the suit property, threatened the plaintiff to transfer the
suit property to a third party. On such apprehension, a suit for
injunction simplicitor came to be filed by the plaintiff being
Civil Suit No.3576 of 1990 before the learned City Civil Court,
Ahmedabad. The said suit came to be dismissed for default on
18.04.2001 and thereafter, plaintiff filed the present suit in the
year 2007 seeking specific performance of the agreement to sell
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dated 01.06.1990 together with a relief of permanent injunction.
Defendant appeared and filed Written Statement at Exhibit-14
denying the contentions raised in plaint and also further
contended that the suit of the plaintiff is hit by the law of
limitation.
4.1. The following issues were framed at Exhibit-24 by the
learned trial Court;
(1) Whether the plaintiff proves that the defendant
decided to sell the suit property to the plaintiff for
Rs.93,439/- and the plaintiff paid Rs.5,000/- out of the
compensation amount on 01.06.1990?
(2) Whether the claim of the plaintiff is barred by
limitation?
(3) Whether the plaintiff is entitled to the relied sought
for?
(4) What order and decree?
4.2. Plaintiff examined himself at Exhibit-27 and also
examined one witness Jethabhai Rambhai Parmar at Exhibit-67
and produced various documentary evidences. Defendant did
not enter in the witness box. However, defendant produced a
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copy of plaint of Civil Suit No.3576 of 1990 and the notice
dated 27.01.1992 issued by the plaintiff to the defendant.
5. The learned advocate for the appellant has submitted that
the defendant has admitted the factum of execution of an
agreement to sell dated 01.06.1990 and execution of an
irrevocable general power of attorney of even date. It is further
submitted that the learned trial Court has believed the execution
of agreement to sell. However on the ground of limitation, the
suit came to be dismissed. It is further submitted that the
plaintiff filed Civil Suit No.3576 of 1990 for a relief of
permanent injunction against the defendant wherein, Exhibit-5
injunction application came to be allowed in favour of the
plaintiff. However, the said suit came to be dismissed for default
on 18.04.2001. The said suit was not restored to its original file.
5.1. It is further submitted that defendant has accepted part
consideration from the plaintiff and executed agreement to sell
whereby, a right is created in favour of the plaintiff. It is further
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submitted that defendant did not accept the consideration and
backed out from his commitment of selling the suit property by
executing a registered sale deed. It is further submitted that the
defendant demanded more amount than agreed amount of sale
consideration. It is further contended that notice dated
27.01.1992 came to be issued by the plaintiff to the defendant. It
is further submitted that when the learned trial Court has
believed the execution of the agreement to sell, learned trial
Court has committed an error by dismissing the suit on the
ground of limitation.
5.2. It is submitted that in the oral deposition, witness
Jethabhai Rambhai Parmar has also deposed that the outer limit
of execution of registered sale deed was agreed to be of
15.06.1990. The said witness has also deposed that on
15.06.1990 and on 01.07.1990, he along with plaintiff met
defendant and offered the remaining amount of sale
consideration and requested to accept the remaining amount of
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sale consideration and execute the sale deed in favour of the
plaintiff. But defendant did not execute sale deed. The
deposition of said witness has gone unchallenged.
5.3. Learned advocate for the appellant has placed reliance
upon the agreement to sell dated 01.06.1990 and pointed out that
defendant had accepted Rs.5,000/- towards part payment of sale
consideration and also issued a receipt of acceptance of part
consideration.
6. The written statement which is part of the paper book
reflects that the defendant has resisted the suit and contended
that the suit of the plaintiff is barred by law of limitation and
also contended that the suit of the plaintiff is hit by the
provisions of Order 2 Rule 2 of the Code of Civil Procedure,
1908. It is also contended in the written statement that the
plaintiff was never ready and willing to offer the remaining
amount of sale consideration and also produced a copy of plaint
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being Civil Suit No.3576 of 1990 and also placed on record a
notice dated 27.01.1992 alongwith written statement. It is
further contended in the written statement that by notice dated
27.01.1992, defendant was called upon to execute the registered
sale deed in favour of the plaintiff.
7. I have considered the record and proceedings and the
impugned judgment and decree, the undisputed fact which is
coming out from the record is that an agreement to sell and
irrevocable general power of attorney was executed between the
plaintiff and defendant on 01.06.1990. The agreed sale
consideration was Rs.93,439/-. Out of which, plaintiff paid
Rs.5,000/- as part consideration to the defendant.
8. It is pertinent to observe that prior to the institution of the
present suit, the plaintiff had filed a Civil Suit No. 3576 of 1990
for a relief of permanent injunction only and no permission was
sought for as contemplated under Order 2 Rule 2 of the Code of
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Civil Procedure, 1908. The said suit came to be dismissed for
default on 18.04.2001. The plaintiff thereafter, did not take any
steps to get the suit restored and after almost six years in present
suit is filed on 01.08.2007. The plaint is completely silent as to
how the suit is within the period of limitation. No averments are
made in plaint as to how the suit is within limitation.
9. What is pleaded in the plaint is only the execution of the
agreement to sell and irrevocable general power of attorney,
previous Civil Suit No.3576 of 1990 and other general
statements, it transpires from the record that on 27.01.1992, a
notice came to be issued by the plaintiff seeking specific
performance of the agreement to sell dated 01.06.1990.
Thereafter, the plaintiff did not file any suit for specific
performance till 2007. The cause of action which is a bundle of
fact, is arisen at least from 27.01.1992 wherein, the defendant
was called upon to execute the sale deed. The limitation would
start running from 27.01.1992 Thus, such fact clearly
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demonstrates that the plaintiff has remained silent and has not
filed any suit within the period of limitation.
10. The Article 54 would be apt to refer in the Limitation Act.
Description of suit Period of Time from which period
Limitation begins to run
For specific performance Three years The fixed for the performance,
of a contract or, if no such date is fixed,
when the plaintiff has notice
that performance is refused.
Article 54 of the Limitation Act prescribes the limitation
of 3 years for filing a suit of specific performance. The time
from which the period begins to run in the date fixed for the
performance, or, if no such date is fixed, when the plaintiff has
notice that performance is refused. In the present case, a notice
dated 27.01.1992 given by plaintiff to defendant was not acted
upon by defendant, the limitation would start running from the
date of notice dated 27.01.1992 and the suit for specific
performance must be filed within 3 years from 27.01.1992.
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11. The learned trial Court while discussing the question of
limitation has considered the aforesaid aspect. From the record
of the case, it transpires that the plaintiff was never ready and
willing to perform his part of the contract and never bothered to
get the execution of the registered sale deed in his favour. When
the plaintiff has completely remained idle and in absence of any
readiness and willingness to perform his part of the contract and
getting a relief of specific performance, I am of the view that the
learned trial Court has not committed any error which requires
interference. When plaintiff filed first Suit being Civil Suit
No.3576 of 1990 against defendant for a relief of permanent
injunction only, the cause of action could have been said to have
been stated from the cause of action of Civil Suit No.3576 of
1990. Plaintiff did not ask for the leave of the Court, reserving
the right to claim a relief of specific performance. Further, the
Civil Suit No.3576 of 1990 came to be dismissed for default,
however, plaintiff waited for more than 6 years in filing the
present suit is itself a ground for refusal of specific performance
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to plaintiff. The suit of the plaintiff is rightly dismissed by
learned trial Court.
12. In view of the totality of the facts and circumstances of the
case, the present First Appeal fails and the same is dismissed.
No order as to costs.
ORDER IN CIVIL APPLICATION:-
In view of the order passed in the main matter, the present
Civil Application does not survive and the same is disposed of .
(D. M. DESAI,J)
RINKU MALI
