Allahabad High Court
Braj Bhooshan Mittal vs Jeet Singh on 7 August, 2020
Equivalent citations: AIRONLINE 2020 ALL 2555
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD In Chambers A.F.R. Reserved on 12.02.2020 Delivered on 07.08.2020 Case :- SECOND APPEAL No. - 1111 of 2009 Appellant :- Braj Bhushan Mittal Respondent :- Jeet Singh Counsel for Appellant :- Vijaya Prakash Hon'ble Ravi Nath Tilhari,J.
1. This second appeal has been filed challenging the judgment dated 18.7.2009 and the decree dated 22.7.2009 passed by the learned Additional District Judge, Court No.11, Meerut in Regular Civil Appeal No.41 of 2008 (Braj Bhooshan Mithal vs. Jeet Singh) dismissing the appeal arising out of O.S. No.130 of 2008, filed by the plaintiff-appellant which was dismissed by the learned Civil Judge (Junior Division), City Meerut vide the judgment dated 11.3.2008 and the decree dated 17.3.2008, rejecting the plaint as barred by the provisions of Order VII Rule 11 of Code of Civil Procedure, 1908(CPC).
2. The facts of the case are that the plaintiff-appellant had instituted O.S. No.130 of 2001(Braj Bhooshan Mithal vs. Jeet Singh) before Civil Judge (Junior Division), City, Meerut for specific performance of contract, directing the defendant-respondent to execute the sale deed in pursuance of the registered agreement to sell dated 04.01.1983, in favour of the plaintiff-appellant in respect of land of Khata No.39, Khasra No.27, area 0-15-0, Khata No.33/1, area 2-0-0 and Khasra No. 84/12 Min. area 1-10-00; total 3 numbers, total area 4-5-0, situated in village Mohammadpur Goomi, pargana, tehsil and district Meerut, after receiving the balance of the sale consideration of Rs.2000/ from the appellant out of the total sale consideration of Rs.17000/-, as an amount of Rs.15,000/- had already been paid to the defendant-respondent, at the time of registration of agreement to sell. The plaintiff-appellant's case is that as per the agreement to sell the defendant-respondent had to obtain permission from the competent authority(Ceiling), Meerut and intimate the plaintiff-appellant through registered post, and the plaintiff-appellant had to get the sale deed executed, within a period of one year from the date of receipt of said registered intimation after making payment of the balance of the sale consideration. The plaintiff-appellant sent a notice to the defendant-respondent on 31.12.1993, requesting him to be present at the office of Sub Registrar, Meerut on 28.1.1994 for execution of sale deed but the defendant-respondent did not accept notice sent through registered post. However, notice sent through UPC was served upon the defendant-respondent. On 28.1.1994, the plaintiff-appellant remained present at the office of Sub Registrar, Meerut for execution/registration of the sale deed but the defendant-respondent did not turn up. On the next day the defendant-respondent approached plaintiff-appellant; offered excuses and assured that he would execute the sale deed after completing the requisite formalities but he did not execute the sale deed in spite of many oral and written requests. The plaintiff-appellant as such sent another notice dated 4.1.2001, requesting the defendant-respondent to be present at the office of Sub Registrar, Meerut for execution of the sale deed on 30.1.2001 but on that date also defendant-respondent did not appear and sent an evasive reply. It was also pleaded that time was not the essence of contract and the possession of the land had already been delivered to the plaintiff- appellant at the time of registration of the agreement to sell. The plaintiff-appellant had always been and is still ready and willing to perform his part of the contract.
3. The defendant-respondent filed written statement. He denied execution of agreement to sell in favour of plaintiff-appellant. He pleaded that the value of the land in question is Rs.20-00 lac and in the year 1983 it was about Rs.5-00 lac, therefore, question of execution of registered agreement to sell for a sale consideration of Rs.17,000/- did not arise. The defendant-respondent pleaded that the suit was barred by time and the plaint was liable to be rejected under Order VII Rule 11 C.P.C.
4. Learned trial court on 12.7.2004 framed issues in the suit. Issue No.4 as framed, is as follows:-
"Whether the plaintiff's suit is barred by the provisions of Order VII Rule 11 C.P.C.?"
5. Learned Civil Judge (Junior Division), City, Meerut, decided Issue No.4 in the affirmative i.e. against the plaintiff-appellant, holding that the suit was barred by Order VII Rule 11 C.P.C., being barred by time, and dismissed the suit by the judgment dated 11.3.2008 and the decree dated 17.3.2008.
6. The plaintiff-appellant preferred Regular Civil Appeal No.41 of 2008 (Braj Bhooshan Mithal vs. Jeet Singh) before the learned District Judge, Meerut. The appeal was dismissed by judgment dated 18.7.2009 and the decree dated 22.7.2009, passed by the learned Additional District Judge, Court No.11, Meerut.
7. The appellate court affirmed the judgment and decree passed by the trial court. It held that the trial court rightly concluded that the limitation to file the suit by the plaintiff-appellant would commence from 28.1.1994 and the suit filed in the year 2001 was barred by limitation.
8. The second appeal is for admission under Order XLI Rule 11 C.P.C.
9. Sri Vijay Prakash Yadav, learned counsel for the appellant was heard.
10. Sri Vijay Prakash Yadav, learned counsel for the plaintiff-appellant submitted that as the registered notice sent to the defendant-respondent on 4.1.2001 requesting him to remain present in the office of the Sub Registrar, Meerut on 30.1.2001 for execution/registration of the sale deed was not complied with by the defendant-respondent, the suit filed on 8.3.2001 was within the period of limitation of three years from 30.1.2001. His submission is that the period of limitation would start running from 30.1.2001 and not from the date of non compliance with the earlier notice dated 31.12.1993 by which the defendant-respondent was requested to be present in the office of the Sub Registrar on 28.1.1994.
11. He has next submitted that the rejection of plaint under Order VII Rule 11 C.P.C. is not justified and the suit should have been decided on merits after evidence.
12. Learned counsel for the appellant has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Gunwantbhai Mulchand Shah & Ors vs Anton Elis Farel & Ors, reported in AIR 2006 SC 40.
13. I have considered the submissions advanced by the learned counsel for the appellant and perused the record of the second appeal.
14. Before proceeding further, it is considered appropriate to refer to the judgment of the Hon'ble Apex Court in the case of Kanailal & Ors. v. Ram Chandra & Ors. reported in (2018) 13 SCC 715, in which it has been held that while deciding the second appeal which lies only to the High Court, the Court has to ensure compliance of the requirements of Section 100 of the Code in addition to the requirements of Order XLI Rule 31 of the Code. It has further been held that the High Court while hearing the appeal at the time of admission has to first find out whether the second appeal involves any substantial question of law(s) and if it is involved then substantial question(s) of law is/are to be formulated and then the appeal can be heard only on such formulated question (s). If, however, the Court at the time of hearing the appeal on the question, comes to a conclusion that the appeal does not involve such question within the meaning of Section 100 C.P.C., then it has to pass a reasoned order keeping in view the requirements of Order 41 Rule 31 C.P.C. It is relevant to reproduce paragraphs 11 to 16 of the judgment in Kanailal (supra) as under:-
"11) That apart, Order 41 Rule 31 of the Code which deals with the contents, date and the signature of judgment is also apposite to take note of. It reads as under:
"31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring there in."
12) It is clear from mere reading of the Rule 31(a) to (d) that it makes it legally obligatory upon the Appellate Court (both-first and second Appellate Court) as to what should the judgment of the Appellate Court contain.
13) Sub-clause(a) provides that the judgment must formulate and state the points arising in the case for determination. Sub-clause(b) provides that the Court must give decision on such points and sub- clause(c) provides that the judgment shall state the reasons for the decision. So far as sub-clause
(d) is concerned, it applies in those cases where the Appellate Court has reversed the decree. In such case, the Court has to specify the relief to which the appellant has become entitled to as a result of the decree having been reversed in appeal at his instance.
14) While deciding the second appeal which lies only to the High Court, the Court has to further ensure compliance of the requirements of Section 100 of the Code in addition to the requirements of Order 41 Rule 31 of the Code set out above.
15) In other words, the High Court while hearing the second appeal at the time of its admission has to first find out whether the second appeal involves any substantial question(s) of law and if the Court finds that the appeal does involve any substantial question(s) of law then such question(s) is/are required to be formulated. The appeal can be then heard finally only on such formulated question(s). (See Santosh Hazari (supra).
16) If however, the Court, at the time of hearing the appeal on the question of admission, comes to a conclusion that the appeal does not involve any such question within the meaning of Section 100 of the Code, then it has to pass a reasoned order keeping in view the requirements of Order 41 Rule 31 set out above. Indeed, this being the mandatory requirements of law, its non-compliance by the Appellate Court render their judgment bad in law. It has further been held that of law, its non-compliance by the Appellate Court render their judgment bad in law."
15. In view of the submissions advanced, following point arises for determination, for admission:-
"Whether the plaint has rightly been rejected under Order VII Rule 11 C.P.C.?"
16. Both the learned courts below have held that the date for performance was not fixed and in view of the refusal of the defendant-respondent on 28.1.1994 of performance, the suit for specific performance filed in the year 2001 was barred under Article 54 of the Limitation Act.
17. At this stage, it would be appropriate to consider the law on the point of limitation for filing a suit for specific performance of contract and on rejection of plaint under Order VII Rule 11 C.P.C.
18. Article 54 of the Limitation Act provides as under:-
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.
19. Thus, Article 54 of the Limitation Act, is in two parts. It provides a period of three years to institute a suit for specific performance of contract. The period would start running from the date fixed for the performance. If any such date is not fixed the period of limitation would start running when the plaintiff has notice that performance is refused.
20. In R.K. Parvatharaj Gupta vs K.C. Jayadeva Reddy, (2006) 2 SCC 428, the Hon'ble Supreme Court has held that in terms of the said Article(Article 54), a suit for specific performance of a contract is required to be filed within three years; in the event no date is fixed for the performance, from the date when the plaintiff has notice that performance is refused. Paragraph 10 of this judgment is reproduced as under:-
"10. In terms of the said Article, a suit for specific performance of a contract is required to be filed within three years; in the event no date is fixed for the performance, within a period of three years from the date when the plaintiff has notice that performance is refused."
21. In the case of Ahmmadsahab Abdul Mulla (2)(D) By(LRs) vs Bibijan & Ors, (2009) 5 SCC 462 the Hon'ble Supreme Court held that the expression `date' used in Article 54 of the Schedule to the Limitation Act, is a crystallized notion. When a date is fixed it means there is a definite date fixed for doing a particular act. The expression 'date' is definitely suggestive of a specified date in the calender. Again, 'when the plaintiff has notice that performance is refused,' there is a definite point of time, when the plaintiff notices refusal. It is relevant to reproduce paragraphs 11 and 12 of the report as under:-
"11. The inevitable conclusion is that the expression `date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on `when the plaintiff has notice that performance is refused'. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances.
12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression `date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits."
22. In Madina Begum & Anr vs Shiv Murti Prasad Pandey & Ors, (2016) 15 SCC 327, the Hon'ble Supreme Court reiterated the same principle. It is relevant to reproduce paragraphs 18 to 20 of the report, as under:-
18. In Ahmadsahab Abdul Mulla (2) (Dead) v. Bibijan and Ors.(2009) 5 SCC 462, the following question was considered by a three judge Bench of this Court: "Whether the use of the expression "date" used in Article 54 of the Schedule to the Limitation Act, 1963 (in short "the Act") is suggestive of a specific date in the calendar?"
19. While answering this question on a reference made to the three judge Bench, this Court considered the meaning of the word "date" and "fixed" appearing in Article 54. Upon such consideration, this Court held that the expression "date fixed for the performance" is a crystallized notion. When a date is fixed it means there is a definite date fixed for doing a particular act. Therefore, there is no question of finding out the intention from other circumstances. It was reiterated that the expression "date" is definitely suggestive of a specified date in the calendar. Paragraphs 11 and 12 of the Report in this regard are of importance and they read as follows:-
"11. The inevitable conclusion is that the expression "date fixed for the performance" is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on "when the plaintiff has notice that performance is refused". Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances.
12. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression "date" used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits."
20. Quite independently and without reference to the aforesaid decision, another Bench of this Court in Rathnavathi and Another v. Kavita Ganashamdas (2015) 5 SCC 223 came to the same conclusion. It was held in paragraph 42 of the Report that a mere reading of Article 54 would show that if the date is fixed for the performance of an agreement, then non-compliance with the agreement on the date would give a cause of action to file a suit for specific performance within three years from the date so fixed. But when no such date is fixed, the limitation of three years would begin when the plaintiff has notice that the defendant has refused the performance of the agreement. It was further held, on the facts of the case that it did not fall in the first category of Article 54 since no date was fixed in the agreement for its performance."
23. In Janardhanam Prasad Vs. Ramdas, reported in (2007) 15 SCC 174, the Hon'ble Supreme Court has held that the Court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it was so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation. Where, however, no time for performance was fixed it is for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter.
24. This Court has, therefore, first, to ascertain, if any date was fixed for performance or if no date was fixed for performance as to when the plaintiff-appellant had notice that the performance was refused. If the date for performance was fixed i.e. if a specified date in the calender, then the period of 3 years would start running from that date to institute the suit. But, if the date was not so fixed, period of 3 years would start running from the date the plaintiff-appellant had notice that the performance had been refused by the defendant-respondent.
25. There is no dispute that the period of limitation is governed by Article 54 of the Schedule to the Limitation Act.
26. Now, it is relevant to reproduce the provisions of Order VII Rule 11 C.P.C., as under:-
"Order VII Rule 11: Rejection of plaint. The plaint shall be rejected in the following cases :-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp- paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
27. The scope of Order VII Rule 11 C.P.C. has been considered in various judgments, of which some are mentioned hereinafter. In Church of Christ Charitable Trust & Educational Charitable Society, vs. M/s Ponniamman Educational Trust, (2012) 8 SCC 706, the Hon'ble Supreme Court has held that for deciding an application under Order VII Rule 11 C.P.C., the averments in the plaint are germane. The pleas taken by the defendant in the written statement are wholly irrelevant at that stage. It is also settled in law that plaint has to be read as a whole and not in piecemeal.
28. It is relevant to reproduce paragraphs 10, 11 and 12 of the Church of Christ Charitable Trust and Educational Charitable Society(supra), as under:-
10. Since the appellant herein, as the first defendant before the trial Judge, filed application under Order VII Rule 11 of the Code for rejection of the plaint on the ground that it does not show any cause of action against him, at the foremost, it is useful to refer the relevant provision: Order VII Rule 11 of the Code:
"11. Rejection of plaint-- The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision of Rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff." It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the Court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order VII Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai & Ors. v. State of Maharashra, (2003) 1 SCC 557, in which, while considering Order VII Rule 11 of the Code, it was held as under: (SCC p.560, para 9) "9. A perusal of Order VII Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order VII Rule 11 CPC at any stage of the suit -- before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order VII CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order VII Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court."
It is clear that in order to consider Order VII Rule 11, the Court has to look into the averments in the plaint and the same can be exercised by the trial Court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and Others (2006) 3 SCC 100.
12. It is also useful to refer the judgment in T. Arivandandam vs. T.V.Satyapal & Anr, (1977) 4 SCC 467, wherein while considering the very same provision, i.e. Order VII Rule 11 and the duty of the trial Court in considering such application, this Court has reminded the trial Judges with the following observation:
"5. ..........The learned Munsif must remember that if on a meaningful - for formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And if clever drafting has created the illusion of a cause of action nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them."
It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order VII Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order X of the Code."
29. In Kuldeep Singh Pathania vs. Bikram Singh Jaryal, (2017) 5 SCC 345, the Honble Supreme Court held that the scope of the enquiry at the stage of Order VII rule 11 CPC is limited only to the pleadings of the plaintiff. Neither the written statement nor the averments, if any, filed by the opposite party for rejection under Order VII rule 11 C.P.C. or any other pleadings of the respondents can be considered for that purpose. It is relevant to reproduce paragraphs 7, 8, 9 and 10 of the report as under:-
"7. The whole purpose of trial on preliminary issue is to save time and money. Though it is not a mini trial, the court can and has to look into the entire pleadings and the materials available on record, to the extent not in dispute. But that is not the situation as far as the enquiry under Order VII Rule 11 is concerned. That is only on institutional defects. The court can only see whether the plaint, or rather the pleadings of the plaintiff, constitute a cause of action. Pleadings in the sense where, even after the stage of written statement, if there is a replication filed, in a given situation the same also can be looked into to see whether there is any admission on the part of the plaintiff. In other words, under Order VII Rule 11, the court has to take a decision looking at the pleadings of the plaintiff only and not on the rebuttal made by the defendant or any other materials produced by the defendant.
8. It appears, the High Court committed a mistake in the present case, since four out of the six issues settled were taken as the preliminary issues. Two such issues actually are relatable only to Order VII Rule 11 of the Code, in the sense those issues pertained to the rejection at the institution stage for lack of material facts and for not disclosing a cause of action. Merely because it is a trial on preliminary issues at the stage of Order XIV, the scope does not change or expand. The stage at which such an enquiry is undertaken by the court makes no difference since an enquiry under Order VII Rule 11(a) of the Code can be taken up at any stage.
9. Thus, for an enquiry under Order VII Rule 11 (a), only the pleadings of the plaintiff-petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order XIV Rule 2(2). But the entire pleadings on both sides can be looked into under Order XIV Rule 2(2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit.
10. In the present case, the issue relates to an enquiry under Order VII Rule 11(a) of the Code, and hence, there is no question of a preliminary issue being tried under Order XIV Rule 2(2) of the Code. The court exercised its jurisdiction only under Section 83(1) (a) of the Act read with Order VII Rule 11(a) of the Code. Since the scope of the enquiry at that stage has to be limited only to the pleadings of the plaintiff, neither the written statement nor the averments, if any, filed by the opposite party for rejection under Order VII Rule 11(a) of the Code or any other pleadings of the respondents can be considered for that purpose.
30. In Madanuri Sri Ram Chanda Murthy vs. Syed Jalal, (2017) 13 SCC 174, the Hon'ble Supreme Court held that the relevant facts which need to be looked into for deciding the application for rejection of plaint are the averments of the plaint only. The averments in the written statement as well as the contentions of the defendant are wholly immaterial. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 C.P.C. can be exercised. It is relevant to reproduce paragraph 7 of the judgment in Madanuri case (supra), as under:-
"7. The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII Rule 11, CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order VII Rule 11, CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when, the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 of CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.
31. The same principle has been re-affirmed in Chhotanben & another v/s Kiritbhai Jalkrushnabhai Thakkar & Others, (2018) 6 SCC 422, and in Madiraju Venkata Ramana Raju v/s Peddireddigari Ramachandra Reddy & Others, (2018) 14 SCC 1.
32. Thus, it is settled in law that the plaint can be rejected under Order VII Rule 11 C.P.C. on the grounds under Clauses (a) to (f). In considering the question of rejection of the plaint, the Court has to look into the plaint and plaint alone. The plaint has to be read in its entirety. On the averments made in the plaint which are to be taken as correct as a whole on their face value, if the suit appears to be barred by any law, then the plaint will be rejected under Order VII Rule 11(d) C.P.C.
32. This Court has, therefore, to consider if from reading of the entire plaint statement, what is the date fixed for performance of the contract, and if no date is fixed for performance, as to when the plaintiff-appellant had notice that the performance had been refused. Thereafter it is to be considered if the suit filed was within 3 years from the relevant date under first or the second part of Article 54 of the Limitation Act.
33. The plaint statements clearly show that (i) no date was fixed for performance of contract, (ii) the plaintiff-appellant had sent a notice dated 31.12.1993 through registered post as well as Under Postal Certificate(UPC) to the defendant-respondent for execution /registration of the sale deed, (iii) the UPC was received by the defendant-respondent, (iv) by the said notice the plaintiff-appellant had fixed 28.1.1994 requiring the defendant-respondent to appear in the office of the Sub Registrar, Meerut, for execution/registration of the sale deed, and (v) on the date fixed i.e. 28.1.1994, the defendant-respondent did not appear for performance although the plaintiff-appellant remained present with balance of the sale consideration.
34. As no date was fixed for the performance of the contract, the first part of Article 54 of the Limitation Act would not apply. The limitation period of 3 years would, therefore, start running from the date the plaintiff-appellant had notice of refusal of performance by the defendant-respondent.
35. The performance of contract was refused by the defendant-respondent on 28.1.1994 as he did not appear for execution of the sale deed before the Sub Registrar, Meerut on that date in pursuance of the notice dated 31.12.1993 sent by the plaintiff-appellant. As the plaintiff-appellant was present on 28.1.1994 in the office of the Sub Registrar, Meerut for getting the execution of the sale deed, after making payment of balance of the sale consideration to the defendant-respondent, the plaintiff-appellant actually knew that the performance was refused by the defendant-respondent on 28.1.1994 itself. He, as such had the notice of refusal of performance on 28.1.1994.
36. In view of the above, the period of limitation of 3 years to institute the suit for specific performance of contract, started to run from 28.1.1994 and came to an end on 27.1.1997. The suit filed in the year 2001 was, thus, clearly barred by law of limitation on the averments made in the plaint itself under Order VII Rule 11(d) C.P.C.
37. The next submission of the learned counsel for the appellant is that as per the plaint averments, on the next date i.e. on 29.1.1994, the defendant-respondent approached the plaintiff-appellant with excuses and assured that the sale deed would be executed at the earliest after getting requisite permission from the Ceiling Department and the Income-tax Department. Relying on the said assurances of the defendant-respondent, the plaintiff-appellant did not institute the suit and waited for the performance by the defendant-respondent. However, as the defendant-respondent did not keep the assurances, the plaintiff-appellant sent a second notice on 4.1.2001 which was served on the defendant-respondent but the defendant-respondent did not comply with the said notice as well and did not appear in the office of the Sub Registrar, Meerut on the date fixed i.e. 30.1.2001 for execution of the sale deed. The submission is that the period of limitation would start running from 30.1.2001 and thus, the suit filed in the year 2001 was within the period of limitation of 3 years.
38. The aforesaid submission of the learned counsel for the plaintiff- appellant deserves rejection. It is settled in law, as has been held by the Hon'ble Supreme Court in Fatehji & Company & Anr vs L.M. Nagpal & Ors, (2015) 8 SCC 390 that if any permission is to be obtained prior to the performance/completion of the contract, the mere fact that the defendants have not obtained the said permission would not lead to inference that no cause of action for filing the suit for specific performance would arise. The performance having been refused on 28.1.1994, even if the plaintiff-appellant acted upon the assurance of the defendant-respondent, which is said to have been given on 29.1.1994, still the suit was required to be filed by 27.1.1997 within 3 years from the notice of refusal of performance on 28.1.1994.
39. Learned counsel for the appellant placed reliance on the case of S. Brahmanand and Ors vs K. R. Muthugopal and Ors. AIR 2006 SC 40, in support of his contention that the conduct of defendant-respondent in giving assurance and the plaintiff appellant acting on such assurance in not instituting the suit, was required to be considered and the period of limitation should be considered to have started running from the date of notice of refusal of performance in pursuance of the second notice dated 4.1.2001, i.e. from 30.1.2001.
40. In S. Brahmanand(supra) there was a fixed date for performance in the original agreement. When the date is fixed for performance, the first part of Article 54 to Schedule of Limitation Act is attracted. However, time was extended and in spite of such extension, performance was refused on a particular date of which plaintiff had acquired notice. It was held that from the date of notice of refusal to performance, limitation would start running under the second part of Article 54 of the Limitation Act. In the present case, as per the plaint averments, any date was not fixed for performance of contract. The present is not the case of an agreement to sell which specified a date for performance and later on by extension of time, without specifying a particular date for performance, became an agreement to sell where no date was fixed for performance. In the present case, since the very beginning, as per the plaint averments, no time was fixed for performance. As such the period of limitation of 3 years would start running from the date the plaintiff- appellant had notice of refusal of performance for the first time which is 28.1.1994. In S. Brahmanand (supra) the Hon'ble Supreme Court considered the period of limitation as running from the date the plaintiff had notice of refusal. S. Brahmanand case is, therefore, of no help to the plaintiff-appellant.
41. Further, in S. Brahmanand case(supra), the Hon'ble Supreme Court specifically held in paragraph 36 considering the case of Pazhaniappa Chettiyar v. South Indian Planting and Industrial Co. Ltd and Anr.AIR 1953 Trav-C 161 that the contract when initially made had a fixed date for the performance but the Court was of the view that in the events that happened, the agreement though started with fixation of a period for the completion of the transaction became one without such period. If it became one in which no time was fixed for its performance, the limitation which was originally covered by the first part of Article 113 of the Limitation Act, 1908(old) would fall under the second part of that Article because of the very circumstances of that case. The present case, falls in the second part of Article 54 since the very beginning. There is no supervening circumstance to convert the agreement from the first part to the second part of Article 54,Limitation Act.
42. In Ahmmadsahab Abdul Mulla(supra), the Hon'ble Supreme Court on a reference made to three Judge Bench, considered the meaning of the words "date" and "fixed" appearing in Article 54. The Hon'ble Supreme Court considered the judgment in S. Brahmanand (supra) and held that when a date is fixed, it means a definite date fixed for doing a particular act. Therefore, there is no question of finding intention from other circumstances. Thus, this Court is of the considered view that the intention/conduct of the defendant-respondent, as per the plaint pleadings i.e. giving assurance etc., is of no importance so far as the period of limitation is concerned or the time from which it starts running.
43. The next submission of the learned counsel for the appellant that the possession of the property had already been delivered to plaintiff-appellant in pursuance of the registered agreement to sell and, therefore, Article 54 of the Limitation Act should not bar institution of the suit, also deserves rejection. Article 54 of the Limitation Act which provides for a period of 3 years for institution of the suit, does not make any distinction between suits for specific performance of contract, on the basis of delivery of possession, pursuant to agreement to sell or part performance of agreement. Here, the judgment of the Hon'ble Apex Court, on this point in the case of Fatehji and others(supra) paragraph 6 thereof requires reference, in which it has been held that the fact that the plaintiff was put in possession of the property agreed to be sold on the date of agreement, would not make any difference with regard to limitation for filing a suit for specific performance of contract. Article 54 of the Limitation Act does not make any difference between the cases where the property had been delivered in part performance of the agreement or otherwise and the cases where it has not been so delivered.
44. The enquiry under Order VII rule 11 C.P.C. is only on institutional defects. If the Court finds that the suit is barred by law of limitation on the averments made in the plaint, the plaint shall be rejected. There shall be no occasion for the Court to proceed to decide the suit on merits after allowing the parties to lead evidence. In view thereof, the submission of the learned counsel for the plaintiff-appellant that the Trial Court should have decided the suit on merits after evidence also deserves rejection.
45. No other point was raised by the learned counsel for the appellant.
46. Thus, considered, I find that the learned courts below have not committed any error of law in rejecting the plaint and in dismissing the appeal.
47. The second appeal does not raise any substantial question of law and it is hereby dismissed at the admission stage.
Order Date:07.08.2020.
mt