Andhra HC (Pre-Telangana)
S. Mahaboob Basha And Anr. vs B.R. Mohan Rao (Died) Per L.Rs. And Ors. on 31 March, 2006
Equivalent citations: 2006(3)ALT632, 2007 (1) AIR JHAR R (NOC) 4 (A. P.)
JUDGMENT P.S. Narayana, J.
1. This appeal is filed by the unsuccessful defendants in O.S.No. 54 of 1978 on the file of Additional Subordinate Judge, Anantapur. Though as against respondents 3, 6 to 11 and 13 the matter was dismissed for default at a particular point of time, the same had been restored by an order dated 14-10-2004 in CMP.No. 14320 of 2004.
2. The respondents-plaintiffs filed the suit for specific performance of an agreement of sale dated 7-10-1968 with a further prayer to deliver the possession of the property to the plaintiffs. The first and second plaintiffs, viz., B.R. Mohan Rao and G. Sreeramulu, died and their legal representatives were brought on record. On the strength of the respective pleadings of the parties and having settled the issues, the learned Judge recorded the evidence of P.Ws. 1 to 3, D.Ws. 1 to 4, marked Exs.A-1 to A-16, X-1 to X-3, C-1 to X-3 and also C-1 to C-7 and ultimately arrived at a conclusion that in view of the fact that the plaintiffs having already deposited the balance of consideration of Rs. 40,000/- into Court by way of a Lodgment Schedule and in the light of the findings recorded on issues 1 to 4 and the additional issue, the suit was decreed with costs proportionately, and appellants-defendants 1 and 2 were directed to execute the sale deed in favour of the plaintiffs in respect of the plaint schedule property within two months from the said date, failing which the plaintiffs to proceed in accordance with law. However, the suit was dismissed for the relief of damages. Aggrieved by the same, the present appeal is preferred by the unsuccessful defendants.
SUBMISSIONS OF SRI B. ADINARAYANA RAO
3. Sri B. Adinarayana Rao, learned Counsel representing the appellants had taken this Court through the respective pleadings of the parties, the evidence available on record and would contend that in the facts and circumstances of the case, the learned Judge had totally erred in granting the decree for specific performance. The learned Counsel also would maintain that when the defendants took a specific plea in the written statement that the agreement of sale is a fabricated and forged document, the burden is on the plaintiffs to prove that Rabia Bi executed the same and the said burden was not discharged. The learned Counsel also would maintain that except the interested testimony of P.W.1, there is no other evidence available on record and hence this evidence is highly insufficient to discharge their burden. The counsel also would maintain that the plaintiffs had not given any explanation for non-examination of the scribe. The counsel also made certain submissions relating to the alleged original executant Rabia Bi and she being an illiterate and innocent Pardanashin lady, the learned Judge should have taken note of the said aspect into consideration and should have negatived the relief to the plaintiffs. The counsel also while further elaborating his submissions pointed out to the evidence of the expert and the findings recorded in relation thereto. The learned Counsel also pointed out that merely because some written statement was filed by Rabia Bi in yet other proceeding admitting the execution of the agreement of sale in question, that cannot be taken as an admission and however at any rate the said admission, even if to be taken into consideration, cannot be said to be a binding admission in the light of the peculiar facts and circumstances. The learned Counsel also incidentally had referred to the other findings recorded by the learned Judge and had taken this Court through the evidence available on record. The counsel laid stress and emphasis on the question of limitation and had drawn attention of this Court to Article 54 of the Limitation Act, 1963, in this regard and further placed strong reliance on the decisions reported in Mahboob Pasha v. Syed Zaheeruddin T.L. Muddukrishana v. Lalitha Ramachandra Rao K. Ramayya v. K. Nageswararao and also A.S. K. Krishnappa v. S.V.V. Somiah The learned Counsel also explained in detail how the period of limitation when once commenced could not be stopped or arrested and how Section 15(1) of the Limitation Act, 1963 would not come to the aid of the respondents-plaintiffs in the present case.
SUBMISSIONS OF SRI VEDULA VENKATA RAMANA
4. Sri Vedula Venkata Ramana, learned Counsel representing the respondents-plaintiffs would maintain that normally in the case of immovable property, time cannot be treated as essence of contract. The learned Counsel had taken this Court through the recitals made in the agreement of sale in question. The counsel also would maintain that the position is very clear in the light of the decision in Gomathinayagam Pillai v. Palaniswami Nadai which, in fact had been affirmed in Chand Rani v. Kamal Rani AIR 1993 SC 1762, The learned Counsel also would maintain that them other of the 1st defendant in fact admitted the agreement of sale in the prior proceeding. The learned Counsel pointed out to the relevant portion of the written statement filed in a prior litigation and would explain that the 1st defendant, who was brought on record as legal representative, filed Adoption Memo and hence it would amount to admitting the very execution of agreement of sale. The counsel would maintain that the admitted facts need not be proved and in view of the same, the evidence available on record is sufficient. The learned Counsel also had explained in detail the evidence of P.W.1 and other witnesses examined on behalf of the plaintiffs in this regard. The learned Counsel also would maintain that the 2nd defendant purchased the property after the institution of the suit and hence the defence under Section 19(b) of the Specific Relief Act, 1963, also is not available. Even otherwise in the light of the stand taken by the mother of the 1st defendant that there was a restraint order from making any alienation inasmuch as the mother never refused, the time may have to be reckoned from the date of refusal only and the intention and the subsequent conduct of the parties also may have to be taken into consideration. The learned Counsel also had pointed out that in the peculiar facts and circumstances the admission made in the pleading by the mother to be taken as an admission to be binding on the parties. The learned Counsel also would maintain that the opinion of Expert is only opinion evidence and hence the learned Judge recorded reasons in detail and gave clear findings. In view of Section 73 of Indian Evidence Act, 1872, the learned Judge in fact had arrived at the correct conclusion and hence the said findings need not be disturbed. The counsel also while further elaborating his submissions would maintain that taking all the facts and circumstances into consideration, the learned Judge exercised the discretion properly in a particular way and hence the appellate Court to be slow in disturbing the said findings. The learned Counsel also placed strong reliance on the decisions in R.V.E. Venkatachala Gounder v. A.V. and V.P. Temple and Manjunath Anandappa Tammanasa v. in this regard.
5. Heard the counsel, perused the oral and documentary evidence available on record and the findings recorded by the learned Judge. The parties hereinafter would be referred to as plaintiffs and defendants as arrayed in the original suit for the purpose of convenience.
6. Before taking up further discussion it may be appropriate to have a look at the respective pleadings of the parties, which are as hereunder:
AVERMENTS MADE IN THE PLAINT
7. The plaintiffs pleaded in paras 3 to 5 as hereunder:
The plaint schedule property originally belonged to one Rabia Bi. She entered into an agreement dated 7-10-1968 to sell the property to the plaintiffs for a sum of Rs. 45,000/-. She received a sum of Rs. 5,000/- as advance under the agreement. A period of three months is stipulated for payment of the balance by the plaintiffs and for execution and registration of the sale deed in their favour. The agreement executed by late Rabia Bi is filed herewith. It may be read as part and parcel of this plaint.
The plaintiffs have always been ready and willing to perform their part of the contract, pay the balance of consideration and take the sale deed for the property. But immediately after the execution of the agreement in favour of the plaintiffs for partition was filed by one Shaik Ghouse Mohiddin Sab. He also filed IA.No. 740/68 and obtained an injunction against the said Rabia Bi restraining her from alienating the property appears to have been made absolute on 12-9-69. She was not therefore in a position to execute any sale deed in favour of the plaintiffs in spite of the pressing demands of the plaintiffs she was pleading her inability to perform her part of the contract in view of the injunction orders against her. In fact the plaintiffs had issued a notice dated 29-11-68 to the said Rabia Bi and Attar Khairumbai her mother, demanding for performance of the contract. She expressed her inability to comply with the notice and requested the plaintiffs to await the result of the suit. They had no alternative but to wait. The plaintiffs submit that they have ever been ready and willing to perform their part of the contract. Even now they are ready to do so.
The suit filed against Rabia Bi was pending till 6-8-77. In the meanwhile the said Rabia Bi died and the defendant herein her only legal representative was substituted in her place in the said suit. He is also fully aware of the execution of the agreement, and the obligation thereunder. He was also promising to abide by the terms of the contract pending disposal of the suit. Subsequent to the disposal of the suit he went on promising to perform his part of the contract. As he did not actually do so, a notice dated 8-10-77 was issued to him. He sent a reply dated 3-11-77 with absolutely untrue and untenable allegations. There was no denial of the rights of the plaintiffs at any time prior to 3-11-77 in view of the court's order and also in view of the orders of this Hon'ble Court negating the claims of the plaintiff to come on record as parties to the suit in OS.No. 143/68 by IA.423/70 they could not do anything and the question of this suit being barred by limitation does not arise. The limitation for this suit starts from 3-11-77 on which the reply notice is issued by the defendant for the first time denied performance. By virtue of the memo dated 23-10-75 filed by the defendant herein as 8th defendant in OS.143/68 on the file of the Prl. Subordinate Judge's Court, Anantapur. Where by he confirmed the suit agreement and expressed his readiness to abide by it and also by virtue of the statutory prohibition which barred suits for specific performance being instituted and decreed, the plaintiffs were prevented from filing the suit earlier. That way also the suit is not barred by limitation and well within time. The allegations in the reply notice are all untenable and are made only with a view to evade the liability. Since the defendant and his mother went on promising to perform their part of the suit contract all the while there was no need to file a suit during the pendency of OS. 143/68. The defendant and his mother not only orally promised to do so but also affirmed their liability to perform their liability to perform their part of the contract by the written statement filed by the 3rd defendant in OS.No. 143/68 and also by the present defendant by filing a memo dated 23-10-75 adopting his mother's written statement in the said suit. Oral promises coupled with the admissions in the written statement and memo filed by defendants 3 and 8 respectively in OS.143/68 clearly indicate that they were always willing to abide by the terms of the contract and did not refute their liability and the rights of the plaintiff. Likewise under the provisions of the Andhra Pradesh Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972, enforcement of agreements of sale for specific performance was barred and the courts were specifically ordained not to pass any decrees. The provisions came into force with effect from 5-6-1972 and remained in force till 5-11-77. Under those circumstances the plaintiffs could not file the suit to enforce the suit agreement during that period. As such the suit is also not barred by limitation and it is in time.
8. Subsequent thereto para 5-A was added as perorders in IA.No. 84 of 1995, dated 28-12-1995, wherein it was further pleaded as hereunder:
The defendant after the suit has been indulging in acts of waste in the petition schedule land. He has been running an industry in laying Bricks and Brick kilns on an extensive scale. He has removed the surface soil for the purpose and made lot of pits for laying bricks. The user of tractors and other vehicles and burning of kilns constantly has damaged the ecosystem and sub-soil strength considerably. For the dates were inflicted directly to an addition to breach of contract with a sinister design to cause extensive damages to plaintiffs in case they succeed in the suit. The defendant is obligated legally to compensate the plaintiff for his failure to retain the schedule land in its state on the date of the agreement. The plaintiffs submit that the damages suffered is to a tune of Rs. 80,000/- which is sum necessary for reclamation of the land of maintain status quo ante as on the date of agreement. Hence the plaintiffs claim compensation for the damages suffered at Rs. 80,000/- in addition to the relief of specific performance.
AVERMENTS MADE IN THE WRITTEN STATEMENT OF DEFENDANT NO. 1
9. Defendant No. 1 had denied the allegations made in the plaint. It was also further pleaded as hereunder:
This defendant puts the plaintiffs to strict proof of the alleged agreement of sale. The alleged agreement seems to have been fabricated by the plaintiffs taking advantage of illiterate innocency of pardanishan lady, Rabiyabi. To the knowledge of this defendant no amount was paid under the agreement of sale. To the knowledge of this defendant the so called Rabiya Bi has never signed in the alleged agreement of sale. Without prejudice to the contentions of this defendant, even assuming but not admitting that Rabiyabi has executed the alleged agreement of sale, it must be only to deny the share of the plaintiff in OS. 143/68 on the file of the Subordinate Judge's Court, Anantapur, But it cannot be said under any circumstances that the said Rabiya Bi intended to dispose of the property for a meager amount like Rs. 40,000/- when the value of the property is more than one lakh in 1969 itself.
The plaint schedule property originally belonged to Attar Mohammed Sab and Attar Khaja Bhai. The schedule property devolved upon on the heirs of both the brothers Attar Khaja Bhai and Mohammed Sab. As there were disputes with regard to the share between the sharers and residuaries, the said Khairum Bi who is the mother's mother had no absolute right over the property. Hence the gift in favour of Rabiya Bi by Khairun Bi (mother) is against the law. More so Rabiya Bi entering into an agreement in favour of the plaintiffs assuming it to be true but not admitting, she herself had no right to enter into such agreement of sale. Hence the alleged agreement is not binding on this defendant.
The allegation in para 4 of the plaint are specifically denied. This defendant is not aware of the alleged agreement dated 7-10-1968. The plaintiffs are put to strict proof of execution of the agreement of sale. Rabiya Bi was a ghosha woman observing Parda. The defendant is only the son of Rabiya Bi and she had all love and affection towards him and the plaint schedule property was the only property she possessed of. Under the above circumstances this defendant honestly believes and understands that the agreement of sale referred to in the plaint must be either got up one by playing fraud on Rabiya Bi on misrepresentation nor the agreement of sale is a forged document out and out. The signature in the agreement of sale by Rabiya Bi filed by the plaintiffs appears to be a forged one, even to naked eye. The allegations that the plaintiffs could not file a suit for specific performance of the agreement as there was an injunction in OS. 143/68 on the file of the Subordinate Judge's Court, Anantapur, is no excuse for the plaintiffs for delay for not filing the suit in time. The High Court of Andhra Pradesh in Civil Revision No. 718/71 preferred by the plaintiffs wherein clearly observed that OS. 143/68 was only in between members of a family with regard to the family properties. The agreement of sale in favour of 3rd party does not create any interests in the immovable property and High Court also observed in the event of sale deed being executed they may approach the Court. But the plaintiffs herein have kept quiet. Further if the agreement is a genuine one, the plaintiffs ought to have asked Rabiya Bi to execute a sale deed in favour of them as per the directions of the High Court. They have not filed a separate suit for specific performance. Even it is absolutely false to say that the said Rabiya Bi was not in a position to execute a sale deed in favour of the plaintiffs in spite of pressing demands by the plaintiffs. There was no demand at all at any time after the disposal of Revision Petition No. 781/71 of the High Court of Andhra Pradesh.
The alleged notice issued by the plaintiffs dated 29-11-68 was long prior to the disposal of the Revision Petition in High Court. The plaintiffs were never made their sincere attempts demanding to perform the Rabiya Bi her part of the contract. The plaintiffs slept over the matter for a long time and suit is clearly barred by time.
The allegations in para 5 of the plaint is hereby denied. The allegation that the suit filed by Rabiya Bi was pending till 7-8-1977 in the meanwhile Rabiya Bi died, the defendant herein her only legal representative is true. This defendant contested the suit OS. 148/68 is false to say that this defendant became the absolute owner of the property through Rabiya Bi. this defendant paid Rs. 10,000/-to the plaintiff in OS. 143/68 on the file of the Subordinate Judge's Court, Anantapur, admitting the plaintiffs' share in OS.143/68 and he should relinquish all his rights in OS. 143/68. Hence even assuming the agreement executed by Rabiya Bi is true, the agreement is not binding and enforceable against this defendant. The allegations that the plaintiffs on demand this defendant to execute a sale deed in favour of plaintiffs is not at all true. This defendant never promised to abide by the terms of the agreement pending disposal of the suit. Neither he went on promising the plaintiffs to perform his part of the contract. Subsequent of the suit for 1st time this defendant received the notice from the plaintiff's advocate dated 8-7-77 and this defendant has sent a proper reply notice also. It is utterly false to say that there was no denial of rights of the plaintiffs at any time prior to 3-11-77. This defendant attained majority long prior to the filing of the suit, as the plaintiffs slept over and neglected to demand this defendant for the part performance of the contract by this defendant. There is no question of denial of rights of the plaintiffs by this defendant. Hence the suit is clearly barred by limitation. The order in IA.423/70 in OS. 143/68 will not come into rescue of the plaintiffs to save limitation. It is not true to say that the limitation for the suit starts from 3-11-77 as alleged in the plaint.
The cause of action as alleged in the plaint is not correct. The cause of action does not survive against the defendant as alleged in the plaint as the suit is clearly barred by time. The dismissal of OS. 143/68 on 7-8-77 or 8-10-77 and on 3-11-77 the date of reply notice does not give the plaintiffs the fresh cause of action. The plaintiffs are put to strict proof of the allegations in para 6 of the plaint.
10. In additional written statement it was further pleaded as hereunder:
1. It is false to say that this defendant and his mother went on promising to perform their part of the alleged agreement. The agreement is itself a fabricated one and there was no question of either this defendant or his mother making any such kind of promise.
2. It is false to say that this defendant's mother affirmed her liability in the written statement said to have been filed on her behalf in OS.143 of 1968. This defendant does not admit that any written statement was filed by Rabia Bi in OS. 143 of 1968 and that she was aware of its contents. Rabia Bi was a Pardhanashin lady and she never went out of her house nor attended court at any time. She was also illiterate and ignorant lady and she never knew about the statement in OS. 143 of 1968 or its contents.
3. This defendant is not aware of any Memo having been filed in OS.143 of 1968 on behalf of this defendant adopting the alleged written statement of his mother. This defendant is not acquainted with court procedure. It is quite possible that this defendant's advocate in OS. 143 of 1968 filed such a memo, as this defendant had instructed him to do all acts as were necessary for the purpose of the suit OS.143 of 1968. the authorization was strictly limited to such acts as were essential and necessary for the purpose of the suit OS. 143 of 1968. At no time did this defendant or him mother expressed their willingness to abide by the terms of the alleged contract. It is also false to say that the alleged memo in OS.143 of 1968 said to have been filed on behalf of this defendant indicates that this defendant was willing to abide by the terms of the alleged contract. In fact the alleged memo does not contain any reference to the alleged contract and it has nothing to do with it.
4. This defendant begs to submit that the provisions of A.P. Vacant Lands in Urban Area (Prohibition and Alienation) Act of 1972 has no application to the facts of the case. The plaint schedule property is not vacant land within the meaning of the said Act. It is also false to say that the plaint schedule property is situate in Anantapur Municipal limits. The same is also not situate in any urban area. There is an old building in the said land and the said building has been in existence since more than 20 years.
AVERMENTS MADE IN THE WRITTEN STATEMENT OF 2nd DEFENDANT
11. The 2nd defendant adopted the original written statement filed by the 1st defendant in all material particulars. It was also further pleaded at paras 1 and 2 as hereunder:
This defendant has purchased plaint schedule property from the 1st defendant on 3-3-80 and he has been in exclusive possession and enjoyment of the same since the date.
It is false to say that this defendant has been indulging in acts of waste in the plaint schedule property. It is false to say that he is running any industry in lying bricks and brick kilns. About two years back this defendant has set up three brick kilns in the plaint schedule property. They are being used by turns. It is false to say that any surface soil has been removed and any pits are made in the plaint schedule property. No tractors are used and no damage is done to the ecosystem. There is no sinister design to cause any damage to the plaintiff. The plaint schedule land is in the very state it was at the time of the alleged agreement. No damages are suffered by the plaintiff. The plaintiffs have no right for any damages. Even otherwise the damages claimed are highly excessive.
ISSUES AND ADDITIONAL ISSUES SETTLED
1. Whether the suit agreement is true, valid and binding?
2. Whether the gift in favour of Rabia Bi is not valid?
3. Whether the suit is barred by limitation?
4. Whether suit agreement is not enforceable against the defendants?
5. To what relief?
ADDITIONAL ISSUES:
1. Whether 3 to 13 defendants are L.Rs. of plaintiffs?
2. To what relief?
EVIDENCE AVAILABLE ON RECORD Oral evidence Plaintiffs Defendants P.W. 1. B.K. Mohan Rao. D.W. 1. Mahaboob Basha.
P.W.2. Krishna Reddy Advocate. D.W.2. B. Hanmanthu.
P.W.3. Sivarama Krishna. D.W.3. C.T. Bhanagay (Expert)
D.W.4. Shaik Sattar Sab.
DOCUMENTARY EVIDENCE AVAILABLE-ON RECORD
Exhibits marked for the plaintiff
Ex.A-1. dt. 7-10-68. Agreement executed by Rabia Bi in
favour of plaintiffs for Rs. 45,000/-
to sell the suit schedule land.
Ex.A-2. Dt.29-11-68. Office copy of notice issued by
plaintiff to one Attar Khairum
Bi and Rabia Bi.
Ex.A-3. Certificate copy of plaint in
OS. 143/68 on the file of the
Sub-Court, Anantapur.
Ex.A-4. Certified copy of injunction
order in IA.740/68 on the file
of Sub-Court, Anantapur.
Ex.A-5. Certified copy of written statement
in OS. 143/68 on the file of
Sub-Court, Anantapur.
Ex.A-6. Certified copy of counter in
IA.740/68 in OS. 143/68 on the
file of Sub-Court, Anantapur.
Ex. A-7. Dt.8-10-77. Office copy of suit notice issued
by plaintiffs to defendants.
Ex.A-8. Dt.3-11-77. Reply notice issued by
defendants to plaintiffs.
Ex.A-9. Dt. 2-8-79. Receipt for Rs. 2,568/-
passed by Anantapur Co-op.
Agricultural Bank.
Ex.A-10. Certified copy of registered sale deed.
Exs.A-11 to A-16. Photographs along with negatives.
EXHIBITS MARKED FOR DEFENDANTS
NIL
EXHIBITS FOR 'C' SERIES
Ex.C-1. Dt. 23-10-75 Memoin OS.No. 143/68 on
the file of Sub-Court, Anantapur.
Ex.C-2. Written statement in OS.143/68
on the file of Sub-Court,
Anantapur,
Ex.C-3. Dt. 25-7-78 Vakalat filed in OS.54/78 on
the file of this Court.
EXHIBITS MARKED FOR THE X SERIES
Ex.X-1. Original sale deed dt. 17-6-67
executed by Rabia Bi in favour
of H. Neera Juddin.
Ex.X-2. Signature in Ex.X-1.
Ex.X-3. Signature in Ex.X-1.
EXHIBITS MARKED BY COMMISSION THROUGH D.W.3 (EXPERT)
Ex.C-1. Report of the Expert.
Ex.C-2. Photograph.
Ex.C-3. Photograph.
Ex.C-4. Photograph.
Ex.C-5. Negative carbon.
Ex.C-6. Postal cover addressed to D.W.3.
Ex.C-7. Index sheet.
FINDINGS RECORDED BY THE LEARNEDJUDGE
12. The learned Judge appreciated the evidence of P.Ws.1 to 3, Exs.A-1 to A-16, D.Ws.1 to 4, Exs.C-1 to C-3 and Exs.C-1 to C-7 marked by Court and marked by Expert and also Exs.X-1 to X-3 and recorded findings in detail. The learned Judge arrived at a conclusion that Rabia Bi herself executed Ex.A-1 -agreement of sale in favour of plaintiffs 1 and 2 and further in her written statement-Ex.C-2 in OS.No. 143/1968 she admitted the execution of Ex.A-1, and therefore Ex.A-1 is true, valid and binding on the defendants. Further, the learned Judge recorded that Kharim Bi and Rabia Bi together were having clear title over the southern side half portion in S.No. to an extent of 7 acres 92 cents and so if Khairun Bi gifted her share in favour of Rabia Bi, this gift is quite valid. The learned Judge also came to the conclusion that the suit filed is within the period of limitation. The learned Judge also recorded a finding that the 2nd defendant was impleaded in the suit recently and the said party was examined as D.W.4, but came to the conclusion that the land as such had not been damaged and hence the plaintiffs are not entitled to claim any damages from the defendants. Accordingly the suit was decreed granting the relief of specific performance, but, negatived the relief relating to claim of damages.
POINTS WHICH ARISE FOR CONSIDERATION IN THIS APPEAL
13. In the light of the rival submissions made by the counsel on record, the following points arise for consideration in this appeal:
1. Whether the agreement of sale in question, Ex.A-1, was executed by Rabia Bi?
2. Whether the relief of specific performance granted on the strength of Ex.A-1 be sustained in the facts and circumstances of the case?
3. Whether the findings recorded by the learned Judge in relation to the question of limitation be sustained in the facts and circumstances of the case.
4. If so, to what relief the parties would be entitled to?
Points 1 to 3:
14. Inasmuch as the factual matrix being common for deciding these questions, to avoid the overlapping of the findings, all these points are being discussed together for the purpose of convenience.
15. The pleadings of the parties already had been referred to supra, the issues settled and the findings recorded by the learned Judge in nutshell also had been specified above. It may be appropriate to have a look at the contents of Ex.A-1, which are as hereunder:
5671 Ex. A-1 ----- 71068 (1) (sd.) G. Sree Ramulu (2) (sd.) B.R. Mohan Rao Written by M. Yellappa B.A., Retired Magistrate, ATP
16. Submissions at length were made in relation to the fixation of time of three months and whether the time would be essence of the contract and in such a case i.e. an agreement of sale in relation to immovable property. Strong reliance was placed in Gomathinayagam Pillai's case (5 supra) and Chand Rani's case (6 supra). It is no doubt true that normally the time may not be the essence of contract when the agreement of sale is in relation to immovable property.
17. P.W.1, the first plaintiff deposed that the second plaintiff died. It is needless to say that the first plaintiff also died subsequent thereto and the legal representatives were brought on record as per orders in IA.No. 44 of 1991, dated 12-6-1991. The legal representatives of the 2nd plaintiff were brought on record as per orders in IA.No. 6 of 1985, dated 2-3-1985. This witness deposed in detail about Rabia Bi, the family affairs of Rabia Bi and the relationship of Rabia Bi with Ghouse Moiuddin. This witness deposed that Rabia Bi being the sister's daughter of Ghouse Moiuddin and in view of the fact that the mother of Rabia Bi also was residing in the said house, Ghouse Mohiddin arranged sale price and they agreed to purchase the suit land from Rabia Bi for Rs. 45,000/-. An agreement of sale also was executed to the said effect and they paid Rs,5,000/- as advance to Rabia Bi. Ex.A-1 is the agreement of sale dated 7-10-1968 executed by Rabia Bi. Ex.A-1 was executed in the house of Ghouse Mohiddin where Rabia Bi was residing. At the time of agreement of sale Rabia Bi, her mother, Ghouse Mohiddin, Meera Mohiddin and scribe Yellappa besides P.W.1 and second plaintiff were present. Rabia Bi gave instructions to the scribe for drafting the agreement. After drafting Ex.A-1, the scribe read over the contents to Rabia Bi and she admitted the contents as true. They paid Rs. 5,000/- to Rebia Bi and she had put her signature in their presence. Ex.A-1 contains her signature on each of the two sheets. This witness and also the second plaintiff had put their signatures in token of having been agreed to the terms and conditions. This witness deposed that two months time was fixed for payment of balance amount. Rabia Bi mortgaged the property and raised loan from Land Mortgage Bank. Rabia Bi agreed to discharge the said debt. As per the stipulation, they were ready to obtain the sale deed by paying balance of sale consideration. One Pedda Mushkin Sab gave notice to Rabia Bi and her mother and also marked a copy to him and 2nd plaintiff stating that he had got interest in the parties (sic. properties). Then these parties also issued notice to Rabia Bi and her mother. Ex.A-2 is the office copy of notice dated 28-10-1968. Some third parties i.e., Shaik Ghouse Mohiddin filed a suit OS.No. 143 of 1968 in the Court of Subordinate Judge, Anantapur against Rabia Bi and others claiming partition and they obtained injunction order from alienating the properties in IA.No. 740 of 1968. Ex. A-3 is the certified copy of the plaint in OS.No. 143 of 1968 on the file of Subordinate Judge, Anantapur. Ex.A-4 is the certified copy of the injunction order in IA.No. 740 of 1968. Rabia Bi filed written statement in the said suit. Ex.A-5 is the certified copy of the written statement filed by Rabia Bi in the said suit. P.W.1 also deposed that both P.W.1 and the 2nd plaintiff filed an application IA.No. 122 of 1970 to implead them in the said suit and the said application was dismissed and they filed Revision as against the said order in CRP.No. 780 of 1971 and the said CRP was also dismissed. Ex.A-6 is the certified copy of the counter filed by Rabia Bi in the injunction application. The said injunction was subsisting and it was not vacated. The suit was pending till 16-12-1977. However, it may be noted here that it appears to be a mistake since Court record shows that the suit was pending only till 6-8-1977. But this fact may not seriously alter the situation. Further, P.W.1 deposed that while the said suit was pending, Rabia Bi died. Defendant No. 1 originally was impleaded as legal representative of Rabia Bi subsequent to her death. This witness also deposed that after the defendant was added as a party, the said suit ended in compromise and the rights of Rabia Bi and the defendant were upheld. This witness also deposed that the original defendant to the suit was aware of Ex.A-1-sale agreement and they also demanded him to execute the sale deed and he also promised to execute the sale deed after the suit, but he had not executed the sale deed. They got issued a notice and the office copy of the same was marked as Ex.A-7. Ex.A-8 is the reply notice given by the defendant. P.W.1 had taken a specific stand that till the reply notice-Ex.A-8, neither Rabia Bi nor defendant denied their rights to specific performance under the agreement of sale. Rabia Bi was prepared to execute the sale deed but for the prohibition order. Even now they are ready and willing to perform their part of contract by paying the balance sale consideration and to obtain the sale deed. This witness also deposed that he had discharged the mortgage debt and Ex.A-9 is the voucher given by the Land Mortgage Bank showing the payment. The attestor Ghouse Mohiddin is no more and it is not known whether other attestor is alive or not. This witness was cross-examined at length in relation to Ex.A-1, the agreement, the contents of the notice-Ex.A-2 and other aspects. Several of the suggestions put to this witness to the effect that the very agreement of sale in question is a fabricated or forged document and he specifically denied the same. It appears that P. W, 1 was recalled in I.A. No. 462 of 1988 and some evidence was recorded in relation to Exs.X-1 to X-3.
18. P. W.2 deposed that since 1966 he has been a practising Advocate at Anantapur Bar. At first he was attached to the office of Sri Venkata Rama Sastry. A question was put to this witness 'did you know defendant No. 3 and Rabia Bi in O.S.No. 143 of 1968 on the file of Sub-Court, Ananatapur'. It appears some objection was raised and the same was overruled. The answer was that he knows Rabia Bi, 3rd defendant in the suit O.S.No. 143 of 1968. This witness also deposed that she filed the written statement and also the counter in injunction application and contested the suit. At the time of filing written statement, she came to the office and he readover and explained the contents of the written statement. This witness deposed in relation to Ex.C-2 and also further stated that in his presence only she had signed in Ex.C-2. Rabia Bi and yet another gentleman were coming together and giving instructions for drafting the written statement. This witness was cross-examined. In cross-examination this witness deposed that Venkata Rama Sastry died on 24-1-1969. Even after the death of Venkata Rama Sastry, he was continuing in that office and it is not true to say that after the death of Venkata Rama Sastry he was continuing in the office as junior of Sri P. Konappa Sastry. Though this witness was cross-examined at length most probably to discredit him in relation to his statement made about signing of the written statement by Rabia Bi, this Court is of the considered opinion that it is just a futile exercise.
19. The4th plaintiff was examined as P. W.3, who deposed that the 2nd plaintiff is his father, who died on 17-10-1984 and 3rd plaintiff is his mother and 5th and 6th plaintiffs are his younger brothers and plaintiffs 7 to 9 are his younger sisters. The first plaintiff was his family friend. 10th plaintiff is the wife of the first plaintiff. Plaintiffs 11 and 12 are the sons of first plaintiff and 13th plaintiff is the daughter of plaintiff No. 1. This witness also deposed that during pendency of the suit, defendant No. 1 alienated the schedule property in favour of 2nd defendant on 3-3-1980 under document No. 1437 for Rs. 47,000/-. Ex.A-10 is the registration extract. He states that the suit land is an agricultural land. The defendants have been lying on the suit land and raised brick kilns therein. He further deposed that the entire land got damaged due to lying of brick kilns. This witness also deposed about the aspect of damages and he was also cross-examined at length.
20. As against this evidence, the evidence of D.Ws.1 to 4 is available on record apart from the other documentary evidence. Though no documents had been marked on behalf of the defendants, Exs.C-1 to C-3, X-1 to X-3 and C-1 to C-7 may come to the aid of the defendants to some extent. Defendant No. 1 examined himself as D.W.1, who had specifically denied about the execution of Ex.A-1 by his mother and the receipt of advance of Rs. 5,000/-. This witness deposed that he does not know whether his mother filed any written statement in OS.No. 148 of 1968 on the file of Subordinate Judge, Anantapur, and he never attended the Court at any time and she died in the year 1969. This witness also deposed about certain details relating to the prior litigation. This witness also deposed that the present market value of the suit property is about Rs. 8 to 9 lakhs. In the year 1968 it was worth about Rs. One lakh. This witness also deposed that the plaintiffs in collusion with Ghouse Mohiddin, created the agreement of sale in question to knock away the property. This witness also deposed that plaintiffs 1 and 2 never gave him any amount subsequent to the suits for discharging any mortgage loan due to the Land Mortgage Bank. As can be seen even from the chief examination of D. W. 1, evidently because the value of the property at the rise of price, this stand had been taken by the defendant No. 1. This witness was cross-examined at length and he specifically denied several suggestions put to him. In the lengthy cross-examination he had again reiterated the stand that his mother never executed Ex.A-1 and never she had received an advance amount of Rs. 5,000/-.
21. D.W.2 deposed that he is now working as Branch Manager, Anantapur Co-operative Town Bank. Old Town Branch and he received summons to cause production of records pertaining to Loan No. 19 and he was also asked to produce the records of registered sale deed executed by Rabia Bee on 17-6-1967 in favour of H. Meeramohiddin at D.No. 114 and Ex.X-1 is the original sale deed. In cross-examination this witness deposed that he has been working as Branch Manager from 1-1-1992. Loan No. 19 related for the year 1991; he had not seen the said Rabia Bi and he had no personal knowledge about Ex.X-1.
22. The evidence of D.W.3 is of some importance as the same being Expert evidence. D.W.3 deposed about his qualification and also the other details. This witness deposed that he had examined the disputed signatures and the comparative signatures. The agreement of sale deed dated 7-10-1968-Ex,A-1 bearing the disputed signatures marked as D-1 and D-2 by him in green ink and they had also examined the written statement dated 10-6-1969, Ex.C-2 marked by him as D-3 and D-4 and they had also examined the standard signatures purporting to be of Rabia Bi on sale deed dated 17-6-1967-Ex.X-1. After examining the disputed and comparative signatures, a report was submitted on 25-9-1992 and the same was marked as Ex.,C-1. Along with the said report, three photo charts, which are marked as Exs.C-2, C-3 and C-4 and the negative copies of the photos had been marked as Ex.C-5 and opinion was expressed that the disputed signatures D-1 to D-4 are not genuine signatures made by the writer of the comparative signatures marked as S-1 and S-2, viz., Rabia Bi and he had explained about the reasons and observations in relation thereto and the opinion as specified in Ex.C-1, This witness was cross-examined at length. It is needless to say that this evidence is only opinion evidence as he being an expert. Submissions at length were made on the strength of the evidence of this expert-D. W.3 relating to the genuineness or otherwise of Ex.A-1.
23. D.W.4 is the 2nd defendant in the suit, who purchased the property from the 1st defendant pending litigation. The evidence of this witness needs no serious consideration inasmuch as this witness is a purchaser pending litigation and it is needless to say that Section 52 of the Transfer of Property Act, 1882, hits the said transaction inasmuch as Doctrine of Lispendens is applicable to seek for specific performance as well. Exs.X-2 and X-3 are the signatures in Ex.X-1, the original sale deed dated 17-6-1967.
24. Elaborate submissions were made by both the counsel on the aspect whether the admissions made in the written statement by Rabia Bi would amount to an admission to be binding on the parties. Further submissions were made in relation to the Memo filed by the 1st defendant herein in the said litigation adopting the written statement of the mother.
25. Certain submissions were made in relation to Sections 13, 41 to 43 of the Indian Evidence Act, 1872. The learned Judge recorded certain findings relating to the over-writings said to have been in Urdu in relation thereto. Certain submissions were made in the context of Section 73 of the Indian Evidence Act, 1872. It is no doubt true that D. W.3, the Expert, who compared the signatures had expressed an opinion that the signatures on Ex.A-1 cannot be said to be of that of the executant. It is to be noted that his evidence is just opinion evidence. In the light of this evidence of D.W.3, the evidence of P.Ws.1 and 2 in particular may have to be appreciated to arrive at a conclusion whether in fact Rabia Bi made an admission relating to the execution of agreement of sale in question in the prior litigation, the partition action. It may be pertinent to note that initially the defendant No. 1 was not a party and he being the son after the death of the mother, he was brought on record and a Memo adopting the written statement of his mother was filed. These facts are not in serious controversy. The evidence of D.W.1 is a bit peculiar that he denies each and every aspect, not only the execution of agreement of sale by his mother but several other aspects relating to prior proceedings. In the light of Ex.C-1 dated 23-10-1975, Memo in O.S.No. 143 of 1968, and also Ex.C-2, the written statement in OS.No. 143 of 1968 on the file of Subordinate Judge, Anantapur, there cannot be any doubt or controversy that in the pleading the executant made a specific admission relating to the execution of Ex.A-1. The evasive explanation given cannot stand to the legal scrutiny. It is no doubt true that except P.W.1, none else concerned with Ex.A-1 had been examined. However, the evidence of P. W.2, a practising Advocate, on the aspect of the pleadings signed by Rabia Bi is very clear and categorical and hence it can be taken that Rabia Bi in fact had signed the pleading in which an admission was made relating to the execution of Ex.A-1. It is needless to say that a legal representative who came on record cannot take a different stand from that of the original defendant. Even otherwise it is pertinent to note that a Memo of adoption was also filed by the 1st defendant as legal representative in the prior litigation and for the reasons best known to him, in the present written statement, there is total denial relating to Ex.A-1 and in the evidence also as D.W.1 he had taken the same stand. On the overall appreciation of the evidence available on record inasmuch as the evidence of D.W.3 is only opinion evidence and in the light of the specific stand taken by the deceased-mother and also the memo of adoption filed by defendant No. 1 son, the present stand taken by the defendant No. 1 in relation to the denial of the very execution of Ex.A-1 cannot be believes. In the light of the same, the opinion evidence need not be given serious credence in the peculiar facts and circumstances of the case.
26. No doubt submissions at length were made relating to the binding nature of such an admission on the parties especially in the light of the fact that the party who signed the pleading was not examined and she died and what would be the effect thereof. When a clear admission is made in the pleading, it may have to be taken as a binding admission and the same cannot be discarded. Hence this Court is thoroughly satisfied that in the facts and circumstances of the case, the stand taken by the 1st defendant that his mother never executed Ex.A-1 at all cannot be believed especially in the light of the clear evidence of P.W.1 that one of the attestors died, he has no knowledge about the whereabouts of the other attestor. Some comment is made relating to the non-examination of the scribe. In the light of the categorical admission in the pleading made by the deceased-mother, the present stand taken by the 1st defendant is hereby rejected in relation to Ex.A-1. Hence, the findings recorded by the learned Judge in relation to execution of Ex.A-1 by the deceased-mother of the defendant No. 1 may have to be affirmed and accordingly the said findings are hereby affirmed.
27. Reliance also was placed on the decision in R.V.E, Venkatachala Gounder's case (7 supra), wherein the Apex Court at paras 19 and 20 held as hereunder:
Order 13, R-4 of the C.P.C. provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initiated by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced.
The learned Counsel for the defendant-respondent has relied on the Roman Catholic Mission v. State of Madras and Anr. in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the ad missibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be provided is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for providing the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and report to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that he opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.
Further reliance was placed in Manjunath Anandappa's (8 supra), wherein the Apex Court held at paras 35 to 37 as hereunder:
Yet again in Nirmala Anand v. Advent Corporation (P) Ltd. and Ors. this Court observed:
6 It is true that grant of decree of specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the Court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance....
(See also M.V. Shankar Bhat and Anr. v. Claude Pinto since (Deceased) by LRs. and Ors. 2003 (2) SCALE 124).
It is now also well settled that a Court of appeal should not ordinarily interfere with the discretion exercised by the Courts below.
In Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bros the law is stated in the following terms:
8. It is well settled that where the discretion vested in the Court under Section 34 of the Indian Arbitration Act has been exercised by the lower Court, the appellate Court should be slow to interfere with the exercise of that discretion. In dealing with the matter raised before it at the appellate stage the appellate Court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage it may have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court's exercise of discretion. As if often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts then it would certainly be open to the appellate Court to interfere with the trial Court's exercise of discretion. This principle is well established; but, as has been observed by Viscount Simon, L.C., in Charles Osenton & Co. v. Johnston 1942 AC 130 at p. 138:
The law as to the reversal by a Court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
28. The well settled principles relating to the exercise of discretion while granting or negativing the relief of specific performance and also the parameters of the limitations on the appellate Court while disturbing such findings recorded by the original Court being well settled, need not be repeated again. However, it is unfortunate that the matter does not stop there.
29. The most important or the crucial question is the question of limitation. It is not in serious controversy that from the date fixed in Ex.A-1 or subsequent thereto, within three years, the suit was not instituted. Even as per the recitals of Ex.A-1, which are self-explanatory, only an advance of Rs. 5,000/-had been paid and it is not their case that there is a recital in Ex.A-1 that on demand at any point of time the sale deed would be executed. Whether time is the essence of contract or not is something different from appreciating the recitals of a document in the context of period of limitation. It is needless to say that Article 54 of the Limitation Act, 1963, contains two limbs. Article 54 aforesaid reads as hereunder:
Description of suit Period of Limitation Time from which period begins to run For specific The date fixed for the performance, performance of Three years or if no such date is fixed, when a contract is fixed, when the plaintiff has notice that performance is refused.
30. The agreement of sale Ex.A-1 is dated 7-10-1968. The recitals of agreement already had been referred to supra. The plaint was presented on 23-11-1977, wherein the specific plea relating to the limitation had been taken. The reasons recorded by the learned Judge in this regard appear to be that inasmuch as in the partition action there was a restraint order, the plaintiffs had not chosen to institute the suit for specific performance. Yet other contention is that at no point of time there was a refusal from the deceased-mother, the original executant, and hence, the suit is within the period of limitation. It is really unfortunate that these parties though they are successful in establishing the genuineness of Ex.A-1, cannot succeed on the question of limitation for the reasons specified infra. The Division Bench of the Madras High Court in Krishnayya Rao v. Venkata Kumara AIR 1942 Madras 487 while dealing with the question of limitation held that the Courts have no power, on consideration of hardship or equity, to invent new grounds of exemption from the bar of limitation, not recognized by the statute. Section 15(1) of the Limitation Act, 1963 is brought in aid to save the period of limitation. In the considered opinion of this Court this is only a futile attempt on the part of the plaintiffs to bring the said action to be within limitation. Section 15 of the Limitation Act, 1963, deals with exclusion of time in certain other cases. Section 15(1) of the Act reads as hereunder:
15. Exclusion of time in certain other cases.-
(1) In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
The language employed in Section 15(1) of the Limitation Act is specific, clear and categorical. It is not the case of either of the parties that by virtue of the restraint order, which is said to have been operative at the relevant point of time as against the deceased-mother of the defendant No. 1, the plaintiffs in the present suit were in any way restrained from either instituting the suit or proceeding with any legal proceeding in relation to Ex.A-1. This is the test which may have to be adopted in appreciating whether Section 15(1) of the Limitation Act would be applicable to save the period of limitation and whether that period should be excluded or not.
31. Strong reliance was placed on the decision in Mahboob Pasha (1 supra), wherein in a similar fact situation the Division Bench of the Karnataka High Court held as hereunder:
We are of the view that the approach made by the learned trial judge is on the face of it erroneous. It is the duty of the Court to decide the question as to when the limitation commences, depending upon the nature of the suit. The decision on such question shall have to be of the Court. It cannot be founded on the submission made by the counsel for the parties. Limitation affects the jurisdiction of the Court. If the suit is barred by limitation, the Court has no jurisdiction to entertain it. Therefore, as the parties cannot confer jurisdiction on the Court by consent, the question of limitation as to the original cause of action cannot be decided on the concession made by the parties, Section 5 of the Limitation Act does not apply to the original cause of action so as to extend the period of limitation by concession made by the parties. The expression 'prescribed period' as per Clause (j) of Section 2 of the Act means, the period of limitation computed in accordance with the provisions of the Act. Sub-section (1) of Section 3 of the Act further provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Therefore, it is the duty of the Court to decide the question of limitation.
Thus, the trial Court ought to have decided on its own reasoning as to when the period of limitation commenced for the purpose of filing the suit in question instead of acting upon the concessions made by both parties, as the decision on such question had a bearing on the jurisdiction of the Court to entertain the suit.
It is clear from the contents of column No. 3 of Article 54 that it consists of two parts. The first part relates to cases where the agreement for sale fixes the date for performance and the second part relates to cases where the agreement does not fix any date for performance and in such as case the limitation begins to run when the plaintiff has notice that performance is refused. No doubt normally in the case of an agreement for sale relating to immoveable property, time is not the essence of the contract unless the agreement in clear terms provides for it without any ambiguity. The question whether time is the essence of the contract is relevant for the purpose of determining the question as to who has committed breach of the agreement; but it is not relevant for deciding the question as to commencement of the period of limitation. In a case where the date for performance of the agreement is fixed, as per first part of Article 54, the limitation begins to run from the date fixed for the performance. The clear meaning of this is that irrespective of the fact whether the time is the essence of the contract or not, the period of limitation begins to run from the date fixed for the performance of the agreement. There is no ambiguity whatsoever. This is also the view taken by the High Courts of Madras and Madhya Pradesh.
32. Strong reliance was placed on the decision of the Full Bench in K. Ramayya's case (3 supra). The facts of the said case and the proposition laid down therein by the Full Bench need not seriously be considered since this question had not fallen for consideration directly before the said Full Bench. Reliance was also placed on the decision of the Apex Court in T.L. Muddukrishna's case (2 supra), wherein at paras 5, 6 and 7 the Apex Court held as hereunder:
5. It is seen that limitation under Section 3 of the Limitation Act is one of the defences available to the defendant. Article 54 of the Schedule to the Limitation Act postulates that for specific performance of a contract the period of limitation is three years from the date fixed for the performance, or, if no such date if fixed, from the date the plaintiff has notice that performance is refused. Under first part of Article 54, once the date for performance of the contract has been fixed by the parties, the limitation begins to run from that date and specific performance of the contract could be had within three years from that date unless the parties by an agreement extend the fixed time. In this case, date was fixed for performance, i.e, May 28, 1989, The question whether or not the time is the essence of the contract is not of much relevance since the case falls in the first part of Article 54. The decision relied on by the learned Counsel for the appellants in Smt. Chand Rani (dead) by LRs. v. Smt. Kamal Rani (Dead) by LRs. of the Constitution Bench does not help the learned Counsel for the appellant. In that case, this Court has reviewed the entire case law and need for reiteration is obviated. The Court held thus:
It is well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract.
This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.
6. After considering the question in the light of the terms of the contract made by the parties extracted in paragraphs 25 and 26 of the judgment, the Constitution Bench concluded in paragraph 28 that the parties intended to make time the essence of the contract. The contract was to be performed within a particular period and the respondent had repudiated the contract. Under those circumstances, it was held that the time was the essence of the contract. The same ratio was reiterated by this Court in, K. Raheja Constructions Ltd. v. Alliance Ministries, 1995 Supp (3) SCC 17 : 1995 AIR SCW 2765, which relates to the amendment of the plaint. It was held therein that since the party had repudiated the agreement, the limitation began to run from that date. Since the application for amendment of the plaint was filed after the expiry of three years, the same could not be entertained. The controversy in regard to the limitation was also considered by this Court in, Tarlok Singh v. Vijay Kumar Sabharwal (1996) 3 SCALE 558, wherein this Court has held that when the time has been fixed for performance of the contract by operation of Article 54 of the Limitation Act, the time begins to run from the date fixed by the parties. The Court observed thus:
The question is: as to when the limitation began to run? In view of the admitted position that the contract was to be performed within 15 days after the injunction was vacated, the limitation began to run on April 6, 1986. In view of the position that the suit for perpetual injunction was converted into one for specific performance by order dated August 25, 1989, the suit must be deemed to have been instituted on 25-8-1989 and the suit was clearly barred by limitation. We find force in the stand of the appellant. We think that parties had, by agreement, determined the date for performance of the contract. Thereby limitation began to run from Aprils, 1986. Suit merely for injunction laid on December 23, 1987 would not be of any avail nor the limitation began to run from that date. Suit for perpetual injunction is different from suit for specific performance. The suit for specific performance in fact was claimed by way of amendment application filed under Order VI, Rule 17, CPC. on September 12, 1979. It will operate only on the application being ordered. Since the amendment was ordered on August 25, 1989, the crucial date would be the date on which the amendment was ordered by which date, admittedly, the suit is barred by limitation. The Courts below, therefore, were not right in decreeing the suit.
7. In Ramzan v. Hussaini this Court held in paragraph 6, thus:
The relevant provisions in the alleged agreement of sale as quoted in the judgment of the trial Court reads as follows:
This house is under mortgage with Jethmal Bastimal for Rs. 1000. When you will get this house, the description of which is given below, redeemed from M/s. Jethmal Bastimal and take the papers of the registry in your possession, on that day I will have the sale deed of the said house, written, executed and registered in your favour The question is whether a date was fixed for the performance of the agreement and in our view the answer is in the affirmative. It is true that a particular date from the calendar was not mentioned in the document and the date was not ascertainable originally, but as soon as the plaintiff redeemed the mortgage, it became an ascertained date. If the plaintiff had, immediately after the redemption, filed the suit, could it be thrown out on the ground that she was not entitled to the specific performance asked for? We do not think so. She would have been within her rights to assert that she had performed her part of the contract and was entitled to insist that her brother should complete his part. The agreement is a typical illustration of a contingent contract within the meaning of Section 31 of the Indian Contract Act, 1872 and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. We agree with the view of the Madras High Court in R. Muniswami Goundar v. B.M. Shamanna Gauda, expressed in slightly different circumstances. The doctrine of id certumest quod certum reddi potest is clearly applicable to the case before us which in the language of Herbert Broom (in his book dealing with legal maxims) is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. A similar question had arisen in Duncombe v. Brighton Club and Norfolk Hotel Company 1875 (10) QB 371, relied upon in the Madras case. Under an agreement, the plaintiff had supplied some furniture to the defendant for which payment was made but after some delay. He claimed interest. The rule at common law did not allow interest in such a case, and the plaintiff in support of his claim relied upon a statutory provision which could come to his aid only if the price was payable at a certain time. Blackburn, J. observed that he did not have the slightest hesitation in saying that the agreement contemplated a particular day, which, when the goods were delivered would be ascertained; and then the money would be payable at a certain time; but rejected the plaintiffs demand on the ground that the price did not become payable by the written instrument at a certain time. The other learned Judges did not agree with him, and held that the statute did not require that the document should specify the time of payment by mentioning the day of payment. If it specified the event upon which the payment was to be made, and if the time of event was capable of being ascertained the requirements of the section were satisfied. The same is the position in the case before us. The requirement of Article 54 is not that the actual day should necessarily be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein. We, accordingly, hold that under the agreement the date for the defendant to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and, immediately after redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The case is, therefore, covered by the first part of Article 54 (third column) and not the second part.
33. This question was considered by the Apex Court in Siraj-UL-HAQ v. Board of Wak wherein the Apex Court while dealing with the question the scope of Section 15(1) of the Old Limitation Act, 1908, held that Section requires order or injunction staying suit, suit claiming declaration that properties in suit were not covered by U.P. Muslims Waqfs Act, suit whether barred by time or limitation whether saved by Section 15 of the Act aforesaid. It was held at para 19 as hereunder:
The next question which calls for our decision is whether the appellants' suit is saved by virtue of the provisions of Section 15 of the Limitation Act. That is the only provision on which reliance was placed before us by Mr. Dar on behalf of the appellants. Section 15 provides for the exclusion of time during which proceedings are suspended' and it lays down that 'in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded'. It is plain that, for excluding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction ororder; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling under Section 15, the party instituting the suit would by such institution be in contempt of court. If an express order or injunction is produced by a party that clearly meets the requirements of Section 15. Whether the requirements of Section 15 would be satisfied by the production of an order or injunction which by necessary implication stays the institution of the suit is open to argument. We are, however, prepared to assume in the present case that Section 15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation. But, in our opinion, there would be no justification for extending the application of Section 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant, and in applying them effect must be given to the strict grammatical meaning of the words used by them: Nagendra Nath Dey v. Suresh Chandra Dey 34 Bom. I.R. 1065 : AIR 1932 PC 165.
34. The Apex Court in A.S.K. Krishnappa's case (4 supra) at para 13 held as follows:
13. The next two decisions relied on are Badruddin Khan v. Mahyar Khan ILR (1939) ALL 103 : AIR 1939 All 66 and Managing Committee Sunder Singh Malha Singh Rajput High School, Indaura v. Sundar Singh Malha Singh Sanatan Dharma Rajput High School Trust, ILR (1945) Lah 8 : AIR 1944 Lah 190 (FB). In both these cases the court applied what according to it were the general principles underlying Section 15 of the Limitation Act, though the facts of these cases do not strictly fall within the purview of that section. The question is whether there is any well recognized principle whereunder the period of limitation can be regarded as being suspended because a party is prevented under certain circumstances from taking action in pursuance of his rights. The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication, they cannot be extended by necessary implication. They cannot be extended by analogy or reference to proceedings of which they do not expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. Thus for instance, period of limitation for various kinds of suits, appeals and applications are prescribed in the First Schedule. A proceeding which does not fall under any of the articles in that schedule could not be said to be barred by time on the analogy of a matter which is governed by a particular article. For the same reasons the provisions of Sections 3 to 28 of the Limitation Act cannot be applied to situations which fall outside their purview.
These provisions do not adumbrate any general principles of substantive law nor do they confer any substantive rights on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them. Suspension of limitation in circumstances of the kind obtaining in these appeals is neither explicit nor implicit in Section 15 upon which reliance is placed on behalf of the appellants. We are, therefore, unable to accept the first argument of Mr. Sastri.
The same view was expressed in Thakurdas v. Khalilulla Saheb AIR 1962 Mysore 4 Sunni Central Board of Waqf v. Sirajul Haq and Imamuddin v. Board of Revenue In the light of the fact that Section 15(1) of the Limitation Act, 1963 has to be construed strictly and also in the light of the legal position referred to supra, in view of the date of agreement which was entered into in Ex.A-1 and the date of presentation of the plaint, there cannot be two opinions especially in the light of the language employed in the Article 54 of the Limitation Act, 1963, the suit is clearly barred by limitation for the reason that the suit was not instituted within a period of three years from the time which was fixed under Ex, A-1. The mere non denial or refusal to perform her part of the contract by the deceased-mother of the 1st defendant may not in any way come to the aid of the plaintiffs to save the period of limitation. When once the period of limitation begins to run, it continues to run and the exclusion of the period of limitation can be under any one of the specific provisions of the Limitation Act, 1963, and not otherwise. In the light of the language employed in Section 15(1) of the Act aforesaid, the suit cannot be said to be within the period of limitation and hence this Court is left with no other option except to negative the relief on the ground of limitation, since equitable considerations cannot be brought in so as to save the plaintiffs though otherwise they were able to establish the execution of Ex.A-1 by the mother of the defendant No. 1. It is no doubt a case where only on question of limitation the appellants-defendants are able to succeed.
Point No. 4:
35. In the light of the findings recorded above, the suit claiming the relief for specific performance is bound to fail and the decree granted by the trial Court cannot be sustained and the appeal is hereby allowed, But, inasmuch as only on the question of limitation the appellants-defendants are succeeding in this appeal, the parties to the litigation to bear their own costs.