Madhya Pradesh High Court
Santosh Chouhan vs Yashwant And 7 Ors. on 11 October, 2018
1 FA No.626/2011
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
FA No.626/2011
(Santosh Chouhan Vs. Yashwant and seven others)
INDORE dt. 11-10-2018
Mr N.K. Maheswari, learned counsel for the appellant.
Mr S.J. Polekar, learned counsel for the respondent.
The present first appeal is arising out of the judgment and decree dated 20-05-2011 passed by learned 12th Additional District Judge, Indore in Civil Suit No. 48-A/2010(Santosh Chouhan Vs. Yashwant and seven others) on an application preferred under Order 7 Rule 11, read with Order 2 Rule 2 of Section 151 of CPC. The undisputed facts of the case reveal that the appellant before this court has filed a civil suit for specific performance of contract, declaration and for grant of permanent injunction stating that in respect to land bearing Survey No. 91/1 Municipal No. 114/3, an agreement dated 20-04-2002 has been executed between the parties for sale of land in question and inspite of readiness and willingness on the part of the plaintiff as sale deed has not be executed a decree as prayed for be granted in the matter.
Plaint averment reveal that an attempt has been made before the trial court to establish that the suit was within limitation and chronological details about various incidents find place in the plaint in respect of limitation and it was pleaded that the suit is within limitation. An application was preferred under Order 7 Rule 11 read with Order 2 Rule 2 of Section 151 of CPC and the trial court based upon the application preferred 2 FA No.626/2011 under Order 7 Rule 11 has dismissed the suit. Undisptuedly, no evidence in respect of plaint averments to establish that suit is within limitation were on record. After hearing the arguments of the parties the suit has been dismissed. Before this court also claim as well as counter claim have been made by the respective parties stating that the suit is within limitation/suit is not within limitation. Learned counsel for the plaintiff/respondent has also argued before this court that the suit was barred by resjudicata. However, learned counsel for the appellant has straight away drawn the attention of this court towards a judgment delivered in the case of Vaish Aggarwal Panchayat Vs. Inder Kumar delivered by the Hon'ble Supreme court reported in AIR 2015 SC 3357 and the contention of the learned counsel for the appellant is that the issue of res-judicata is mixed question of law and facts and the plaint could not have been rejected summarily. Paragraphs 16 and 17 of the aforesaid judgment reads as under :-
"16. After so stating, the Division Bench opined that in the facts of the said case, the suit could not be dismissed as barred by limitation without proper pleadings, framing of issue on limitation and taking evidence, for question of limitation is a mixed question of fact and law and on ex-facie reading of the plaint it could not be held that the suit was barred by time.
17. Coming to the case at hand we find that the allegations in the plaint are absolutely different. There is an asseveration of fraud and collusion. There is an assertion that in the earlier suit a decree came to be passed because of fraud and collusion. In such a fact situation, in our considered opinion, the High Court has fallen into error by expressing the view that the plea of resjudicata was obvious from the plaint. In fact, a finding has been recorded by the High Court accepting the plea taken in the written statement. In our view, in the obtaining factual matrix there should have been a trial with regard to all the issues framed. "
The aforesaid paragraphs makes it very clear that the issue 3 FA No.626/2011 of resjudicata is infact a mixed question of law and facts and requires not only examination of plaint but also other evidence and it cannot be a ground to reject the plaint on an application preferred under Order 7 Rule 11, read with Order 2 Rule 2 of Section 151 of CPC.
The apex court in the case of Gunwantbhai Mulchand Shah Vs. Anto Elis Fare reported in AIR 2006 SC 1556 has dealt with the issue of limitation and has held that the issue of limitation is a question of law and fact and a suit cannot be dismissed as barred by limitation at preliminary stage. Paragraphs No. 11 to 15 of the aforesaid judgment reads as under :-
"11. The question as to how long a plaintiff, even if he had performed the whole of his obligations under an agreement for sale, in which a time for performance is not fixed, could keep alive his right to specific performance and to come to court after 29 years seeking to enforce the agreement, may have also to be considered by the court especially in the context of the fact that the relief of specific performance is discretionary and is governed by the relevant provisions of the Specific Relief Act. But again, these questions cannot be decided as preliminary issues and they are not questions on the basis of which the suit could be dismissed as barred by limitation. The question of limitation has to be decided only on the basis of Article 54 of the Limitation Act and when the case is not covered by the first limb of that Article, normally, the question of limitation could be dealt with only after evidence is taken and not as a preliminary issue unless, of course, it is admitted in the plaint that the plaintiffs had notice that performance was refused by the defendants and it is seen that the plaintiffs approached the court beyond three years of the date of notice. Such is not the case here.
12. Section 27 of the Limitation Act provides for extinguishment of right to property only at the determination of the period limited by the Limitation Act for instituting a suit for possession. Section 3 of the Limitation Act provides that subject to Sections 4 to 24 of the Act every suit instituted after the period prescribed therefor in the Limitation Act shall be dismissed. When the suit is for specific performance of an agreement for sale and we conduct a search in the Limitation Act in the context of Section 3 4 FA No.626/2011 of the Act, we are obviously confronted only with Article 54 of the Schedule to the Limitation Act. We have already dealt with the scope of Article 54 and indicated that in this case it would be the second limb of the Article that would apply and consequentially the suit could not be held to be barred by limitation, having been filed three years after the agreement for sale or the date for performance fixed in the agreement for sale. We have also noticed that the plaintiffs have pleaded that they are in possession of the suit property and since it is not a suit for possession as such, the applicability of Section 27 of the Limitation Act also may not arise. It is, therefore, a case where in the context of Article 54 of the Limitation Act, the question had to be decided on the pleadings and evidence to be adduced by the parties on the aspect of the second limb of Article 54 of the Limitation Act.
13. We have already indicated that the suit insofar as it relates to the prayer for a perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs cannot be held to be barred by limitation. Whether the plaintiffs are able to prove that they are in possession of the suit property as on the date of suit and establish that they are entitled to the injunction prayed for, is a different matter. There is also the question whether the relief of injunction can be treated as being only a relief consequential to the relief of specific performance and the denial of one would automatically lead to the denial of the other, or whether it is an independent relief in itself and even if the plaintiffs are not entitled to a decree for specific performance they would still be entitled to a decree for injunction, a relief the grant of which is, of course, in the discretion of the court. It may be noticed that a suit for injunction would be governed by the residuary article, Article 113 of the Limitation Act and the cause of action for the said relief arises when the right to sue accrues. That would depend upon the court deciding when the right accrued, on the pleadings and the evidence in the case. Therefore, the suit insofar as it relates to the prayer for a decree for perpetual injunction cannot be held to be barred by limitation at this preliminary stage.
14. In such a situation, especially, when the whole matter requires reconsideration, we do not think it proper to go into the various arguments urged by learned senior counsel appearing in this case. We think that all those arguments require to be kept alive for decision in the suit after a trial. Suffice it to say that we consider that the interests of justice would be subserved by setting aside the finding by the courts below that the suit is barred by limitation, even while upholding the finding that the trial court had the jurisdiction to try the suit and remand the suit to the trial court for a decision of all the issues arising therein, including the issue of limitation, in accordance with law after giving the parties an opportunity to adduce evidence in support of their respective cases.
15. In the result, this appeal is allowed, the finding that the suit is barred by limitation and the consequential dismissal of it are 5 FA No.626/2011 set aside and the suit is remanded to the trial court for a proper trial of all the issues (other than the issue of jurisdiction) arising in the case and for disposal afresh in accordance with law. The parties are directed to appear in the trial court on 17.4.2006 so as to receive further orders as to posting. However, in the circumstances, there will be no order as to costs. "
The apex court recently in the case of Madina Begum Vs. Shiv Murti Prasad Pandey and others reported in AIR 2016 SC 3554 has again dealt with the issue of limitation and keeping in view the aforesaid judgment, this court is of the considered opinion that the issue has to be decided only after evidence is adduced by the parties on the question of limitation. The apex court in the case of Harrendran and others Vs. Sukumaran and others reported in AIR 2017 SC 2697 has held that the issue regarding limitation is a mixed question of law and facts and cannot be decided as a preliminary issue.
In the considered opinion of this court the matter deserves to be remanded back to the trial court to decide the civil suit afresh and the issue of limitation is left open and the trial court shall decide the issue of limitation after the evidence is adduced by the parties.
Resultantly, the judgment and decree dated 20-05-2011 is set-aside. The matter is remanded back to the trial court. The parties are directed to appear before the trial court on 12-11-2018.
With the aforesaid, the appeal stands disposed of.
Certified copy as per rules.
(S.C. SHARMA) JUDGE Rashmi Digitally signed by Rashmi Prasahant Date: 2018.10.25 15:27:30 +05'30' 6 FA No.626/2011