Allahabad High Court
Smt. Omwati And 5 Others vs Raghubar Singh Yadav And 2 Others on 2 June, 2020
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved In Chamber Case :- CIVIL REVISION No. - 16 of 2020 Revisionist :- Smt. Omwati And 5 Others Opposite Party :- Raghubar Singh Yadav And 2 Others Counsel for Revisionist :- Chandra Kumar Rai Hon'ble Anjani Kumar Mishra,J.
Heard Shri Chandra Kumar Rai, learned counsel for the revisionist.
This revision is directed against the order dated 12.12.2019 passed by the Civil Judge (Senior Division), Gautam Budh Nagar in Original Suit No.514 of 2010 (Raghubar Singh Yadav And 2 Others Vs. Smt. Omwati And 5 Others) rejecting the revisionists application under Order 7 Rule 11(d) C.P.C.
The facts of the case briefly stated are that Bijendra Singh, the predecessor-in-interest of the revisionist, entered into an agreement to sell dated 12.03.2004, with the plaintiff opposite party.
It is alleged that regarding the same property, Bijendra Singh entered into another agreement to sell dated 14.05.2004 in favour of third parties regarding which, a first information report is stated to have been lodged by the plaintiff.
On 31.05.2006, Bijendra Singh filed a suit for cancellation of the agreement to sell dated 12.03.2004 and for injunction.
The suit wherefrom the instant revision arises is a suit for specific performance of the agreement to sell dated 12.03.2004 executed by Bijendra Singh in favour of the plaintiffs and was filed on 19.05.2010.
Before this Court as also in the application under order 7 Rule 11 D C.P.C., the case of the revisionist is that since a suit had been filed for cancellation of the agreement to sell dated 12.03.2004, on 31.05.2006, the same amounted to a refusal to execute the sale deed in favour of the plaintiffs and it is from this date that the limitation of filing a suit for specific performance would begin to run. Therefore, in view of Article 34 of the Limitation Act, the suit should have been filed within 3 years from 31.05.2006 but it has been filed in the year 2010. Therefore, the suit was barred by time and the plaint should have been rejected under Order 7 Rule 11 (d) C.P.C. and in failing to do so, the Court below has committed manifest illegality.
It has further been submitted that filing of the earlier suit for cancellation of the agreement to sell has been admitted in the plaint of the suit for specific performance.
In support of his contention, counsel for the revisionist has placed reliance upon judgement of the Apex Court in Fatehji & Company and another Vs. L.M. Nagpal and others, 2015 All. C.J. 1396, Hardesh Ores Pvt. Ltd. Vs. M/s HEDE & Co. 2007 (103) RD 371 and Satya Prakash Sharma Vs. Arif Khan and others, 2019 (145) RD 587.
I have considered the submissions made by counsel for the revisionist and perused the record.
Upon a consideration of the submissions made, in my considered opinion, the question which arises for determination in this revision is whether filing of a suit for cancellation of the agreement to sell tantamounts to a refusal to execute the sale deed and that the limitation for filing a suit for specific performance will begin to run from the date suit for cancellation of the agreement to sell was filed.
The judgement in Fatehji & Company (supra) relied upon by the revisionist, in my considered opinion, is clearly distinguishable on facts. In this case, an agreement to sell was entered into and therein time was the essence of the contract. Time for executing the sale deed was extended on several occasions. The last extension expired and 7 years thereafter, the suit for specific performance was filed. It was in these circumstances, that the suit was held to be barred by time. Since, the judgement is distinguishable on facts, the same has no application to the case at hand.
In Hardesh Ores Pvt. Ltd.(supra), the Supreme Court, in paragraph 21 of the judgement, was held that Clause (d) of Order 7 Rule 11 CPC must include the law of limitation as well and if it is quite clear and unambiguous from a statement in the plaint that the suit is barred by time, an appropriate order in accordance with Clause d can be passed.
There is no quarrel with this settled legal position and therefore, the question framed above is what needs to be decided. Nothing as regards, the question framed by this Court can be culled out from this judgement.
Even the judgement in Satya Prakash Sharma (supra) does not shed any law on the controversy involved in this revision because therein it has been held that once the period of limitation for suing for specific performance had expired, a written receipt extending the period for specific performance would not extend the period of limitation, which had already expired. The revisionist would be entitled to benefit of this judgement only if this Court comes to the conclusion that the limitation for suing for specific performance, in the case at hand, started to run from the date, the predecessor-in-interest of the revisionist sued for cancellation of the agreement to sell, which is sought to be specifically enforced. Through the suit at hand.
The issue as to whether filing of a suit for cancellation of the agreement to sell, which is the basis of a suit for specific performance amounts to refusal is a question, which is open for interpretation. It may also require consideration of the evidence that may be filed by the parties.
In my considered opinion,this fact though admitted in the plaint cannot be held to be an absolute statement, which would bar the suit for specific performance, by time, because any question, which requires to be decided on the basis of the evidence of the parties, cannot be the basis for rejecting a plaint under Order 7 Rule 11 (d) CPC. Therefore, the revisional Court has rightly held that the question of limitation is a mixed question of fact and law, which can only be determined conclusively, after the parties have led their evidence.
For the same reason, the impugned order in my considered opinion, calls for no interference.
Moreover, even if the suit for cancellation of the agreement to sell had not been filed, the plea that is raised therein, namely, that the agreement to sell is void and is liable to be declared so could very well have been raised even in the suit for specific performance.
A suit for specific performance is to be decreed only after it is found that a valid agreement to sell was in existence. Such a question is always inherent in a suit for specific performance.
Under the circumstances, this Court is not convinced with the submission of counsel for the revisionist that merely because a suit for cancellation of the agreement to sell had been filed, the same amounted to a categorical refusal to honour it and that the limitation for suing for specific performance begin to run from the date of such suit.
In view of what has been stated above, the impugned order is not found to suffer from any jurisdictional error that would warrant interference.
The revision is accordingly, dismissed.
Order Date :- 2.6.2020 RKM