Bombay High Court
Abu Zar Rehman Khan Mobinuddin Khan vs Prakashchandra Shriram Gotmare And ... on 12 June, 2017
cra70.14.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO.70 OF 2014
Abu Zar Rehman Khan
Mobinuddin Khan,
Aged about 45 years,
Occ: Agriculturist,
R/o Pimpalgaon Raja,
Tahsil Khamgaon,
District Buldhana. ....... APPLICANT
...V E R S U S...
1] Prakashchandra Shriram Gotmare,
Aged about 64 years,
R/o Dhamangaon, Tah. Sangrampur,
District Buldhana.
2] Gangaram Namdeo Wankhede,
Aged about 74 years,
Occ: Agriculturist,
R/o Dhamangaon, presently at
Shevga, Tah. Sangrampur,
District Buldhana. ....... RESPONDENTS
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Shri Abdul Subhan, Advocate for Applicant.
None for Respondents.
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CORAM: SMT. DR. SHALINI PHANSALKAR-JOSHI, J.
th
DATE: 12
JUNE, 2017.
ORAL JUDGMENT
1] By this revision, petitioner is challenging the order ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 2 dated 07.02.2014 passed by the Civil Judge, Junior Division, Sangrampur in Regular Civil Suit No.17/2012, thereby rejecting the petitioner's application filed under Order 7 Rule 11(d) of the Code of Civil Procedure.
2] Facts, which are relevant, for deciding this revision can be stated, in, brief as follows:
The suit property which is a agricultural land was originally owned by the father of respondent No.2. On 08.05.1973, the father of respondent No.2 entered into an agreement to sell the said property to respondent No.1 and his mother Subhdrabai for a consideration of Rs.1,375/-. The sale-deed was to be executed after obtaining necessary permission from the competent authority.
3] Thereafter in the year 1995 respondent No.2 filed a suit for possession against the respondent No.1 bearing Regular Civil Suit No.35/1985. The said suit came to be dismissed on 23.05.1993, and the appeal preferred against the judgment and order, bearing Regular Civil Appeal ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 3 No.17/1993, came to be dismissed on 06.11.1998. Thereafter, several years, respondent No.1 filed a suit against the respondent No.2, bearing Regular Civil Suit No.12/2011, which came to be withdrawn with liberty to file a separate suit on the same cause of action, and then the suit No.17/2012 came to be filed for specific performance of the agreement dated 08.05.1973.
4] Meanwhile the suit property was purchased by the petitioner from respondent No.2 on 10.02.2011, vide registered sale-deed for a total consideration of Rs.2,30,000/-. The petitioner therefore, appeared in the suit and filed an application under Order 7, Rule 11 of C.P.C. for rejection of the plaint on two grounds, firstly that the Court fee stamp is not paid properly and, secondly on the count that the suit is barred by limitation. The learned Trial Court vide its order dated 26.06.2012 allowed the said application partly, directing respondent No.1 to pay the Court fee as per the valuation of the suit property. However, as regards the petitioner's prayer relating to framing of preliminary issue on the aspect of limitation, the Trial Court did not pass any ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 4 order. The applicant has therefore, filed Civil Revision Application No.64/2013 in this Court, which was allowed by this Court, vide its judgment and order dated 17.09.2013. It was specifically held by this Court that prima facie it appears that the issue whether the Civil Court can entertain the suit beyond the period of limitation goes to the root of the matter and the said issue being one of jurisdiction, it should be tried as a preliminary issue. The Trial Court was accordingly directed to frame an issue of limitation and to decide the same as preliminary issue.
5] Pursuant to the order passed by this Court, the Trial Court framed the issue of limitation as preliminary issue and decided the same vide its impugned order dated 17.02.2014, holding that the suit is within limitation and hence, maintainable.
6] This order of the Trial Court is challenged in this revision by learned counsel for the petitioner by submitting that the said order cannot survive or cannot be called as legal ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 5 and valid, having regard to the long line of earlier litigation. It is submitted that as per the averment made in the clause relating to the limitation, as to the cause of action for filing the suit, it was specifically stated that the cause of action arose on 08.05.1973 i.e. on the date of alleged agreement to sell and thereafter it arose on 23.02.1993 and 06.11.1998 on dismissal of the suit and the appeal respectively. Lastly, it arose on 24.01.2011, when the respondent No.2 sold the suit property to the petitioner. It is submitted that even this averment in the plaint, as made by the respondent No.1 makes it clear that the suit was apparently barred by limitation. It is urged that the Trial Court has therefore, committed an error in holding that the suit is within the limitation. According to learned counsel for the petitioner, the Trial Court has failed to properly appreciate the provisions of Article 54 of the Limitation Act, which provide that the suit for specific performance has to be filed within three years from the date fixed for the performance or if no such date is fixed, then when the plaintiff had knowledge that performance is refused. Here in the case it is urged that when the earlier suit for possession was filed by the respondent ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 6 No.2 against the respondent No.1, at that time itself the intention of respondent No.2 was made very clear that he was refusing to execute the specific performance of the contract. Therefore, in the year 1985 itself respondent No.1 was made aware of the refusal on the part of respondent No.2, to execute the specific performance of the contract. It is submitted that respondent No.1 should have filed the suit within three years from filing of that suit. If not, at least within 3 years from the date of dismissal of the said suit or its appeal, the suit should have been filed. However, the suit is filed in the year 2012. Hence, as apparently it was barred by limitation, the Trial Court has committed a gross error in holding that it was within the limitation. According to learned counsel for petitioner, therefore, the impugned order passed by the Trial Court being illegal and perverse, needs to be quashed and set aside.
7] Though respondent Nos.1 and 2 are duly served, respondent No.2 has remained absent. Respondent No.1 has engaged the counsel, however, at the time of hearing on the last day and today also, learned counsel for respondent No.1 ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 7 has remained absent. Hence, the issue involved in the instant revision being legal one and on the basis of the factual position, which is recorded in the earlier proceeding and in this proceeding also, this Court is deciding this revision after going through the record of the same.
8] It is undisputed position that respondent No.2 has filed the suit for possession against the respondent No.1 and the said suit came to be dismissed on 23.02.1993. The appeal preferred against the said judgment and decree also came to be dismissed on 06.11.1998. Thus, the very filing of that suit by the respondent No.2 against the respondent No.1 makes it necessary to that infer respondent No.2 has made his intentions clear that he did not want to execute the agreement of sale. The very fact that respondent No.2 was claiming possession of the suit property on the ground that the agreement of sale was a false and fake document hence it was not binding on him, was amounting to indication and knowledge to the respondent No.1 about refusal of respondent No.2 to execute specific performance of contract. Hence suit should have been filed by respondent No.1 within ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 8 three years from filing of that suit. Now what can be the relevant period for filing a specific performance of the contract is laid down in Article 54 of the Limitation Act. According to said Article, such suit has to be filed within three years from the date fixed for the performance and if no such date is fixed, then from the date the plaintiff has notice that performance is refused.
9] In the instant case, as stated above, the respondent No.2 had got the knowledge that respondent No.1 was not ready to perform the agreement, as he had filed the suit for possession of the suit property. Hence respondent No.1 should have filed the suit for specific performance within three years from the date of filing of suit by respondent No.2 in the year 1993 or least within three years from the dismissal of the suit and the appeal respectively in the year 1998. However, respondent No.1 has filed such suit in the year 2012. It is pertinent to note that the agreement of sale was executed on 08.05.1973 and suit is filed in the year 2012. Despite that, the Trial Court has held the suit to be within the limitation, only on the ground that the agreement ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 9 of sale has not fixed any date for specific performance. The Trial Court held that as the sale-deed was to be executed after obtaining the requisite permission from Competent Authority and as no such permission was obtained till the date of filing the suit, the suit was required to be held as filed within limitation. However, this reasoning and finding adopted by the Trial Court being against the express provision of Article 54 of the Limitation Act, it becomes perverse. According to said provision, the time limitation period of three years is to start running from the date fixed for performance and if no date is fixed then when the plaintiff has notice that performance is refused. In the instant case, no specific date was fixed for performance of the agreement, as the agreement was to be executed after the receipt of permission from Competent Authority. In view thereof, the second clause of Article 54 has to be applied, according to which the period of three years was to commence running from the date, the plaintiff has notice that performance is refused.
10] In the instant case, respondent No.1 has notice in ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 ::: cra70.14.J.odt 10 the year 1993 itself that respondent No.2 was not ready to execute the sale-deed as he has filed the suit for possession of the suit land, seeking cancellation of the alleged agreement of sale. In view thereof, the suit should have been filed immediately after such suit was filed by the respondent No.2 against the respondent No.1. However, respondent No.1 has not done so. The present suit which is filed in the year 2012, therefore, being beyond the period of limitation three years and hence barred by limitation, the suit needs to be dismissed on this very ground itself. The impugned judgment and order therefore, passed by the Trial Court it is therefore quashed and set aside.
11] Accordingly, the Regular Civil Suit No.17/2012 instituted by respondent No.1 being barred by limitation, it stands dismissed. The revision is allowed accordingly.
JUDGE NSN ::: Uploaded on - 14/06/2017 ::: Downloaded on - 16/06/2017 00:41:08 :::