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1999 DIGILAW 1132 (RAJ)

Shakuntala v. Narayan Gundoji Chavan

1999-09-02

M.JAGANNADHA RAO, R.P.SETHI

body1999
Honble RAO, J.–Special leave granted. (2). This is an appeal against the judgment of the High Court of Karnataka dated 28.11.1997 passed in Regular Second Appeal No. 936 of 1990. By that judgment the learned Single Judge of the Karnataka High Court set aside the judgments of the Trial Court and the first Appellate Court and decereed the suit for specific performance. (3). It is not necessary to go into the previous litigation between the parties but it is sufficient to sate that there was compromise between the parites on 8.3.1977 which is sought to be specifically enforced in the present suit filed by the respondent-plaintiff. The compromise contained an agreement for sale of some property by the appellant-defendant to the respondent-plaintiff. The suit was filed by the respondent no 13.7.1981. (4). It was agreed in teh trial court that the issue relating to limitation be tries as a preliminary issue. The said Court held that the suit was barred by limitation in as much as the vendor refused to execute the deed as per his notice dated 17.6.1977. Counting there years from that date, the suit ought to have been filed on or beofre 17.6.1980 but it was filed on 13.7.1981. The suit was therefore held to be barred by limitation. This finding was affirmed by the lower Appellante Court and the dismissal of the suit was confirmed. (5). In the High Court, the learned Judge proceeded on the assumption that th suit must be deemed to have been filed within the period of limitation in as much as the parties agreed that the should apply for permission to the appropriate local authority and that within one month from the date of the grant of permission the sale deed had to be executed. The High Court found that such application for permission was nt made befre the local authority and that therefoe, limittion did not start and on that ground the High Court reversed the findings of the Courts below and held the suit to be within time. On that basis, it even decereed the suit. (6). It is against this judgment that the 6th defendant, who is the successor-in-interest of the vendors, has filed the appeal. (7). On that basis, it even decereed the suit. (6). It is against this judgment that the 6th defendant, who is the successor-in-interest of the vendors, has filed the appeal. (7). It is clear from the findings of the High Court and the first Appellate Court that on 17..6.1977 the defendant clearly refused to perform the contract and sub-sequently the property was also sold on 26.7.1978 to the present appellant. It is clear that such a notice will amount to refusal on the part of the vendor to perform the contract covered by the compromise. But the High Court statedin para 7 that the lower Appellate Court committed a mistake in ths behalf because the plaintiff ahd paid Rs. 1000/-advance after 17.6.1977 and it was received by the defendant. Learned counsel for the respondent-plaintiff tried to submit before us that once the defendant accepted Rs. 1000/-subsequent to the notice dated 17.6.1977, it must be held that the vendor was not standing by his refusal to perform the contract as stated in notice dated 17.6.1977. (8). We, however, find on a perusal of the plaint, the said amount of Rs. 1000 as mentioned by the High Court was not paid by the plaintiff to the defendant sub-sequent to the notice dated 17.6.1977. In fact the averment in the plaint itself shows at para 5 that the plaintiff was ready and willing to perform his part of compromise and to pay Rs. 1000/-in advance at the time of making application to the Deputy Commissioner, Belgaum. The above statement in the aforesaid paragraph of the plaint is a clear indication that no such amount of Rs. 1000/-was paid nor received by the defendant subsequent to notice dated 17.6.1977. (9). If that be the case the limitation necessarily stated from 17.6.1977, the date of refusal to perform his part of the contract and the suit was barred by time. The High Court was in error in taking a contrary view and in setting aside the judgments of the Lower Courts. The judgment of the Lower Courts. The judgment of the High Court is set aside and the judgment of the Trial Court as affirmed by the first Appellate Court, is restored. (10). The appeal is accordingly allowed. There shall be no order as to costs.