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2003 DIGILAW 759 (AP)

AZIZUNNISA BEGUM v. Premlata Gupta

2003-06-17

C.Y.SOMAYAJULU, G.BIKSHAPATHY

body2003
C. Y. SOMAYAJULU, J. ( 1 ) THIS is the appeal by the plaintiffs in o. S. No. 1333 of 1985 on the file of the Court of the IV Additional Judge, City Civil Court, hyderabad, dismissing their suit for specific performance. The suit was originally filed by the 1st plaintiff against the 1st defendant. After their deaths their legal representatives were brought on record as plaintiffs and defendants. For the sake of convenience the parties would herein after be referred to as they are arrayed in the trial Court. ( 2 ) THE case of the 1st plaintiff is that he, who is the tenant of the plaint schedule property belonging to the 1st defendant, entered into an oral agreement to purchase the same for Rs. 50,000. 00 and paid an advance of Rs. 10,000. 00, the receipt whereof is acknowledged under the receipt dated 24-04-1972 by the 1st defendant. It was formally agreed that the sale transaction should be completed within one year from 24-04-1972, i. e. , the date of receipt of rs. 10,000/ -. But, in view of the coming into force of A. P. Land Urban Area (Prohibition of Alienation) Act, 1972 (1972 Act) and the urban Land (Ceiling and Regulation) Act, 1976, (1976 Act) it became necessary for the 1st defendant to obtain permission from the concerned authorities to complete the transaction of sale as per the agreement. But inspite of requests 1st defendant is not taking steps to obtain necessary permission from the concerned authorities. Hence, the suit for specific performance of the agreement of sale after directing the 1st defendant to obtain necessary permissions from the concerned authorities under the 1976 Act. ( 3 ) THE suit is resisted by the 1st defendant on the various grounds, including the ground of limitation. ( 4 ) BASING on the pleadings the trial court framed four issues for trial. In support of the case of plaintiffs P. Ws. 1 to 4 were examined and Exs. A-l and A-2 were marked. In support of the case of the defendants, 6th defendant was examined as D. W. 1 but no documentary evidence was adduced on their behalf. The trial court on the basis of the evidence on record held that the plaintiffs are not entitled to relief of specific performance or the injunction sought and dismissed the suit on the ground of limitation. The trial court on the basis of the evidence on record held that the plaintiffs are not entitled to relief of specific performance or the injunction sought and dismissed the suit on the ground of limitation. ( 5 ) AFTER hearing the learned counsel for both sides at length we are of the opinion that this appeal can be disposed of by considering the question of limitation only and so we feel it unnecessary to go into the other questions. Therefore the point for consideration is whether the suit is within time? ( 6 ) EX. A-l receipt dated 24-01-1972 strongly relied on by the plaintiffs reads thus:"received Rupees Ten Thousand (Rs. 10,000/-) only from Mrs. Azizunnisa begum wife of Mr. Mir Ahmed AH khan Saheb as advance towards purchase money of my house at banjara Hills (Near Mosque) now occupied by her, being 50,000/- (25,000/- for house and 25,000/- for land measuring 2500 sq. yards ). The transaction will be completed in one year. " (emphasis supplied ). In para 1 of the plaint it is clearly alleged-"it was formally agreed that the transaction is to be completed within one year from that date viz. , 24-10-1972". From Ex. A-l and also the averments in para 1 of the plaint above extracted, it is clear that the time fixed for performance of the agreement was one year from 24-01-1972. As per Article 54 of Limitation act the limitation for filing a suit for specific performance of a contract is three years from the date fixed for performance of the contract and if no time is fixed when plaintiff has noticed that defendant refused to perform the contract. The second limb relating to commencement of the period of limitation applies only in case where no time for performance is fixed. If time for performance is fixed the limitation starts from the date on which the contract has to be performed. In this case since time for performance is one year from 24-01-1972, limitation to file the suit for specific performance would begin from 24-01-1973. ( 7 ) SRI Pratap Reddy, learned Senior counsel appearing fqr the plaintiffs contends that since 1972 Act came into force within six months after the Ex. In this case since time for performance is one year from 24-01-1972, limitation to file the suit for specific performance would begin from 24-01-1973. ( 7 ) SRI Pratap Reddy, learned Senior counsel appearing fqr the plaintiffs contends that since 1972 Act came into force within six months after the Ex. A-1 agreement, there was an impediment for the 1st defendant executing the sale deed in favour of the 1st plaintiff and the 1st plaintiff seeking specific performance of the agreement and so both the parties were mutually extending the time for performance. It is his contention that after coming into force of the 1976 Act there was no possibility for the 1st defendant executing the sale deed in respect of the plaint schedule property without obtaining sanction from the concerned authority under that Act, i. e. , 1976 Act, and so first plaintiff in his plaint specifically sought for a direction being given by the Court to the 1st defendant to obtain the sanction from the concerned authority under 1976 Act and then execute the sale deed in respect of the plaint schedule property in his favour. He relied on the following decisions, mrs. Chandnee Widya Vati Madden v. Dr. C. L. Katial and others, Nathulal v. Phoolchand, Motilal v. Nanhclal, Bai Dosa Bai v. Mathura Das Govind Das Sarkorin and OCR. JJ for OCR and Rojasara Ramjibhai Dahyabhai v. jani Narottamdas Lallbubhai in support of his contention that such direction can be sought and given by the Court. ( 8 ) IN our considered opinion none of the above decisions come to the rescue of the plaintiffs on the question of limitation. The ratio in all the above judgments is that when permission from an authority is necessary to complete a transaction, it is implied that the promissor has to obtain that permission and so specific performance can be granted subject to the promissor obtaining the sanction from the concerned authority. ( 9 ) THERE is nothing in 1976 Act to show that limitation in respect of contracts that were in existence by the date of coming into force of that Act would stand arrested or extended till the vendor obtains necessary sanction from the concerned authorities. There is nothing to prevent the 1st plaintiff from filing suit for specific performance of ex. There is nothing to prevent the 1st plaintiff from filing suit for specific performance of ex. A-1 Agreement within three years from 24-01-1973 seeking a direction to the 1st defendant to obtain the necessary permission from the concerned authorities and to execute a sale deed, as is sought by him in this suit filed in 1985, i. e. , about 13 years after the expiry of the period fixed for performance of the contract. There is nothing either in the plaint or in the evidence adduced by the plaintiffs, to show that there is a change in the situation between the dates on which 1972 Act and 1976 Act came into force, and the date of filing of the suit. So, 1st plaintiff could have filed the suit seeking the same relief, as claimed now, within three years from 24-01-1973. But, he did not do so. The reasons for his not filing the suit earlier, or the ground on which limitation stood extended are not mentioned in the plaint. In fact Rule 6 of Order 7 CPC mandates the plaintiffs showing the ground on which exemption from limitation is claimed in the plaint. In the absence of such plea plaintiff cannot seek exemption from limitation. ( 10 ) THERE is no force in the contention of the learned senior counsel for plaintiffs that parties mutually extended the period for performance of contract, because the evidence of P. W. 1 is that the period for performance of contract was extended by one year only. Even assuming that to be true the period fixed for performance would stand extended till 24-1-1974 only and so that suit for specific performance should have been filed within three years from 24-1-1974 as per Article 54 of Limitation Act. But the suit is filed in 1985, more than 11 years from 24-1-1974. So, we hold that the suit is barred by time. The point is answered accordingly. ( 11 ) IN view of the finding on the point for consideration we find no merits in the appeal and so, the appeal is dismissed, but in the circumstances without costs.