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2010 DIGILAW 1057 (MAD)

B. Leelavathi v. Balaji

2010-03-17

A.SELVAM

body2010
Judgment :- 1. Challenge in this civil revision petition is to the order dated 11.12.2009 passed in Original Suit No.148 of 2008 by the Fast Track Court (Additional District Court), Dindigul. 2. The respondents herein as plaintiffs have instituted Original Suit No.148 of 2008 on the file of the Court below for the reliefs of specific performance and perpetual injunction, wherein the present revision petitioner has been shown as sole defendant. 3. It is averred in the plaint that the suit property is the absolute property of the defendant and she has agreed to sell the same in favour of the plaintiffs for a sum of Rs.5,90,000/- and to that effect both the plaintiffs and defendant have executed a sale agreement dated 12.09.1998 and the plaintiffs are always ready and willing to perform their part of contract. But the defendant has refused to perform her part of contract and subsequently a notice has been issued to the defendant and thereby called upon her to perform her part of contract. Even after receipt of the same, the defendant has not come forward to execute a sale deed in favour of the plaintiffs. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4. On the side of the defendant a detailed written statement has been filed, wherein at paragraphs-3 and 4 it is stated that the defendant has refused to execute a sale deed by way of giving reply notices dated 16.01.2001 and 16.02.2001 respectively and the present suit has been instituted in the year 2008 and therefore, the present suit is barred by limitation. 5. On the basis of the plea of limitation raised in the written statement, the defendant has urged the Court below to decide the plea of limitation as a preliminary issue and accordingly the same has been decided and ultimately rejected on the ground that the plea of limitation raised on the side of the defendant can be decided only after getting necessary evidence from both sides. Against the order passed by the Court below, the present civil revision petition has been filed at the instance of the defendant as civil revision petitioner. 6. Before considering the rival submissions made by either counsel, it would be apropos to look into the rival pleadings raised in the plaint as well as in the written statement. Against the order passed by the Court below, the present civil revision petition has been filed at the instance of the defendant as civil revision petitioner. 6. Before considering the rival submissions made by either counsel, it would be apropos to look into the rival pleadings raised in the plaint as well as in the written statement. The specific pleadings made in the plaint are that the suit property is the absolute property of the defendant and she has agreed to sell the same to the plaintiffs for a sum of Rs.5,90,000/- and to that extent the plaintiffs and defendant have entered into an agreement of sale dated 12.09.1998 and since the defendant has refused to perform her part of contract, the present suit has been instituted for the reliefs sought for therein. 7. The main defence taken in the written statement coupled with other aspects is that the defendant has refused to perform her part of contract by way of giving notices dated 16.01.2001 and 16.02.2001 and the present suit has been instituted in the year 2008 and therefore, the present suit is barred by limitation. 8. The court below has rejected the contention urged on the side of the defendant mainly on the ground that the plea of limitation can be decided only after getting evidence from both sides. Under the said circumstances, the following legal point has become emerged for determination: “Whether the plea of limitation raised in the written statement can be decided as a preliminary issue in view of the reliefs sought for in the plaint?" 9. Since Original suit No.148 of 2008 has been instituted for the main relief of specific performance, the Court has to look into Article 54 of the Limitation Act, 1963 and the same reads as follows: For specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. 10. The provision of Article 54 of the Limitation Act, 1963 can be vivisected as follows: (a) When date for specific performance is fixed, a suit for specific performance should be instituted within three years from such date. (b) When no such date is fixed and when the plaintiff has notice that performance is refused, a suit for specific performance should be instituted within three years from the date of refusal. 11. (b) When no such date is fixed and when the plaintiff has notice that performance is refused, a suit for specific performance should be instituted within three years from the date of refusal. 11. With these legal backdrops, the Court has to further analyse the legal point involved in the present civil revision petition. 12. The learned counsel appearing for the revision petitioner/defendant has repeatedly contended that in the written statement filed on the side of the revision petitioner/defendant in paragraphs – 3 and 4 it has been specifically stated that the defendant has issued two notices dated 16.01.2001 and 16.02.2001, wherein she has candidly expressed her unwillingness to perform her part of contract in pursuance of the sale agreement dated 12.09.1998 and the present suit has been instituted in the year 2008 and from 16.02.2001, the present suit should be filed within three years and since the present suit has been instituted in the year 2008, the same is barred by limitation and further in paragraph – 12 of the plaint it is stated that the plaintiffs expressed readiness and willingness to perform the contract. The same was replied by the defendant and her husband on 16.02.2001. Therefore, the refusal made by the defendant on 16.02.2001 is known to the plaintiffs and since the present suit has been instituted in the year 2008, plea of limitation raised on the side of the revision petitioner/defendant comes within the purview of the second limb of Article 54 of the Limitation Act, 1963 and the Court below has failed to look into the same and erroneously rejected the contention urged on the side of the revision petitioner/defendant and therefore, the order passed by the Court below is liable to be interfered with. 13. The learned counsel appearing for the respondents/plaintiffs has also equally contended that the suit property is the absolute property of the defendant and she has agreed to sell the same in favour of the plaintiffs for a sum of Rs.5,90,000/- and both the plaintiffs and defendant have entered into the sale agreement dated 12.09.1998, wherein three months time is fixed for execution of a sale deed and further several suits have been instituted subsequently. Under the said circumstances, the present suit has been instituted in the year 2008 and since the suit property is an immovable property, time is not the essence of contract and further the said aspect can be decided by the Court only after getting rival evidence from both sides. The Court below has rightly rejected the plea raised on the side of the defendant and therefore the order passed by the trial Court need not be interfered with. 14. As rightly pointed out by the learned counsel appearing for the revision petitioner/ defendant, in paragraph – 12 of the plaint, it has been stated in unequivocal terms to the effect that the plaintiffs expressed readiness and willingness to perform the contract. The same has been replied by the defendant and her husband on 16.02.2001. Further even in the written statement at paragraphs – 3 and 4 it has been specifically pleaded to the effect that the sale agreement dated 12.09.1998 has been cancelled by the defendant. Therefore, from the averments made in paragraph-12 of the plaint as well as the averments found in paragraphs – 3 and 4 of the written statement, the Court can unflinchingly come to a conclusion that the plaintiffs have very well known about the refusal on the part of the defendant even from the notice dated 16.02.2001. 15. At this juncture, once again the Court has to look into the second limb of Article 54 of the Limitation Act, 1963. As explicated earlier, the second limb of Article 54 of the Limitation Act 1963 is that if no such date is fixed and the plaintiff has notice that performance is refused, a suit for specific performance should be instituted within three years from the date of refusal. Therefore, it is quite clear that from the averments made in paragraph - 12 of the plaint, one can easily discern that on the date of filing of the suit itself the plaintiffs have known the refusal made by the defendant. Considering the fact that on the date of filing of the suit itself, the plaintiffs have known the refusal made on the side of the defendant even on 16.02.2001, the present case comes within the purview of the second limb of Article 54 of the Limitation Act, 1963. 16. Considering the fact that on the date of filing of the suit itself, the plaintiffs have known the refusal made on the side of the defendant even on 16.02.2001, the present case comes within the purview of the second limb of Article 54 of the Limitation Act, 1963. 16. The learned counsels appearing for both sides have drawn the attention of the Court to the decision reported in AIR 2006 Supreme Court 1556 (Gunwantbhai Mulchand Shah and others. V. Anton Elis Farel & others), wherein at paragraph - 11, the Honourable Apex Court has observed as follows: "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. 17. From the close reading of the observations made by the Honourable Apex Court it is made clear that if it is admitted in plaint to the effect that performance has been refused by the concerned defendant, the plea of limitation raised on the side of the concerned defendant could be determined as a preliminary issue. 18. 17. From the close reading of the observations made by the Honourable Apex Court it is made clear that if it is admitted in plaint to the effect that performance has been refused by the concerned defendant, the plea of limitation raised on the side of the concerned defendant could be determined as a preliminary issue. 18. In the instant case even at the risk of repetition the Court would like to point out that the defendant by way of giving two notices dated 16.01.2001 and 16.02.2001, has expressed her unwillingness to execute a sale deed in favour of the plaintiffs in pursuance of the sale agreement dated 12.09.1998. Therefore, an unequivocal refusal has been expressed by the defendant even in the year 2001. From the date of refusal made by the defendant, as pointed out earlier, the present suit has to be filed within three years as per the second limb of Article 54 of the Limitation Act, 1963. But as taunted earlier, the present suit has been instituted in the year 2008. Under the said circumstances and also in view of the dictum given by the Honourable Apex Court, it is very clear that the plea of limitation raised on the side of the revision petitioner/defendant should be decided as a preliminary issue even without getting rival evidence from both sides. 19. The Court below has erroneously come to a conclusion that the plea of limitation raised on the side of the revision petitioner/defendant could be decided only after getting rival evidence from both sides. In view of the foregoing enunciation of both the factual and legal aspects, the conclusion arrived at by the Court below is totally erroneous and the same is liable to be set aside. 20. In fine, this civil revision petition is allowed without cost. Connected Miscellaneous petition is closed. The order dated 11.12.2009 passed in Original Suit No.148 of 2008 by the Fast Track Court (Additional District Court), Dindigul is set aside and the Fast Track Court (Additional District Court), Dindigul is directed to decide the plea of limitation raised on the side of the revision petitioner/defendant as a preliminary issue. However, the plaintiffs are not precluded to take defence to the effect that Original Suit No.148 of 2008 is not barred by limitation.