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Madras High Court · body

2011 DIGILAW 318 (MAD)

Ganga Harinarayanan v. K. Pattammal

2011-01-21

G.RAJASURIA

body2011
Judgment :- 1. These two second appeals, S.A.No. 1125 of 2008 and S.A.No 1009 of 2009 have been focused by the plaintiff and the defendant 3, 7, and 8 respectively animadverting upon the judgment and decree dated 28/2/2007 passed in A.S.No. 676 of 2005 by the learned V Additional Judge, City Civil Court, Madras modifying the judgment and decree dated 29/10/2004 passed by the VI Assistant Judge, City Civil Court, Chennai in O.S.No.7383 of 1996, which was filed by the plaintiff for specific performance of the agreement to sell. 2. The parties are referred to here under according to their litigative status and ranking before the trial court. 3. Heard both sides 4. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these two second appeals would run thus: a) The plaintiff, viz., Ganga Harinarayanan filed the suit seeking the following reliefs: - To direct the defendants to execute and register the sale deed in favour of the plaintiff in respect of the property bearing New Door No.1, Old No.17, Venkatesa-Naicken Street, George Town, Madras 600001 more particularly described in the schedule here under given on receipt of the balance of Rs. 158750.00 - To direct the defendants to deliver vacant possession of the said property morefully described in the schedule here under given; - On failure to do so, by the defendant this Honorable court may be pleased to execute and register the sake deed in favour of the plaintiff by an officer of this Honorable court; or - Cancelling the decree dated 26/3/1990 passed by the XI Additional Judge, City Civil Court at Madras in O.S.No.3007 of 87 in favour of the 9th defendant herein as null and void. - Consequently declare the sale deed dated 30/3/1990 pending no.68 of 90 later document no.334 of 1990 on the file of the Sub-Registrar, Sowcarpet Madras executed and registered by defendant 1 to 8 in favour of the 10th defendant in respect of the suit property as null and void. - Restraining by a permanent injunction the 10th defendant her agents, servants and other units from transferring/alienating the suit property by sale, gift, settlement, long lease mortgage exchange or any other mode known to law pending disposal of the above case. - And for costs. - Restraining by a permanent injunction the 10th defendant her agents, servants and other units from transferring/alienating the suit property by sale, gift, settlement, long lease mortgage exchange or any other mode known to law pending disposal of the above case. - And for costs. (extracted as such) (b) Written statement was filed by D2 to D8 resisting the suit and separate written statements were filed by D9, D10 and D11 to D14, supporting the written statement of D2 to D8. Pending suit, D1 died and his legal heirs D2 to D8 are already on record. (c) Whereupon issues were framed. On the side of the plaintiff, the plaintiff examined himself as P.W1 and marked Exs. A1 to A65. On the side of the defendants, D.Ws.1 and 2 were examined and no document was marked. (d) Ultimately the trial court dismissed the suit in toto. As against which, appeal was filed, thereupon the appellate court modified the judgment and decree of the trial court to the effect that the dismissal of the suit for specific performance by the trial court was confirmed; but ordered directing the defendants concerned for return of the advance amount under the agreement to sell and also payment of compensation with interest in favour of the plaintiff. (e) Being aggrieved by and dissatisfied with the judgment of the first appellate court, these two second appeals have been filed. S.A.No 1125 of 2008 was filed by the plaintiff contending that the prayers in the original suit should have been granted by the courts below in toto. Whereas S.A.No.1009 of 2009 was filed by defendants 3, 7 and 8 challenging the order passed by the first appellate court in directing the return of the advance amount as well as the payment of compensation by the defendants in favour of the plaintiff. 5. S.A.No. 1125 of 2008 is based on various grounds, inter alia to the effect that – (i) The courts below failed to note that under Ex.A1, the agreement to sell dated 3/1/1987, the plaintiff was entitled to specific performance. (ii) The courts below failed to cancel the decree in one other suit in O.S. No.3007 of 1987 granted in favour of the ninth defendant herein. (ii) The courts below failed to cancel the decree in one other suit in O.S. No.3007 of 1987 granted in favour of the ninth defendant herein. (iii) The courts below also failed to hold that the sale deed bearing No.68 of 1990 dated 30/03/1990 pending registration in the Sub-Registrar office at Sowcarpet in favour of ninth defendant was null and void. The successive sales by the tenth defendant, the nominee of the ninth defendant to defendants 11 to 14 as per Document No 342 of 1994 also should have been declared as void because those documents emerged pendent lite. (iv) Both the courts below failed to consider the oral and documentary evidence in the proper perspective and accordingly, the following proposed substantial questions of law are found set out in the memorandum of second appeal. a) Whether the appellant is entitled to relief of specific performance of contract as per Ex.A1 dated 3/1/1987? b) Whether the appellant is entitled to delivery of vacant possession of the suit property consequent to a decree for specific performance of contract in terms of Ex.A1 dated 3/1/1987? c) Whether the decree dated 26/3/1990 passed by XI Additional Judge, City Civil Court at Madras in O.S.No. 3007 of 1987 in favour of the 9th defendant is liable to be cancelled as null and void? d) Whether the sale deed dated 30/3/1990 pending No.68 of 1990 (admitted as Doc.no.344 of 1990) on the file of Sub Registrar office at Sowcarpet, Madras executed and registered by defendants 1 to 8 in favour of the 10the defendant is liable to be cancelled as null and void consequent to cancellation of the judgment and decree dated 26/3/1990 in O.S.No.3007 of 1987 by XI Additional Judge at Madras? e) Whether the sale of the suit property by the 10th defendant favouring defendants 11 to 14 registered as DocumentNo.342 of 1994 on 24/3/1994 on the file of sub-registrar office at Sowcarpet, Madras in respect of the suit property is subject to pendent lite in terms of section 52 of Transfer of Property Act? f) Whether the appellant is entitled to a permanent injunction against transfer/alienation of suit property by respondents pending disposal of the appeal? g) Whether the suit is time barred? h) Whether the appellant is entitled to cots of the suit, first appeal and second appeal? f) Whether the appellant is entitled to a permanent injunction against transfer/alienation of suit property by respondents pending disposal of the appeal? g) Whether the suit is time barred? h) Whether the appellant is entitled to cots of the suit, first appeal and second appeal? (i) However, my learned predecessor at the time of admitting the second appeal framed the following substantial questions of law: (1) Whether the courts below have committed an error in holding that the suit is barred by limitation? (2) Whether the courts below have committed an error in dismissing the plea for setting aside the judgment and decree dated 26/3/1990 made in O.S.No. 3007 of 1987 on the file of the XI Additional Judge, City Civil Court, Chennai? (3) Whether the courts below are right in holding that the plaintiff is not entitled to the relief of specific performance as there is a fraud played upon the court in getting the permission from the court for selling the minor’s shares also? 6. In S.A.No. 1009 of 2009, the appellants raised various pleas inter alia to the effect that in the absence of specific prayers in the plaint for the return of the advance amount and also for awarding of compensation, the first appellate court was not justified in ordering so. 7. My learned predecessor, while admitting the second appeal formulated the following substantial questions of law. (1) Whether the lower appellate court has got power and jurisdiction to grant decree for return of advance and for ordering compensation when the same has not been claimed in the plaint and the same is specifically prohibited under section 21(5) and section 22 (2) of the Specific Relief Act, 1963? (2) Whether the lower appellate court has power (sic to order) compensation without there being any pleadings or evidence for arriving at the quantum? (3) Whether the lower appellate court decreeing for return of advance and payment of compensation by the appellant jointly is sustainable in law in view of lack of pleadings and evidence? (4) Whether the award of compensation is proper when the decree for specific performance was denied on the ground of fraud practiced by the plaintiff on the court in creating two sale agreements and produced one sale agreement for Rs.90,000/- for getting minor’s interest? (5) Whether the lower appellate court has (sic.was) right in not appropriating the return of advance of Rs. (5) Whether the lower appellate court has (sic.was) right in not appropriating the return of advance of Rs. 41,250/- and compensation of Rs.3,00,000/- with interest among the defendants 2 to 8? 8. Relating to the substantial questions of law formulated in both the second appeals, the gist and kernel of the argument of the learned counsel for the plaintiff would not run thus; a) The agreement to sell, Ex.A1 should have been enforced by the courts below, but they erroneously held as though it was barred by limitation? b) The plaintiff was always ready and willing to perform his part of the contract and the defendants 2 to 8 alone committed default in performing their part of the contract and they suggested variation etc. the courts below were not justified in holding that there was fraud involved in the obtention of the order from the District Judge under Section 8 of the Guardian and Wards Act as per Ex.A19. c) In the earlier suit O.S.No.3007 of 1987, filed by D9 herein against D1 to D8, in respect of the same suit property based on one other agreement to sell, the plaintiff herein wanted to get himself impleaded but the trial court in that suit dismissed it and that was a collusive suit and the courts below in these proceedings should have considered the same and declared the said decree as null and void. But, they failed to do so. d) The clauses in Ex.A1 were not properly understood by both the courts below and they have given undue importance and significance to the time of three months found specified in Ex.A1. Unless and until the formalities contemplated in the agreement are complied with, the question of calculating the limitation period as contended by the defendants would not arise. But, both the courts below failed to consider the same and erroneously held as though the suit was barred by limitation. Accordingly, the learned counsel for the plaintiff would pray for setting aside the judgment and decrees of the courts below and for decreeing the original suit in toto as prayed for. 9. But, both the courts below failed to consider the same and erroneously held as though the suit was barred by limitation. Accordingly, the learned counsel for the plaintiff would pray for setting aside the judgment and decrees of the courts below and for decreeing the original suit in toto as prayed for. 9. By way of torpedoing and pulverizing the argument as put forth and set forth on the side of the plaintiff, the learned senior counsel for the appellants/D3, 7 and 8 would advance his argument, the gist and kernel of it would run thus; (i) The plaintiff approached the court without clear facts. There are two agreements to sell involved in this case. One agreement to sell is as contained in Ex.A1 dated 3/1/1987 and another agreement is dated 22/1/1987. (ii) The suit was filed by the plaintiff only for enforcing the first agreement to sell dated 3/1/1987, which contains the clause to the effect that within three months from 3/1/1987, the entire transaction should be completed. But indubitably and indisputably, the plaintiff took time to perform his part of the contract. It so happened that the pre-suit notice as per Ex. A22 was given by the plaintiff to the defendants concerned calling upon them to come forward to execute the sale deed as per the second agreement dated 22/1/1987, for which, as per Ex.A24, the defendants concerned replied to the effect that the suit instituted by D9, viz., O.S.No.3007 of 1987 in the court of XI Additional Judge, City Civil Court, Madras was pending and after that, the sale transaction could be completed based on the first agreement subject to the condition that the plaintiff should agree for a total sale consideration of Rs. 2 lakhs and for which rejoinder as per Ex.A25 was given by the plaintiff to the defendants concerned that there was no such first agreement dated 3/1/1987 in vogue. (iii) To the great shock and surprise of the appellants herein, the plaintiff subsequently filed the very present suit for enforcing Ex.A1 the first agreement to sell dated 3/1/1987 and that too after the expiry of the limitation period. (iii) To the great shock and surprise of the appellants herein, the plaintiff subsequently filed the very present suit for enforcing Ex.A1 the first agreement to sell dated 3/1/1987 and that too after the expiry of the limitation period. (iv) Consequent upon the dismissal of the I.A filed by the plaintiff for impleadment in the said previous suit filed in O.S.No.3007 of 1987 by D9 herein, no further action was taken and in such a case, he was not justified in making a prayer for getting the earlier judgment and decree set aside. (v) The first appellate court while negativing the prayer of the plaintiff in seeking part performance, was not justified in the absence of specific prayers for the return of the advance amount and for awarding compensation, for ordering so. (vi) The first appellate court was not justified after holding that there were laches on the part of the plaintiff, in awarding compensation as well as return of the advance amount. As such, the learned counsel for the appellants/defendants 3, 7 and 8 would pray for setting aside that much portion of the judgment and decree of the first appellate court in ordering return of the advance amount and payment of compensation by the defendants. 10. The substantial question of law Nos. 1, 2 and 3 in S.A.No.1125 of 2008 are taken up together for discussion as they are inter-linked and inter-woven with one another. 11. There are as many as 83 grounds found set out in the memorandum of second appeal, which are mostly relating to finding of facts by both the courts below. 12. It is a trite proposition of law that regarding the concurrent finding of facts is concerned, the courts below are the competent courts and as against which, in the second appeal there can be no fresh analysis of the facts. 13. At this juncture my mind is reminiscent and redolent of the following decisions of the Honorable Apex Court. (i) (2006) 5 Supreme Court Cases 545 = 2007-2-L.W, 945- Hero Vinoth (minor) versus Seshammal (ii) 2008(4) SCALE 300 – Kashmir Singh versus Harnam Singh & another. 13. At this juncture my mind is reminiscent and redolent of the following decisions of the Honorable Apex Court. (i) (2006) 5 Supreme Court Cases 545 = 2007-2-L.W, 945- Hero Vinoth (minor) versus Seshammal (ii) 2008(4) SCALE 300 – Kashmir Singh versus Harnam Singh & another. (iii) 2009-1-L.W.1 – State Bank of India & others versus S.N. Goyal A plain reading of those precedents would reveal and demonstrate that the second appeal cannot be entertained, unless there is substantial question of law involved and the second appellate court cannot in the absence of any perversity or illegality in the finding of facts rendered by the courts below, interfere with such findings of facts. 14. However, only eight proposed substantial questions of law are found set out in the memorandum of second appeal and my learned predecessor formulated the aforesaid three substantial questions of law and as such, I proceed to discuss those substantial questions of law. 15. Unarguably and unassailably, indubitably and indisputably, Ex.A1 is the agreement to sell dated 3/1/1987. Before the lower court virtually, both sides agreed that such an agreement emerged between the parties concerned. 16. A plain and bare reading of Ex.A1 dated 3/1/1987 would exemplify and demonstrate that in clause no. (1) the period of performance was specified as three months, which means that in or before 3/4/1987, the parties should have performed their respective parts of the contract. But, in this case, it did not happen. It is also an admitted fact, virtually by both sides that shortly after Ex.A1, the second agreement emerged on 22/1/1987 between the same parties and for the same property. In the other clauses in Ex.A1, there are certain references to certain time limit for performing certain specific acts. It is therefore just and necessary to extract clause 1 as well as clauses 8,9,10 and 11 in Ex.A1 as under: “1. The vendors shall sell and the purchaser shall purchase the said property for a sum of Rs. 2,00,000/- (rupees two lakhs only) free from all encumbrances and litigation. Time agree upon for execution and registration of sale deed subject to conditions herein contained is 3months. This agree upon time may be extended further by mutual consent of the parties hereto and upon such extended time the terms and condition of this agreement shall continue to be in force and alive. 8. Time agree upon for execution and registration of sale deed subject to conditions herein contained is 3months. This agree upon time may be extended further by mutual consent of the parties hereto and upon such extended time the terms and condition of this agreement shall continue to be in force and alive. 8. The vendors shall obtain sanction of the court for the said minor (8th vendor) having share in the said property and shall agree to deposit the minor’s share in a bank or with the purchaser or shall give sufficient security of other immovable properties of the guardian, till the minor attains the age of majority and ratified the sale deed in favour of the purchaser. 9. The vendors shall obtain Income Tax Clearance Certificate of all the executants and shall also obtain the sanction from the competent authorities for selling the said properties. 10. The vendors shall handover all the documents/informations etc., to the purchaser’s Advocate within 1 month of this date. The Advocate for the purchaser shall on receipt of all the information, documents etc., give his opinion and draft sale deed to the vendors within 5 weeks of this approval of the title. 11. The vendors shall execute and register the sale deed or deeds in favour of the purchaser and or his nominee(s) in respect of the Schedule mentioned property state here under within 4 weeks after the completion of the formalities and after the request by the purchaser.” 17. The learned counsel for the plaintiff, placing reliance on those clauses would submit that the gist and kernel, the sum and substance of those clauses would be to the effect that the conditions contemplated in the agreement should be complied with and thereafter only without any laches, the questions of getting the sale deed executed and registered would arise. 18. Whereas the learned senior counsel for the defendants concerned would submit that such an interpretation as canvassed by the learned counsel for the plaintiff cannot be accepted in view of the settled proposition of law. He would place reliance on Article 54 of the Limitation Act, which is extracted here under: “54. 18. Whereas the learned senior counsel for the defendants concerned would submit that such an interpretation as canvassed by the learned counsel for the plaintiff cannot be accepted in view of the settled proposition of law. He would place reliance on Article 54 of the Limitation Act, which is extracted here under: “54. Description of suit-for specific performance of a contract Period of limitation – three years Time from which period begins to run – The date fixed for the performance, or, if no such date is fixed , when the plaintiff has notice that performance is refused.” 19. The following are the decisions cited by him. 1. AIR 1988 Kar 83 (DB) – (Mahaboob Pasha versus Syed Zaheeruddin& others) 2. The point for consideration is whether the trial court is justified in law in holding that the suit is not barred by time? 3. Necessary facts which are not much in controversy and as found by the trial court are as follows: The appellant-defendant executed an agreement of sale on 10/8/1974 in favour of respondents I to 4-plaintiffs I to 4-agreeing to sell the suit schedule property to respondents I to 4 for a sum of Rs. 30,000/-. He also received a sum of Rs. 5,000/- as advance from the respondents. The balance of the consideration amount was required to be paid within a period of six months from the date of the agreement and the sale deed was required to be obtained. The relevant portions of the agreement are as follows “2. The purchasers have this day paid an advance of Rs. 5,000/- (Rupees five thousand only) to the hands of the vendor, the receipt of which the vendor hereby acknowledges. 3. The balance of sale consideration of Rs.25,000/- (Rupees twenty five thousand only) shall be paid by the purchaser to the vendor at the time of execution of the sale deed before the sub-registrar. 4. The said balance of sale consideration shall be paid in full within a period of six months from this date. 9. Similarly if the purchasers do not complete the transactions within the time stipulated under this agreement, the vendor is at liberty to forfeit the advance amount of Rs.5,000/- (Rupees five thousand only). Thus the parties agree that the agreement was to be performed within a period of six months from the date of the agreement. 9. Similarly if the purchasers do not complete the transactions within the time stipulated under this agreement, the vendor is at liberty to forfeit the advance amount of Rs.5,000/- (Rupees five thousand only). Thus the parties agree that the agreement was to be performed within a period of six months from the date of the agreement. The appellant has not disputed the agreement. The suit property is a residential house consisting of ground and first floor. Under cl.6 of the agreement, the appellant has agreed to deliver vacant possession of the ground floor of the suit premises which was in his personal occupation. The first floor was in the possession of the tenant by a name Abdul Sattar filed a suit in O.S.No.2095/1974 on 28/10/1974 in the court of the First Munsif, Bangalore, against the appellant ad the 1st respondent herein seeking a decree for permanent injunction restraining the appellant from alienating the suit premises in favour of respondent –I or any other party. On the same day, he also obtained an order of temporary injunction restraining the appellant from alienating the suit property in favour of respondent-I or any other party. That suit was founded on an agreement of sale alleged to have been executed by the appellant in favour of the said Abdul Sattar on 15/9/1974. The order of temporary injunction was in force from 28/10/1974 to 25/11/1970 and on 25/11/1976, the said Abdul Sattar filed “a Miscellaneous Application to set aside the order of dismissal and to restore the suit. On 17/4/1978, the order dismissing eh suit, for default was set aside and the suit was restored. Thereafter on 27/8/1980 the suit was dismissed on merits. The appeal R.A.No.775/1980 preferred against the judgment and decree of the learned Munsiff was also dismissed. The present suit was filed by respondents I to 4 on 3/12/1980 seeking specific performance of the agreement of sale dated 10/8/1974. 6. We are of the view that the approach made by the learned trial judge is on the face of it erroneous. It is the duty of the court to decide the question as to when the limitation commences, depending upon the nature of the suit. The decision on such question shall have to be of the court. It cannot be founded on the submission made by the counsel for the parties. Limitation affects the jurisdiction of the court. It is the duty of the court to decide the question as to when the limitation commences, depending upon the nature of the suit. The decision on such question shall have to be of the court. It cannot be founded on the submission made by the counsel for the parties. Limitation affects the jurisdiction of the court. If the suit is barred by limitation, the court has no jurisdiction to entertain it. Therefore, as the parties cannot confer jurisdiction on the court by consent the question of limitation as to the original cause of action cannot be decided on the concession made by the parties. S.S. of the Limitation Act does not apply to the original cause of action so as to extend the period of limitation by concession made by the parties. The expression ‘prescribed period’ as per cl.(j) ofS.2 of the Act means, the period of limitation computed in accordance with the provisions of the Act, Sub-sec (i) of S.3 of the Act further provides that subject to the provisions contained in Ss.4 to 24 (inclusive), every suit instituted, appeal pre period shall be dismissed although limitation has not been set up as a defence. Therefore, it is the duty of the court to decide the question of limitation. 9. It is clear from the contents of column No.3 of Art. 54 that it consists of two parts. The first part relates to cases where the agreement for sale fixes the date for performance and the second part relates to cases where the agreement does not fix any date for performance and in such a case the limitation begins to run when the plaintiff has notice that performance is refused. No doubt normally in the case of an agreement for sale, relating to immoveable property time is not the essence of the contract unless the agreement in clear terms provides for it without any ambiguity. The question whether time is the essence of the contract is relevant for the purpose of determining the question as to who has committed breach of the agreement; but it is not relevant for deciding the question as to commencement of the period of limitation. In a case where the date for performance of the agreement is fixed, as per first part of Art.54, the limitation begins to run from the date fixed for the performance. In a case where the date for performance of the agreement is fixed, as per first part of Art.54, the limitation begins to run from the date fixed for the performance. The clear meaning of this is that irrespective of the fact whether the time is the essence of the contract or not, the period of limitation begins to run from the date fixed for the performance of the agreement. There is no ambiguity what so ever. This is also the view taken by the High Courts of Madras and Madhya Pradesh. 12. Thus in the instance case, the limitation has commenced on 10/2/1975, i.e., the date fixed in the agreement for performance of the contract. 14. In this regard, it is relevant to bear in mind that in construing the provisions of the Limitation Act, equitable considerations are immaterial and irrelevant. While applying the rules of limitation, effect must be given to the strict grammatical meaning of the words used therein. See Nagendranath vs. Suresh Chandra AIR, 1932 PC 165 = (1932) 36 L.W. 7. As it is already pointed out that the order of injunction obtained by Abdul Sattar on 28/10/1974 in O.S. No. 2095/74 was to restrain the appellant from alienating the suit property to the 1st respondent or to any other party. It did not restrain the respondents from filing the suit for specific performance nor the respondents were in any way prevented by reason of such an order of temporary injunction from filing the suit. S. 15(1) of the Act reads thus: “15(1) : In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on the which it was issued or made, and the day on which it was withdrawn, shall be excluded.” The facts as found by the trial court, in our view, did not enable respondents 1 to 4 to exclude the period from 28/10/1974 to 27/8/1980 because they were not prevented from filing the suit. What all S.15(1) provides for is that the time intervening between the date on which the institution of the suit was stayed and the date on which the stay order was vacated shall e excluded in computing the period of limitation. What all S.15(1) provides for is that the time intervening between the date on which the institution of the suit was stayed and the date on which the stay order was vacated shall e excluded in computing the period of limitation. In this case, as already pointed out, there was no order of injunction in the suit filed by Abdul sattar restraining respondents 1 to 4 from filing a suit against the appellant for specific performance of the agreement in question. What was obtained by him was an interim order of injunction restraining the appellant from alienating the property in question in favour of respondent 1 or any other party and, therefore, S.15(1) Limitation Act did not permit the trial court to exclude the time from 28/10/74 to 27/8/1980. By excluding that period, it held that the suit filed on 3/12/1980 was within time. 15-16. This point had come up for consideration before the Privy Council in Narayan Jivan gouda vs. Puttabai AIR 1945 PC5. In that case, an order of injunction was operating against the defendant in the suit restraining him from interfering with the plaintiff’s possession. It was held by the Privy Council that the defendant was not restrained from bringing a suit for possession so as to exclude the period during which injunction was issued by trial court and dissolved by privy council. In that suit for declaration and possession, a temporary injunction which was subsequently confirmed by the decree restrained the defendant from interfering with plaintiffs possession and the defendant was also prevented from causing obstruction in any way to the plaintiff in removing the crops grown by him or in accepting or recovering the amount of rent of the said lands from the tenants. It was held by the Privy Council that there was no prohibition, either express or even implied, in the injunction or the decree which restrained the defendant from instituting, a suit for possession; that the institution of a suit could not be said to be futile, if it would thereby prevent the running of 11mitation only because the title of the parties was involved in the suit; that the, subsequent suit by defendants after 12 years from the date of dis-possession was barred by limitation and that S.15 did not entitle the defendant to exclude the time between the plaintiff’s suit and decision of the Privy Council. This decision was followed by the Supreme Court in SirajUl-Haq. Khan vs. Sunni Central Board of Waqf U.P., AIR 1959 SC 198 (See para 20 of the judgment of the Supreme Court). The Supreme Court while considering the effect of S.15(1) of the Limitation Act referred to the decision of the Privy Council adverted to above and observed as follows. “For excluding the time under S.15, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling under S.15, the party instituting; the suit, would by such institution be in contempt of court. If an express order, or injunction is produced by a party that clearly meets the requirements of S.15, Even assuming that S.15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation, there would be no justification for extending the application of 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some extent arbitrary and may frequently lead to hard ship; there can be no doubt that, in construing provisions of limitation equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them”. 2. AIR 1997 SC 772 – (T.L.Muddukrishana and another vs. Smt. Lalitha Ramachandra Rao) 5. It is seen that limitation under section 3 of the Limitation Act is one of the defences available; to the defendant. Article 54 of the Schedule to the Limitation Act postulates that for specific performance of a contract the period of limitation is three years from the date fixed for the performance, or , if no such date is fixed, from the date the plaintiff has notice that performance is refused. Article 54 of the Schedule to the Limitation Act postulates that for specific performance of a contract the period of limitation is three years from the date fixed for the performance, or , if no such date is fixed, from the date the plaintiff has notice that performance is refused. Under first part of Article 54, once date for performance of the contract has been fixed by the parties, the limitation begins to run from that date and specific performance of the contract could be had within three years from that date unless the parties by an agreement extend the fixed time. In this case, date was fixed for performance, i.e May 28, 1989. The question whether or not the time is the essence of the contract is not of much relevance since the case falls in first part of Article 54? The decision relied on by the learned counsel for the appellants in Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal rani (Dead) by LRs. (1993) 1 SCC 519 : (1993 AIR SCW 1371), of the constitution bench does not help the learned counsel for the appellant. In that case, this court has reviewed the entire case law and need for reiteration is obviated. The court held thus (para 18 of AIR): It is well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from the obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contact must be expressed in unequivocal language. 8. Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. An intention to make time the essence of the contact must be expressed in unequivocal language. 8. Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of actions required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, November 5, 1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint. 3. Both sides cited the decision of the honorable Apex Court reported in 2005 (12) SCC 764 = 2006-I.L.W.614 (S. Brahmanand & others vs. K.R. Muthugopa (dead) & others) 34. Thus, this was a situation where the original agreement of 10/3/1989 had a “fixed date” for performance, but by the subsequent letter of 18/6/1992 the defendants made a request for postponing the performance to a future date without fixing any further date for performance. This was accepted by the plaintiffs by their act of forbearance and not insisting on performance forthwith. There is nothing strange in time for performance being extended, even though originally the agreement had a fixed date. Section 63 of the Indian Contract Act, 1872 provides that every promise may extend time for the performance of the contract. Such an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or in some cases, even by evidence of conduct including forbearance on the part of the other party. Thus, in this case there was a variation in the date of performance by express representation by the defendants, agreed to by the act of forbearance on the part of eth plaintiffs. Thus, in this case there was a variation in the date of performance by express representation by the defendants, agreed to by the act of forbearance on the part of eth plaintiffs. What was originally converted by the first part of Article 54, now fell within the purview of the second part of the Article. Pazhaniappa Chettiyar vs. South Indian Planting & Industrial Co. Ltd., was a similar instance where the contract when initially made has a date fixed for the performance of the contract but the court was of the view that “in the events that happene3d in this case, the agreement in question thought started with fixation of a period for the completion of the transaction became one without such period on account of the peculiar facts and circumstances already explained and the contract, therefore, became one in which no time fixed for its performance.” And held that was originally covered by the first part of Article 113 of the Limitation Act, 1908 would fall under the second part of the said Article because of the supervening circumstances of the case. The learned counsel for the plaintiff also cited one other decision of the Honorable Apex Court reported in (2006) 3 MLJ page 81 (SC) – (Panchanan Dhara vs. Monmatha Nath Maity) on limitation point. 20. Normally, time is not the essence of contract for performing the obligations under the agreement to sell relating to immovable property, yet limitation point should not be forgotten. Hence, it is not the case of the defendants that beyond three months as contemplated in the agreement, the plaintiff expressed his desire, to perform his part of the contract. 21. It is the specific case of the defendants concerned that the plaintiff field the suit beyond the period of limitation and that distinction should not be forgotten. It is one thing to say that the plaintiff within the limitation period but, belatedly beyond the time stipulated for performing his part of eth contract came forward to perform his part of the contract and it is yet entirely a different matter to say that the plaintiff has filed the suit beyond the limitation period. It is one thing to say that the plaintiff within the limitation period but, belatedly beyond the time stipulated for performing his part of eth contract came forward to perform his part of the contract and it is yet entirely a different matter to say that the plaintiff has filed the suit beyond the limitation period. The distinction between the two is not one between tweedledum and tweedledee or between rock and a hard place or between six of the one and half a the dozen of the other; but the distinction is one between that of chalk and cheese and this has been correctly understood by both the courts below and held that the suit was barred by limitation. 22. I am of the considered view that in Ex.A1, three months limitation period was contemplated as on 3/1/1987 and that three months’ period expired by 3/4/1987 and three years limitation period as per Article 54 of the Limitation Act expired by 3/4/199. Whereas, admittedly, the plaint was presented before the court only on 24/4/1990 long after the expiry of the limitation period. 23. As such, I could see considerable force in the submission made by the learned counsel for the appellants/defendants that the suit was barred by limitation and over and above that I would also like to refer to the pre litigation correspondents, which emerged between the parties. At the first instance, the plaintiff issued Ex.A22 dated 23/7/1987 beyond the stipulated period in Ex.A. Seeking specific performance of the second agreement to sell dated 22/1/1987 stating that the entire sale consideration was only for Rs.90,000/-. Whereas in the reply notice as per Ex.A24 dated 30/7/1987, the appellants/defendants contended that they agreed only for the enforcement of the first agreement to sell dated 3/1/1987 and also for accepting the sum of Rs. 2 lakhs sale consideration as contemplated there in and they also added one fact that after the disposal of the earlier suit in O.S.No.3007 of 87 on the file of the XI Additional Judge, City Civil Court, Madras instituted by the ninth defendant, they would agree for executing the sale deed. Had the plaintiff accepted to such a proposal then the matter would have been different. But in the rejoinder Ex.A25 dated 8/8/1987, the plaintiff totally rejected the demand of the defendants. Had the plaintiff accepted to such a proposal then the matter would have been different. But in the rejoinder Ex.A25 dated 8/8/1987, the plaintiff totally rejected the demand of the defendants. In such a case, it is obviously and axiomatically, pellucidly and palpably clear that there was no consensus adidem between the parties relating to enforcement of the agreement to sell Ex.A1 in toto. 24. I would also like to refer to Ex.A19, which contains the order of the Principal Judge, City Civil Court, Madras concerned. The trial court correctly commented upon it by pointing out that the said order was obtained by practicing fraud on the court as the sale consideration referred to therein did not reflect the true sale consideration and both parties were guilty of fraud. 25. In this regard, the Honorable Apex Court in the following judgment has held that in a suit for specific performance, if the plaintiff had not approached the court with clean hands the suit should be dismissed. 2006(1) LW 547(SC) (The State of Andhra Pradesh & another vs. T.SuryachandraRao) 10.”Fraud” as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void abinitio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. (See Ram Chandra Singh vs. Savitri Devi& others (2003) 8 SCC 319 = 2004-2-L.W.70. A mere poring over and perusal of the aforesaid judgment would amply make the point clear that if the party approaches the court with unclean hands or suppression of material facts or distorted facts, then such a plaintiff is not entitled to specific performance. 26. According to the plaintiff, as per Ex.A21, the Income Tax clearance certificate was obtained by the defendants 1 to 8 only on 2/4/1987 and accordingly, he would canvass his point that the defendants cannot plead that the suit was barred by limitation. Admittedly, such income tax clearance certificate itself was obtained by misrepresenting that the sale consideration was Rs.90,000/- and not Rs. 2 Lakhs. The written arguments at para no.41 and 41-A emerged out of ignoring the plaintiff’s own false hood in getting the income tax clearance certificate and also the permission from the District Court for selling the minor’s share by practicing fraud on the court and the authority concerned. 27. The one other contention on the side of the plaintiff that the subsequent agreement to sell dated 22/1/1987 emerged because, the parties intended that the first agreement containing higher sale consideration of Rs. 2 lakhs in enforced, then it will lead to some difficulty in obtaining income tax clearance and also in paying higher stamp duty, etc. 28. I re-collect and call-up the following maxims: (i) Ex turpicausa non oritur action – (out of a base (illegal or immoral) consideration, an action does (can) not airse. (ii) Ex dolomalo non aritur action – (out of fraud no action arises’ fraud never gives a right of action. No court will lends its aid to a man who founds his cause of action upon an immoral or illegal act. (iii) In pari delicto potiorest condition possidentis (defendantis) – in a case of equal or mutual fault (between two parties) the condition of the party in possession (or defending) is the better one. Where each party is equally in fault, the law favours him who is actually in possession. (iii) In pari delicto potiorest condition possidentis (defendantis) – in a case of equal or mutual fault (between two parties) the condition of the party in possession (or defending) is the better one. Where each party is equally in fault, the law favours him who is actually in possession. Where the fault is mutual, the law will leave the case as it finds it. 29. In view of the aforesaid proposition, it is clear that even as per the plaintiff’s version, Ex.A1 agreement to sell was sought to be manipulated and twisted and wrongly projected in the eye of law by entering into the second agreement to sell dated 22/1/1987 and now on the plaintiff’s side it cannot be contended that the terms and conditions in Ex.A1 and the subsequent agreement dated 22/1/1987 were verbatim the same and there was no novation etc. the mala fide intention of the plaintiff is writ large. It is crystal clear that the plaintiff who seeks specific performance of an agreement to sell should not have even least bad intention or mala fide intention in the process of getting the agreement to sell specifically enforced. 30. It is not known, how it is open for the plaintiff to contend all those facts openly, and simultaneously having a volte face and turning turtle and contend that the equitable relief of specific performance should be granted in his favour. The written arguments submitted on the side of the appellant/plaintiff elaborately in support of the contention of the plaintiff, are totally untenable. 31. The contention on the side of the plaintiff that the period of limitation has to be computed only after complying with the various conditions contemplated in the agreement to sell is neither here nor there. 32. In the agreement to sell itself, three months time was contemplated and in such a case, the limitation period should be computed only from the expiry of the three months period and accordingly, if computed, the suit filed was beyond time. 33. The learned counsel for the plaintiff would argue that the emergence of the second agreement to sell dated 22/1/1987 specifying therein the sale consideration as Rs.90,000/- was purely for the purpose of saving stamp duty and also for income tax purpose and in such a case, it cannot be taken as novation of the contract. 34. 33. The learned counsel for the plaintiff would argue that the emergence of the second agreement to sell dated 22/1/1987 specifying therein the sale consideration as Rs.90,000/- was purely for the purpose of saving stamp duty and also for income tax purpose and in such a case, it cannot be taken as novation of the contract. 34. In support of the same, he would cite the following two decisions: 1. AIR 2000 SC 380 = 1-L.W. 416 (Lata Constructions & others vs. Dr.Rameshchandra-Ramniklal Shah & another). An excerpt from it would run thus: 11. One of the essential requirements of “Novation”’ as contemplated by section 62, is that there should be complete substitution of a new contract in place of the old. It is in that situation, that the original contract need not be performed. Substitution of a new contract in place of the old contract which would have the effect of rescinding or completely altering the terms of the original contract, has to be by agreement between the parties. A substituted contact should rescind or alter or extinguish the previous contract. But if the terms of the two contracts are inconsistent and they cannot stand together, the subsequent contract cannot be said to be in substitution of the earlier contract. 2. 1998 MLJ Supplementary Page 599 (Mad) – Division Bench Judgment (Rajan-Gopalakrishnan vs. Mrs. Kumudam & another) 35. A mere perusal of those cited decisions would amply make the point clear that the Honorable Apex Court set out the principles relating to novation and there could be no doubt about it. However, the facts involved in this case are entirely different.