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Madhya Pradesh High Court · body

2013 DIGILAW 278 (MP)

Shiv Chand Shukla v. Dilip Singh

2013-03-01

A.K.Shrivastava

body2013
ORDER 1. Feeling aggrieved by the order/judgment dated 19.8.2010, passed by learned Third Additional District Judge, Sagar in CS No 16A/2009 dismissing the suit of plaintiff-appellant only on the point of limitation, this first appeal under section 96 CPC has been filed by the plaintiffs. 2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal. Suffice it to say that a suit for specific performance of contract was filed by plaintiffs-appellants in regard to agricultural land (description whereof has been mentioned in the plaint) which is the subject matter of the suit, has been filed by the plaintiff. According to the plaint averments, the document of agreement of sale dated 18.3.2001 was executed between the parties in regard to the suit property but despite the plaintiffs are ready to purchase the suit property, the defendant did not turn up and has only sold a part of land mentioned in the document of agreement of sale dated 18.3.2001. It is also pleaded in the plaint that only a part of land which was agreed to be sold has been sold vide registered sale deed dated 3.8.2001 to the plaintiffs and in the plaint as well as in the document of sale deed dated 3.8.2001, it has been mentioned that remaining part of the land, which has been mentioned in the document of agreement of sale, would be sold to the plaintiffs as and when the plaintiffs would ask the defendant to get it sold. Since despite repeated reminders and by sending registered notice by post, the defendant did not execute the sale deed, therefore the present suit for specific performance of the contract had been filed by the plaintiffs. 3. A written statement was filed by the respondent No. 1 and the plea of limitation has been specifically pleaded therein that the suit is barred by time. 4. The learned trial Court framed necessary issues, however, the issue pertaining to limitation was treated as preliminary issue and by deciding the said issue against the plaintiffs it was found that suit is barred by limitation as a result of which the learned trial Court dismissed the suit. In this manner, this appeal has been filed by the plaintiffs. 5. The learned trial Court framed necessary issues, however, the issue pertaining to limitation was treated as preliminary issue and by deciding the said issue against the plaintiffs it was found that suit is barred by limitation as a result of which the learned trial Court dismissed the suit. In this manner, this appeal has been filed by the plaintiffs. 5. The contention of Shri Pendharkar, learned counsel for the appellants is that according to the averments made in the plaint, the plea of limitation is having nexus with the facts and therefore, it could not be treated as preliminary issue and if that is the position, the learned trial Court was not having jurisdiction to decide the issue of limitation at the initial stage without recording the evidence on record. In this context, he has drawn my attention to the the provision of Order 14 Rule 2 CPC. 6. On the other hand, Shri Dildar Singh, learned counsel appearing for the defendant-respondent No. 1 argued in support of the impugned order and submitted that although the date of agreement is 18.3.2011, but in the document of agreement of sale, it has been specifically mentioned that the plaintiffs would purchase the suit property on or before 30.7.2001, however, the plaintiffs did not get the sale deed executed in regard to the entire suit land but purchased only part of it, therefore, the suit is ex facie time barred and learned trial Court did not commit any error in dismissing the suit as barred by limitation. 7. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed and the matter is required to be sent back to the trial Court to decide the suit on merits. 8. Looking to the averments made in the plaint and the denial made in the written statement, it is gathered that part of the property, which is subject matter of the document of agreement of sale dated 18.3.2001 was sold to the plaintiffs vide registered sale deed dated 3.8.2001. Admittedly the registered document of sale deed is on record. On bare perusal of said document, this Court finds that specifically it has been mentioned that for the remaining part of the land, whenever it will be asked to the defendant, it would be sold. Admittedly the registered document of sale deed is on record. On bare perusal of said document, this Court finds that specifically it has been mentioned that for the remaining part of the land, whenever it will be asked to the defendant, it would be sold. According to me, the time is not the essence for the specific performance of the contract and further according to Article 54 of the Limitation Act, the period of limitation of three years will commence from the date which is fixed for the performance, or, if no such date is fixed, when the plaintiffs has notice that performance is refused. Hence according to me, still the question of fact and law remains undecided on the basis of evidence that when defendant refused to execute the sale deed of remaining part of land, which is subject matter of agreement of sale dated 18.3.2001. The Code of Civil Procedure has been amended on 1.2.1977 and from this date, there is an amendment in Rule 2 of Order 14 CPC and as per legislative mandate, those issues for which the evidence is required cannot be decided as a preliminary issue. Indeed this point was considered by Full Bench of this Court in Ramdayal Umraomal v. Pannalal Jagannath 1979 JLJ 720 . Hence looking to the averments made in the plaint and denial in the written statement, at the threshold, it is settled that the evidence is required to be recorded. Thus, I am of the view that the learned trial Court has acted contrary to the Full Bench decision and also against the mandate given by the Legislature under Order 14 Rule 2 CPC. 9. Resultantly, this appeal is allowed and the impugned order passed by the learned trial Court is set aside and the matter is remanded back to learned trial Court with a direction that the point of limitation shall be decided alongwith other issues on merit. Since the matter is being remanded, appellants are entitled for refund of court fees under section 15 of the Court Fees Act, 1870. 10. The parties are directed to appear before the trial on 8.4.2013. The Registry is hereby directed to send the record to the trial Court post haste so as to reach that Court much prior to that date. 10. The parties are directed to appear before the trial on 8.4.2013. The Registry is hereby directed to send the record to the trial Court post haste so as to reach that Court much prior to that date. The interim order passed by this Court restraining respondent No. 1 not be alienate the property shall continue till the suit is decided on merits. No costs.