Research › Search › Judgment

Chhattisgarh High Court · body

2013 DIGILAW 79 (CHH)

RAM ASHRA v. CHANDRIKA PRASAD

2013-03-01

N.K.Agarwal

body2013
JUDGMENT 1. This is plaintiff’s second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short 'the C.P.C.) against the judgment and decree dated 19th August, 1998 passed by the Additional District Judge, Dhamtari in Civil Appeal No. 31-A/1992 reversing the judgment and decree dated 19.08.1992 passed by the Civil Judge, Class-I, Dhamtari in Civil Suit No. 57-A/1986. 2. The plaintiff filed a suit for specific performance of oral contract of sale with regard to suit land bearing Kh.No.261/1 area 0.82 acres, said to be executed between the parties in the year 1981, for a sale consideration of Rs.2603/-, out of which, Rs.2200/- has been paid by him as earnest money. 3. It is the plaintiff’s case that as per agreement, the sale deed was to be executed within a period of one month from the date of execution of agreement. However, as defendant No.1, being teacher, was not living in the village, the other defendants handed over him possession of the suit land and have stated that whenever defendant No.1 will come to the village, they will execute the sale deed after taking balance sale consideration of RsA03/- from him. 4. The suit was decreed by the trial Court. However, the first appeal preferred by the defendants, was allowed by the first appellate Court dismissing the plaintiff's suit. Hence, this appeal. 5. This Court, vide order dated 16.01.2013, admitted the appeal on the following substantial questions of law: "1. Whether the lower appellate Court was justified in dismissing the civil appeal on the ground of limitation? 2. Whether the appellant is entitled for discretionary and equitable relief in a suit filed for specific performance of contract?" 6. I have heard learned counsel for the parties and perused the records of both the Courts below. 7. The suit was brought by the appellant/plaintiff on the basis of oral agreement of sale. Admittedly, the agreement was entered into in the year 1981. Time fixed for performance of agreement of sale was one month. 8. Article 54 of the Limitation Act, 1963 reads thus: For specific performance Three years The date fixed for the of a contract performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. 9. Time fixed for performance of agreement of sale was one month. 8. Article 54 of the Limitation Act, 1963 reads thus: For specific performance Three years The date fixed for the of a contract performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. 9. The Court, in applying the period of limitation, would first inquire as to whether any, time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within a period of 3 months, failing which, the same shall be barred by limitation. However, if no time for performance was fixed, it was for the Court to find out the date, on which, the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf to see whether the suit was filed within a period of 3 years or thereafter. (Please see : Janardhanam Prasad Vs. Ramdas (2007)15 SCC 174 ) 10. Admittedly, in the instant case, time fixed for performance of agreement of sale was one month from tire date of agreement. The agreement was entered into in the year 1981, therefore, the suit filed in the year 1986, on the face, would be barred by limitation. 11. Shri Vishnu Koshta, learned counsel appearing for the appellant would submit: since the possession of the suit property has been handed over by the defendants, therefore, it must be presumed that they had extended the period fixed for performance of agreement of sale and it is only in the year 1985 they started interference in his possession, which gave plaintiff cause of action to file the suit, and therefore, the suit cannot be said to be barred by limitation. 12. I do not find any merit in the above submission made by the appellant's counsel. First of all, as per the finding of the appellate Court, the defendants have not handed over the possession of the suit property to the plaintiff. Secondly, the plaintiff had not come with a case that the period for performance of contract has been extended by the defendants at any point of time. 13. First of all, as per the finding of the appellate Court, the defendants have not handed over the possession of the suit property to the plaintiff. Secondly, the plaintiff had not come with a case that the period for performance of contract has been extended by the defendants at any point of time. 13. Delivery of possession may be relevant consideration for finding out the date, on which, the plaintiff had notice that performance was refused by the defendants in a case where no date is fixed for performance of agreement of sale. In the instant case, the time was fixed for performance of agreement of sale, and therefore, the delivery of possession is at all not relevant for the purpose of computing period of limitation in the facts and circumstances of the case. 14. The reliance place by the learned counsel for the appellant in the case of Parnam Balaji and another Vs. Bathina Venkatramayya and another AIR 1988 AP 250 , is also of no help to him, inasmuch as, that was not a case, in which, time was fixed for performance of agreement of sale. 15. In view of above in my opinion, the Court below has not committed any illegality-in dismissing the suit as barred by limitation and the first substantial question of law framed is answered accordingly against the appellant. 16. As the suit filed by the appellant was time barred, therefore, there is no need to answer the second substantial question of law framed. In a time barred suit, the relief of refund of consideration also cannot be granted. 17. In view of above, the appeal fails and is hereby dismissed. 18. No order as to costs. 19. A decree be drawn accordingly.