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Madhya Pradesh High Court · body

2017 DIGILAW 1202 (MP)

Chandra Kumar Phool Badhia v. Divya Nenani

2017-11-23

SHEEL NAGU

body2017
JUDGMENT 1. The instant first appeal assails the judgment and decree passed by Court below on 10.4.2002 in Case No. 20-A/2001 whereby the suit in question merely seeking a declaration for performance of the agreement dated 7.6.1985 in favour of the appellant and an injunction restraining the breach thereof, was dismissed after holding that in the absence of any readiness and willingness shown by the plaintiff to discharge his obligations under the agreement and also that the suit is time barred. 2. Brief facts giving rise to the present first appeal are that the suit was instituted by the plaintiff on 28.9.1991 seeking a declaratory decree that under the agreement dated 7.6.1985 Ex.P-1, the defendants are liable to pay the balance consideration and complete all necessary formalities for ensuring relieving of the suit plot from the rigors of ceiling law and that the defendants have waived their right to resile from their obligation under the agreement. A further declaration was sought that the plaintiff has waived his right under the agreement to refund the advance amount of consideration and that the agreement continues to hold the field. Besides a decree of permanent injunction was sought for injuncting the defendants from alienating the suit plot in favour of any other person and from making any construction over the same. 3. The trial Court framed nine issues in which the issue pertaining to execution of agreement dated 12.3.1985 having been made in favour of the plaintiff was answered in the affirmative. The second issue of completing the formalities relating to ceiling laws being the responsibility of the defendants or not was answered in the affirmative. Further the issue of having failed to take any steps to complete the formalities relating to ceiling laws despite repeated reminder of the plaintiff was also answered in favour of the plaintiff. The Court also held in issue No.4 that the plaintiff was ready and willing to tender the balance part of the consideration. The Court also held qua issue No.5 that despite receiving notice of the plaintiff, the defendants failed to take due permission from the competent authority under the Urban Land (Ceiling and Regulation) Act,1976. The Court also held in issue No.4 that the plaintiff was ready and willing to tender the balance part of the consideration. The Court also held qua issue No.5 that despite receiving notice of the plaintiff, the defendants failed to take due permission from the competent authority under the Urban Land (Ceiling and Regulation) Act,1976. However, the trial Court found the suit to be barred by limitation by recording finding that the agreement dated 12.3.1985 had to be executed as per it's term latest by 7.6.1985, and therefore the limitation period of three years for seeking decree of declaration expired in the month of June, 1988 whereas the suit in question was filed on 28.9.1991 by alleging the cause of action to have arisen on 26.9.1991 when the defendant No. 2 started collecting construction material on the suit plot. Finally the suit was dismissed by holding that defendant No.1 cannot be compelled by any decree to execute the agreement dated 12.3.1985. 4. Before proceeding ahead, it is appropriate to mention that during pendency of the suit an interlocutory order was passed on 27.10.1993, dismissing the application dated 29.6.1993 filed under Order 6 rule 17 CPC seeking incorporation of the prayer for a decree of specific performance of the said agreement. The said interlocutory order was unsuccessfully assailed by the plaintiff/appellant in Criminal Revision No.216/93 which was dismissed on 9.11.1993 by this Court. 5. The present first appeal has been filed assailing the above said findings of the trial Court. 6. After going through the record and the evidence adduced, it is clear that the plaintiff failed to establish that he had discharged his part of the obligations under the agreement in question. In fact, the trial Court found that the plaintiff had done nothing despite repeated reminder from the defendants to complete the formalities necessary with the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. The suit was also filed after expiry of period of limitation of three years and, therefore, was rightly found to be time barred. 7. Learned counsel for the appellant/plaintiff has also raised the issue of the plaintiff having wrongly denied incorporation of the additional prayer for seeking decree for specific performance. The suit was also filed after expiry of period of limitation of three years and, therefore, was rightly found to be time barred. 7. Learned counsel for the appellant/plaintiff has also raised the issue of the plaintiff having wrongly denied incorporation of the additional prayer for seeking decree for specific performance. This Court at the appellate stage cannot go into this aspect especially when a Co-ordinate Bench of this Court has already upheld the legality and validity of the order rejecting the application of the plaintiff under Order 6 rule 17 CPC for the said purpose by dismissing Civil Revision No.216/93 filed by the plaintiff as explained above. 8. More so, learned counsel for the respondents has submitted that a specific plea was taken in the written statement that the suit in question was time barred and therefore, the trial Court framed issue in that regard and decided the same against the plaintiff. 9. Learned counsel for the appellant/plaintiff has made a valiant attempt by raising the plea that the benefit of section 14 of the Limitation Act ought to have been extended to the plaintiff/appellant. In this regard the record does not disclose that the plaintiff was pursuing any other remedy before any other forum with all bona fides which led to late filing of the suit in question by nearly more than three years. Thus, the provisions of the section 14 cannot come to the rescue of plaintiff-appellant. 10. The findings rendered by the trial Court cannot be said to be perverse as the same are supported by the oral and documentary evidence on record. 11. Before parting, this Court shall be failing in it's duty not to consider the decision of the apex Court relied upon by the plaintiff in the case of Namdeo v. Collector East Nemar Khandwa and others, reported in 1996 JLJ 451 . In the said case of Namdeo (supra), the Court has laid down with reference to sections 54 and 53 of Transfer of Property Act that an agreement to sell does not convey any title but merely creates an enforceable right between the parties and that the title of previous owner gets extinguished only on execution of sale deed and registration thereof and not merely by an agreement to sell. There is no dispute about the said decision of the apex Court but the same in the considered opinion of this Court does not assist the plaintiff/appellant. 12. No other infirmity is pointed out by learned counsel for the appellant and therefore, the present first appeal stands dismissed without any cost. Deeepak Shrivastava for appellant; S.K. Jain for respondents.