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2018 DIGILAW 1172 (RAJ)

Sachu Ram v. Parmeshwari Bai Urf Veero Bai

2018-05-04

DINESH MEHTA

body2018
JUDGMENT 1. The present appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants-plaintiffs laying challenge to the judgment and decree dated 13.12.2017 passed by the Additional District Judge No.2, Sriganganagar (hereinafter referred to as the "Appellate Court") in Civil Appeal No. 07/2016 (13/2016) (CIS No. 19/2016) whereby, the judgment and decree dated 11.09.2015 passed by the Senior Civil Judge & Chief Judicial Magistrate, Sriganganagar (hereinafter referred to as the "Trial Court") in Civil Original Suit No.24/2015, rejecting the plaintiffs' suit, while allowing the application of the defendant filed under Order VII Rule 11 of the Code of Civil Procedure, has been affirmed. The facts giving rise to the present appeal are that the plaintiffs had filed a suit for specific performance of the agreement to sell dated 24.11.2006, executed for sale of agriculture land. The said agreement contained a time limit for execution of the sale-deed as 30.04.2007. The plaintiffs have, however, filed the suit in question on 28.05.2015, inter alia, asserting that vendor did not execute the sale deed, as the requisite mutation entries in the name of the seller/vendor were not made by such time, nevertheless she had been assuring that the sale deed would be executed as soon as the requisite mutation is done. In response to the suit aforesaid, the defendant filed an application under Order VII Rule 11 of the Code of Civil Procedure and prayed that the suit be dismissed as time barred or being barred by law. The learned Trial Court allowed the defendant's application under Order VII Rule 11 of the Code of Civil Procedure and held the suit to be time barred, inter alia, observing that the period for performance of the agreement dated 24.11.2006, as per the terms of the agreement was 30.04.2006, and the plaintiffs were required to file the suit within three years of such date, i.e., 30.04.2007. The plaintiffs-appellants preferred an appeal against the said judgment and decree dated 11.09.2015 and the learned Appellate Court, vide its judgment dated 13.12.2017 affirmed the aforesaid judgment of the Trial Court holding the suit to be barred by limitation. Mr. The plaintiffs-appellants preferred an appeal against the said judgment and decree dated 11.09.2015 and the learned Appellate Court, vide its judgment dated 13.12.2017 affirmed the aforesaid judgment of the Trial Court holding the suit to be barred by limitation. Mr. Vinay Jain, learned counsel for the appellants, vehemently argued that it is an admitted fact that the mutation of the disputed land in favour of the seller/vendor was done in the year 2015, hence the requisite sale deed could be executed only after the entries were made in the relevant revenue record. As soon as the said entries were made, the contract dated 24.11.2006 became ripe for performance and the cause of action arose when the defendant refused to execute sale deed. Mr. Jain argued that the plaintiffs had filed the suit in question on 28.05.2015. According to the appellants, the limitation for filing the suit should be reckoned from the date of mutation of the subject land in defendant's favour and not from 30.04.2007, as stipulated in the agreement. Mr. Jain further argued that the question of limitation is a mixed question of fact and law and the Trial Court has erred in rejecting the plaintiffs' suit under Order VII Rule 11 of the Code of Civil Procedure, without even permitting the parties to lead their evidence. In support of his argument, Mr. Jain cited a judgment of this Court in the matter of Nathulal Vs. Govind Agrawal & Ors., reported in 2014(1) DNJ (Raj.) 62 wherein, this Court has ordered the Trial Court to frame an issue of limitation and then decide the suit. Mr. Jain cited another judgment of this Court in the matter of Sharda Devi (Smt.) Vs. Iqbal Singh & Ors., reported in 2015(2) DNJ (Raj.) 503 to buttress his argument, that the question of limitation is mixed question of fact and law. Having heard Mr. Vinay Jain, learned counsel for the appellants, and after considering the judgments cited by Mr. Jain, this Court is of the considered opinion that the Courts below have committed no error of law in rejecting the plaintiffs' suit, being barred by limitation. It is true that the question of limitation is a mixed question of fact and law; equally settled is the position that a case has to be decided on the basis of the facts involved therein. It is true that the question of limitation is a mixed question of fact and law; equally settled is the position that a case has to be decided on the basis of the facts involved therein. The proposition that issue of limitation is a mixed question of fact and law is not a proposition in abstract and the same is dependent upon the facts of each case. In the present case, the undisputed facts are that the sunset clause or outer limit for performance of the agreement to sell dated 24.11.2006 given in the agreement, was 30.04.2007. It is to be noted that there was a further stipulation in the agreement that if for some Governmental restriction the sale deed is not executed, the parties would be entitled to extend the period for performing the agreement by mutual consent. There is no gainsaying the fact that the period of the contract had not been extended. The plaintiffs, even in their suit, have not made any averment or assertion regarding extension of time for performance of the contract. This being the position, the outer limit for performance of the agreement to sell freezed on 30.04.2007, and the period of three years would commence from 30.04.2007 and not from the date of mutation entries, as provided under Article 54 of the Schedule appended with the Limitation Act. Mr. Jain read the contents of Para No. 6 of the plaint to contend that the parties have agreed to extend the time for performance of the contract. Mr. Jain read the contents of Para No. 6 of the plaint to contend that the parties have agreed to extend the time for performance of the contract. It will not be out of context to reproduce the said part of the plaint:- ^^6- ;g fd MhŒihŒ ,DV fjihy gks tkus ds dkj.k [kkrsnkjh lUns cuuh cUn gks xbZA bl otg ls Áfrokfn;k ds uke ls [kkrsnkjh lUns tkjh ugha gqbZ tcfd oknhx.k gj le; cdk;k jkf'k vnk djds jftŒ cS;ukek djokus dks rS;kj jgs rFkk vkt Hkh rS;kj gSA [kkrsnkjh lUn ds vHkko esa jftŒ dkuwuu gksuk laHko ugha gks ik;kA bl dkj.k ckj&ckj ryc o rdktk djus ij Áfrokfn;k ;gh djrh jgh fd og [kkrsnkjh lUn cuok jgh gS cuokdj jftŒ djok nsxh] xokg nhoku pUn dks Hkh lkFk ysdj Áfroknh ds ?kj ij dbZ ckj x;s rFkk Áfroknh o mlds ifr lriky us ;gh vk'oklu fn;k fd [kkrsnkjh feyrs gh vkidks lwpuk nsdj cS;ukek djok fn;k tkosxkA ;g Hkh dgk fd dCtk vkids ikl gS] vkidks fpark djus dh D;k t:jr gS cdk;k iSls Áfrokfn;k us gh rks ysus gS fj'rsnkjh gksus ds dkj.k oknhx.k pqi gks tkrs jgsA^^ A perusal of the contents of para No. 6 of the plaint reveals that there is no whisper about extension of time for performance of the contract, nor there is any assertion that the parties had agreed to extend the date of execution of the agreement. In view of the absence of factual foundation even framing of issue was not required and a bare look at the plaint reveals that the suit had been filed beyond the limitation prescribed under Clause 54 of the Schedule to the Limitation Act, 1963. There is neither error or infirmity in the orders passed by the Courts below, nor there is any substantial question of law, requiring adjudication by this Court. The appeal, therefore, fails.