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2018 DIGILAW 20 (PNJ)

Narender Kumar Nangia v. Harjinder Pal Singh

2018-01-08

RAJ MOHAN SINGH

body2018
JUDGMENT Mr. Raj Mohan Singh, J.:- Petitioner has assailed the order dated 29.09.2015passed by Civil Judge (Junior Division), Gurgaon vide whichapplication under Order 7 Rule 11 CPC filed by the petitioner inCivil Suit No.48NK dated 08.02.2015 titled S. Harjinder Pal SinghVs. Narinder Nangia and another was dismissed. 2. Plaintiff filed a suit for specific performance,possession and permanent injunction. The suit was filed on08.02.2012. Para Nos.29 and 30 of the suit are to the followingeffect:- “29. That it is submitted that the plaintiff has been alwaysready and willing and is still ready and willing to fulfill itsobligation as contained in the said agreement to sell dated26.07.2007, but it is the defendant No.1 having malafide,ulterior and greedy intention refused to perform his part ofthe contract. The defendant No.1 further knowingly anddeliberately misrepresented to the plaintiff and by givingfalse assurances all through out. The plaintiff has got theentire funds available with it in order to incur all expensesfor the stamp duty and registration charges required forexecution of the sale deed and thus there is no impedimentat the end of the plaintiff in fulfilling its obligations. 30. The cause of action arose for the first time on26.07.2007 when the plaintiff and defendant No.1 enteredinto a written contract vide agreement to sell. The cause ofaction again arose on December 2008, when the defendantNo.1 on misrepresentation took back the original documentsfrom the plaintiff. The cause of action arose on June 2008,January 2009, February 2010 and on various dates whenthe plaintiff enquired about the fate of the NOC from theauthority. The cause of action again arose on 04.07.2011when the plaintiff for the first time came to know that thedefendant No.1 had mortgaged the suit property withdefendant No.2 and there are cases pending in Ld. DebtRecovery Tribunal and Hon’ble High Court and on inquirythe defendant No.1 refused to get NOC from HSIDC andexecute the sale deed. The cause of action again arose infavour of the plaintiff and against the defendant when on16.01.2012 the plaintiff came to know that both thedefendants are trying to dispose off the suit property infavour of a third party in order to deprive the plaintiff of itsright and interest under the agreement to sell. The cause ofaction is still continuing and subsisting.” 3. The cause ofaction is still continuing and subsisting.” 3. Defendant No.1/petitioner filed an application underOrder 7 Rule 11 CPC preliminary on the ground that the plaintdoes not disclose any cause of action and therefore, the plaint isliable to be rejected under Order 7 Rule 11(a) CPC. DefendantNo.1 relied upon Article 54 of the Limitation Act to contend thatthe suit is time barred as the plaintiff seeks to enforce the allegedagreement to sell dated 26.07.2007. Defendant No.1 alsoassailed the plaint on other grounds i.e. the plaintiff has not paidthe Court fee for the relief claimed and also the allegedagreement to sell being unregistered. 4. Learned Senior Counsel for the petitioner submittedthat the plaintiff filed a suit for specific performance andpermanent injunction in respect of property bearing Industrial PlotNo.64, Sector-6, Industrial Estate, CH. Devi Lal, IMT Manesar,District Gurgaon measuring 1012.5 sq. mtrs. Plaintiff/respondentsought issuance of direction against the defendant/petitioner toexecute the sale deed in his favour. Defendant/petitionerappeared in the suit and thereafter, filed an application forrejection of the plaint primarily on the ground that under Article 54of the Limitation Act, the suit is time barred and the allegedagreement to sell dated 26.07.2007 cannot be enforced. The suitis liable to be dismissed for want of proper Court fee as well asthe agreement being unregistered in nature. 5. By relying upon para Nos.29 and 30 of the plaint,learned Senior Counsel contended that the suit does not discloseany cause of action and as per averments in the aforesaidparagraphs, the cause of action itself is barred by limitation.Plaintiff himself has projected that the cause of action arose forthe first time on 26.07.2007 when the plaintiff and defendant No.1entered into an agreement to sell. The cause of action againarose on December 2008 when defendant No.1 onmisrepresentation took back the original documents from theplaintiff. The cause of action arose on June 2008, January 2009,February 2010 and on various dates, when the plaintiff enquiredabout the fate of No Objection Certificate from the Authority.Plaintiff further pleaded that the cause of action again arose on04.07.2011 when the plaintiff for the first time came to know thatdefendant No.1 had mortgaged the suit property with defendantNo.2 and on inquiry, came to know that defendant No.1 hadrefused to get NOC from the Department. Learned SeniorCounsel further submitted that according to Order 7 Rule 1 CPC,particulars are mandatorily required to be contained in the plaint.As per Clause (e) of Rule 1 Order 7 CPC, cause of action andwhen it arose has to be specifically pleaded in the plaint. Plaintiffhimself has pleaded in para No.30 of the plaint that the cause ofaction arose for the first time on 26.07.2007 and then again aroseon December 2008 and so on. 6. Learned Senior Counsel relied upon State of Punjaband another Vs. Balkaran Singh, (2006) 12 SCC 709 , KhatriHotels Private Limited and another Vs. Union of India andanother, [2012(1) Law Herald (SC) 846 : 2012(3) Land L.R. 539 (SC)] : (2011) 9 SCC 126 , V.K. Nayar VS. Mrs. Usha Puri andothers, 2014 SCC OnLine Del 146, Smt. Razia Begum VS.Delhi Development Authority and others, 2014 SCC OnLine Del 4628, Venkappa Gurappa Hosur Vs. Kasawwa C/ORangappa Kulgod, (1997) 10 SCC 66 , Union of India andothers Vs. West Coast Paper Mills Ltd. and another, AIR 2004 SC 1596 , C. Padmawati Naidu and others Vs. FriendsCooperative Housing Society Ltd. and others, (2016) 3 BomCR 236and Hindustan Lever Mazdoor Sabha Vs.Hindustan Lever Ltd. and another, (1998) 8 SCC 349 andcontended that limitation of three years starts when the right tosue first accrues. Once the time starts running with the accrual ofright, then it would not stop. Under Article 58 of the Limitation Act,the cause of action was barred by limitation in a declaratory suitas the time does not stop to run once it has started to run. Thesuit for declaration is governed by Article 58 of the Limitation Actand the period is three years when the right to sue first accrues.The time cannot be extended by the plaintiff on the plea ofobtaining certified copy or by giving notice to the defendant. If thesuit is based on multiple causes of action, the period of limitationwill begin to run from the date when right to sue first accrues.Successive violation of the right will not give rise to fresh causeand the suit will be beyond limitation. A clear departure from thelanguage of Article 120 of 1908 Act of the Limitation Act has beenmade in Article 58 of 1963 Act of the Limitation Act. The word”first” has been designedly used between the words “sue” and”accrued”. 7. Learned Senior Counsel further relied upon AnupSingh and others Vs. A clear departure from thelanguage of Article 120 of 1908 Act of the Limitation Act has beenmade in Article 58 of 1963 Act of the Limitation Act. The word”first” has been designedly used between the words “sue” and”accrued”. 7. Learned Senior Counsel further relied upon AnupSingh and others Vs. Smt. Bachni @ Bachan Kaur andanother, 1997(1) ILR (P&H) 381, Bandari Pushpamma Vs.Bandari Krishna and others, (2004) 4 ICC 12 (AP),Sanghamitra Jena Vs. The Director of Higher Education,Orissa and others, (2002) 94 CLT 280 (Orissa), Mrs. KumudBhargava Vs. Sri Sudhir Bhargava and others, (2015) 1 All LJ 480and Saranpal Kaur Anand Vs. Parduman SinghChandhok and others, 2016 SCC OnLine Del 2434andsubmitted that under Section 3 of the Limitation Act, the onerousduty was assigned to the trial Court to see whether the suit waswithin limitation or not, irrespective of the fact that whetherlimitation was set up as a ground of defence or not? Section 3 ofthe Limitation Act is mandatory and casts an onerous duty on thetrial Court to dismiss the suit, if the same is instituted after theperiod of limitation, even if, limitation has not been pleaded indefence. There cannot be any waiver of this legal plea, ratherplea can be raised, even in regular second appeal. There cannotbe any abandonment of legal plea of the limitation. The limitationof 3 years begins to run from the date when the issue becomesknown to the plaintiff. When no date for execution of sale deedwas fixed, Article 54 of the Limitation Act would come into play.The limitation for filing a suit for specific performance is threeyears from the date fixed for performance thereof. If no date isfixed, then the limitation would start when the plaintiff has noticedthat performance was refused. 8. Learned Senior Counsel also relied upon VishwaNath Sharma Vs. Shyam Shanker Goela and another, [2007(3) Law Herald (SC) 1987] : (2007) 10 Supreme Court Cases 595and contended that contingencyin respect of pre-condition for obtaining permission from theauthority could not have prohibited filing of suit within the periodof limitation as the same cannot be treated to be pre-condition forgrant of specific performance. There was no impediment on thetransfer. Lack of permission cannot act as absolute bar on adecree being passed. It may have effect on the execution ifultimately permission is not granted. The permission from theauthority is not a condition precedent for grant of decree forspecific performance. 9. There was no impediment on thetransfer. Lack of permission cannot act as absolute bar on adecree being passed. It may have effect on the execution ifultimately permission is not granted. The permission from theauthority is not a condition precedent for grant of decree forspecific performance. 9. Learned Senior Counsel further submitted that arefusal of performance of a contract of sale need not to be inwriting or expressed in so many words. Refusal can always beinferred from circumstances of the case. It is significant that parttwo of the clause occurring in column third of Article 54 of theLimitation Act does not speak of the refusal as such but speaks of”when the plaintiff has noticed that performance is refused”. Theaforesaid expression i.e. “has noticed that performance isrefused” very clearly goes to show that the refusal need not be inso many words and may be gathered from the circumstances ofthe case. According to learned counsel for the plaintiff, theplaintiff himself has pleaded cause of action in para No.30 of theplaint and the same is as per requirement of Order 7 Rule 1 CPC,therefore, the cause of action once started w.e.f. 26.07.2007 orfrom December 2008 will not stop running. 10. On the other hand, learned counsel for the respondentargued that the material issues involved in the revision petitionare:- (a) Whether after perusing the plaint as a whole, it disclosesany cause of action against the defendant? (b) Whether for deciding an application under Order 7 Rule11 CPC, the provisions of Article 54 of the Limitation Act areattracted? (c) Whether in a suit for specific performance of agreementto sell where possession is delivered, the agreementrequires registration under Section 17(1) and Section 49 ofthe Registration Act read with Section 53-A of the Transferof Property Act? 11. Learned counsel submitted that the suit for specificperformance of agreement to sell dated 26.07.2007 has beenfiled on 08.02.2012. As per para No.5 of the agreement to sell,defendant had to first obtain the requisite permission from thecompetent authority for executing the sale deed. Subsequentparas including para No.30 of the plaint specifically disclosed thecause of action arising in favour of the plaintiff. Learned counselfurther submitted that limitation for filing the suit as per Article 54of the Limitation Act is two-fold i.e. firstly limitation starts from thedate fixed in the agreement, if any and secondly, if no specifictime is fixed, from the time when the specific performance isrefused by the opposite party. Learned counselfurther submitted that limitation for filing the suit as per Article 54of the Limitation Act is two-fold i.e. firstly limitation starts from thedate fixed in the agreement, if any and secondly, if no specifictime is fixed, from the time when the specific performance isrefused by the opposite party. The case of the plaintiff is squarelycovered by the second part of the said provision of the LimitationAct as there was no date and time fixed in the agreement forperformance and therefore, the limitation would start to run fromthe refusal to perform by the defendant. As per para No.22 of theplaint, the plaintiff finally came to know on 04.07.2011 about therefusal to perform the agreement by the defendant when he gotknowledge that the suit property has been mortgaged. Learnedcounsel relied upon Medina Begum Vs. Shiv Murti PrasadPandey, 2016 AIR (SCW) 3554in the aforesaid context. 12. Learned counsel further submitted that plea oflimitation in a suit for specific performance is a mixed question oflaw and facts and the same cannot be decided at this stage.Learned counsel relied upon Surjeet Kaur Gill Vs. Adarsh KaurGill and another, 2014(2) CCC 095(SC), P.V. Guru Raj ReddyRep. by GPA Laxmi Narayan Reddy and another Vs. P.Neeradha Reddy and others, [2015(2) Law Herald (SC) 1217 : 2015 LawHerald.Org 825 : 2015(3) Law Herald (P&H) 1909 (SC)] : 2015(2) RCR (Civil) 43, BhauRam Vs. Janak Singh and others, [2012(4) Law Herald (SC) 3199] : 2012(3) CivCC 636 ,Civil Revision No.2083 of 2016titled Brijeshwar Swaroop andothers Vs. Adish Aggarwal and others decided on 12.09.2017and Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trustand others, (2006) 5 Supreme Court Cases 658and contendedthat plaint as a whole has to be read for deciding whether itdeserves to be rejected on the ground raised. The issue oflimitation is always a mixed question of law and facts. Order 7Rule 11 CPC is drastic in nature and the powers are conferred onthe Court to terminate a civil action and the powers are to beexercised very stringently and rarely. The averments in the plainthave to be read as a whole to find out whether it discloses acause of action or whether the suit is barred under any law. Atthis stage, the stand of the defendant in the written statement orin the application for rejection of the plaint is wholly immaterial. The averments in the plainthave to be read as a whole to find out whether it discloses acause of action or whether the suit is barred under any law. Atthis stage, the stand of the defendant in the written statement orin the application for rejection of the plaint is wholly immaterial. Itis only if the averments in the plaint ex facie do not disclose acause of action or on a reading thereof, suit appears to be barredunder any law, the plaint can be rejected. 13. Learned counsel also submitted that para No.30 of theplaint has to be read in conjunction with para No.12 of the plaintwhere the plaintiff has furnished the following information:- “12. That in the month of December, 2008, the defendantNo.1 approached the plaintiff and requested to hand overthe original title documents since the same are required tobe verified and filed along with the application for salepermission with HSIDC in favour of the plaintiff. The plaintiffin good faith with bonafide impression and believing on therepresentation and requests made by the defendant No.1handed over all the title documents to the defendant No.1 inrespect of the suit property.” 14. I have considered the arguments raised by learnedcounsel for the parties. 15. According to Order 7 Rule 1 CPC, the plaint shallcontain the material particulars and the compliance is mandatoryi.e. the plaint shall contain the following particulars:- (a) the name of the Court in which the suit is brought; (b) the name, description and place of residence of theplaintiff; (c) the name, description and place of residence of thedefendant, so far as they can be ascertained; (d) where the plaintiff or the defendant is a minor or aperson of unsound mind, a statement to that effect; (e) the facts constituting the cause of action and when itarose; (f) the facts showing that the Court has jurisdiction; (g) the relief which the plaintiff claims; (h) where the plaintiff has allowed a set-off or relinquished aportion of his claim, the amount so allowed or relinquished;and (i) a statement of the value of the subject-matter of the suitfor the purposes of jurisdiction and of Court fees, so far asthe case admits. 16. 16. The reading of the aforesaid clauses would show thatcause of action should be specifically pleaded in the plaint.Plaintiff in his own wisdom specifically earmarked para No.30 forcause of action which would show that the cause of action arosefor the first time on 26.07.2007 when the plaintiff and defendantNo.1 entered into an agreement to sell. If he ignores the date ofentering into agreement to sell, then the cause of action arose forthe second time on December 2008 when defendant No.1 onmisrepresentation took back the original documents from theplaintiff. This averment is a material averment and if limitation in asuit for specific performance starts running from this date, thesame would culminate in December 2008. Plaintiff furtherpleaded that the cause of action arose on June 2008, January2009. Even from these dates, the expiry of three years wouldcome prior to 08.02.2012. 17. In view of settled position of law, once the limitationstarts running from first accrual of cause of action, it will not stopby subsequent enlargement of cause of action as per avermentsin the plaint. Since the plaintiff himself has pleaded accrual ofcause of action for the first time on 26.07.2007 and December2008, no amount of explanation is further required. Even as perratio laid down in Vishwa Nath Sharma’s case (supra),permission from the competent authority is not a conditionprecedent for grant of decree for specific performance for whichlimitation has to be computed in terms of Article 54 of theLimitation Act. As per Section 10 of the Specific Relief Act, themeaning of expression “date” has been used in Article 54 of theLimitation Act. The expression “date” is suggestive of a specifieddate in the calendar and there is no question of finding out anyintention from other circumstances. When a date is fixed, itmeans that there is a definite date fixed for doing a particular act.Plaintiff himself has pleaded in para No.30 of the plaint the exactdate and month in which cause of action accrued for the first timein favour of the plaintiff. There cannot be any disputedinterpretation with regard to cause of action specifically pleadedby the plaintiff in para No.30 of the plaint, which in my consideredopinion is the offshoot of requirement under Order 7 Rule 11CPC. There cannot be any disputedinterpretation with regard to cause of action specifically pleadedby the plaintiff in para No.30 of the plaint, which in my consideredopinion is the offshoot of requirement under Order 7 Rule 11CPC. Plaintiff himself has earmarked specific paragraphs forpleading cause of action and therefore, date and month in thecontext of cause of action cannot be the subject matter of anyintention to be gathered from other circumstances as it was fixedwith definite pleadings for doing a particular act. In Article 54 ofthe Limitation Act, the word “fixed” in essence means having finalor crystallized form or the character is not the subject matter toany change or fluctuation. A view expressed by the Hon’ble ApexCourt in Ahmmadsahab Abdul Milla (dead) by proposed LRsVs. Bibijan and others, [2008(3) Law Herald (SC) 2536] :2009(2) RCR (Civil) 788can be reliedwherein earlier contrary view expressed in Ramzan Vs.Hussaini, 1990(1) SCC 104 and Tarlok Singh Vs. Vijay KumarSabharwal, 1996(8) SCC 367 was considered and it was heldthat the word “fixed” in essence means having final or crystallizedform or character not subject to change or fluctuation. Therefore,expression “date” used in Article 54 of the Limitation Act definitelyis suggestive of a specified date in calendar and the cause ofaction pleaded in para No.30 of the plaint has to be treated as aspecific para relating to giving specific date of accruing cause ofaction for the first time. The contention of learned counsel for therespondent that para No.12 of the plaint has to be read inconjunction with para No.30 of the plaint for culling out cause ofaction, in my considered opinion is contrary to the ratio laid downin Ahmmadsahab Abdul Milla (dead) by proposed LRs case(supra). 18. Having considered the submissions made by learnedcounsel for the parties, I am of the view that this revision petitionis deserves to be accepted. Impugned order dated 29.09.2015passed by Civil Judge (Junior Division), Gurgaon is hereby setaside and the plaint is ordered to be rejected.