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2018 DIGILAW 59 (GUJ)

RANCHHODBHAI LILABHAI DESAI v. PRAKASH DEVSHIBHAI

2018-01-10

A.Y.KOGJE, AKIL KURESHI

body2018
JUDGMENT : MR.JUSTICE AKIL KURESHI, J. 1. This appeal is filed by the original plaintiff. He has challenged the judgment and decree passed by the learned Additional Senior Civil Judge, Ahmedabad (rural), dated 28.02.2017 in Special Civil Suit No.274 of 2016. By such judgment, learned Judge was pleased to allow application Exh.11 filed by the original defendants for rejection of the plaint under order 7 rule 11 of Civil Procedure Code. 2. Brief facts are as under. The appellant herein-original plaintiff had filed the said suit for specific performance of agreement to sale of an immovable property in the nature of agricultural land bearing block no.1347 of village: Shilaj, Taluka: Ghatlodia, District: Ahmedabad. According to the plaintiff, the land belonged to the defendant no.1 Prakashbhai Devshibhai and defendant no.2 Jitendra Devshibhai. These defendants had agreed to sale the suit land to the plaintiff for a sale consideration of Rs.12,11,000/per vigha. This agreement took place in favour of the brothers of the said defendants viz. Ashokbhai Sheth and other witnesses on 10.11.2004. This was also reduced in writing on the same day duly signed by Ashokbhai Sheth and witness Dineshbhai Dabhi. This document recorded the reference to the land in question and showed Ashokbhai Devshibhai, Prakashbhai Devshibhai and Jitendra Devshibhai as sellers. It indicated the sale price of the land at Rs.12,11,000/per vigha. It recorded that Rs.60,000/is paid out of a token payment of Rs.11,00,001/to be made before 16.11.2004. 25% of the sale consideration would be paid over within 60 days after which remaining sale consideration would be paid within 9 months from the date of said writing. 3. According to the plaintiff, thereafter a total amount of Rs.40,69,000/was paid over to the defendant nos.1 and 2 in presence of witnesses towards sale consideration for 3.36 vighas at the rate of Rs.12,11,000/per vigha. The plaintiff further averred in the suit that besides the suit land bearing block no.1347, the defendants had also agreed to sale other lands in the same vicinity bearing block nos.1348 and 1368 and in fact sale deeds were also executed with respect to the said two parcels of land. However, with respect to the suit land, since division could not be effected, sale deed was not executed. Subsequently, the division of the land was also made. However, with respect to the suit land, since division could not be effected, sale deed was not executed. Subsequently, the division of the land was also made. However, the defendant nos.1 and 2 entered the names of other family members so that they may not have to sale the land to the plaintiff. According to the plaintiff, suppressing the oral agreement and the document dated 10.11.2004 reducing such understanding in writing, the defendants got an advertisement published in the local newspaper on 20.05.2016 through their advocate seeking title clearance of the suit land. The plaintiff raised objections through his advocate on 23.05.2016. The plaintiff therefore filed the said suit seeking specific performance to sale the suit land to the plaintiff. 4. The defendants appeared in the said suit and filed application Exh.11 urging the Court to reject the plaint under Order 7 Rule 11 of Civil Procedure Code. They denied having agreed to sale the suit land to the plaintiff. They pointed out that the so called MOU dated 10.11.2004 was not signed by any of them. They also raised a question of limitation pointing out that the time for making full payment as per the MOU was 10.08.2005. The suit was filed 11 years after that. 5. The trial Court by the impugned judgment allowed application Exh.11 and rejected the plaint. The trial Court was of the opinion that the suit was barred by limitation. The suit should have been instituted within three years. According to the learned Judge, there was no indication that the plaintiff paid the sale consideration within nine months from 10.11.2004. The learned Judge was also of the opinion that the plaint did not disclose any cause of action. The suit was based on oral contract but no further details were provided by the plaintiff as to when the consideration was paid, amount of total consideration, etc. 6. Appearing for the appellant-original plaintiff, learned advocate Shri K.D.Pandya submitted that the case of the plaintiff rested on the oral agreement to sale, terms of which were reduced in writing in the said document dated 10.11.2004. This document is duly signed by Shri Ashok Devshibhai who is the brother of the defendant nos.1 and 2. This document contained all necessary details of the land agreed to be sold and its sale consideration. This document is duly signed by Shri Ashok Devshibhai who is the brother of the defendant nos.1 and 2. This document contained all necessary details of the land agreed to be sold and its sale consideration. He drew our attention to an order dated 30.12.2006 passed by the Deputy Collector, Viramgam, copy of which was produced by the plaintiff before the trial Court, in which, on application filed by the defendant nos.1 and 2, the Deputy Collector had given permission for division of the land for selling the same to the plaintiff. Counsel therefore contended that clearly the defendant nos.1 and 2 had applied for division of the land for selling the same to the plaintiff. This conduct of the defendants would establish the factum of oral agreement to sale. Counsel submitted that the trial Court therefore committed a serious error in rejecting the plaint on the ground that it did not disclose cause of action. On the question of limitation, counsel submitted that the same is a mix question of law and facts. Limitation for filing suit for specific performance is provided in entry 54 of the schedule to the Limitation Act. In the present case, no date was fixed for performance by the seller and the limitation therefore would commence when the plaintiff became aware about the defendants' refusal to perform their part of the agreement. 7. In support of his contentions, counsel for relied on the following decisions: I. In case of P.V. Guru Raj Reddy and Ors. v. P. Neeradha Reddy and Ors. reported in (2015) 8 SCC 331 , in which Supreme Court observed as under: “5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. At the stage of exercise of power under Order VII rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial. ” II. In case of Panchanan Dhara and others v. Monmatha Nath Maity (DEAD) THROUGH LRS. and Another reported in (2006) 5 SCC 340 , in which, it was observed as under: “22. A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the First Respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. Performance of the said contract was refused by the Company only on 21.8.1985. The suit was filed soon thereafter. The submission of Mr. Mishra that the time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the Second Respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The submission of Mr. Mishra that the time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the Second Respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The parties could have adduced evidence thereupon. Such a plea for the first time before this Court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18.4.1971, it does not appear that it was intended by the parties that the limitation would begin to run from the date of perfection of title.” 8. On the other hand, learned advocate Shri Buch for the defendants opposed this appeal contending that the suit was barred by limitation as well as having failed to disclose cause of action. He pointed out that the said document dated 10.11.2004 was not signed by any of the defendants. Ashokbhai Devshibhai who is purported to have signed the document, was not the defendant. In any case, this writing envisaged that the plaintiff would pay the full sale consideration within nine months from the said date. There is nothing on record to suggest that such payment was made. The learned Judge correctly computed the period of limitation from the date of completion of nine months of the said writing. The suit was filed 11 years later and was thus clearly barred by limitation. He submitted that the plaintiff had failed to produce any evidence of any agreement of sale having been executed by any of the defendants. He relied on the judgment of the Supreme Court in case In case of Fatehji and Company and another v. L.M. Nagpal and others reported in (2015) 8 SCC 399 , in which Supreme Court observed as under: “6. The fact that the plaintiffs were put in possession of the property agreed to be sold on the date of agreement itself would not make any difference with regard to the limitation of filing the suit for specific performance. In fact both the courts below have rightly held that Article 54 of the Limitation Act does not make any difference between a case where possession of the property has been delivered in part performance of the agreement or otherwise. In fact both the courts below have rightly held that Article 54 of the Limitation Act does not make any difference between a case where possession of the property has been delivered in part performance of the agreement or otherwise. In the same way the courts below have also concurrently held even if any permission is to be obtained prior to the performance/completion of the contract, the mere fact that the defendants have not obtained the said permission would not lead to inference that no cause of action for filing the suit for specific performance would arise. Further it is also not the case for postponing the performance to a future date without fixing any further date for performance. The last extension for a period of six months w.e.f. 1.8.1976 sought for by the defendants expired on 1.2.1977. The present suit seeking for specific performance was filed by the plaintiffs on 29.4.1994, much beyond the period of three years.” 9. Learned counsel Shri Buch further submitted that the order dated 30.12.2006 passed by the Deputy Collector, Viramgam, was not filed along with the suit but was filed later on. 10. From the materials on record, it emerges that the case of the plaintiff is that defendant nos.1 and 2, the land owners had entered into an oral agreement to sale the land to him, the terms thereof were reduced in writing on the same date i.e. 10.11.2004. This was duly signed by the brother of the said defendants and another witness who was present. This writing refers to the land under sale, the agreed sale consideration and schedule for payment. According to the plaintiff, substantial payment was made but the sale could not be completed because the land division was pending. The record would show that the Deputy Collector, Viramgam, granted permission to divide the land under order dated 30.12.2006. This order itself refers to the plaintiff as the person to whom the land owners wish to sale the said land. 11. The prayer of the defendants for rejection of a plaint under order 7 rule 11 of Civil Procedure Code shall have to be judged on the basis of above materials and other relevant aspects emerging from the plaint and the accompanying documents. The validity of the defense or other opposition to the suit by the defendants would not be germane at this stage. The validity of the defense or other opposition to the suit by the defendants would not be germane at this stage. In plain terms, the case of the plaintiff is at the defendants no.1 and 2 according to sale the suit land for specified sale consideration and later on failed to execute the sale deed, though the plaintiff was always ready and willing to perform his part of obligation. It can therefore not be stated that the suit did not disclose any cause of action. Whether the plaintiff ultimately succeeds in establishing all necessary and relevant facts to earn a decree of specific performance is a different matter altogether. The same would depend on the evidence that both sides may bring on record during the trial. However, at this stage, it cannot be stated that the plaint does not disclose any cause of action and therefore, the plaint is required to be rejected. 12. On the question of limitation, we may recall, the writing dated 10.11.2004 required the plaintiff to make payment of 25% of the sale consideration within two months and the full sale consideration within 9 months from the date of the writing. According to the plaintiff, 25% payment was already made over. There is no time specified for the sellers to execute the sale deed. Entry 54 of the schedule to the Limitation Act prescribes the period of three years for filing a suit for specific performance of a contract and further provides that the time from which such period would begin run is the date fixed for the performance or if no such date is fixed, from the date plaintiff had notice that the performance is refused. If we therefore proceed on the basis that there was no time fixed for the defendants to perform the contract, the suit would fall in the second part the starting point of the limitation period viz. when the plaintiff has noticed that performance is reduced. According to the plaintiff, he became aware about the refusal of the defendants to perform the contract when the defendants published notice in the local newspaper on 20.05.2016 seeking title clearance of the land in question, to which, the plaintiff objected under a letter dated 23.05.2016. The suit which was filed shortly thereafter, could not have been rejected as barred by limitation. 13. The suit which was filed shortly thereafter, could not have been rejected as barred by limitation. 13. Under the circumstances, in our opinion, the trial Court committed an error, judgment and decree of the trial Court are reversed. Special Civil Suit No.274 of 2016 is revived and restored to the file of the trial Court. We make it clear that none of the passing observations made in this judgment or dealing with the issue of rejection of the plaint, would come in way of either side in the suit. 14. First Appeal is allowed. Civil Application is disposed of.