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2022 DIGILAW 2673 (MAD)

K. Viswanathan v. C. Ponnusamy

2022-08-12

R.N.MANJULA

body2022
JUDGMENT (Prayer: Appeal filed under Section 96 Civil Procedure Code against the judgment and decree dated 18.08.2016 passed in O.S.No.42 of 2012 on the file of the I Additional District and Sessions Court, Tiruppur.) 1. This appeal has been preferred challenging the judgment and decree of the Ist Additional District Judge, Tirupur dated 18.08.2016 made in O.S.No.42 of 2012. 2. The appellants are the plaintiffs in the suit. The suit has been filed for the relief of specific performance and the suit was dismissed. Aggrieved over that, the plaintiffs have filed this appeal. 3. The short facts on which the suit was filed are that on 04.07.2008, the plaintiffs have entered into a sale agreement with the defendants for purchasing the suit property for a total consideration of Rs.31,00,300/-. On the date of the sale agreement itself, a sum of Rs.8,00,000/- was paid as advance. Time for performance of contract was agreed as 9 months. Even though the third and fourth defendants have executed a sale deed in favour of the plaintiffs in respect of their undivided half share, on 29.12.2011, the second defendant did not perform his part of contract. Hence, the plaintiffs have issued a legal notice on 12.03.2012, calling upon the defendants to receive the balance consideration and execute the sale agreement in respect of the remaining half share. The notice was received by both the defendants and the second defendant did not prefer to send any reply. The first defendant sent a reply notice on 19.03.2012 by stating that the plaintiffs have not performed their part of contract in accordance with the sale agreement and paid the balance sale consideration before the expiry of nine months time. Thereafter, the plaintiffs have filed the suit for specific performance. 4. The second defendant remained ex-parte. The third & fourth defendants have filed the written statement. But however did not continue to pursue the suit and later set exparte. The first defendant has filed the written statement stating that on the strength of the sale agreement dated 04.07.2008, the plaintiffs have demolished the common house and other features in the suit property and they are also not ready and willing to perform their part of contract. 5. On the basis of the above pleadings, the learned trial Judge has framed the following issues:- 1. 5. On the basis of the above pleadings, the learned trial Judge has framed the following issues:- 1. Whether the plaintiff is entitled for the relief of specific performance of the agreement to sell dated 04.07.2008 as prayed for? 2. Whether the plaintiff is entitled for the alternative relief of refund of advance amount with interest as prayed for? 3. To what relief the parties are entitled to? Additional Issues Whether the agreement to sell dated 04.07.2008 has been cancelled and repudiated by the defendant? Additional Issues Whether the suit agreement binds defendants 3 and 4? At the time of pronouncing judgment additional issues were deleted by the trial Court, as they are not necessary to determine the case. 6. During trial, on the side of the plaintiffs, two witnesses have been examined as PW1 and PW2 and Exhibits A1 to A5 were marked. On the side of the defendant, one witness was examined and marked as DW1 and no documents were marked. 7. At the conclusion of the trial and on considering the evidence available on record, the learned trial Judge dismissed the suit, aggrieved over that, the plaintiff has preferred this appeal. 8. The learned counsel for the appellants submitted that the suit has been dismissed on a wrong notion that the suit is barred by limitation. Attention of this Court was drawn to paragraph No.6 of the trial Court's judgment, wherein the learned trial Judge has observed that the suit was filed on 27.04.2012 and hence the suit is barred by limitation, but in fact, the suit was filed as early as on 27.03.2012 and the suit was posted for the first hearing on 27.04.2012 and the trial Judge has wrongly calculated the period of limitation by taking the date of the first hearing as the date on which the suit was filed and had chosen to dismiss the suit on that ground; though it is held that the sale agreement is valid in law, the benefit has not accrued to the plaintiffs due to the wrong assumption on the part of the Court that the suit is barred by limitation. 9. Points for consideration:- 1. Whether the judgment and decree of the learned trial Judge in dismissing the suit is fair and proper? 10. 9. Points for consideration:- 1. Whether the judgment and decree of the learned trial Judge in dismissing the suit is fair and proper? 10. It is very saddening to note that the suit which was filed in time was dismissed as barred by limitation, without noticing the relevant dates. It is strange to note that the suit was dismissed as barred by limitation, even without the issue framed on the point of limitation. Admittedly, the sale agreement was entered into between the appellants and the respondents on 04.07.2008 and it was marked as Ex.A1. The time for performance of the contract was agreed as 9 months, that means, the outer limit for the agreement would be 03.04.2009. According to the appellants, on 29.12.2011, the respondents 3 and 4 have executed the sale deed in respect of their undivided half share and the respective sale deeds have been marked as Ex.A4 & Ex.A5. On 12.03.2012, a legal notice was issued by the plaintiffs calling upon the respondents 1 & 2 to come forward to receive the balance sale consideration and execute the sale deed. Though the second defendant did not prefer to send any reply, the first defendant sent a reply on 09.03.2012 by denying the readiness and willingness on the part of the appellants and thereafter, the suit was filed on 27.03.2012. 11. The case details furnished by the learned counsel for the appellants as taken from E-Court details, it is seen that the case was filed on 27.03.2012 in File.No.6774 of 2012. The case was registered on the very same date, that is, on 27.03.2012 in O.S.No.42 of 2012. Thereafter the case was posted for first hearing on 27.04.2012. Since the outer limit for performing the contract was on 03.04.2009, three years limitation for filing the suit for specific performance will start running from 04.04.2009. That means, three years limitation will expire only on 03.04.2012. The suit has been filed on 27.03.2012 itself, that means, the suit has been filed before the expiry of the limitation period and hence it is well within the period of limitation. 12. That means, three years limitation will expire only on 03.04.2012. The suit has been filed on 27.03.2012 itself, that means, the suit has been filed before the expiry of the limitation period and hence it is well within the period of limitation. 12. Despite the defendants 1, 3 & 4 have filed the written statement, they have not raised the point of limitation because of being conscious of the fact that the suit has been filed within the period of limitation, but for the mistake of the learned trial Judge in wrongly construing the date of the first hearing as the date of filing the suit, the suit would not have got dismissed on the point of limitation. The learned trial Judge had gone into the question about the validity of the agreement and held that the suit agreement is a valid one. Thereafter, the Court ought to have proceeded to decide about the other issues pertaining to the case, instead of viewing the case on the point of limitation. 13. Since the dismissal of the suit on the ground of limitation is a thorough error on the part of the Court, the judgment and decree of the learned Judge are liable to be set aside and the matter has to be remitted back to the file of the Additional District and Sessions Court, Tiruppur to dispose of the suit afresh by dealing with the all relevant issues of the suit. Since the recording of evidence of both parties has been completed, the learned trial Judge is directed to hear both side counsels and pass a judgment after considering the matter a fresh. 14. In the result, appeal suit is allowed and the judgment of the trial Court is set aside and the matter is remitted back to the Ist Additional District and Sessions Court, Tirupur for the purpose of considering a fresh and pass a judgment on the basis of the observations above made. No costs.