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2025 DIGILAW 263 (GUJ)

Laljibhai Bhudarbhai Desai v. Haribhai Jairambhai

2025-03-11

NISHA M.THAKORE

body2025
JUDGMENT : NISHA M. THAKORE, J. 1. Heard Mr. P.A. Mehd, learned advocate on record for the appellant and Mrs. Nisha M. Parikh, learned advocate on record for the respondent. 2. The present appeal is preferred at the instance of the original plaintiff being aggrieved and dissatisfied with the judgment and order dated 12.08.2024 passed by learned Principal Senior Civil Judge at Viramgam in Special Civil Suit No. 5 of 2022. By the said impugned judgment and order, the learned Judge has partly allowed the application preferred by the present respondent-original defendant no.2 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, at Exh.14, consequently, leading to the rejection of the plaint and dismissal of the suit. 3. The brief facts as can be gathered from the record of the present appeal, are summarized as under: 3.1 It is the case of the original plaintiff that an agreement to sell was entered upon in respect of various parcels of agricultural lands of the ownership of the defendants situated in sim of Moje, Jalisana, Taluka-Mandal, District-Ahmedabad. Such agreement to sell was executed on 16.10.2015 before the notary which was entered vide serial no.737 of 2015 in presence of two independent witnesses. As per the agreement to sell, the possession of the said lands were handed over to the original plaintiff and the total amount of sale consideration was agreed for Rs.71 Lakhs. Out of the aforesaid, an amount of Rs.5 Lakhs in cash was paid to the defendants on 16.10.2015. As per the Clause-3 of the aforesaid agreement to sell, the sale deed was to be executed once the subject lands were converted into non-agricultural lands. Thereafter, an amount of Rs.55 Lakhs was paid towards the remaining sale consideration of agreement to sell and Rs.16 Lakhs were to be paid at the time of execution of the sale deed. No time line was specified in the agreement to sell. However, subsequently, in hand writing, a stipulation was made in the last line of paragraph-3, referring to the condition that the aforesaid amount was to be paid within a maximum period of six months, which according to the plaintiff, was not counter signed and was fraudulently entered subsequently into the agreement to sell. However, subsequently, in hand writing, a stipulation was made in the last line of paragraph-3, referring to the condition that the aforesaid amount was to be paid within a maximum period of six months, which according to the plaintiff, was not counter signed and was fraudulently entered subsequently into the agreement to sell. 3.2 It is the case of the plaintiff that the plaintiff had continued to be in actual possession of the subject lands right from the date of execution of agreement to sell and had remained in possession throughout. The NA permission came to be obtained on 17.07.2016 and the relevant entries in the revenue records came into effect during the period from 12.07.2016 to 28.07.2016. On 04.04.2017, the plaintiff has approached to the defendants thereby offering to pay the balance of amount of Rs.16 Lakhs by way of two cheques of Rs.8 Lakhs each to the defendants, however, the same was not accepted by the defendants. Later on 31.08.2017, the defendants have issued notice to the plaintiff thereby canceling the agreement to sell. On 07.11.2017, a public notice came to be issued by the defendants seeking title clearance certificate of the subject lands, whereby they disclosed their intention to sale few parcels of lands to one Ms. Parvatiben Chamanlal Patel. The plaintiff has objected to the aforesaid notice through their advocate. Such objections were again responded by the defendants through their lawyer by replying notice dated 22.02.2019. Thus, according to the plaintiff, the defendants were trying to illegally transfer the subject land by creating third party rights. On 04.05.2022, the defendants have administered threat to forcibly evict the plaintiff and to transfer the subject land by creating third party rights which gave them a cause of action to approach the competent Court by filing a suit seeking specific performance of the agreement to sell dated 16.10.2015 in respect of the subject lands. Alternatively, the prayers were also sought for the appointment of the Court Commissioner to execute a registered sale deed in reference to the agreement to sell dated 16.10.2015 subject to the compliance of the conditions incorporated in the agreement by the defendants. Alternatively, the prayers were also sought for the appointment of the Court Commissioner to execute a registered sale deed in reference to the agreement to sell dated 16.10.2015 subject to the compliance of the conditions incorporated in the agreement by the defendants. The plaintiff has also prayed for declaration of having acquired ownership right by virtue of adverse possession as being in possession of the subject lands, pursuant to the agreement to sell dated 16.10.2015, whereby the plaintiff claims to be in continuous possession of the subject lands all throughout. The prayer was also sought for an injunction pending the suit against the defendants to restrain them from transferring the subject land in any manner in favour of third party as well as from restraining them from handing over the possession of the subject land or making any changes in respect of the subject lands pending this suit. 4. The learned Judge, upon appreciation of the aforesaid pleadings, has proceeded to issue summons upon the defendants. The defendants have appeared before the learned Judge and had preferred an application at Exh.14 under Order VII Rule 11 (d) of the Code, 1908, thereby praying for rejection of the plaint on the ground of suit being barred by provisions of the LIMITATION ACT , 1963. It was subsequently contended that the agreement to sell was executed on 16.10.2015. The non-agricultural permission as is evident from the revenue record was granted on 12.07.2016 whereby mutation entry being 7742 dated 20.07.2016 came to be certified on 23.08.2016. It was further contended that thereafter, period of three years have lapsed. In fact, the notice canceling the agreement to sell was issued upon the plaintiff on 31.08.2017 which has been duly served upon the plaintiff, and on 14.10.2017 a public notice was, in fact, issued by the plaintiff in this regard. By referring to the aforesaid dates of events, it was further pointed out that the suit has been filed in the year-2022 which is beyond the period of three years as provided under the law of limitation. It was, therefore, urged to reject the plaint by invoking Order VII Rule 11(d) of the Code and to dismiss the suit. 5. The aforesaid application was heard by the learned Judge. It was, therefore, urged to reject the plaint by invoking Order VII Rule 11(d) of the Code and to dismiss the suit. 5. The aforesaid application was heard by the learned Judge. On considering the submissions made by learned advocates appearing for the respective parties, it was noticed that the suit is filed for seeking specific performance of the agreement to sell dated 16.10.2015, whereas the suit has been filed in the year-2022. As per Article 54 of the LIMITATION ACT , the suit was required to be filed within a period 3 years from the date of refusal of such performance of agreement to sell. The learned Judge further noticed that the NA permission was granted on 12.07.2016 and considering the Clause-3 of the agreement, the period of 6 months lapsed on 11.01.2017. Apart from the aforesaid facts, it also transpired that the notice canceling the agreement to sell was issued by the defendant on 31.08.2017, which has been duly served upon the plaintiff. Thus, considering the aforesaid date, to be the date when the cause of action had arisen for approaching the Court for seeking specific performance of agreement to sell, the period of three years, in view of Article 54 of the LIMITATION ACT , got expired on 31.07.2020, whereas the present suit was filed in October-2022 i.e. on 16.05.2022. The learned Judge, therefore, arrived at a conclusion that the suit has been filed beyond the prescribed period of limitation, and is therefore, barred by the provisions of Section 3 of the LIMITATION ACT , 1963. Thus, by impugned judgment and order dated 12.08.2024 while allowing the application preferred by the defendants at Exh.14, the learned Judge has dismissed the suit being filed beyond the period of limitation. Hence, the present appeal at the instance of the original plaintiff-appellant herein under Section 96 of the Code of Civil Procedure, 1908. 6. Noticing the submissions made by learned advocate for the appellant, this Court at the stage of admission hearing, vide order dated 24.12.2024 had issued notice for final disposal. The order reads as under: “Heard Mr. Mehd, learned advocate for the appellant. 6. Noticing the submissions made by learned advocate for the appellant, this Court at the stage of admission hearing, vide order dated 24.12.2024 had issued notice for final disposal. The order reads as under: “Heard Mr. Mehd, learned advocate for the appellant. It is submitted that the legal notice seeking specific performance of agreement to sell dated 16th October, 2015 was served upon the respondent on 31st August, 2017 and therefore the period of limitation of 03 years as prescribed under Article 54 of the LIMITATION ACT would expire on 31st August, 2020. Learned advocate had placed reliance upon the directions issued by the Hon’ble Supreme Court in suo motu Writ Petition (C) no.3 of 2020, whereby in cases where the period of limitation expired w.e.f. 15th March, 2020, which has been subsequently extended till 14th March, 2021 and thereafter till 20th February, 2022, the case of the petitioner was governed by the aforesaid decision and was therefore entitled to the exclusion of the aforesaid interregnum period of Covid Pandemic for the purpose of determining the period of limitation of 90 days for preferring the suit. It was further pointed-out that the present suit came to be filed on 16th May, 2022 which is within the period of 90 days from the extended date of 20th February, 2022 and therefore, the suit was filed within the period of limitation. By referring to the aforesaid dates, learned advocate has submitted that the Trial Court committed serious error in dismissing the suit at the threshold by invoking provisions of Order-VII Rule-11(D). Considering the aforesaid submissions, let Notice for final disposal be issued returnable on 7th February, 2025. Direct service permitted. Order in Civil Application :- Heard Mr. Mehd, learned advocate for the applicant. Issue Notice for interim relief returnable on 7th February, 2025. Direct service permitted.” 7. The matter was taken up for hearing, at the admission stage. Learned advocate Mr. Considering the aforesaid submissions, let Notice for final disposal be issued returnable on 7th February, 2025. Direct service permitted. Order in Civil Application :- Heard Mr. Mehd, learned advocate for the applicant. Issue Notice for interim relief returnable on 7th February, 2025. Direct service permitted.” 7. The matter was taken up for hearing, at the admission stage. Learned advocate Mr. Mehd appearing for the appellant had invited my attention to the facts of the case, and has submitted that the learned Judge committed serious error in not extending the period of limitation, without considering the judgment of the Hon’ble Supreme Court passed in Suo Motu Writ Petition (Civil) No.(s) 3 of 2020, whereby vide order dated 23.03.2020, the directions were issued to extend the period of limitation in all cases irrespective of the fact that the same were governed under the general law of limitation or under the special laws in light of the extraordinarily situation prevailed on account of Covid-19 Pandemic and the resultant difficulties faced by the litigants across the country in filing the proceedings within the period of limitation prescribed. 7.1 Learned advocate for the appellant has further submitted that by judgment dated 08.03.2021, the Hon’ble Supreme Court had further extended the period of limitation from 15.03.2020 till 14.03.2021. Pursuant thereto, when the second waive of Covid-19 Pandemic happened, the Hon’ble Supreme Court vide order dated 10.01.2022 passed in Miscellaneous Application No.21 of 2022 in Misc. Application No.665 of 2022 in Suo Motu Writ Petition (Civil) No.(s) 3 of 2020 and connected matters, has specifically observed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of computation of limitation. It was also provided that where the limitation had expired during the period of 15.03.2020 till 28.02.2022 notwithstanding actual balance period remaining all the litigants had the period of limitation of 90 days to be provided from 01.03.2022, and if the actual balance remained is greater than 90 days, the longer period is to apply. It was also provided that where the limitation had expired during the period of 15.03.2020 till 28.02.2022 notwithstanding actual balance period remaining all the litigants had the period of limitation of 90 days to be provided from 01.03.2022, and if the actual balance remained is greater than 90 days, the longer period is to apply. 7.2 By referring to the aforesaid orders of the Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No.(s) 3 of 2020 and connected matters, the learned advocate has further submitted that indisputably the present suit was filed on 16.05.2022, considering the date of issuance of notice canceling the agreement to sell, which was issued on 31.08.2017, the period of three years would expire on 30.08.2020, whereas the suit was filed on 16.05.2022 by virtue of the various orders passed by the Hon’ble Supreme Court from time to time in Suo Motu Writ Petition (Civil) No.(s) 3 of 2020, the interregnum period i.e. from 15.03.2020 till 28.02.2022 stand excluded for the purpose of computation of period of limitation to be considered for institution of the suit. 7.3 By referring to the aforesaid legal position, learned advocate for the appellant has submitted that, in fact, the plaintiff would get benefit of the excluded period in light of the aforesaid order and the period of limitation had not expired on the date when the suit came to be filed on 16.05.2022, which is in fact, within the period of 90 days on the last date of extension i.e. 28.02.2022. Learned advocate has, therefore, submitted that on erroneous consideration, the learned Judge has committed serious error in entertaining an application under Order VII Rule 11(d) of the Code on the ground of suit being barred by the provisions of LIMITATION ACT , leading to dismissal of the suit. He has, therefore, urged this Court to quash and set aside the impugned order, and to restore the suit to its original file. 8. Mrs. Nisha M. Parikh, learned advocate on record for the respondents-original defendants, has vehemently objected to the aforesaid submissions. According to her, indisputably the agreement to sell was executed on 16.10.2015. The reading of the Clause-3 of the aforesaid agreement to sell clearly indicates that the period of six months was agreed between the parties for payment of remaining consideration, upon obtaining NA permission. According to her, indisputably the agreement to sell was executed on 16.10.2015. The reading of the Clause-3 of the aforesaid agreement to sell clearly indicates that the period of six months was agreed between the parties for payment of remaining consideration, upon obtaining NA permission. It is also an undisputed fact that NA permission was obtained by the defendants on 12.07.2016, even the mutation entry was also reflected in the revenue record in this regard, which is evident from the list of the documents produced by the plaintiff along with the plaint. Thus, according to her, time was essence of the contract, failing which, the present suit being filed on 16.05.2022, was beyond the prescribed period of limitation of three years. The attention of this Court was invited to the legal notice dated 31.08.2017 regarding cancellation of agreement issued upon the plaintiff, which was duly served and responded by the plaintiff. She has, therefore, submitted that no error can be found with the approach of learned Judge in invoking the powers conferred under Order VII Rule 11(d) of the Code. Upon bare reading of the contents of the plaint, it has transpired that suit has been filed beyond the prescribed period of limitation. She has, therefore, urged this Court to take into consideration the aforesaid aspect and not to interfere with the impugned judgment and order, in the facts of the case. 9. Considering the submissions made by learned advocates for the respective parties, and having perused the impugned judgment and order, it is evident from the findings and the reasons assigned by the learned Judge that the application at Exh.14 under Order VII Rule 11(d) of the Code has been entertained mainly on the ground that the legal notice issued by the defendant canceling the agreement to sell was issued upon the plaintiff on 31.08.2017 and the learned Judge has, therefore, treated the aforesaid date, to be starting point for the purpose of computation of limitation of period of 3 years as prescribed under Article 54 of the LIMITATION ACT , 1963 for deciding the issue of maintainability of the suit. The learned Judge has taken into consideration the pleadings of the plaint and the documents produced on record along with the plaint. The learned Judge has taken into consideration the pleadings of the plaint and the documents produced on record along with the plaint. Upon appreciation of the contents of the legal notice dated 31.08.2017 and the reply dated 22.02.2019 given by the defendants to the plaintiff, the learned Judge has noted that the defendants have refused to perform their part of agreement to sell. 10. Taking note of the aforesaid material, the learned Judge has considered the starting point of limitation as 31.08.2017 for the purpose of determination of period of 3 years for instituting the suit. Noticing the fact that indisputably, the suit has been filed on 16.05.2022, the Court has arrived at a conclusion that the suit has been filed beyond period of three years from 31.08.2017, and has, therefore, dismissed the suit solely on the ground of limitation. Taking note of the aforesaid findings and the reasons assigned by the learned Judge, in light of the judgment of the where, Hon’ble Supreme Court in the case of Re : Cognizance For Extension of Limitation delivered in Suo Motu Writ Petition (Civil) No.(s) 3 of 2020, vide order dated 23.03.2020, has exercised the power conferred under Article 142 read with Article 141 of the Constitution of India, with a view to obviate the difficulties faced by the litigants across the country due to Covid-19 pandemic, whereby the litigants could not approach the Court physically to file proceedings in respective Courts/Tribunals across the Court, had directed that the period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws to be extended with effect from 15.03.2020, till further orders to be passed. Thereafter, vide judgment dated 08.03.2021, the Hon’ble Supreme Court had further directed that the aforesaid period of limitation is to be extended from 15.03.2020 till 04.03.2021. Pursuant thereto, when the second waive of Covid-19 pandemic prevailed, the Hon’ble Supreme Court vide order dated 10.01.2022, had further observed that the period from 15.03.2021 to 28.02.2022 was to be excluded for the purpose of computation period of limitation. Pursuant thereto, when the second waive of Covid-19 pandemic prevailed, the Hon’ble Supreme Court vide order dated 10.01.2022, had further observed that the period from 15.03.2021 to 28.02.2022 was to be excluded for the purpose of computation period of limitation. The Court had also observed that where the limitation would have expired during aforesaid period between 15.03.2020 till 28.02.2022 notwithstanding actual balance period remaining all the litigants were to be extended benefit of limitation period of 90 days from 01.03.2022 and if the actual balance period remaining is greater than 90 days, the longer period shall apply. 11. In light of the aforesaid orders passed by the Hon’ble Supreme Court, in the present case, the first cause of action accrued on the date when the legal notice dated 31.08.2017 was issued by the defendants canceling the agreement to sell. Generally, the period of limitation would have expired on 15.08.2020. However, noticing the exceptional circumstances prevailing and the directions issued by the Hon’ble Supreme Court, the aforesaid period of limitation which otherwise expired stand extended, more particularly, in light of the order dated 10.01.2022 passed in Miscellaneous Application No.21 of 2022 in Misc. Application No.665 of 2022 in Suo Motu Writ Petition (Civil) No.(s) 3 of 2020 and allied matters, wherein the Hon’ble Supreme Court had clarified that the period starting from 15.03.2020 till 28.02.2022 was to be treated excluded for the purpose of computation of period of limitation for all kind of proceedings to be filed before the Tribunal or before the Court. 12. Applying the aforesaid directions in the facts of the case as on date of filing of suit on 16.05.2022, the plaintiff had the benefit of the extended period of limitation as the suit has been filed within period of 90 days from the extension date i.e.28.02.2022. Hence, it is held that suit is file within the prescribed period of limitation. 13. For the foregoing reasons, the impugned judgment and order dated 12.08.2024 passed by learned Principal Senior Civil Judge at Viramgam in Special Civil Suit No. 5 of 2022, is hereby quashed and set aside. The Special Civil Suit No. 5 of 2022 is directed to be restored to its original file. The present First Appeal stands allowed. Connected civil application also stands disposed of, accordingly.