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Sunday, April 26, 2015

Specific Performance suit - Art.54 of Limitation Act - Or.VII, rule 11 of CPC - possession of the property does not make any difference - original cause of action became available to the plaintiffs on 2.12.1973, the date fixed for the performance of the contract -extended till 1.2.1977 as requested by the defendants- The sons of the second defendant filed a suit in July 1985 against defendants 2, 3 and the plaintiffs seeking for declaration that the present suit property is their ancestral joint family and the sale made by the defendants in favour of the plaintiffs be declared as null and void. -the plaintiffs did not file the suit immediately even after dismissal of their suit - 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 suit having been filed in the year 1994 is barred by limitation under Article 54 of the Limitation Act.- We are of the view that the High Court committed manifest error in reversing the well considered order of the Trial Court rejecting the plaint as barred by the law of limitation and the impugned judgment is liable to be set aside. In the result, the appeal is allowed - 2015 S.C.MSKLAWREPORTS



The defendants 1 to 3 filed an application under Order VII Rule  11  CPC  on
10.10.1996 seeking for rejection of the plaint  as  barred  by  the  law  of
limitation.
 The Trial Court after hearing both sides by  a  speaking  order
held that the suit is patently barred by the law of limitation  and  allowed
the application by rejecting the plaint
The  plaintiffs  preferred  appeal
in RFA no.350 of 1997 and the High Court by the  impugned  judgment  allowed
the appeal by setting aside the order of the Trial Court  and  restored  the
suit to file.
Aggrieved by  the  same  the  defendants  have  preferred  the
present appeal.

 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  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.

Yet another circumstance was pointed out to prove the  laches  on  the
part of the plaintiffs.
 The sons of the second defendant filed  a  suit  in
July  1985  against  defendants  2,  3  and  the  plaintiffs   seeking   for
declaration that the present suit property is their ancestral  joint  family
property and the sale made by the defendants in favour of the plaintiffs  be
declared as null and void. 
The plaintiffs herein contested  the  said  suit
and it came to be dismissed on 5.4.1989. 
The suit for specific  performance
was not filed within three years from the said date also.

The plaintiffs averred in the plaint that the last and final cause  of
action accrued and arose to them  after  August  1991  when  the  defendants
succeeded in hiding themselves and started avoiding the plaintiffs  and  the
cause of action being recurring and continuous one, they filed the  suit  on
29.4.1994.
 As already seen the original cause of  action  became  available
to the plaintiffs on 2.12.1973, the date fixed for the  performance  of  the
contract and thereafter the same stood extended till 1.2.1977  as  requested
by the defendants.
 Though the plaintiffs claimed  that  oral  extension  of
time was given, no particulars as to when and how long, were  not  mentioned
in the  plaint. 
On  the  other  hand  even  after  knowing  the  dishonest
intention of the sons of the  second  defendant  with  regard  to  the  suit
property in the year1985, the plaintiffs did not file the suit  immediately.

The suit having been filed in the year 1994 is barred by limitation  under
Article 54 of the Limitation Act.
We are of the view that the High Court  committed  manifest  error  in
reversing the well considered order of the Trial Court rejecting the  plaint
as barred by the law of limitation and the impugned judgment  is  liable  to
be set aside. 
In the  result,  the  appeal  is  allowed  and  the  impugned
judgment of the High Court is set aside and the order of the Trial Court  is
restored.  No costs. - 2015 S.C. MSKLAWREPORTS

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