CASE NO.:
Appeal (civil) 4190 of 2000
PETITIONER:
Ahmadasahab Abdul Mulla (D) by proposed LRs
RESPONDENT:
Bibijan & Ors
DATE OF JUDGMENT: 21/04/2008
BENCH:
Dr. ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 4190 OF 2000
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by a
learned Single Judge of the Karnataka High Court allowing the
Second appeal filed by the respondents under Section 100 of
the Code of Civil Procedure, 1908 (in short the 'CPC'). The
present respondents are the plaintiffs.
They had filed the suit
for specific performance of the contract on sale which was
decreed by the trial court but was dismissed on the ground of
limitation by the first Appellate Court and therefore the
Second Appeal was filed.
2. Background facts in a nutshell are as follows:
The plaintiff No.1's husband entered into an agreement of
sale of house property No.CTS 2565, Ward No.5, of Mudhol
corresponding Municipal No. 536, on 15-11-1974 for consi-
deration of Rs.6,000/-.
A sum of Rs.1000/- was paid and
subsequently two sums of Rs.300/- and Rs.600/- were paid
on 21-12-1974 and 13-8-1975.
But in the mean time, a suit
was filed by the defendant's wife and children in 0. S.
No.72/76, wherein the plaintiff's husband was made a party.
questioning the agreement of sale, and the suit came to be
dismissed on 4-8-1977.
The first appeal preferred in R.
A.84/77 subsequently numbered as R, A, 83/79 came to be
dismissed on 18-8-1979 and the second appeal preferred in
RSA No.385/80 also came to be dismissed on 5-6-1980.
Therefore the present suit is filed on 15.9.1981 for specific
performance of agreement of sale.
The defendant contended that the suit house belonged to
his deceased father and his deceased father made an oral gift
of the suit, property in favour of himself and his wife, and
minor children by delivery of possession.
As he had no source
of income to meet his family needs, the deceased husband of
the plaintiff promised to lend him money and the defendant
agreed to give the property as security.
Under such
circumstances he executed the suit agreement and received
loan from Modinsaheb.
He has not parted with the possession.
He further contended that the suit is barred by limitation and
the plaintiff was never ready and willing.
Ultimately, he
resisted the suit by contending that the suit house is the only
shelter for him and his family members he cannot be directed
to comply with agreement of sale.
The trial Court accepted the agreement as to the payment
made thereon as correct, and holding that the defendant is not
a debtor within the meaning of the relevant Act, granted the
decree for specific performance rejecting the plea of non-
joinder and loan raised by the defendant.
The appellate Court found that the trial court is right in
accepting the case of the plaintiff regarding the agreement and
parting with the possession by way of part performance and
also that no hardship would be caused to the defendant by
grant of specific performance as provided under Section 20 of
the Specific Relief Act, 1963 (in short 'the Act'). But on the
ground of limitation, holding that the pendency of the other
suit will not save the limitation within the meaning of section
14 of the Limitation Act, 1963 (in short 'Limitation Act')
dismissed the suit.
The second appeal was admitted on the following
questions of law:
"Whether the contention taken that the
cause of action for filing the suit arises only,
when the other suit questioning the title of his
own wife and children, was over as per dictum
of Lakshminarayana Reddiar v. Singaravelu Naicker & Anr. AIR 1963 Mad.24".
The High Court noticed that as held by the Madras High
Court in Lakshminarayan's case (supra) the time taken for
redemption wherein the title deed was primarily involved has
to be excluded under Section 14 of the Limitation Act. It was
held that no contra decision was cited and, therefore, with
reference to Section 113 of the Limitation Act, 1908 (in short
the 'Old Act') this suit was within time.
3. Learned counsel for the appellant submitted that the true
import of Section 113 of the Limitation Act has not been kept
in view.
4. Learned counsel for the respondent on the other hand
supported the order of the High Court.
5. In S. Brahmanand v. K.R. Muthugopal (2005 12) SCC
764) after noticing the decisions rendered by various High
Courts, this Court inter alia observed as follows:
"16. It would be useful to set out the
provisions of Article 54 before critically
appraising the arguments presented to us on
both sides.
"Description of suit Period of limitation Time from
which
period
begins to
run
54. For specific Three years The date fixed
performance of a
contract
for the
performance, or,
if no such date
is fixed, when
the plaintiff has
notice that
performance is
refused."
17. Though, at first blush, it may appear that the
use of the expression "date" used in this article of
the Limitation Act, 1963 is suggestive of a specific
date in the calendar, we cannot forget the judicial
interpretation of this expression over a long period
of time. Different High Courts took different views of
the matter, which has been a subject-matter of
controversy. Some interpreted the expression
strictly and literally, while others have taken an
extended view.
18. In Kashi Prasad v. Chhabi Lal the High Court
dealing with Article 113 of the Limitation Act, 1908,
which was in pari materia with Article 54 of the
Schedule to the Limitation Act, 1963, took the view
that the force of the word "fixed" implies that the
date should be fixed definitely and should not be left
to be gathered from the surrounding circumstances
of the case. It must be a date clearly mentioned in
the contract whether the said contract be oral or in
writing.
19. In Alopi Parshad v. Court of Wards also the
Court was concerned with Article 113 of the
Limitation Act, 1908. A suit for specific performance
was brought on an agreement of sale where the time
for performance of the contract was "after passing of
a decree". Though no date for performance was fixed
for the agreement, the trial court had opined that
time must be held to have begun to run from the
date on which the decree was passed in view of the
maxim id certum est quod certum reddi potest ("That
is sufficiently certain which can be made certain".)
The Lahore High Court was of the view that statutes
of limitation must be strictly construed and that the
respondents before it had failed to bring a case
specifically within the purview of the first part of
Article 113 and that the case did not fall within the
first part but fell within the second part of Article
113. The judgment of the Allahabad High Court in
Kashi Prasad was approvingly referred to and
followed. This judgment was taken in appeal before
the Privy Council and approved by the Privy Council
in Lala Ram Sarup v. Court of Wards.
20. In Kruttiventi Mallikharjuna Rao v. Vemuri
Pardhasaradhirao a contract was entered into on
18-7-1934 and the vendor promised to execute the
sale deed when both his brothers who were
studying elsewhere returned to the village for the
next vacation i.e. in May-June 1935. The High
Court held (AIR p. 218h) that this was "too
indefinite to be regarded as fixing a 'date' for the
performance of the contract and the period of
limitation must be computed from the date of
refusal to perform".
21. In R. Muniswami Goundar v. B.M. Shamanna
Gouda interpreting the expression "date fixed" in
Article 113 of the Limitation Act, 1908 the doctrine
of id certum est quod certum reddi potest was
pressed into service along with its exposition in
Broom's Legal Maxims and it was held that it was
wide enough to include a date which though at the
time when the contract was made was not known,
but could be ascertained by an event which
subsequently was certain of happening.
22. In Hutchegowda v. H.M. Basaviah upholding
the view in Muniswami Goundar it was held that an
agreement to execute the sale deed after the
"Saguvali chit" is granted fell within the first part of
Article 113 of the Limitation Act, 1908.
23. In Purshottam Sava v. Kunverji Devji the
judgment of the Madras High Court in R.
Muniswami Goundar was followed and it was held
that the expression "date fixed" can be interpreted
as meaning either the date fixed expressly or a date
that can be fixed with reference to a future event
which is certain to happen.
24. In Lakshminarayana Reddiar v. Singaravelu
Naicker it was held that the phrase occurring in the
third column of Article 113 of the Limitation Act,
1908 "the date fixed for the performance" must not
only be a date which can be identified without any
doubt as a particular point of time, but it should
also be a date which the parties intended should be
the date when the contract could be performed.
25. In Shrikrishna Keshav Kulkarni v. Balaji
Ganesh Kulkarni the agreement for sale of a
property stated that the sale was to be executed
after the attachment which the creditors had
brought, was raised. Noticing the fact that there was
absence of any indication as to when the
attachment would be raised, the Court treated it as
a case in which no date was fixed for performance of
the contract and, therefore, falling within the
second part of Article 54 of the Limitation Act, 1963.
26. P. Sivan Muthiah v. John Sathiavasagam
arose from a suit for specific performance with an
alternative prayer for recovery of advance paid
under the agreement of sale. Referring to Article 54
of the Limitation Act, 1963 the Court took the view
that the expression "date fixed" could mean either
the date expressly fixed or the date that can be fixed
with reference to a future event, which is certain to
happen. If the date is to be ascertained depending
upon an event which is not certain to happen, the
first part of Article 54 would not be applicable, and
in such an eventuality, it is only the latter part of
Article 54 that could be invoked by treating it as a
case in which no date had been fixed for
performance and the limitation would be three years
from the date when the plaintiff had notice that
performance is refused. This was a case where
performance was due after the tenants in the
property had been vacated. The Court took the view
that since eviction of the tenants was an uncertain
event, the time must be deemed to have run only
from the date when the plaintiffs had notice that the
performance had been refused by the defendants.
27. In Ramzan v. Hussaini a suit was filed for
specific performance of a contract of sale in respect
of a house. The property was mortgaged and
according to the plaintiff, the defendant had agreed
to execute a deed of sale on the redemption of the
mortgage by the plaintiff herself, which she did in
1970. In spite of her repeated demands, the
defendant failed to perform his part, which resulted
in a suit being filed. The question that arose before
this Court was whether the agreement was one in
which the date was "fixed" for the performance of
the agreement or was one in which no such date
was fixed. This Court answered the question in the
affirmative by holding that, although a particular
calendar date was not mentioned in the document
and although the date was not ascertainable
originally, as soon as the plaintiff redeemed the
mortgage, it became an ascertained date. This Court
also agreed with the view expressed in the Madras
High Court in R. Muniswami Goundar and held that
the doctrine id certum est quod certum reddi potest
is clearly applicable. It also distinguished Kruttiventi
Mallikharjuna Rao and Kashi Prasad as cases that
arose out of their peculiar facts.
28. In Tarlok Singh v. Vijay Kumar Sabharwal the
parties by agreement determined the date for
performance of the contract, which was extended by
a subsequent agreement stipulating that the
appellants shall be required to execute a sale deed
within 15 days from the date of the order vacating
the injunction granted in a suit. The suit was
initially dismissed and, thereafter, a review
application was also dismissed as withdrawn on 22-
3-1986. On 23-12-1987 a suit was filed for
perpetual injunction. In that suit, an application
came to be made under Order 6 Rule 17 CPC for
converting it into a suit for specific performance of
an agreement dated 18-8-1984. This amendment
was allowed on 25-8-1989. It was held that since
the amendment was ordered on 25-8-1989, the
crucial date for examining whether the suit was
barred by limitation was 25-8-1989. Since the
injunction was vacated when the original suit was
initially dismissed and the review application came
to be dismissed on 22-3-1986, it was held that it
was a situation covered by the first part of Article 54
and, in any event, on 25-8-1989 the suit was barred
by limitation."
6. This court took the view that judgments of different High
Courts have taken different views and were at variance with
the decision of the Privy Council. However, in view of the
decisions in Ramzan v. Hussaini (1990(1) SCC 104) and in
Tarlok Singh v. Vijay Kumar Sabharwal (1996(8) SCC 367)
there was no necessity to go into the larger issue as the
plaintiffs were entitled to succeed in that case in altogether on
different grounds.
7. It appears from the judgment in S.Brahmanand's case
(supra) this court felt that there was a need for clarifying legal
position. But declined to refer the matter to a larger Bench
because of the different factual scenario and the fact that the
decisions were holding field for long time and there were
decisions of the co-ordinate Bench of two Hon'ble Judges
taking a particular view.
8. In view of the importance of the issues involved, we feel it
would be proper if this case is heard by a Bench of three
Hon'ble Judges. We, therefore, refer the matter to a larger
Bench. The records be placed before the Hon'ble Chief Justice
of India for necessary directions.
Appeal (civil) 4190 of 2000
PETITIONER:
Ahmadasahab Abdul Mulla (D) by proposed LRs
RESPONDENT:
Bibijan & Ors
DATE OF JUDGMENT: 21/04/2008
BENCH:
Dr. ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 4190 OF 2000
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the order passed by a
learned Single Judge of the Karnataka High Court allowing the
Second appeal filed by the respondents under Section 100 of
the Code of Civil Procedure, 1908 (in short the 'CPC'). The
present respondents are the plaintiffs.
They had filed the suit
for specific performance of the contract on sale which was
decreed by the trial court but was dismissed on the ground of
limitation by the first Appellate Court and therefore the
Second Appeal was filed.
2. Background facts in a nutshell are as follows:
The plaintiff No.1's husband entered into an agreement of
sale of house property No.CTS 2565, Ward No.5, of Mudhol
corresponding Municipal No. 536, on 15-11-1974 for consi-
deration of Rs.6,000/-.
A sum of Rs.1000/- was paid and
subsequently two sums of Rs.300/- and Rs.600/- were paid
on 21-12-1974 and 13-8-1975.
But in the mean time, a suit
was filed by the defendant's wife and children in 0. S.
No.72/76, wherein the plaintiff's husband was made a party.
questioning the agreement of sale, and the suit came to be
dismissed on 4-8-1977.
The first appeal preferred in R.
A.84/77 subsequently numbered as R, A, 83/79 came to be
dismissed on 18-8-1979 and the second appeal preferred in
RSA No.385/80 also came to be dismissed on 5-6-1980.
Therefore the present suit is filed on 15.9.1981 for specific
performance of agreement of sale.
The defendant contended that the suit house belonged to
his deceased father and his deceased father made an oral gift
of the suit, property in favour of himself and his wife, and
minor children by delivery of possession.
As he had no source
of income to meet his family needs, the deceased husband of
the plaintiff promised to lend him money and the defendant
agreed to give the property as security.
Under such
circumstances he executed the suit agreement and received
loan from Modinsaheb.
He has not parted with the possession.
He further contended that the suit is barred by limitation and
the plaintiff was never ready and willing.
Ultimately, he
resisted the suit by contending that the suit house is the only
shelter for him and his family members he cannot be directed
to comply with agreement of sale.
The trial Court accepted the agreement as to the payment
made thereon as correct, and holding that the defendant is not
a debtor within the meaning of the relevant Act, granted the
decree for specific performance rejecting the plea of non-
joinder and loan raised by the defendant.
The appellate Court found that the trial court is right in
accepting the case of the plaintiff regarding the agreement and
parting with the possession by way of part performance and
also that no hardship would be caused to the defendant by
grant of specific performance as provided under Section 20 of
the Specific Relief Act, 1963 (in short 'the Act'). But on the
ground of limitation, holding that the pendency of the other
suit will not save the limitation within the meaning of section
14 of the Limitation Act, 1963 (in short 'Limitation Act')
dismissed the suit.
The second appeal was admitted on the following
questions of law:
"Whether the contention taken that the
cause of action for filing the suit arises only,
when the other suit questioning the title of his
own wife and children, was over as per dictum
of Lakshminarayana Reddiar v. Singaravelu Naicker & Anr. AIR 1963 Mad.24".
The High Court noticed that as held by the Madras High
Court in Lakshminarayan's case (supra) the time taken for
redemption wherein the title deed was primarily involved has
to be excluded under Section 14 of the Limitation Act. It was
held that no contra decision was cited and, therefore, with
reference to Section 113 of the Limitation Act, 1908 (in short
the 'Old Act') this suit was within time.
3. Learned counsel for the appellant submitted that the true
import of Section 113 of the Limitation Act has not been kept
in view.
4. Learned counsel for the respondent on the other hand
supported the order of the High Court.
5. In S. Brahmanand v. K.R. Muthugopal (2005 12) SCC
764) after noticing the decisions rendered by various High
Courts, this Court inter alia observed as follows:
"16. It would be useful to set out the
provisions of Article 54 before critically
appraising the arguments presented to us on
both sides.
"Description of suit Period of limitation Time from
which
period
begins to
run
54. For specific Three years The date fixed
performance of a
contract
for the
performance, or,
if no such date
is fixed, when
the plaintiff has
notice that
performance is
refused."
17. Though, at first blush, it may appear that the
use of the expression "date" used in this article of
the Limitation Act, 1963 is suggestive of a specific
date in the calendar, we cannot forget the judicial
interpretation of this expression over a long period
of time. Different High Courts took different views of
the matter, which has been a subject-matter of
controversy. Some interpreted the expression
strictly and literally, while others have taken an
extended view.
18. In Kashi Prasad v. Chhabi Lal the High Court
dealing with Article 113 of the Limitation Act, 1908,
which was in pari materia with Article 54 of the
Schedule to the Limitation Act, 1963, took the view
that the force of the word "fixed" implies that the
date should be fixed definitely and should not be left
to be gathered from the surrounding circumstances
of the case. It must be a date clearly mentioned in
the contract whether the said contract be oral or in
writing.
19. In Alopi Parshad v. Court of Wards also the
Court was concerned with Article 113 of the
Limitation Act, 1908. A suit for specific performance
was brought on an agreement of sale where the time
for performance of the contract was "after passing of
a decree". Though no date for performance was fixed
for the agreement, the trial court had opined that
time must be held to have begun to run from the
date on which the decree was passed in view of the
maxim id certum est quod certum reddi potest ("That
is sufficiently certain which can be made certain".)
The Lahore High Court was of the view that statutes
of limitation must be strictly construed and that the
respondents before it had failed to bring a case
specifically within the purview of the first part of
Article 113 and that the case did not fall within the
first part but fell within the second part of Article
113. The judgment of the Allahabad High Court in
Kashi Prasad was approvingly referred to and
followed. This judgment was taken in appeal before
the Privy Council and approved by the Privy Council
in Lala Ram Sarup v. Court of Wards.
20. In Kruttiventi Mallikharjuna Rao v. Vemuri
Pardhasaradhirao a contract was entered into on
18-7-1934 and the vendor promised to execute the
sale deed when both his brothers who were
studying elsewhere returned to the village for the
next vacation i.e. in May-June 1935. The High
Court held (AIR p. 218h) that this was "too
indefinite to be regarded as fixing a 'date' for the
performance of the contract and the period of
limitation must be computed from the date of
refusal to perform".
21. In R. Muniswami Goundar v. B.M. Shamanna
Gouda interpreting the expression "date fixed" in
Article 113 of the Limitation Act, 1908 the doctrine
of id certum est quod certum reddi potest was
pressed into service along with its exposition in
Broom's Legal Maxims and it was held that it was
wide enough to include a date which though at the
time when the contract was made was not known,
but could be ascertained by an event which
subsequently was certain of happening.
22. In Hutchegowda v. H.M. Basaviah upholding
the view in Muniswami Goundar it was held that an
agreement to execute the sale deed after the
"Saguvali chit" is granted fell within the first part of
Article 113 of the Limitation Act, 1908.
23. In Purshottam Sava v. Kunverji Devji the
judgment of the Madras High Court in R.
Muniswami Goundar was followed and it was held
that the expression "date fixed" can be interpreted
as meaning either the date fixed expressly or a date
that can be fixed with reference to a future event
which is certain to happen.
24. In Lakshminarayana Reddiar v. Singaravelu
Naicker it was held that the phrase occurring in the
third column of Article 113 of the Limitation Act,
1908 "the date fixed for the performance" must not
only be a date which can be identified without any
doubt as a particular point of time, but it should
also be a date which the parties intended should be
the date when the contract could be performed.
25. In Shrikrishna Keshav Kulkarni v. Balaji
Ganesh Kulkarni the agreement for sale of a
property stated that the sale was to be executed
after the attachment which the creditors had
brought, was raised. Noticing the fact that there was
absence of any indication as to when the
attachment would be raised, the Court treated it as
a case in which no date was fixed for performance of
the contract and, therefore, falling within the
second part of Article 54 of the Limitation Act, 1963.
26. P. Sivan Muthiah v. John Sathiavasagam
arose from a suit for specific performance with an
alternative prayer for recovery of advance paid
under the agreement of sale. Referring to Article 54
of the Limitation Act, 1963 the Court took the view
that the expression "date fixed" could mean either
the date expressly fixed or the date that can be fixed
with reference to a future event, which is certain to
happen. If the date is to be ascertained depending
upon an event which is not certain to happen, the
first part of Article 54 would not be applicable, and
in such an eventuality, it is only the latter part of
Article 54 that could be invoked by treating it as a
case in which no date had been fixed for
performance and the limitation would be three years
from the date when the plaintiff had notice that
performance is refused. This was a case where
performance was due after the tenants in the
property had been vacated. The Court took the view
that since eviction of the tenants was an uncertain
event, the time must be deemed to have run only
from the date when the plaintiffs had notice that the
performance had been refused by the defendants.
27. In Ramzan v. Hussaini a suit was filed for
specific performance of a contract of sale in respect
of a house. The property was mortgaged and
according to the plaintiff, the defendant had agreed
to execute a deed of sale on the redemption of the
mortgage by the plaintiff herself, which she did in
1970. In spite of her repeated demands, the
defendant failed to perform his part, which resulted
in a suit being filed. The question that arose before
this Court was whether the agreement was one in
which the date was "fixed" for the performance of
the agreement or was one in which no such date
was fixed. This Court answered the question in the
affirmative by holding that, although a particular
calendar date was not mentioned in the document
and although the date was not ascertainable
originally, as soon as the plaintiff redeemed the
mortgage, it became an ascertained date. This Court
also agreed with the view expressed in the Madras
High Court in R. Muniswami Goundar and held that
the doctrine id certum est quod certum reddi potest
is clearly applicable. It also distinguished Kruttiventi
Mallikharjuna Rao and Kashi Prasad as cases that
arose out of their peculiar facts.
28. In Tarlok Singh v. Vijay Kumar Sabharwal the
parties by agreement determined the date for
performance of the contract, which was extended by
a subsequent agreement stipulating that the
appellants shall be required to execute a sale deed
within 15 days from the date of the order vacating
the injunction granted in a suit. The suit was
initially dismissed and, thereafter, a review
application was also dismissed as withdrawn on 22-
3-1986. On 23-12-1987 a suit was filed for
perpetual injunction. In that suit, an application
came to be made under Order 6 Rule 17 CPC for
converting it into a suit for specific performance of
an agreement dated 18-8-1984. This amendment
was allowed on 25-8-1989. It was held that since
the amendment was ordered on 25-8-1989, the
crucial date for examining whether the suit was
barred by limitation was 25-8-1989. Since the
injunction was vacated when the original suit was
initially dismissed and the review application came
to be dismissed on 22-3-1986, it was held that it
was a situation covered by the first part of Article 54
and, in any event, on 25-8-1989 the suit was barred
by limitation."
6. This court took the view that judgments of different High
Courts have taken different views and were at variance with
the decision of the Privy Council. However, in view of the
decisions in Ramzan v. Hussaini (1990(1) SCC 104) and in
Tarlok Singh v. Vijay Kumar Sabharwal (1996(8) SCC 367)
there was no necessity to go into the larger issue as the
plaintiffs were entitled to succeed in that case in altogether on
different grounds.
7. It appears from the judgment in S.Brahmanand's case
(supra) this court felt that there was a need for clarifying legal
position. But declined to refer the matter to a larger Bench
because of the different factual scenario and the fact that the
decisions were holding field for long time and there were
decisions of the co-ordinate Bench of two Hon'ble Judges
taking a particular view.
8. In view of the importance of the issues involved, we feel it
would be proper if this case is heard by a Bench of three
Hon'ble Judges. We, therefore, refer the matter to a larger
Bench. The records be placed before the Hon'ble Chief Justice
of India for necessary directions.
