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
