Ajaib Singh vs Gurbakhash Singh and others

S.S. Sodhi, J.—The point in issue here is with regard to limitation for the filing of the present suit for specific performance. The controversy being whether the First and the Second parts of the third column of Article 54 of the Limitation Act, 1963 applies. This Article reads as under:

Description of suit

Period of limitation

Time from which period begins to run

For specific performance of a contract

XX XX

Three years

XX

The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.

XX

The relevant facts here are that on February 23, 1960, Mukand Singh, the predecessor-in-interest of the Defendants executed an agreement in favour of the Plaintiff Ajaib Singh for the sale of 32 kanals of land for Rs. 5,5000/-. As regards the performance, the agreement provided that the sale deed would be executed with in one month of the vacation of the stay of registration of sales in the village.

The material on record shows that a stay order had been passed by the court to restrain sales in some other matter not concerning or operative upon the parties here, but both the parties assumed that such order operated against them too and hence the clause in the agreement that the sale deed would be executed within one month of the vacation of the stay. Be that as it may, the stay order in question admittedly stand vacated by the order of the Supreme Court of February 11, 1970. It appears that there was a proclamation of this order in the village on November 19, 1970, on which date, a report with regard to it was also incorporated by the village Patwari on the roznamcha.

Such being the circumstances, the question arises whether the starting point of limitation for the filing of the present suit is to be taken to be February 11, 1970 when the stay order was vacated by the Supreme Court, or November 19. 1970 when a proclamation was made in the village regarding the vacation of the stay order or as canvassed by the Plaintiff from August 22, 1973 when the Defendants refused to perform the agreement.

Before proceeding further, it may also be mentioned here that it is the concurrent finding of the courts below when the Plaintiff-Ajaib Singh (now deceased and represented by his legal representatives) is in possession of the land in suit and further that a sum of Rs. 5,425/-had been paid under the agreement to vendor- Mukand Singh. Specific performance of the agreement was sought by the Plaintiffs on payment to the Defendants of the balance amount of Rs. 75/-.

Whether the starting point of limitation for a suit for specific performance of contract for sale would be the first or the second part of the third column of Article 54 of the Limitation Act must, of course, depends upon the facts and circumstances of each case. It is, however, well-settled that the words ''date fixed'' in the first part of colum-3 of Article 54 of the Limitation Act do not necessarily means only a Calendar date, but are comprehensive enough to include as ascertainable date with reference to an even certain to happen. This was the view expressed in R. Muniswani Goundar (died) and Another Vs. B.M. Shamanna Gouda and Others, , wherein, dealing with the words ''date fixed'' in the First Part of Column-3 of Article 113 of the Limitation Act 1908 (corresponding to Article 54 of the Limitation Act here), it was observed that they do not mean merely a date of Calendar, but were comprehensive enough also to include the date which could be ascertained with reference to an event certain to happen. Following this view in Hutcheqowde v. H.M. Basavish AIR 1954 Mys 29, where the agreement of sale provided that the sale-deed was to be executed after ''Saguvati Chit'' was given to the Defendant, it was observed that even if time for performance of the contract cannot be ascertained at the time of performance, it would be a case of ''date fixed'' for performance, of the agreement.

Reverting now to the present case, it would be seen that the agreement for sale was quite clear and definite regarding the time for its performance, namely ; within one month of the vacation of the stay that is, it was certainly a date ascertainable with reference to an event certain to happen. This being so. the present case would dearly come under the rule enunciated in R. Muniswami Goundar, and, Hutcheqowda''s cases (supra).

Cited in support to canvass the contrary view was Shrikrishna Keshav Kulkarni and Others Vs. Balaji Ganesh Kulkarni and Others, . The agreement for sale in this case was with regard to two ancestral houses jointly held by two Defendants. The agreement provided that the sale would be executed after attachment which the creditors had obtained in execution would be raised. The date for the raising of such attachment was not clear from any document and it was accordingly treated as a case where no date for performance had been fixed. This case is clearly distinguishable on facts from the present and cannot, therefore, support the plea of the Plaintiffs that the starting point of limitation in the present case should be treated to be August 22, 1973 when performance of the agreement was refused by the Defendants.

The case here thus being one which clearly fell in the first Part of Column-3 of Article 54 of the Limitation Act, 1963, the starting point must be taken to be the date on which the stay order was vacated, that is, February 11, 1970 and this being so, the present suit filed on September 18, 1973 was clearly barred by time.

The judgment and decree of the lower appellate court is consequently hereby up held and affirmed. This appeal is therefore, dismissed. There will, however, be no order as to costs.