Hajarilal vs Phoolchand

Nevaskar, J.—This second appeal arises out of a suit for specific performance.

Defendant Phoolchand for himself and his minor son Tilokchand agreed to sell to Plaintiff Hajarilal his house situated in Mouja Manawar for a consideration of Rs. 500. The contract took place on 7-7-1940. In pursuance of this contract Rs. 25 were paid as earnest. On 30-7-1940, Phoolchand received Rs. 7-4-0 defraying the costs of preparation of deed of sale and a map of the property agreed to be sold. This amount represented half the costs requisite for the purpose On 15-4-1943 Phoolchand refused to perform the contract by executing a sale deed although the Plaintiff was willing to pay the unpaid price.

On these allegations Hajarilal filed this present suit for specific performance.

The Defendant denied the contract and raised several other objections. Two out of them were on the question of limitation and invalidity of the contract on the ground of absence of a contract in writing.

The trial Court framed 5 issues on the basis of the pleadings of the parties. Issue No. 2 is to the following effect:

Is the Plaintiff''s suit barred by time? Issue No. 4 is as follows:

Whether a contract for the sale of the Immovable property for more than Rs. 100 cannot take place orally and whether for that reason Plaintiff''s suit is not legally maintainable?

At an early stage of the case the trial Court decided to try issue No. 2 as a preliminary issue. An opportunity was given to the Plaintiff to adduce this evidence it appears that at that stage no evidence was given by the Plaintiff on that point. On 15-10-1945 the Court gave finding on issue No. 2 holding that the Plaintiff''s claim is within time.

the court thereafter proceeded to try other issues Evidence was recorded.

There Were certain intermediate proceedings to which it is unnecessary to make a reference at this stage.''. On 8-7-1949) the trial Court again considered issue No. 2. It also considered issue No 4 It held contrary to the finding given car lier that the Plaintiff''s claim was barred by time. It further held that there ought to have been a contract in writing and duly registered. There being no such allegations of the existence of a contract of that sort he held that the Plaintiff''s suit was incompetent In view of the findings on the aforesaid points he dismissed the Plaintiff''s suit.

In appeal preferred against that decision the learned District Judge set aside the latter finding on issue No. 4 ana held that Plaintiffs suit is main ariable on the basis of oral contract to sell. it further confirmed the finding of the trial Court on the issue of limitation. He /therefore dismissed the appeal.

It appears that throughout the procccdings of this case there is want of due care in dealing with, the case by the trial Court. There was No. Justification for trying issue No. 2 as a preliminary issue in the first instance. After the evidence was recorded, there was no justification confining Its findings on issues Nos. 2 and 4 and dismiss the suit.

It this case the Plaintiff has come with a case Of oral contract to sell Immovable property. This contract was denied by the Defendant. The existence of the contract and its terms are therefore material points which ought. to have been determined by the Court below. An issue or limitation In a case like this cannot be determined without determining the net terms or the contract. The trial Court specifically abstained from recording evidence on this material point involved in the case and when it had no material as regards the terms of the contract it proceeded to deal with the issue on the question of limitation. This was wholly improper and it is this error Which has resulted ii unnecessarily prolonging the trial and involving tie parties in incalculable hard-ship and delay.

The learned District Judge holds the Plaintiff''s a suit to be barred by time on the ground that one of his witnesses Jamnalal Sunar had stated . that Phoolchand was required to put his signature on the Rokad of the Plaintiff. He had stat-ed; that the registration would take place the next day i.e. on 8-7-1940 therefore it was unnecessary. He, therefore takes 8-7-1940 as the date for starting of limitation against the Plaintiff and the suit having been filed on 14-7-1953 he takes it to be barred by time.

Material Article of the Limitation Act which would be applicable to the circumstances of this case is Article 113 which is in the following terms.

For Specific performance of a contract: Three years the date fixed for the performance, or, if no which date is fixed when the Plaintiff has notice that performance is refused.

It is plain from the wording of this Article that if there is a specific date fixed for the performance of the contract the limitation will start from that date but in the absence of a dodnite date for performing the contract when. the. contract is refused to be performed, the starting point for limitation is the date when the Plaintiff has got notice of refusal of performance by the, Defendant.

The Plaintiff in this case comes out with a case that Phoolchand refused to perform - the contract on 15-4-1943. The Plaintiff in the plaint did not allege that a specific date was fixed for, the performance of the contract. The Defendant has denied the contract. Under these circumstances the appellate Court was not justified in proceeding on the ground that there was definite date'' fixed for the performance of the contract. At any rate it could not have done so without ascertaining the terms of the contract. It was therefore material for the Courts below to find what the terms, of the contract are before it proceeded to deter mine the issue on the question of limitation. This has not been done.

In my opinion the decision of the lower appellate Court for that reason does not deserve to stand. The disposal of the Plaintiff''s, suit on the ground of limitation in that stage of the case at which It was when the matter was Considered by the trial Court was Improper.

The result is that this appeal is allowed The decision of the lower appellate Court is set aside and the suit is sent back to the trial Court

The trial Court need not give a finding on issue No. 4. Both the counsel have stated before me that this issue is unnecessary. The learned Counsel for the Respondent had stated that the contention of the Defendant covered by issue No 4 is untenable.

issue No. enough to be worded in a manner that would cast the burden upon the plain-tiff. The trial Court will modify the issue accordingly.

Issue No. 4 is cancelled.

Issues No. 6 and 8 appear to be the same and only one issue bearing on both these points may be framed.

The rest of the issues may be allowed to remain as they are.

In view of the fact that the case has not been dealt with properly at the trial a fresh opportunity shall be given to both the parties to ad-duce their evidence as directed above and after recording finding on all issues the trial Court will finally decide the case. It need not try any issue as a preliminary issue.

The Appellant will have his costs of this second appeal from the Respondents. Costs in the Court below will abide the final result in the case.