Pravin Singh @ Pravin Kumar vs Madan Mohan Singh S/o Late Siya Singh

This civil revision petition has been preferred for

setting aside the order dated 18.07.2014 passed by learned Sub

Judge-6th Patna in connection with Title Suit No 249 of 2013 by

which and whereunder learned Sub Judge-6th Patna rejected the

petition filed by defendants-petitioners under Order 7 Rule 11 (d)

of C.P.C.

The brief fact, which lies to file this civil revision

petition, is that the plaintiff-opposite party filed Title Suit No 249

of 2013 against the defendants-petitioners seeking relief for a

decree for specific performance of contract of sale on the basis of

an agreement of sale dated 04.04.1974 said to be executed by Late

Naravadeshwar Singh in favour of plaintiff-opposite party for

consideration amount of Rs. 14000/- in respect of suit property and

alternative relief was also sought for decree of Rs. 35,000/- as

damage and cost of Rs. 12,000/- and also for issuance of temporary

injunction against them.

The case of plaintiff-opposite party was that one Late

Naravadeshwar Singh, the ancestor of defendants-petitioners

executed a deed of agreement of sale dated 04.04.1974 in favour of

plaintiff-opposite party in respect of suit property on receipt of Rs.

12,000/- by way of advance and delivered possession of the suit

property to the plaintiff-opposite party in part performance of the

contract. The total consideration amount was Rs. 14,000/-. The

aforesaid Naravadeshwar Singh was in urgent need of money to

construct his house as well as to meet the necessity for treatment of

his younger son, who was suffering from Polio but whenever the

plaintiff-opposite party requested the aforesaid Naravadeshwar

Singh to execute and register the sale deed, he evaded the request

of plaintiff-opposite party on the pretext of treatment of his son.

The plaintiff-opposite party was always ready and willing to

perform his part of the contract but absolute sale deed could not be

executed because of avoiding attitude of Late Naravadeshwar

Singh. The plaintiff-opposite party sent legal notice to defendants-

petitioners requesting them to execute the absolute sale deed but

they did not take any interest and thereafter, the plaintiff-opposite

party filed the present suit. The cause of action finally arose when

on 10.04.2013, the defendants-petitioners finally refused to execute

the absolute sale deed.

The defendants-petitioners appeared in the above

stated suit and filed a petition under Order 7 Rule 11 (d) of the

C.P.C. praying therein to reject the plaint under the above stated

provision as the suit filed by the plaintiff-opposite party was barred

by law of limitation. The learned court below, having considered

the submission of the parties as well as pleadings of the plaint,

rejected the aforesaid petition passing impugned order which is

under challenge before this Court.

Learned counsel appearing for the defendants-

petitioners challenged the impugned order arguing that according

to case of the plaintiff-opposite party, the so-called agreement of

sale was executed on 04.04.1974 but the Title Suit No 249 of 2013

was filed after 39 years of execution of the aforesaid so-called

agreement of sale i.e. too after death of Naravadeshwar Singh and,

therefore, the aforesaid suit was hit by Section 54 of the Limitation

Act, 1963 which says that if the time is fixed for performance of

agreement of sale, the suit is required to be filed within three years.

He submitted that in the present case, there was specific provision

in so-called agreement of sale that the plaintiff-opposite party shall

absolute sale deed get executed within three months or after

treatment of his son and, therefore, there was fix time for execution

of absolute sale deed and there was also a term of the agreement

that if the plaintiff-opposite party fails to get the absolute sale deed

executed within the above stated fixed period, the consideration

amount paid in advance shall be forfeited. He further submitted that

there was fix time for execution of absolute sale deed but

admittedly, the plaintiff-opposite party failed to get the sale deed

executed within the period of three months from the date of

execution of agreement of sale and the aforesaid fact is apparent

from the pleadings of the plaint. He further submitted that

plaintiff-opposite party filed Title Suit No 249 of 2013 with wrong

pleadings and the pleading of the plaint is not corroborated by the

agreement of sale because in agreement of sale, it has, specifically,

been mentioned that after treatment of son of plaintiff-opposite

party, the plaintiff-opposite party shall get the absolute sale deed

executed whereas in plaint, it has been mentioned that son of

defendants-petitioners was suffering from Polio and moreover, in

the entire plaint, there is nothing to show as to when the treatment

of son of plaintiff-opposite party was completed and, therefore, on

account of the aforesaid ambiguity, the plaint filed on behalf of the

plaintiff-opposite party is liable to be rejected.

Learned counsel appearing for the defendants-

petitioners relied upon the decision of Ahmadsahab Abdul Mulla

v. Bibijan and others reported in (2009) 5 SCC 462, the decision

of Church of Christ Charitable Trust and Educational

Charitable Society Represented by its Chairman v.

Ponniamman Educational Trust Represented by its

Chairperson/ Managing Trustee reported in (2012) 8 SCC 706

and decision of Fatehji and Company & Anr. vs. L.M. Nagpal

& Ors . reported in 2015(3) PLJR (SC) 207.

On the other hand, learned counsel appearing for the

plaintiff-opposite party refuted the above stated submissions

arguing that plaint under Order 7 Rule 11 can only be rejected on

the basis of averments made in the plaint and neither the averments

made in the written statement nor in petition filed under Order 7

Rule 11 of the C.P.C. could be considered for rejection of the

plaint. He further submitted that terms of agreement of sale dated

04.04.1974 goes to show that no fix period was given in the

aforesaid deed for execution of absolute sale deed because

according to term of aforesaid deed, the absolute sale deed ought to

have been executed within three months from the date of execution

of aforesaid agreement of sale or after treatment of son of executant

of the aforesaid agreement of sale and, therefore, it is obvious that

second part of term of aforesaid agreement of sale did not fix any

time for execution of absolute sale deed and, therefore, it cannot be

said that sale deed was to be executed within a fix period of time.

He further submitted that moreover, above stated controversy could

only be decided after taking evidence in the suit and the plaint of

the plaintiff-opposite party cannot be rejected at its threshold.

In support of his contention, learned counsel

appearing for plaintiff-opposite party relied upon the decision of

Anwari Bibi vs. Khairatan Bibi & Anr reported in 2017(1) PLJR

223.

Having heard the contentions of both the parties, I

went through the record. Admittedly, the basis of suit of plaintiff-

opposite party is the agreement of sale dated 04.04.1974 and the

aforesaid agreement of sale contains condition that absolute sale

deed shall be executed within three months from the date of

execution of agreement of sale or after treatment of son of plaintiff-

opposite party. Therefore, the first part of aforesaid condition

speaks about fix time for execution of absolute sale deed whereas

second part of term of agreement of sale does not speak a fix time

rather it says that after completion of treatment of son of plaintiff-

opposite party, the sale deed shall be executed. However, in plaint,

it has been mentioned that son of defendants-petitioners was

suffering from Polio. Moreover, at this stage, it is worthless to

discuss the aforesaid facts because in the present matter, the only

question is involved as to whether the suit filed by the plaintiff-

opposite party was time barred or not. Admittedly, the agreement

of sale was executed on 04.04.1974 whereas the present Title Suit

No 249 of 2013 was filed on 15.04.2013 i.e. after 39 years of

execution of aforesaid agreement of sale.

Article 54 of Schedule of Limitation Act, 1963 says

about the limitation of filing of a suit for specific performance of a

contract and according to aforesaid Article 54 of aforesaid Act, the

period of limitation for filing the suit for specific performance of a

contract is three years from the date fixed for the performance of

the contract and if no such date is fixed for the purpose of a

contract, then in that circumstance, when the plaintiff has noticed

that performance is refused.

It is obvious from perusal of the aforesaid provision

that Article 54 of Limitation Act, 1963 can be divided in two parts.

The first part of the aforesaid provision relates to the suit in which

date is fixed for the performance of a contract whereas the second

part deals with the suit in which no date is fixed for performance of

the contract and according to second part of aforesaid provision,

the suit for specific performance of a contract can be filed within

three years from the date when the performance is refused.

Now, it has to be seen as to which part of the

aforesaid provision is applicable in the present case. In agreement

of sale dated 04.04.1974, two riders are given for execution of

absolute sale deed. The first part of the condition says that the sale

deed shall be executed within three moths from the date of

execution of agreement of sale whereas second part of the term of

agreement of sale says that the sale deed shall be executed after

completion of treatment of son of plaintiff-opposite party.

Therefore, the second part of the aforesaid term does not tell any

fix date and the execution of absolute sale deed depends upon

completion of treatment of son of plaintiff-opposite party. No

doubt, in the plaint, the plaintiff-opposite party claims that son of

the executant, Naravadeshwar Singh was suffering from Polio but

in my view, if there is any controversy in respect of the facts, then

that controversy can only be decided after full fledged trial.

Moreover, the agreement of sale dated 04.04.1974 also says that

executant executed the aforesaid agreement of sale for treatment of

his son as well as other necessities. Therefore, in the aforesaid

circumstance, in my view, the learned court below rightly rejected

the petition filed under Order 7 Rule 11(d) of the C.P.C. and there

is no need for this court to interfere into the impugned order.

Accordingly, this civil revision petition stands

dismissed on admission stage itself. However, the finding/

observation given in this order shall not affect the right of the

petitioners to challenge the maintainability of Title Suit No. 249 of

2013 on the ground of limitation at appropriate stage.