Smt. Kanthamma @ Achamma vs P.R. Venkataramanappa

Hari Nath Tilhari, J.—This appeal has been preferred by the defendant Appellant from the Judgment and Order dated 22nd July, 1993, delivered by (Divakar Rao), Additional Civil Judge and CJM at Kolar, District Kolar, in Regular Appeal No. 75/1993, whereby the learned Lower Appellate Court allowed the Plaintiff''s First Appeal setting aside the Judgment and decree dated 19,1.1993, delivered by the Munsiff, Mulbagal, in O.S.No. 297/1992, dismissing the plaintiff''s suit as barred by limitation, and remanding the case to the Trial Court for decision of the suit on merits according to law.

The brief facts of the case are that the plaintiff filed the suit for specific performance of the Contract dated 13.3.1987, wherein the defendant had agreed to sell the land mentioned in the schedule for a sum of Rs. 7,000/-. According to the plaintiff''s case, the agreement was to transfer a fragment of the holding. That there was bar against execution of sale deed in respect of fragment of the holding and the bar was lifted by the Government in the month of February 1991. Thereafter, the plaintiff - respondent approached the defendants (appellants) requesting the defendant to execute the sale deed and pointing and expressing his own readiness to perform his own part of contract. The plaintiff further pleaded that the plaintiff issue a legal notice on 13.11.1991, requiring the defendants to appear before the Sub-Registrar concerned and to execute the sale deed on 22.11.1991, in terms of the agreement indicating that he would be ready to get the sale deed executed before the Sub-Registrar, with all necessary money to perform his part of contract and called upon the defendants to be present before Sub-Registrar on 22.11.1991, to execute the registered sale deed in plaintiff''s favour. That as per plaintiff''s case, defendants did not appear before the Sub-Registrar on that date and failed to perform their part of the agreement. That after receipt of notice and sometime thereto, K.M. Narayanasetty - husband of defendant No. 1 and K.R. Muniramaiah Shetty died leaving behind defendant - Appellant No. 1 Smt. Kantamma as, sole legal representative of K.M. Narayan Shetty, defendant Nos. 2 to 6 i.e., appellants 2 to 6 as sole legal representatives of late K.R. Muniramaiah Setty. The plaintiff -respondent''s case has been that the plaintiff has been always ready and willing to perform his part of the contract and to get the sale deed registered but as, defendant failed to appear before Registrar on 22.11.91 and thereafter so, need for suit did arise and cause of action for the suit is alleged to have accrued sometime in February 1991, when the State Government relaxed the prohibition of registration of the sale deeds for the fragment of holding as well thereafter.

The Trial Court of its own suo moto, acting u/s 3 of the Limitation Act, held that the suit is barred by limitation as according to it, the limitation of 3 years as prescribed under Article 54 of the Limitation Act, did start from the date of agreement itself that is, from 13.3.1987 and the suit which was filed on the 1st of December, 1992, was held to have been barred by limitation under Article 54 of the Limitation Act, for short, the ''Act''. So, the Trial Court rejected the plaint holding the suit barred by limitation.

Feeling aggrieved from the Judgment and decree of the Trial Court, the plaintiff, who is the present respondent preferred a Regular Appeal No. 75/1993, the learned Civil Judge considered the matter and set aside the order of the trial Court holding the plaintiff''s suit to be within time. Further, the learned Civil Judge held prima facie, that the opinion of the trial Court and its, finding to the effect that suit was barred by limitation was incorrect, and remanded the matter to the trial Court with a direction to register the plaint and proceed with the trial of the case according to law.

Having felt aggrieved from the Judgment and Order of the learned Lower Appellate Court, the defendants have come up in appeal under Order 43 Rule 1(U) of the Code of Civil Procedure, for short, the ''Code'' which has been described herein as Miscellaneous Second Appeal.

I have heard Sri N.Y. Guruprakash, Learned Counsel for the appellants - defendants and Sri N. Raghupathy - Learned Counsel for the plaintiff - respondent.

The Learned Counsel for the defendants - Appellants - Sri Guruprakash, submitted that the appeal before the learned Lower Appellate Court was not maintainable, the proper remedy for the respondent was to file a Civil Revision Petition before the District Judge and the District Judge could have decided it. So, the order of the Lower Appellate Court in that appeal is also without jurisdiction. In my opinion, this contention of Appellant''s Counsel has got no substance. Appeal from decree lies u/s 96 and appeals from order as, specified in Order 43, lay under Order 43 Rule 1(v) of the Code. The order of the trial Court rejecting the plaint could be argued to be not a decree in the ordinary if, definition clause would not have included it. That as per definition of the ''Decree'' given in Sub-section 2 of Section 2 of the Code which includes the order rejecting the plaint it is decree beyond doubt. Section 2(2) reads as under:

"In this Act, unless there is anything repugnant in the subject or context:-

(2) decree means a formal expression of an adjudication which orders regards the Court expressing it conclusively, determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary'' final, it shall be deemed to include rejecting of the plaint and the determination of any question within.......

-------Section 144 but, it shall not include (a) any adjudication from which an appeal lies as an appeal from order.

(b) Any order for dismissal for default."

The explanation added to Section 2(2) is not relevant for our, purpose.

If the legal fiction contained under deeming clause would not have been there in Section 2(2) of the Code, the argument of the learned Counsel for the Appellants could have a ground. But one, there is deeming clause which provides that it shall be deemed to include rejection of the plaint, the legislature declares its intention that though in ordinary parlance, it may be said that order rejecting the plaint may not amount to a decree, but even then, it will be considered and deemed as a legal fiction to amount to a decree. The effect of a deeming clause is that it is a thing to be deemed to exist or a thing deemed to be there. The thing deemed may not be so in the ordinary parlance but, it is to be as, matter of fiction of law, taken to be so as it is deemed to be. In the case of Doypack Systems Pvt. Ltd. Vs. Union of India (UOI) and Ors, , their Lordship of the Hon''ble Supreme Court has laid it down that "A deeming provision is intended to enlarge the meaning of a particular word or to include matters which otherwise may or may not fall within main provision. That by virtue of the deeming clause contained in the Section 2(2) C.P.C., the order rejecting the plaint has to be taken and held to be a decree for the purpose of Section 96 of the Code. That being the position, the first appeal which has been filed from the order of rejection of plaint u/s 96 of the Code has been maintainable and there was no question of any revision being filed. I would not have gone into that question, had the appeal being decided by the District Judge itself. Because, the District Judge is competent to entertain the appeal and revision and if the plaint has been rejected on the ground of bar of limitation no doubt, the order could also be said to amount to a case decided and revision would also have been entertainable even if, appeal would not have been maintainable and it could have been held that District Judge deciding the appeal may be deemed to have acted u/s 115 of the Code and the technical plea raised would have been rejected even then. But here, the appeal has been decided by the Civil Judge and unless it is held and found that the appeal did lay, it could be said that the Civil Judge could not decide the appeal. Once I have found that the appeal was maintainable as the order of rejection of plaint amounted to a decree, the order passed by the Additional Civil Judge cannot be held to be without jurisdiction. The order passed by Civil Judge in appeal is and has been perfectly within jurisdiction and did not suffer from jurisdictional error. Hence, the first contention of the learned Counsel for the Appellants is without substance and is hereby rejected.

The second and the last contention that has been raised by the learned Counsel for the appellants is that there has been no date or time fixed for specific performance of the contract and therefore, in such a case, the limitation did start from the date of agreement, because when the agreement had been executed, it become enforceable from that very date of its execution and if the defendants did not act in accordance with the agreement, the cause of action is to be deemed to have accrued from that date. In my opinion, this contention of the learned Counsel is based on misconception of law of limitation in view of what is contained in the schedule to Article 54 of the Limitation Act, as mentioned above. Article 54 of the Act provides that so far as a suit for specific performance of the contract is concerned, the period of limitation is 3 years. The date or time from which the period of 3 years is to be counted i.e., from which it is to begins to run has been specified in the 3rd column of the Schedule. The date fixed for performance, or if no such date is fixed, then when the plaintiff has noticed that performance is refused, that may be divided into two, wherein agreement to sell or the like, the specified date or period is prescribed for the performance of the contract i.e., within such and such period and such and such date, the contract should be performed, then limitation will no doubt, start from the date which is fixed for the performance of the contract when the performance is not done or performed, in cases where no specific dates are fixed for the performance of the contract, then the Limitation Act will start running from the time and date when the plaintiff had or has notice of the refusal of performance of the agreement. In the present case, the learned Counsel for the appellants very fairly submitted which also appears from the plaint allegations, that no specific period or time or date of performance of the contract was fixed under agreement dated 13.3.1987. When no date has been fixed for the performance of the contract to execute the sale deed, then in that case, the latter part of entry in Column-3 of the Schedule with reference to Article 54 will apply, that is when the plaintiff has noticed that the performance is refused. Limitation for filing the suit has to be determined with reference to the allegations made in the plaint and cause of action has to be ascertained from the allegations made in the plaint. In the plaint, it has further been stated that there was a bar against execution with reference to the registration of the sale deeds relating to a fragment holding. That the plaintiff on the removal of that bar by the Government in February, 1991, called upon the defendants to perform their part of contract, that is to execute a sale deed in pursuance of notice dated 13.11.1991. Thereafter, the defendants inspite of notice did not turn up to execute the sale deed which definitely gave a cause of action for the plaintiff to file the suit and that action of the defendants in not turning up to execute the sale deed in pursuance of that notice or failure of their predecessors in not turning up to execute the sale deed could be said to be the date from and on which the limitation started running, as that was the date of knowledge of defendants'' act of refusal. That has been alleged to be sometimes either in November, 1991 or may be in February 1992, but the suit has been filed on the 1st December, 1992.

In this view of the matter in my opinion, the lower Appellate Court acted rightly in holding that suit as filed on 1.12.1992, was within 3 years from 13.11.91 or 22.11.91 as well as from February 91 i.e., it was within time or limitation and when the pliant had been rejected only on the ground of limitation, the learned Lower Appellate Court has been justified in setting aside the order bf the Trial Court, remanding the suit to the Trial Court and directing the Munsiff to register the suit to its original number and to proceed with the trial and decide the same according to law. Thus considered in my opinion, there is no substance in the second contention of the learned Counsel for the Appellants as well as the order of the learned Lower Appellate Court does not suffer from any error of law or jurisdiction.

Hence, this appeal is without force and as such, hereby dismissed with costs.