Sohan Lal vs Shanti Devi

G.R. Majithia, J.

The heirs of the unsuccessful plaintiff have come up in second appeal against the judgment and decree of the first Appellate Court affirming on appeal those of the trial Judge whereby the suit filed by their predecessorininterest for specific performance of the agreement to sell dated December 30, 1960 was dismissed.

The FACTS : The predecessorininterest of the respondents, namely, Kishan Chand and of the plaintiff/appellants, namely, Thakur Dass entered into agreement to sell dated December 30, 1960 with regard to Shop No. NK/186/4 situated in Bazar Charat Singh, Jullundur. The agreement stipulated that Thakur Dass would pay the price of the shop as and when fixed by the Rehabilitation Department and Kishan Chand would execute a formal sale deed in his favour on receiving conveyance deed from the Government. Kishan Chand received Rs. 224/ from Thakur Dass on 31.1.1961. He agreed to execute the sale deed on receipt of a further sum of Rs. 80/ from Thakur Dass and on receipt of the sale certificate from the Government. The sale certificate was issued but Kishan Chand did not execute the sale deed in favour of Thakur Dass and this led to the filing of the suit for specific performance of the agreement to sell against the heirs of Kishan Chand, who died in the year 1963.

The defendants denied the execution of the agreement to sell and the receipt of any money under the agreement. They, however, admitted that the certificate was received by them from the Rehabilitation Department on December 12, 1962.

The trial Judge framed the following issues from the pleadings of the parties

(1) Whether the suit is not maintainable in the present form ? OPD.

(2) Whether the plaintiff has no locus standi to file the suit ? OPD.

(3) Whether the plaintiff is a tenant of the defendant ? OPD.

(4) Whether Shri Kishan Chand deceased entered into agreement to sell the alleged shop to plaintiff ?

(5) What amount, if any remains payable by the plaintiff for the execution of the sale deed ?

(5A) Whether the suit of the Plaintiff is barred by time ? OPD.

(6) Relief.

Issues No. 1 to 5 were found in favour of the plaintiff; issue No. 5A was decided against the plaintiff and the suit was dismissed,

On appeal by the plaintiff, the first Appellate Court affirmed the findings of the trial Judge under issue No. 5A. The first Appellate Court found that the sale deed in favour of Kishan Chand was executed on December 20, 1962 and it must have been received within a few days thereafter. The agreement to sell did not specify the date on which the agreement to sell had to be performed. Even in the plaint, it was not disclosed as to on which date the agreement to sell was to be performed. Article 54 of the schedule to the Limitation Act provides limitation for suits for specific performance of contract and it reads thus :

"54. For specific performance of a contract

Three Years

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

Limitation, under the first part of the third column begins to run from the date fixed for the performance of the contract. The date fixed means

(1) the date fixed expressly by the parties; or

(2) where time under the contract is extended, the new date substituted;

or

(3) the date that can be fixed with reference to a future event which is certain to happen.

In the instant case, no date for the specific performance of the agreement to sell was fixed in the document.. Where there is no date fixed for the performance of the contract, time will run against the plaintiff either from the date of the refusal of a demand by the plaintiff for performance or when the plaintiff has notice that performance is refused. In the instant case, the plaintiff has not specifically pleaded the date when the vendor was called upon to perform the agreement to sell. The first Appellate Court found that in the absence of any specific date within which the agreement has to be performed, it has to be presumed that the agreement has to be performed shortly after the receipt of the sale certificate by the vendor which admittedly was received by him in 1963 and the suit was filed in the year 1971 and was obviously barred by time. This finding of fact is based on evidence and no exception can be taken to it. Even otherwise it will be inequitable to enforce the alleged agreement to sell dated December 30, 1960 in the year 1990 after the expiry of thirty years. It will result in immense hardship to the successorsininterest of the vendor.

For the reasons aforementioned, the appeal is devoid of any merit and is accordingly dismissed.