Dismissed

MD Usman Khan v. Dhruba Jyoti Guha

Jharkhand HC22 Jul 2019SA/7/2013

Case brief

AI extract

What is this about?

The High Court bench dismissed this appeal under Section 100 CPC. It upheld the rejection of the plaint under Order VII Rule 11 (1) (d) CPC because the suit for specific performance was barred by limitation under Article 54 of the Limitation Act. The court held that the appellate courts correctly refused to exercise discretionary jurisdiction due to the 23-year lapse.

What did the court decide?

The appeal was dismissed with no substantial question of law found.

MD Usman Khan Vs Dhruba Jyoti Guha — Specific Performance | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 7 of 2013

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Md. Usman Khan..…................ Appellant

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Versus

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Dhruba Jyoti Guha ………… Respondent

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Coram: Hon’ble Mr. Justice Ananda Sen

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For the Appellant : Mr. Kundan Kumar Ambastha, Advocate For the Respondent : ----

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7/22.07.2019 This appeal, under Section 100 of the Code of Civil Procedure, is directed against the order/judgment dated 09.10.2012, passed in Title Appeal No. 87 of 2012, by the Principal District Judge, Dhanbad, whereby the First Appellate Court has dismissed the appeal affirming the judgment and decree dated 01.08.2012 (decree signed on 06.08.2012), passed in Title Suit No. 41 of 2012, by the Civil Judge, Sr. Division-II. Dhanbad.

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2 . This judgment under appeal is the judgment of confirmation.

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3 . The plaintiff is the appellant before this Court. Title Suit No. 41 of 2012, was filed by the plaintiff against the defendant-respondent under the Specific Relief Act, praying for a decree against the defendant, directing the defendant to execute and register a proper sale deed of the land and house mentioned in the schedule. It is prayed that on failure the same be executed through the process of Court.

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4 . The trial Court, on the admitted facts as mentioned in the plaint, rejected the plaint under Order VII Rule 11 (1) (d) of the Code of Civil Procedure and the decree was prepared accordingly.

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5 . Challenging the said judgment and decree, the appellant preferred an appeal, which was also dismissed by the first Appellate Court upholding the judgment of the trial Court.

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6 . Challenging the aforesaid two judgments, this appeal has been preferred by the plaintiff-appellant.

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7 . Admittedly, the agreement for sale, between the parties, is dated 26.10.1989, which was not registered. Admittedly, the sale deed was not executed. It is also admitted that after 23 years of the said deed, the plaintiff only on 29.02.2012 sent a notice through his lawyer to execute and register the sale deed. These dates are admitted in the plaint itself. The trial court, after considering the judgments passed by the Hon’ble Supreme Court in the case of “ Chand Rani –versus- Kamala Rani, reported in (1993) 1 SCC 519 ”, in the case of “ K.S.Vidyanadam- versus- Vairavan reported in (1997) 3 SCC 1 ” as well as in the case of “ M. Meenakshi & Others- versus- Metadin Agarwal (Dead) By Lrs. & Others, reported in (2006) 7 SCC 470 ”, and also on the facts

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pleaded in the plaint, rejected the plaint under Order VII Rule 11 (1) (d) of the Code of Civil Procedure.

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8 . The First Appellate Court concurred with the findings of the trial court and dismissed the appeal.

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9 . After going through the judgments of both the Courts below and the arguments advanced to the effect that the trial court should have admitted the Suit and allowed the parties to led evidence, I find that no error has been committed by both the Courts below.

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10 . Order VII Rule 11 of the Code of Civil Procedure deals with the rejection of plaint and provides for the nature of cases where the plaint can be rejected. Rule 11 (1) (d) provides that where the suit appears from the statement in the plaint to be barred by any law, plaint can be rejected. From the judgment, I find that it is an admitted case that the agreement is dated 26.10.1989 and after a lapse of 23 years, notice was issued on 29.02.2012 and the suit was filed in the year 2012. Article 54 of the Limitation Act provides the limitation period of three years for filing a suit for specific performance. Even if, the time is not the essence of contract then also a reasonable period has to be calculated and one cannot be allowed to sleep for eternity and wake up on a fine morning to file a case for specific performance of contract.

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11 . The trial court has rightly relied upon the judgment of the Hon’ble Supreme Court passed in the case of “ M. Meenakshi & Others- versus- Metadin Agarwal (Dead) By Lrs. & Others” ( supra ). Para-39 of the said judgment is relevant, which is quoted herein below:-

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“39 . Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, the contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise their jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the plaintiffrespondents are ready and willing to perform their part of contract and even assuming that the defendant was not entirely vigilant in protecting his rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction

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should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the authority concerned, as was the case in Chandnee Widya Vati Madden v. Dr. C.L. Katial and Nirmala Anand v. Advent Corpn. (P) Ltd., the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for an expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted . ”

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12 . Admittedly, since the suit is barred by limitation, I do not find any illegality in the judgment, passed by both the Courts below. There being no substantial question of law in this appeal, the same is hereby dismissed.

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( Ananda Sen, J )

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Mukund/-cp. 2

MD Usman Khan v. Dhruba Jyoti Guha

Case brief

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MD Usman Khan v. Dhruba Jyoti Guha

Case brief

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