Smt. Dundamma Vs Sri. S. Shivanna

SRI. K. ANANDA S/O LATE KARIYAPPA, AGED ABOUT 44 YEARS, ALL ARE R/AT NO.20, OPPOSITE ANGANAWADI SCHOOL, THERUBEEDHI VILLAGE, MARALAWADI HOBLI, HAROHALLI TALUK, RAMANAGARA DISTRICT-562112

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…APPELLANTS

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(BY SRI. PAWAN SHYAM A., ADVOCATE)

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AND:

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SRI. S. SHIVANNA S/O LATE SHIVANAPPA,

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AGED ABOUT 66 YEARS, R/AT HOUSE NO. A SECTOR, YELAHANKA UPANAGARA, YELAHANKA, BENGALURU - 560064.

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…RESPONDENT

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(BY SRI. M.B. CHANDRACHOODA, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.11.2023 PASSED ON IA NO.IX IN O.S NO.201/2015 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA, ALLOWING THE I.A NO.IX FILED UNDER ORDER VII RULE 11(a) to 11(e) R/W SEC.151 OF CPC., FOR REJECTION OF PLAINT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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ORAL JUDGMENT

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The plaintiffs in O.S No.201/2015 on the file of the Senior Civil Judge and J.M.F.C., Kanakapura, have filed this appeal challenging the order dated 03.11.2023 by which an application (I.A. No.IX) filed by the defendant under Order VII Rule 11(a) to (e) read with Section 151 of the Code of Civil Procedure, 1908 was allowed and the plaint was rejected as it did not disclose any cause of action and was barred by the law of limitation.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellants herein were the plaintiffs / the legal representatives of the deceased plaintiff while the respondent was the defendant before the Trial Court.

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The suit in O.S No.201/2015 was filed for specific performance of an agreement of sale dated 09.12.2010. The plaintiff (since deceased and represented by his legal representatives) claimed that the defendant was having properties bearing: Sy. No.3 measuring 36 guntas; Sy. No. 120/1 measuring 29 guntas; Sy. No.121 measuring 01 Acre 27 guntas and a site in Sy. No. 121 measuring 30 feet x 40 feet, all situate at Therubeedhi, Maralawadi Hobli, Kanakapura Taluk. He claimed that the above properties were the self acquisition of the defendant, he having acquired it in terms of a Will dated 03.02.1994 and Khata and other revenue entries were made out in the name of the defendant and that he was in possession and enjoyment of the same. He claimed that in order to discharge loans and for family and legal necessities, the defendant offered to sell the suit schedule properties to the plaintiff and accordingly, after mutual discussions, the sale

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consideration was fixed at Rs.12,55,000/-. The defendant executed a sale agreement dated 09.12.2010 in favour of the plaintiff agreeing to sell the suit properties for a valuable sale consideration of Rs.12,55,000/- and further agreed to collect and hand over the required revenue documents in respect of the suit properties and execute a sale deed in favour of the plaintiff as and when the plaintiff demanded for the same. The plaintiff claimed that he paid a sum of Rs.6,00,000/- to the defendant, of which Rs.5,65,000/- was paid by cash and a sum of Rs.35,000/- was paid through a cheque. He claimed that despite several requests and demands, the defendant did not turn up to hand over the required documents and execute a sale deed in respect of the suit properties as per the terms of the agreement. He contended that he was always ready and willing to perform his part of the contract by paying the balance sale consideration of Rs.6,55,000/-. But the defendant showed no interest to receive the balance sale consideration and execute a sale deed in favour of the plaintiff. However, the defendant went back on his words and did not perform his part of the contract. He contended that the defendant went on postponing and evading him and did not conclude the

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transaction and hence, he failed to perform his part of the contract. The plaintiff claimed that he caused a notice calling upon the defendant to execute and conclude the sale transaction. However, the defendant did not turn up and conclude the transaction and therefore, he was advised to file a suit for specific performance.

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The suit was contested by the defendant, who denied the assertions made in the plaint. Though he admitted the execution of the sale agreement, he contended that in the year 2010, due to urgent family necessity, he had decided to sell the suit properties and the plaintiff approached him and agreed to purchase the suit properties. Consequently, the consideration was fixed at a sum of Rs.12,55,000/- out of which the plaintiff had paid only a sum of Rs.6,00,000/- but had failed to pay a sum of Rs.6,55,000/- within three months from the date of the agreement. The defendant claimed that as per the terms of the agreement, in case the plaintiff failed to pay the balance sale consideration within the time agreed, he was entitled to forfeit the advance consideration. He contends that due to family necessity, he was forced to sell the suit

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properties and even after approaching the plaintiff several times, he showed no inclination to conclude the sale transaction. With these and other contentions, he contended that the plaintiff is not entitled to the relief of specific performance of the agreement dated 09.12.2010.

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The defendant was placed ex parte in terms of an order of the Trial Court dated 21.09.2017 . During the pendency of the suit, the plaintiff died and his legal representatives were brought on record in terms of the order of the Trial Court dated 07.04.2021.

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In the meantime, the plaintiff was examined as PW.1. He examined a witness as PW.2. He also examined as PWs.3 and 4 and marked Exhibits P1 to P15. On an application filed by the defendant under Order IX Rule 7 read with Section 151 of the CPC, the said ex parte order was set aside by the Trial Court on 25.10.2022.

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The defendant after filing the written statement, filed an application (I.A. No.IX) under Order VII Rule 11(a) to 11(e) read with Section 151 of the CPC to reject the plaint as it did

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not disclose any subsisting cause of action and also on the ground that the suit was barred by the law of limitation. In the affidavit filed along with the application, the defendant contended what was asserted by him in the written statement. He also claimed that under Article 54 of the Limitation Act, 1963, when time is fixed for completion of a sale transaction, then the cause of action would begin from the time fixed for completion of the contract expires. He contended that the agreement of sale was executed on 09.12.2010 and three months' time was fixed for conclusion of the transaction and therefore, the plaintiff ought to have filed the suit by or before 09.12.2013. However, the suit was filed on 22.07.2015 and hence, the suit was barred by the law of limitation. He, therefore, contended that the plaintiff did not have a subsisting cause of action to file a suit for specific performance.

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The application was opposed by one of the legal representatives of the deceased plaintiff i.e. plaintiff (e), who contended that it was the defendant who was postponing and evading the conclusion of the sale transaction and he did not come forward and hand over the revenue documents so as to

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enable the original plaintiff to conclude the sale transaction. He also contended that the defendant did not turn up even after a legal notice was issued to him.

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The Trial Court after considering the contentions urged by the learned counsel for the defendant and the learned counsel for the plaintiff, allowed the application (I.A.No.IX) in terms of the impugned order and held that the suit ought to have been filed within three years from the last date prescribed for performance of the sale transaction. It held that under the agreement of sale, three months' time was stipulated for completion of the contract, which expired on 09.03.2011 and the suit ought to have been filed on or before 09.03.2014. However, the suit was filed on 22.07.2015 (stated as 21.07.2015 in the order dated 03.11.2023 passed by the Trial Court). Therefore, it applied Article 54 of the Limitation Act, 1963 and held that the suit was barred by the law of limitation and consequently, held that there was no subsisting cause of action for the plaintiff to sue for specific performance of the agreement of sale dated 09.12.2010 and consequently, rejected the application.

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Being aggrieved by the same, the plaintiffs are before this Court.

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Learned counsel for the plaintiffs contended that though the defendant had succeeded to the suit property in terms of a Will executed by his father, the revenue documents as on the date of the said agreement did not stand in the name of the defendant. He, therefore, contends that even if the plaintiff had filed a suit for specific performance within three years from the date of the agreement or within three years from the last date prescribed under the agreement, he could not have obtained a decree of specific performance as the revenue documents were not in the name of the defendant. He also contends that it was the defendant, who was postponing and protracting the conclusion of the transaction and therefore, the question whether the plaintiffs were at fault or the defendant was at fault, is a question of trial and the Trial Court was not justified in exercising jurisdiction under Order VII Rule 11 of the CPC to reject the plaint. He also contends that the suit is filed within three years from the date of refusal of the defendant to perform his part of the contract.

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Per contra, the learned counsel for the defendant submitted that the agreement contains the terms of understanding between the plaintiff and the defendant. He contends that when the defendant had specifically agreed to sell the suit property at a particular price and it was specifically agreed that the transaction would be concluded within three months, the plaintiff was bound to honour the said term and must have concluded the contract within three months. He submits that the plaintiff did not do so but waited till the year 2015 and then filed the suit for specific performance, which is beyond the law of limitation prescribed under Article 54 of the Limitation Act, 1963, which is three years from the last date fixed for performance of contract. Hence, he submits that the Trial Court was justified in holding that the suit was belated and there was no subsisting cause of action.

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I have considered the submissions of the learned counsel for the plaintiff Nos.1(a) to 1(e) as well as the learned counsel for the defendant.

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It is not in dispute that the defendant had executed an agreement of sale dated 09.12.2010 agreeing to sell the suit

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property to the plaintiff for a sale consideration of Rs.12,55,000/-. He has also not disputed that he has received a sum of Rs.6,00,000/- as part of the agreed sale consideration and the balance Rs.6,55,000/- was to be paid within three months from the date of the agreement. There is no mention in the plaint as to whether any steps were taken by the plaintiff to conclude the transaction within three months from the date of the agreement. There is nothing to show that the parties had expressly or impliedly agreed to enlarge time for performance of the contract. Be that as it may, once time was prescribed for completion of the transaction, the limitation for seeking specific performance would commence from the last date so fixed. In the instant case, the sale agreement was drawn on 09.12.2010 and time fixed for completion of transaction was within three months and therefore, the plaintiff ought to have filed the suit for specific performance on or before 09.03.2013. As the suit is filed in the year 2015, the same was definitely barred by law of limitation. The Trial Court has considered the same in a right perspective and has held that the plaintiff is not entitled to pursue the suit and that the cause of action mentioned in the suit did not subsist and had

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