Hon'ble Yashwant Varma,J.
Heard Sri Rajiv Sharma, learned counsel for the appellants and Sri Sanjay Kumar Pundir, learned counsel for the respondents.
This appeal under Section 96 of the Code of Civil Procedure has been filed by the plaintiff Sushant Kumar and another against the judgment and and order dated 11th February, 2016 passed by the Additional District Judge, Court No.11, Saharanpur in Original Suit No. 346 of 2013 (Sushant Kumar & others vs. Rajeshwar & others).
The facts in short leading to the present appeal are as follows:
An agreement to sell was executed by defendant nos. 1 to 3, namely, Rajeshwar, Umesh alias Chhota and Smt. Rammurti Devi in favour of Sushant Kumar and Rampal on 27th January, 2006. Under the agreement to sell, it was agreed that the defendants would sell their property in favour of the plaintiffs for a sum of Rs. 9,00,000/-. The plaintiffs paid a sum of Rs. 50,000/- and it was agreed that the balance amount of Rs. 8,50,000/- shall be paid at the time of registry of the sale-deed. The time limit fixed under the agreement to sell for execution of the sale-deed was one year. Since the defendants refused to execute the sale-deed, the plaintiffs instituted Original Suit No. 346 of 2013 with the following prayer:
**v- }kjk fMdzh rdehy eqgk;nk cS; cgd oknhx.k f[kykQ] izfroknh x.k la[;k 1 rk 3 izfroknhx.kl 1 rk [email protected] dks funsZ"k fn;k tkos fd os U;k;ky; }kjk fu;r vof/k ds vUrxZr lEifRr fuEufyf[kr dk cSukek oknhx.k ds gd esa rgjhj o rdehy dj djkdj iathd`r djkos vkSj cfd;k tjs leu cSukesa ds iathdj.k ds le; olwy dj ys vkSj lEifRr fuEufyf[kr ij dCtk okdbZ oknhx.kl dk djk ns olwjr jgus dkflj izfroknhx.k] izfroknhx.k dh vksj ls ekuuh; U;k;ky; }kjk Loa; oknhx.kl ds gd esa lEifRr fuEufyf[kr rgjhj o rdehy dj djkdj iathd`r djk;k tkos vksj ml lwjr es cfd;k tjs leu ekuh; U;k;ky; esa oknhx.k ls tek djk fn;k tkos vkSj dCtk okdbZ lEifRr fuEufyf[kr ij oknhx.k dk ctfj;s vehu vnkyr djk;k tkosA c- [kpkZ okn oknhx.kl dks izfroknhx.k ls fnyk;k tk;sA l- vU; vuqrks"k tks jk; vnkyr esa mfpr cgd oknhx.k fo:) izfroknhx.k gks iznku dh tkosA ** The defendants of the suit filed their objections and amongst others, submitted that the suit was barred by limitation and therefore, the plaint may be rejected in view of Order VII Rule 11 of the Code of Civil Procedure.
The trial court framed a specific issue for the said purpose being issue no. 4. The trial court vide judgment and order impugned dated 11th February, 2016, has decided the issue against the plaintiffs and rejected the plaint, as it has been found that the suit was barred by limitation. It is against this judgment and order that the present appeal has been filed.
Learned counsel for the appellants challenging the order passed by the trial court submitted that the plaint allegations are to be read as a whole and the period of limitation has to be determined with reference to the various paragraphs of the plaint and not one para alone is to be read in isolation. In support whereof, reliance has been placed upon the judgment of the Apex Court in the case of Ram Prakash Gupta vs. Rajiv Kumar Gupta reported in 2007 (10) SCC 59. Reference is also made to another judgment of the Apex Court in the case of Mohan Lal vs. Mohan Lal & Others passed in Civil Appeal Nos. 788-789 of 2016 decided on 29th January, 2016 reported in 2016 (2) Scale 571 for the same proposition. He has also placed reliance upon the judgment of the Apex Court in the case of Popat & Kotecha Property vs. State Bank of India Staff Association reported in 2005 (7) SCC 510. Learned counsel for the appellant has also placed reliance upon the Full Bench judgment of this Court in the case of Sunni Central Waqf Board vs. Gopal Ingh Vishrad reported in 1991 AIR (All) 89.
We have considered the submissions made by the learned counsel for the appellant and have examined the records of the present first appeal.
The trial court under the judgment impugned has specifically recorded that under the agreement to sell the period prescribed for execution of the sale deed is one year, which would expire on 26th January, 2007. The suit for specific performance of the agreement to sell was instituted on 1st May, 2013. The trial court having regard to the law laid down by the Apex Court in the case of Fatehji & Company vs. M.L. Nagpal reported in 2015 (111) A.L.R. 515 SC, has specifically held that the period of limitation for filing a suit for specific performance of contract is three years and this period would start running from the last date fixed for performance under the agreement.
The trial court has found that if the period of limitation i.e. 3 years is counted from the last date for execution of the sale deed , as mentioned in the agreement to sell i.e. 26th January, 2007, the period would expire in the year 2010. It has further been held that if the period of limitation is counted from the notice, the notice was issued by the plaintiff to appear before the Sub-Registrar, which was not responded to then the period of limitation would expire in the year 2011. It has, therefore, been held that in no circumstance and from a reading of the plaint allegations, it could be said that the suit as filed was within the period of limitation i.e. 3 years from the date fixed for performance under the agreement to sell.
The trial court has accordingly found that the suit, as instituted by the plaintiff, was barred by the provisions of the Limitation Act and more specifically Section 3 thereof, the plaint was liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.
In our opinion, the conclusion so drawn by the trial court is based upon a true and correct reading of the provisions of Order VII Rule 11 of the Code of Civil Procedure and the provisions regulating the period of limitation for filing of a civil suit in the matter of specific performance of a contract. The trial court has rightly come to the conclusion in the facts of the case that if the period of limitation i.e. 3 years is counted from the last date for execution of the sale deed, as mentioned in the agreement to sell i.e. 26th January, 2007, the period would expire in the year 2010 and if counted from the date when the registered notice was sent for appearance before the Registrar for execution of the sale-deed, the period would expire in the year 2011. In both the circumstances i.e. on both the dates, the suit as instituted by the plaintiff in the year 2013 would be hopelessly barred by limitation.
We are more than satisfied in recording that the trial court has rightly come to the conclusion that the period of limitation for specific performance of contract has to be computed from the date fixed for performance.
We see no reason to take any different view.
So far as the judgments relied upon by the learned counsel for the appellants in the cases of (1) Ram Prakash Gupta, (2) Mohan Lal, (3) Popat & Kotecha Property & (4) Sunni Central Waqf Board, are concerned, there can be no two opinions on the law, as explained by the Apex Court and this Court, but in the in facts of the case, we find that from the plaint allegations, the suit as presented by the appellant could not be demonstrated to be within the period of limitation prescribed under the Limitation Act.
For the aforesaid reasons, the present appeal lacks merit and is dismissed.
At this stage, learned counsel for the appellants has submitted that the technicalities of law may not be permitted to defeat the substantial right of getting his right adjudicated by a Court of law. The contention so raised on behalf of the appellants does not appeal to us, inasmuch as Section 3 of the Limitation Act specifically bars entertaining a suit, which is not filed within the period of limitation.