Second Appeal No.208 of 2013

12th August, 2013

Petitioner Counsel: Mr. FIRDOS MIRZA
Respondent Counsel: Mr. RAJEEV MADKHOLKAR

Cases Cited:
Nathulal Vs. Phoolchand, AIR 1970 SC 546(1) [Para 7]
Panchanan Dhara and others Vs. Monmatha Nath Maity (dead) through LRs. and another, (2006) 5 SCC 340 [Para 7]
Agya Rani Dua Vs. Vidyagauri J. Tripathi and another, 2007(5) ALL MR 787=2007(3) Mh.L.J. 480 [Para 7]
T.L. Muddukrishana and another Vs. Smt. Lalitha Rammchandra Rao, AIR 1997 SC 772 [Para 9,13]
Venkappa Guruppa Hosur Vs. Kasawwa c/o. Rangappa Kulgod, AIR 1997 SC 2630 [Para 9,13]
Shakuntala (Smt) Vs. Narayan Gundoji Chavan and others, (1999) 8 SCC 587 [Para 9,13]
Manjunath Anandappa Urf. Shivappa Hansi Vs. Tammanasa and others, 2003(3) ALL MR 303 (S.C.)=2003 AIR SCW 1830 [Para 9,13]
Pukhraj D. Jain and others Vs. Gopalakrishna, 2004(5) ALL MR 932 (S.C.)=(2004) 7 SCC 251 [Para 9,14]
R.K. Parvatharaj Gupta Vs. K.C. Jayadeva Reddy, 2006(4) ALL MR 110 (S.C.)=(2006) 2 SCC 428 [Para 9,14]
Gunwantbhai Mulchand Shah and others Vs. Anton Elis Farel and others, 2006(3) ALL MR 85 (S.C.)=(2006) 3 SCC 634 [Para 9]
Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. Vs. Bibijan and others, 2009 ALL SCR 1305=(2009) 5 SCC 462 [Para 9,15]
Ram Niwas Gupta Vs. Mumtaz Hasan and others, (2008) 17 SCC 362 [Para 9]
Gurdev Kaur and others Vs. Kaki and others, 2006(5) ALL MR 140 (S.C.)=AIR 2006 SC 1975 [Para 9,15]

JUDGMENT

JUDGMENT :- By the present second appeal, the appellants are challenging the judgment and decree passed by the learned District Judge1, Pandharkawada, dated 11/03/2013.

2. The brief facts giving rise to the present appeal can be summarized as follows:-

The appellants herein filed suit for specific performance of contract of sale with an alternative prayer of refund of the earnest money under the provisions of the Specific Relief Act. The subject matter of the proceedings was the lands having area 3 acres and 23 gunthas from Survey No.14/1 and 11 acres 17 gunthas from Survey No. 14/2 of village Gaurala, Tahsil Moregaon, District Yavatmal. It was the case of the plaintiff that the defendants agreed to sale the suit property to the original plaintiff Champatrao for a total consideration of Rs.67,000/-. On the day of the agreement, plaintiff Champatrao paid Rs.10,000/- towards earnest money. Sale-Deed was to be executed on 15/04/1982. It was the further case of the plaintiff that Rs.30,000/- were to be paid on 31/12/1981 and as such the original plaintiff paid an amount of Rs.24,000/- in cash and issued three cheques of Rs.2,000/- each. As it came to the knowledge of the plaintiff that the defendants were in arrears of Rs.1,651.76 ps. towards charges of the State Electricity Board and as those charges were not paid, the electricity supply was disconnected. It also came to the knowledge of the plaintiff that as some house taxes were also due against the defendants, the plaintiff intimated his bank for stop of payment. Out of the three cheques issued by the plaintiff, two cheques were encashed. It was the case of the plaintiff that the balance consideration was to the tune of Rs.27,000/- and the defendants had agreed to execute the sale-deed on or before 15/04/1992 in discharge of their liability. It was further the case of the plaintiff that the suit lands were mortgaged by defendants with State Bank of India and the defendants were having an outstanding liability of Rs.14,000/-. The plaintiff submitted that the defendants agreed to him to clear encumbrances before execution of the sale-deed. The plaintiff called upon the defendants by issuing notice dated 26/04/1982 to discharge their liabilities. In reply dated 17/01/1983, the defendants agreed to discharge their liability before execution of the sale-deed and asked him to remain present in the Office of Sub-Registrar on 09/02/1983. But till 09/02/1983, the defendants failed to discharge their liability. Again a notice dated 22/04/1986 was issued calling upon the defendants to discharge their liability, but in spite of an oral assurance, the liability was not discharged by the defendants. It was further the case of the plaintiff that in the meantime, it came to the knowledge of the plaintiff that a civil suit namely R.C.S. No.107/1983 before the learned Civil Judge Junior Division, Wani was decreed against the defendants and on the basis of the decree, execution petition bearing No.56/1985 was preferred and in the said execution proceedings the suit fields were attached. The plaintiff, therefore, filed M.J.C. No.5/1985 raising an objection. The plaintiff by participating in the proceedings, expressed his readiness and willingness to purchase the suit property, but the defendants were reluctant to discharge their liability. The plaintiff had also filed a pursis at Exh.33 in the execution proceedings and called upon the defendants to remain present before the Sub-Registrar, Wani on 28/01/1989 and though the plaintiff by remaining present there with the stamps of Rs.2,350/-, the defendants failed to execute the sale-deed. On these grounds, the suit was filed.

The defendants resisted the claim of the plaintiff by filing their written statement and counter claim. It was the case of the defendants that the contract between the parties was for 3 acres and 23 gunthas of land from Survey No.14/1 with well and a constructed farm house. As per the defendants, the total land was approximately 15 acres. According to the defendants, the contract was reduced into writing and finalized on 20/06/1981. The document was named and styled as 'Visarpurva Chitthi'. On 20/06/1981, the plaintiff paid an amount of Rs.4,000/- as part of the earnest amount by agreeing to pay Rs.6,000/- by 01/08/2081 towards balance of earnest amount. It was the case of the defendants that as per the terms agreed upon by the parties, on payment of the balance amount of Rs.6,000/-, the document was to be executed in favour of the plaintiff. It was further the case of the defendants that plaintiff was to pay Rs.30,000/- on or before 31/12/2081 and the defendants was to place the plaintiff in "Khas Possession" of the suit property. Thus it was the case of the defendants that payment of Rs.30,000/- on or before 31/12/1981 was a condition precedent for delivery of the property. It was further the case of the defendants that on failure to pay Rs.30,000/- on or before 31/12/1981, they would be entitled to forfeit the amount of Rs.10,000/- received from the plaintiff. As per the terms, if the plaintiff would have paid Rs.30,000/- as agreed initially and further would have paid an amount of Rs.27,000/- on or before 15/04/1982, the plaintiff would have been entitled to claim sale-deed and registration at his costs. The defendants submitted that as the plaintiff failed to pay Rs.30,000/- before the stipulated period i.e. on or before 31/12/1981 and also failed to pay Rs.27,000/- on or before 15/04/1982, the plaintiff was also liable to pay damages of Rs.10,000/- in failure to pay the above referred amount, and in failure of the terms by the plaintiff, the defendant was entitled to be restored in possession of the property. It was also the case of the defendants that they were to be discharged of encumbrances at the time of execution of registration of sale. It was the case of the defendants that as per the terms of contract between the parties, the delivery of the possession was on complying of the terms of payment of the amount of Rs.30,000/- on or before 31/12/1981. It was also the case of the defendants that there occurred a mistake in writing the amount in the written contract between the parties dated 20/06/1981, the defendants emphasized that as the plaintiff committed default of the terms of contract namely failure in making payment of Rs.30,000/on or before 31/12/1981, a communication as a reminder was issued to the plaintiff on 13/04/1982 calling upon the plaintiff to pay full consideration amount and get the sale-deed executed. It was the case of the defendants that though the defendants were present in the office of Sub-Registrar on 15/04/1982, the plaintiff did not turn up and as such the defendant by issuing notice dated 16/04/1982 cancelled the contract and informed the plaintiff about it. It was the case of the defendants that as the amount due toward M.S.E.B. charges and house taxes was a partly amount and less than Rs.2000/-, the plaintiff ought not to have made any hue and cry of that amount, but the plaintiff himself was not in a position to clear the amount as agreed in cash. The plaintiff was neither ready nor willing to perform his part of contract. As the plaintiff failed to comply with the terms of the agreement between the parties, the defendants by issuing notice dated 16/04/1982 rescinded the contract and informed the plaintiff about the same. The defendants also raised the ground that the suit was barred by limitation. It was also the case of the defendants that they had concealed the fact of obtaining loan from State Bank of India by mortgaging one of the fields. It was also the case of the defendants that the defendants were all along in the possession of the suit lands and possession was never handed over and delivered to the plaintiff and on the contrary, the plaintiff tried to take forcible possession. The defendants thus resisted the claim of the plaintiff and also filed a counter claim.

3. Issues were framed by the learned Civil Judge Senior Division. The learned Civil Judge Senior Division, Pandarkawada arrived at a conclusion that the suit filed by the plaintiff fails on two grounds namely the suit is hopelessly time barred and the plaintiff failed to prove his readiness and willingness to perform his part of contract. Accordingly, the suit was dismissed. The counter claim of the defendants was allowed and the plaintiff was ordered to handover the possession of the suit lands within three months.

4. Feeling dissatisfied with the judgment and order passed by the learned Civil Judge Senior Division, Pandharkawada, the plaintiff preferred appeal before the learned District Judge-1, Pandharkawade. The appeal was also dismissed with costs by the judgment and order passed by the learned District Judge, Pandharkawada. The substantial questions raised by the plaintiff viz. Are the Courts below erred in non -suiting the plaintiff on the ground of limitation, the Courts below erred in holding that the time was essence of the agreement between the parties.

5. The learned Civil Judge Senior Division, Pandharkawada, on remand of the suit, recasted the earlier issues framed and decided the suit along with additional issues framed by him. The learned Civil Judge Senior Division on the material issues, viz. Does plaintiff prove that he was ready and willing to perform his part of contract? ; Does plaintiff prove that defendants had committed breach of contract? and Is plaintiff entitled to relief of specific performance i.e. execution of sale deed of suit lands ?, arrived at negative findings, whereas on the issue that Are defendants entitled to counter claim for possession as alleged ?, recorded an affirmative finding. On the additional issues namely Whether suit is barred by law of Limitation?, the learned Civil Judge recorded positive finding, whereas recorded negative finding on the issue that Whether plaintiff is entitled to refund of earnest amount and damages ?

6. Feeling aggrieved by the judgment and order passed by the learned Civil Judge Senior Division, the plaintiff preferred an appeal before the learned District Judge. The learned District Judge finding no case for showing any interference dismissed the appeal, whereas the counter claim was allowed. The plaintiff, who is the appellant before this Court, has raised the following substantial questions of law :-

(A)That the Courts below erred in non-suiting the plaintiff on the ground that the suit for specific performance was barred by limitation. In Paragraphs 4 and 5 of the plaint, it was averred by the plaintiff that the suit fields had been attached in a Civil Suit that was filed by the State Bank of India against the original defendants in which suit, the plaintiff had filed pursis on 31/03/1989 expressing willingness to purchase the aforesaid lands pursuant to agreement dated 01/08/1981. In the written statement, the defendants admitted contents of aforesaid paragraphs including the cause of action as pleaded by the plaintiff. In such a situation, when there was no serious contest on the aspect of the date when the cause of action arise, the Courts below could not have ignored the aforesaid pleadings for non-suiting the plaintiff on the point of limitation. This erroneous approach gives rise to a substantial question of law.

(B)That the Courts below fell in error in holding that time was the essence of the agreement between the parties. The Courts below failed to notice that the defendants by issuing notice on 10/01/1983 had extended the time to execute the sale deed by 09/02/1983. Further it was not stated in the subsequent communications after extension of time that the agreement stood cancelled at the instance of the defendants. Further, there was no reply to the notice issued by the plaintiff on 22/04/1986. This clearly established that time was never the essence of the contract. Hence on account of non-consideration of relevant material on record, the findings recorded on the aspect of time being an essence of the contract as well as on the issue of limitation are perverse and same gave rise to another substantial question of law.

(C) That, the defendants having admitted the cause of action to have arisen on 28/04/1989 it was clear that the suit as filed was within limitation. While refusing the decree for specific performance, the Courts below failed to consider even the alternate prayer for refund of the earnest amount and the suit in its entirety has been wrongly dismissed. Assuming without admitting that the plaintiff was not entitled for decree for specific performance, the alternate prayer for refund of earnest money was not barred by limitation and same ought to have been considered on its merits. Failure to do so, gives rise to another substantial question of law.

(D) That, the conduct of the defendants in not disclosing the encumbrances that had been created by them in the suit lands and further reluctance to clear the same has not been considered by the Courts below. On the other hand, the readiness and willingness of the plaintiff is quite evident from the record in view of various steps taken by the plaintiff including participating in the Darkhast proceedings that had been initiated by the State Bank of India against the defendants for recovery of amounts. This aspect clearly proved that the plaintiff was always ready and willing to perform his part of the agreement while defendants were guilty of suppression of material facts and non-disclosure of encumbrances on the suit land.

(E) That, the Courts below erred in decreeing the counter claim that was filed by the defendants. On a proper appreciation of the material on record, it is clear that the suit for specific performance was required to be decreed and the counter claim was required to be dismissed.

7. Learned Counsel Mr. Mirza for the appellants vehemently submitted that both the Courts have erred in arriving at the conclusion that the claim of the plaintiffs was time barred i.e. suit filed by the plaintiffs (appellant herein) was time barred. Mr. Mirza further submitted that the defendants though entered into an agreement, failed to pay the agreed amount. He further submitted that the plaintiffs initially were not aware to the fact that the property was mortgaged to financial institute like Bank and execution proceedings were already pending. Mr. Mirza further submitted that the appellants were ready and willing to deposit the amount but for the subsequent disclosure of the mortgage, the plaintiffs/ appellants were slow in performance of the agreement. It was the submission of Mr. Mirza on the backdrop of the provisions of the Limitation Act that though a date was fixed in the agreement, the same was extended by action of the parties and that there was no refusal on the part of the plaintiffs. Mr. Mirza also submitted that a pursis was filed on record and the learned Courts below failed to appreciate that the receipt was placed on record submitting that the amount was paid. Mr. Mirza further submitted that by act of the parties, the parties agreed for extension of the time for performance of the contract and on the backdrop of such extension of time, the Courts below ought not to have arrived at a conclusion that the suit filed by the plaintiffs was barred by limitation. Mr. Mirza, in support of his submission, placed heavy reliance on the following judgments :

(i) Nathulal vs. Phoolchand , reported in AIR 1970 SUPREME COURT 546(1).

(ii) Panchanan Dhara and others vs. Monmatha Nath Maity (dead) through Lrs. and another, reported in (2006) 5 SCC 340.

(iii) Agya Rani Dua vs. Vidyagauri J. Tripathi and another reported in 2007(3) Mh.L.J. 480 : [2007(5) ALL MR 787].

8. Mr. Mirza also submitted that the appellants are raising certain additional substantial questions of law as follows :

1. Whether the Courts below were justified in dismissing the suit on the ground of limitation though in terms of Article 54 of the Limitation Act, the period prescribed therein shall began from the date fixed for performance or when the plaintiff has noticed that performance is refused, admittedly in this matter the date was extended by the defendant and performance was not refused till filing of suit ?

2. Whether the learned Courts below were justified in holding that, the plaintiff is not in legal possession of suit field, though section 53A of Transfer of Property Act protects possession taken by the Transferee in part performance of the contract ?

3. Whether the learned Courts below have properly construed the terms of agreement to sale dated 01/08/1981 and further receipt dated 30/12/1981 executed on same document (Exh.36) ?

4. Whether the parameters applied by Courts below while shifting the burden of proving readiness and willingness on the plaintiff is as per the provisions of Section 55 of the Contract Act that too emerging the fact of suppression of mortgage of suit field by defendant ?

5. Whether the defendant-vendor is guilty of suppression of fact of mortgage and did not perform his obligation of clearing the mortgage, can be permitted to take advantage of his own wrong and then to raise the plea of limitation.

9. Per contra learned Counsel Mr. Madkholkar for the respondents in his detailed submissions raised the point namely the appeal is not at all entertain-able as it is lacking any substantial question of law. Mr. Madkholkar submitted that though the appellant has named and styled the substantial questions of law initially and also subsequently as the additional substantial questions of law, none of these can be termed to be a substantial question of law. Mr. Madkholkar further submitted that these so called substantial questions of law are only a challenge on the factual aspects, which are already raised before the learned Civil Judge Senior Division while deciding the suit as well as before the Appellate Court while deciding the appeal. Mr. Madkholkar also submitted that the learned Civil Judge Senior Division on appreciation of the oral and documentary evidence arrived at a conclusion that the suit filed by the plaintiffs was time barred suit. The learned Civil Judge Senior Division as well as the Appellate Court further arrived at a conclusion that the plaintiff was not in possession of the property and as such the judgment and order was passed by both the Courts below against the plaintiff. Mr. Madkholkar further submitted that in view of the judgment of the Apex Court, the Second Appeal can be entertained only when the substantial question of law is raised, whereas in the present appeal, no substantial question of law is involved and the challenge of the appellants is only on the factual aspect of the case. Mr. Madkholkar further submitted that even the plaint filed by the appellants/plaintiffs does not satisfy the form as required under the provisions of the Code of Civil Procedure and the requirement as per Form No.47 and Form No.48. In a counter to the submissions of the learned Counsel Mr. Mirza for the appellants that a pursis was filed to shows that the time was extended by the act of parties, learned Counsel Mr. Madkholkar for the respondents submitted that as the pursis finds no place in the Code, the sanctity of the so called document/pursis is hardly of any substance and, therefore, filing of the pursis in execution proceedings on behalf of the appellants/plaintiffs has no barring. Mr. Madkholkar, in support of his submissions ,placed heavy reliance on the following judgments :

1.T.L. Muddukrishana and another vs. Smt. Lalitha Rammchandra Rao, reported in AIR 1997 SC 772.

2. Venkappa Guruppa Hosur vs. Kasawwa c/o. Rangappa Kulgod , reported in AIR 1997 SC 2630.

3. Shakuntala (Smt) vs. Narayan Gundoji Chavan and others, reported in (1999) 8 SCC 587.

4.Manjunath Anandappa Urf. Shivappa Hansi vs. Tammanasa and others, reported in 2003 AIR SCW 1830 : [2003(3) ALL MR 303 (S.C.)].

5. Pukhraj D. Jain and others vs. Gopalakrishna, reported in (2004) 7 SCC 251 : [2004(5) ALL MR 932 (S.C.)].

6. R.K. Parvatharaj Gupta vs. K.C. Jayadeva Reddy , reported in (2006) 2 SCC 428 : [2006(4) ALL MR 110 (S.C.)].

7. Gunwantbhai Mulchand Shah and others vs. Anton Elis Farel and others, reported in (2006) 3 SCC 634 : [2006(3) ALL MR 85 (S.C.)].

8. Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. vs. Bibijan and others, reported in (2009) 5 SCC 462 : [2009 ALL SCR 1305].

9. Ram Niwas Gupta vs. Mumtaz Hasan and others , reported in (2008) 17 SCC 362.

10. Gurdev Kaur and others vs. Kaki and others , reported in AIR 2006 SC 1975 : [2006(5) ALL MR 140 (S.C.)].

10. On perusal of the judgment of the learned Civil Judge Senior Division in R.C.S. No.64/2008, it reveals that the sale-deed was to be executed on 15/04/1982 and the parties were expected to remain present in the Office of Sub-Registrar, Wani for execution of sale-deed on 15/04/1982. The defendants on 13/04/1982 intimated the plaintiff in advance by issuing a communication to remain present in the office of Sub-Registrar, Wani on 15/04/1982 for execution of sale-deed. Though the defendants were present in the Office of Sub-Registrar, Wani on the given date, the plaintiff did not turn up as such the defendants by issuing notice terminated the contract and resultantly the sale-deed was not executed. It is interesting to note that the plaintiff has not deposited the receipt of the notice. On the appreciation of the documents placed on record, the learned Civil Judge Senior Division found that a notice was issued by the defendants dated 10/01/1983 about extension of time to 09/02/1983 for execution of sale-deed. The notice was replied by the plaintiff. The ground raised by the plaintiff that he had purchased some stamp paper on 0'9/02/1983, and as such he was present on the given date was not accepted by the learned Civil Judge Senior Division on the ground that merely because some stamps purchased on that date would not lead to a conclusion that the plaintiff was present in the office of the Sub-Registrar. In my opinion, no fault can be found with the view taken by the learned Civil Judge Senior Division. Though in explanation, it was tried to be offered by the plaintiff for not performance of the contract on his part because of a belated disclosure of the mortgage of the property, both the Courts i.e. the learned Civil Judge Senior Division as well as the Appellant Court, found that the explanation offered by the plaintiff is neither convincing nor acceptable. The learned Civil Judge Senior Division on appreciation of the evidence arrived at a conclusion that the fact that there were certain dues towards M.S.E.B. and house taxes, the property was mortgaged to the bank was made known to the plaintiff and as such there was neither misleading nor concealing at the hands of the defendants.

11. The learned Civil Judge Senior Division on appreciation of the evidence found that the possession of the property was never delivered to the plaintiff and it was with the defendants. Thus, on the factual aspects, on the backdrop of the oral evidence as well as documentary evidence, both the Courts found no favour with the case of the plaintiff. Though it was an attempt of learned Counsel Mr. Mirza for the appellants to submit that as the time was extended by the act of the parties, the conclusion arrived at by the Courts below that the suit was time barred is an erroneous conclusion, I am unable to accept the submission of the learned Counsel Mr. Mirza.

12. Mr. Madkholkar, learned Counsel for the defendants has made available the copy of plaint for my perusal. On perusal of the copy of plaint, I find considerable merit in the submissions of the learned Counsel Mr. Madkholkar that the plaint fails to satisfy the necessary requirement. Mr. Madkholkar submitted that though it is stated in the plaint that the defendants did not discharge their liability till 09/02/1983 and the plaintiff issued notice on 22/04/1986 upon the defendants and asked them to perform their part of contract. Mr. Madkholkar further submitted that the plaintiff has kept a convenience silence about his part for the period from 1983 to 1986. Mr. Madkholkar further submitted on the backdrop of the fact of the case that the suit filed by the plaintiff itself was barred by limitation. Mr. Madkholkar also submitted that as the time was essence of the contract and the plaintiff failed to show his readiness and willingness to perform the contract, the ultimate result was that the suit was dismissed on account of these two grounds. Mr. Madkholkar also submitted that as no error can be found either in appreciation of the evidence or in the conclusion arrived at by the learned Civil Judge Senior Division as well as the learned Appellate Court, the appeal is wholly meritless and deserves to be dismissed. Mr. Madkholkar also submitted that as the plaintiff miserably failed to prove that the suit was within limitation in absence of the specific pleadings in the suit, his attempt for raising additional substantial grounds of law, which would lead to an amendment, either is not sustainable nor acceptable.

13. Mr. Madkholkar, in support of his submissions, placed heavy reliance on the judgment of the Apex Court in the case of T.L. Muddukrishana and another vs. Smt. Lalitha Rammchandra Rao, reported in AIR 1997 SC 772. As the defendants was successful in establishing his case that the suit filed by the plaintiff was barred by limitation, it will be necessary to consider the judgment relied by the learned Counsel Mr. Madkholkar for the defendants in support of his submissions. Mr. Madkholkar, in support of his submission, has also placed reliance on the judgment of the Apex Court in case of Venkappa Guruppa Hosur vs. Kasawwa c/o. Rangappa Kulgod, reported in AIR 1997 SC 2630, wherein it has been held that, "it could be seen that the suit document itself was denied as early as in 1960. As a consequence, mere issuance of notice dated August 22, 1972 does not stop the running of limitation period. Once the same has began to run, it runs its full course. Therefore, the suit having been filed after the expiry of 3 years from the date of the knowledge of denial, by operation of Article 54 of the Schedule to the Limitation Act, 1963, the suit is hopelessly barred by limitation. The High Court, therefore, is right in dismissing the suit in the second appeal". The facts of the present case are nearly identical and as such the learned Counsel Mr. Madkholkar was justified in placing reliance on those judgments in support of his submission. Similar is the case in the judgment of the Apex Court in the case of Shakuntala (Smt) vs. Narayan Gundoji Chavan and others, reported in (1999) 8 SCC 587. The issue is also dealt in detail in the judgment of the Apex Court in the case of Manjunath Anandappa Urf. Shivappa Hansi vs. Tammanasa and others, reported in 2003 AIR SCW 1830 : [2003(3) ALL MR 303 (S.C.)], wherein the Apex Court observed thus:

12.The basic fact of the matter is not in dispute. The agreement was entered into on or about 1.10.1978. Apart from the vague statements made in Paragraph 6 of the plaint as noticed hereinbefore, the plaintiff has not placed any material on record to show that at any point of time and far less within a period of 3 years from the date of the said agreement, he ever asked Defendant No. 1 to execute a deed of sale in his favour or tendered the balance amount of consideration to her. The plaintiff admittedly served a notice dated 8.8.1984 upon the Defendant No. 2 alone, that is much after the expiry of the said period of 3 years. He, only upon having come to learn that Defendant No. 1 had transferred the property in suit in favour of the appellant herein, filed the suit. Admittedly the Defendant No. 1 did not receive any notice.

13. Section 16(c) of the Specific Relief Act reads thus:

"Specific performance of a Contract cannot be enforced in favour of a person, who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant."

15.Forms 47 and 48 of the Appendix A of the Code of Civil Procedure prescribe the manner in which such averments are required to be made by the plaintiff. Indisputably, the plaintiff has not made any averment to that effect. He, as noticed hereinbefore, merely contended that he called upon defendant No. 2 to bring defendant No. 1 to execute a registered sale deed. Apart from the fact that the date of the purported demand has not been disclosed, admittedly no such demand was made upon defendant No. 1. We may notice, at this juncture, that the plaintiff in his evidence admitted that defendant No. 1 had revoked the power of attorney granted in favour of defendant No. 2. In his deposition, he merely stated that such revocation took place after the agreement for sale was executed. If he was aware of the fact that the power of attorney executed in favour of defendant No. 2 was revoked, the question of any demand by him upon the defendant No. 2 to bring the defendant No. 1 for execution of the agreement for sale would not arise at all. Furthermore, indisputably the said power of attorney was not a registered one. Defendant No. 2, therefore, could not execute a registered deed of sale in his favour. The demand, if any, for execution of the deed of sale in terms of the agreement of sale could have been, thus, made only upon the Defendant No. 1, the owner of the property. The balance consideration of Rs.10,000/- also could have tendered only to Defendant No. 1. As indicated hereinbefore, the purported notice was issued only on 8.8.1984, that is, much after the expiry of period of three years, within which the agreement of sale was required to be acted upon.

30. There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on records to show that he had ever asked defendant No. 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief.

14. Thus Mr. Madkhodkar also justified in his submission in respect of the suit filed by the plaintiff being time barred and also missing the requirement of the Code under Form Nos. 47 and 48. The Apex Court also in the case of Pukhraj D. Jain and others vs. Gopalakrishna, reported in (2004) 7 SCC 251 : [2004(5) ALL MR 932 (S.C.)] held thus:-

"C. Limitation Act, 1963 - Art. 54 - Specific performance of contract - Date from which time runs - Held, either from date fixed for performance of contract, or if no such date fixed, then from date when plaintiff has notice that performance is refused - Amendment sought by vendee in suit seeking relief of specific performance - Amendment opposed by vendors - Held amounted to notice to vendee that performance is refused, and therefore limitation period began to run from date of opposition to said amendment."

The facts of this case are identical and as such the judgment of the Apex Court in the case of R.K. Parvatharaj Gupta vs. K.C. Jayadeva Reddy, reported in (2006) 2 SCC 428 : [2006(4) ALL MR 110 (S.C.)] is applicable to the present case, as relied by the learned Counsel Mr. Molkhodkar.

15. Learned Counsel Mr. Madkholkar also placed reliance on the judgment of the Apex Court in the case of Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. vs. Bibijan and others, reported in (2009) 5 SCC 462 : [2009 ALL SCR 1305]. He was right in submitting that the controversy, if any, is set at restby the Apex Court in case of Ahmadsahab Abdul Mulla (2) (dead) by proposed Lrs. vs. Bibijan and others, reported in (2009) 5 SCC 462 : [2009 ALL SCR 1305], the Apex Court, on the backdrop of the earlier judgments and the word "date", arrived at a conclusion, which is reflected in Paras 9, 10, 11, and 12. Learned Counsel Mr. Madkholkar also placed reliance on the judgment of the Apex Court in the case of Gurdev Kaur and others vs. Kaki and others, reported in AIR 2006 SC 1975 : [2006(5) ALL MR 140 (S.C.)] in support of his submission relating to the scope of Section 100 of the Code, wherein the Apex Court observed that, the High Court would have jurisdiction of interfering under S.100, C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. It is further observed that it must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become 'third trial on facts' or 'one more dice in the gamble'. The Apex Court also observed in Para 69 thus :

"Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:

(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;

(ii) The substantial question of law to precisely state such question;

(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;

(iv) Another part of the Section is that the appeal shall be heard only on that question.

17. Thus on appreciation of the judgment and order passed by the learned Civil Judge Senior Division and the Appellate Court on the backdrop of the submission of the learned Counsel Mr. Madkholkar and the judgments of the Apex Court, in my opinion, the present appeal is devoid of merit. The appellants have miserably failed to raise any substantial question of law. The appeal thus being wholly meritless, no indulgence is warranted.

In the result, the appeal is dismissed.

Appeal dismissed.