2016(2) ALL MR 765
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

R. G. KETKAR, J.

Vishwanath Ambadas @ Ambarao Ghare (D) thr. LRs. & Anr. Vs. Bajirao s/o. Amrit Shinde & Anr.

Second Appeal No.95 of 1988

13th November, 2014.

Petitioner Counsel: Mr. DEOKATE M.G.
Respondent Counsel: Mr. CHOUDHARY S.S.

(A) Specific Relief Act (1963), S.10 - Limitation Act (1963), Art.56 - Suit for specific performance of contract - Limitation for - No date was fixed for performance by vendor - If no such date is fixed, period of three years will begin to run when plaintiff has notice that performance is refused - Evidence on record does not show that plaintiff had notice about such refusal - Burden to prove that suit is barred by limitation was squarely on defendants - Defendants did not step into witness box - Suit not barred by limitation. (Paras 19, 20, 21, 22)

(B) Civil P.C. (1908), O.41 R.23 - Remand of matter - Powers of appellate court - On basis of evidence if appellate court is satisfied that there is sufficient evidence to enable it to pronounce judgment, it can decide case without remitting matter. (Para 24)

JUDGMENT

JUDGMENT :- Heard Mr. M.G.Deokate, learned counsel for the appellants and Mr. S.S.Choudhary, learned counsel for respondent No. 2 at length.

2. By order dated 19/04/1988, Appeal was admitted without formulating any substantial question of law. The matter was thereafter heard by me on 30/10/2014. In the order dated 30/10/2014, it was recorded that since Appeal was admitted without formulating any substantial question of law, the Court may have to consider whether the Appeal raises any substantial question of law u/s 100 (1), (3), (4) and (5) of the Code of Civil Procedure, 1908 (for short, 'C.P.C.' ).

3. By this Appeal, u/s 100 of C.P.C., original defendants have challenged the Judgment and decree dated 25/02/1988 passed by the 2nd Additional District Judge, Jalna in R.C.A. No. 17 of 1982. By that order, learned District Judge allowed the Appeal preferred by respondents No. 1 and 2 herein (for short, 'plaintiffs') and quashed and set aside the Judgment and decree dated 27/11/1987 passed by the 2nd Joint Civil Judge, Junior Division, Jalna in R.C.S. No. 14/1980. The learned District Judge decreed the Suit instituted by plaintiffs for specific performance of contract dated 29/05/1974. The plaintiffs were directed to deposit remaining consideration of ' 1,000/- (Rupees One Thousand only) in the Court within two months from the date of the order. The Appellants (hereinafter referred to as ' defendants') were directed to perform their part of contract by executing registered sale deed of land bearing S.No. 55/2 admeasuring 7 Acres 39 gunthas situate at Sawargaon Hadap, Taluka and District Jalna (for short, ' suit land ') in favour of the plaintiffs. If the defendants failed to perform their part of contract, the plaintiffs were at liberty to enforce their claim in accordance with law. The defendants were directed to withdraw ' 1,000/- (Rupees One Thousand only) after plaintiffs deposit the same.

4. As noted earlier, Appeal was admitted without formulating any substantial question of law. After hearing the learned counsel appearing for the parties, I am satisfied that the Appeal raises following substantial questions of law :

(i) Whether in view of Article 54 of the Limitation Act, 1963 the Suit instituted by the plaintiffs is barred by limitation ?

(ii) Whether learned District Judge committed serious error in not remanding the matter to the trial Court so as to afford reasonable opportunity to the defendants to lead evidence ?

(iii) Whether the learned District Judge committed serious error in exercising power under Order XLI Rule 23 of C.P.C.?

5. 'Admit'. Mr.S.S. Choudhary waives service.

6. At the request and by consent of the parties, appeal is taken up for final hearing. I have heard the learned counsel for the parties on the above substantial questions of law. The facts and circumstances of the case can be briefly stated as under :

7. It is the case of the plaintiffs that the defendants agreed to sell the suit land to the plaintiffs for the valuable consideration of ' 8,050/- (Rupees Eight Thousand Fifty only). Accordingly, defendants executed agreement of sale on 29/05/1974. The defendants received consideration of ' 7,050/- (Rupees Seven Thousand Fifty only) from the plaintiffs on the same day. It is the case of the plaintiffs that possession of the suit land was also delivered to them on the same day. The remaining consideration of ' 1,000/- (Rupees One Thousand only) was agreed to be paid at the time of registration of the sale deed. The charges of registration were to be borne by plaintiffs. Plaintiffs further contended that after 4-5 months from the date of agreement of sale, defendants received remaining consideration of ' 1,000/- (Rupees One Thousand only) from the plaintiffs. Thus, the plaintiffs have paid entire consideration and nothing remained to be paid to the defendants. They requested the defendants to execute sale deed. However, there was no response from the defendants. Plaintiffs served a R.P.A.D. notice to the defendants on 10/12/1979 calling upon them to perform their part of contract. Defendants replied the said notice on 31/12/1979 denying to perform their part of contract. Plaintiffs instituted Suit bearing R.C.S. No. 14 of 1980 on 17/01/1980 for specific performance of contract.

8. Defendants No. 1 and 2 resisted the Suit by filing Written Statement on 01/09/1980. The defendants denied all the adverse contentions raised by the plaintiffs. They have denied execution of agreement of sale. They prayed for dismissal of the Suit. The defendants also contended that though time for performance was not fixed, the Suit instituted by the plaintiffs is barred by limitation.

9. On the basis of the pleadings of the parties, learned trial Judge framed necessary Issues. The learned trial Judge held that plaintiffs proved that the defendants had executed agreement of sale for the price of ' 8,050/- (Rupees Eight Thousand Fifty only); that the Civil Court has jurisdiction to entertain and try the Suit and is not barred by the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947; that defendants failed to prove that due to dispute of the area of the land, the agreement was given up by both the parties and the plaintiffs had agreed to accept earnest money. The learned trial Judge dismissed the Suit only on the ground that it was barred by limitation. It was also held that defendants are entitled to restoration of possession of the suit land.

10. Aggrieved by this decision, plaintiffs preferred Appeal before the learned District Judge. The learned District Judge, on the basis of evidence on record, held that Suit is within limitation; that the plaintiffs have proved their readiness and willingness to perform their part of contract. The learned District Judge allowed the Appeal as indicated above. It is against this decision, defendants have instituted the present Appeal.

11. In support of this Appeal, Mr. Deokate has taken me through the evidence of P.W. 1 Bajirao Amrutrao Shinde at Exh. 28 (plaintiff No. 1), as also evidence of P.W. 2 Yadavrao Amruta, attesting witness to the agreement of sale at Exh. 29. He submitted that during the cross examination, P.W. 1 Bajirao admitted that defendants were requested to file affidavit for permission. He submitted that defendants did not file affidavit of permission. In other words, after about 12 months from payment of ' 1,000/- (Rupees One Thousand only), they did not file affidavit for permission, which amounted to refusal by the defendants to perform their part of contract. He submitted that plaintiff No. 1, therefore, had notice of refusal in the year 1976 itself. The learned trial Judge also held that plaintiffs did not establish payment of balance consideration of ' 1,000/- (Rupees One Thousand only).

12. Mr. Deokate further submitted that P.W. 2 Yadavrao also admitted in the cross examination that defendants refused to execute the sale deed after about two years from the date of Isar pawti dated 29/05/1974 i.e. in 1976. The defendants refused to execute the sale deed in the year 1976. The plaintiffs ought to have instituted Suit within three years from 1976. Admittedly, plaintiffs have instituted Suit on 17/01/1980. On the face of it, the Suit is time barred in view of Article 54 of the Limitation Act, 1963. He submitted that the learned trial Judge was justified in dismissing the Suit as it was time barred. However, learned District Judge committed serious error by mis-reading the testimony of P.W. 1 and P.W. 2.

13. Mr. Deokate submitted that the learned trial Judge did not frame issue of readyness and willingness. The defendants did not have opportunity to lead evidence. The learned District Judge did not frame material points. During the course of arguments, it was prayed for remitting the matter to the trial Court. The learned District Judge did not accede to that request. The learned District Judge exercised the powers under Order XLI Rule 23 of C.P.C. This has resulted into miscarriage of justice. This also amounted to refusal of reasonable and fair opportunity to the defendants to lead evidence before the trial Court. In any case, on the basis of evidence on record, it can not be said that plaintiffs were and are ready and willing to perform their part of contract.

14. On the other hand, Mr. Choudhary supported the impugned order. He submitted that the learned trial Judge committed error in holding that the Suit was barred by limitation. He submitted that even in the Written Statement, defendants admitted that date was not fixed for performance of contract. If no such date is fixed, time of three years for instituting the Suit will begin to run when plaintiffs have notice of refusal. The learned trial Judge misread the evidence of P.W. 1 and P.W. 2 while holding that plaintiffs had notice that performance is refused by the defendants. In fact, the burden was on the defendants to prove that the Suit was time barred. The defendants did not enter into witness box. The learned trial Judge merely on the basis of so called admissions of P.W.1 and P.W. 2, dismissed the Suit on the ground that it is time barred. He submitted that except the issue of limitation, all the issues were answered by the learned trial Judge in favour of the plaintiffs.

15. Mr. Choudahri submitted that the learned District Judge was justified in exercising power under Order XLI Rule 23 of C.P.C., as in the opinion of the learned District Judge the evidence on record is sufficient to enable him to pronounce the Judgment. Notwithstanding the fact that learned trial Judge did not frame the issue as regards readiness and willingness, there is ample evidence on record to support the findings of the learned District Judge. He, therefore, submitted that no case is made out for invoking powers u/s 100 of C.P.C.

16. I have considered rival submissions of the learned counsel for the parties. I have also perused the material on record.

17. As noted earlier, learned trial Judge held that the Suit is barred by limitation. Except that issue, all the issues were decided in favour of the plaintiffs. The question is whether the Suit is barred by limitation. This aspect is considered by the learned trial Judge in paragraph 15 of the Judgment. The learned trial Judge after considering the evidence of P.W. 1 and P.W. 2, held that both these witnesses admitted that the defendants have refused to execute the sale deed. It was further observed that, " it is, therefore, crystal clear that defendants had intimated their refusal and the plaintiffs had its notice ". The Suit ought to have been instituted within three years of refusal in 1976. The Suit is instituted on 17/01/1980 which is barred by limitation.

18. With the assistance of the learned counsel, I have carefully gone through the testimony of P.W. 1 and P.W. 2. The relevant portion of P.W. 1 is to the following effect that, " I paid ' 1,000/- to the defendants within 4 to 5 months. I do not remember if I had obtained its receipts. That amount was paid in the village. I do not know the date, month and year of payment. It was paid in my land at about 12 O'Clock in the afternoon. At the time of payment, Ramkishan Laxman were present. At that time I requested the defendants to file the affidavits. The defendants assured that they would obtain the extracts within a month or two. Afterwards the defendants again assured that they would obtain the extracts from time to time. Later after about 12 months from that payment, the defendants requested to file the affidavits for the permission ". Perusal of the above portion shows that P.W. 1 deposed that he paid ' 1,000/- (Rupees One Thousand only) within 4 - 5 months to the plaintiffs. The said amount was paid in the village. He did not know the date, month and year of payment. At the time of payment, he requested the defendants to file affidavit. The defendants assured that they will obtain extract within a month or two. Afterwards the defendants again assured that they would obtain the extracts from time to time. Later after about 12 months from that payment, defendants were requested to file affidavits for permission. The learned trial Judge thereafter proceeded to consider the evidence of P.W. 2 Yadavrao Amruta. The relevant portion in the cross examination is to the following effect, " The defendants refused to execute sale deed after two years from the date of Isar pawti ". The Learned trial Judge held in paragraph 15 that defendants had intimated their refusal and the plaintiffs had its notice.

19. As against this, learned District Judge considered this aspect in paragraphs 17 to 19. After considering testimony of P.W. 1 and 2, the learned District Judge observed that the question would be as to when the plaintiffs had notice. The refusal by defendants to the witness may not be the notice to the plaintiffs. The plaintiffs can not necessarily know the information received by their witness. The admission given by this witness (P.W. 2) can not be attributed in any way to the detriment of the plaintiffs. After considering the testimony of P.W. 1, I do not find that in any way he admitted that defendants refused to perform their part of contract and he had notice about it. As far as evidence of P.W. 2 Yadavrao is concerned, the English version of P.W. 2 shows that defendants refused to execute the sale deed after about two years from the date of isar pawti. The moot question is whether this amounts to notice to the plaintiff about refusal in terms of Article 54 of the Limitation Act. Article 54 of the Limitation Act reads as under,

Article Description of Suit Period of limitation Time from which period begins to run

54. For specific Three years The date fixed for the performance, or, performance if no such date is fixed, when the plaintiff of a contract. has notice thatperformance is refused.

20. As noted earlier, in this case, no date was fixed for performance. If no such date is fixed, period of three years will begin to run when the plaintiff has notice that performance is refused.

21. Perusal of evidence of P.W. 2 does not show the plaintiffs had notice about such refusal. What is relevant for holding suit is time barred is that the plaintiffs must have notice that the performance is refused by his vendor. No such admission is elicited from P.W. 2.

22. That apart, what is important is the burden to prove that the Suit is barred by limitation was squarely on the defendants. The defendants, however, did not step into witness box. The plaintiffs had issued notice on 10/12/1979. The defendants replied it on 31/12/1979. The Suit is instituted on 17/01/1980. In view thereof, I do not find that learned District Judge has committed any error.

23. That leads me to the question as regards readiness and willingness of the plaintiffs to perform their part of contract. In paragraph 6 of the plaint, plaintiffs averred his readiness and willingness to perform their part of contract. In ExaminationinChief, P.W. 1 Bajirao deposed that he had paid ' 7,500/- (Rupees Seven Thousand Five Hundred only) to the defendants and he was ready to obtain sale deed from the defendants. P.W. 1 Bajirao was cross examined. Cross examination does not show that he was confronted with this statement. Mr. Deokate submitted that since this issue was not framed by the learned trial Judge, defendants did not get opportunity to lead evidence.

24. Mr. Deokate submitted that the reason for not leading evidence is totally unacceptable. As indicated earlier, the defendants ought to have stepped in to the witness box to show that the suit was time barred. It is for the plaintiffs to positively establish their readiness and willingness. The defendants are not expected to have negative thing. The learned District Judge ought to have remitted the case to the trial Court. The learned District Judge considered this submission and observed that on the basis of evidence on record, if the appellate Court is satisfied that there is sufficient evidence to enable it to pronounce the Judgment under Order XLI Rule 23 of C.P.C. , it can decide the case without remitting the matter.

25. After perusing the evidence on record, I am satisfied that there is sufficient evidence to show that plaintiffs were and are ready and willing to perform their part of contract. As noted earlier, defendants did not enter into witness box. The statement of P.W. 1 in Examination-in-Chief about readiness and willingness remained unchallenged.

26. For all these reasons, I do not find that learned District Judge has committed any error in allowing the Appeal. The substantial questions of law so formulated are answered accordingly.

27. In the result, Appeal fails and the same is dismissed. In the circumstances of the case, there shall be no order as to costs.

Appeal dismissed.