SH OM DUTT SHARMA v. SH DHEERAJ & ANR

1. The appeal impugns a judgment and decree dated 11th February, 2013 of the Court of the Addl. District Judge-06 Central Delhi, of dismissal on the preliminary issue of limitation, of CS 136/2011 (Unique ID No.02401C0989222007) filed by the appellant.

2. Notice of the appeal was issued and after service of the respondent no.2 and proceeding ex parte against the respondent no.1, the appeal admitted for hearing and considering that if the appeal were to be allowed, the parties will have to go through the trial, hearing of the appeal was expedited. The counsel for the appellant and the counsel for the respondent no.2 have been heard. 2013:DHC:6207

3. The appellant on 3rd October, 2007 instituted the suit from which this appeal arises, for specific performance of an Agreement of Sale of immovable property, pleading:- (a) that the two respondents, vide written Agreement dated 8th April, 2003 had agreed to sell their agricultural land to the appellant/plaintiff; (b) that as per the said Agreement, the sale was to be completed within a period of six months from the date thereof;

(c) that the respondents/defendants were however liable to obtain the necessary sale permissions;

(d) that the appellant/plaintiff out of the total agreed sale consideration of Rs.[5] lacs had paid a sum of Rs.50,000/- at the time of Agreement to Sell and in furtherance of the Agreement and on the request of the respondents/defendants paid a further sum of Rs.75,000/- on 7th December, 2005 and another sum of Rs.75,000/- on 8th May, 2006 and which amounts were acknowledged by the respondents/defendants vide separate receipts; and, (e) that the respondents/defendants did not obtain the requisite permissions. in the cause of action paragraphs it was pleaded that the cause of action, besides on the date of execution of the Agreement to Sell, also accrued on 7th December, 2005 and 8th May, 2006 when the sums of Rs.75,000/- as aforesaid were paid.

4. The respondents/defendants contested the suit by filing a written statement, inter alia on the ground of the suit claim being barred by time.

5. The learned Addl. District Judge vide order dated 19th November, 2010 framed the following preliminary issue:- “Whether suit of the plaintiff is within limitation? OPP”

6. The learned Addl. District Judge, vide the impugned judgment, has held that since the limitation, for a suit for specific performance governed by Article 54 of the Schedule to the Limitation Act, 1963, is of three years commencing from the date fixed for performance or if no such date is fixed when the plaintiff first has notice that performance is refused and that since in the instant case the agreement fixed the date of performance as within six months from the date of Agreement dated 8th April, 2003, the said date would be 7th October, 2003 and the suit had not been instituted within three years thereform.

7. The sole contention of the counsel for the appellant is that the learned Addl. District Judge has ignored the plea of the appellant/plaintiff of the cause of action having also accrued on 7th May, 2006 when the sums of Rs.75,000/- were paid to the respondents/defendants and if the period of limitation is to be counted therefrom, the suit was admittedly within time.

8. The counsel for the respondent /defendant no.2 has contended that the receipts relied upon by the appellant/plaintiff as evidence payment of Rs.75,000/- on 7th May, 2006 do not mention the extension of time and even though the learned Addl. District Judge may not have dealt with the said receipts, but they are of no avail.

9. I am unable to agree. Both the receipts are of a date beyond six months after 7th October, 2003 being the date fixed as per the written Agreement to Sell for completion of the sale. If the said receipts are to be believed, then the same may show of the time for completion of the agreement/sale having indeed been extended by the parties.

10. I may notice that the counsel for the respondent/defendant no.2 has also denied the agreement and raised certain other contentions but which are not material at this stage and it is thus clarified that any observation in this order which is confined only to the aspect whether the suit, without evidence, can be said to be barred by time, would not come in the way of final adjudication.

11. The settled principle of law is that at a preliminary stage, the pleas of the plaintiff are to be treated as gospel truth and maintainability including on the ground of limitation is to be decided on the basis thereof except in a case where there may be some other documents to show the falsity of such pleas. There is no such document till now at least in the present case. The impugned judgment and decree holding the suit filed by the appellant/plaintiff, at the preliminary stage, to be barred by time thus cannot be sustained and is set aside. The appeal succeeds. The suit is remanded to the Addl. District Judge-06 Central Delhi for proceeding further in accordance with law, leaving it open to the respondents/defendants to raise all defences as may be available to them.

12. The parties to appear before the concerned Court on 20th January,

2014.