) Smt. Dhaneshwari Dewi, W/o Sohari Yadav, aged about 48 years, resident of village v. 1. Rakesh Jaiswal, S/o Late Dhananjay Prasad Jaiswal 2. Ritesh Jaiswal, S/o Late Dhananjay
Case Details
1 S.A. 233 of 2018 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 233 of 2018 (Against the judgment and decree dated 11.05.2018 passed by the learned Principal District Judge, Khunti in Civil Appeal no. 03 of 2017) Smt. Dhaneshwari Dewi, W/o Sohari Yadav, aged about 48 years, resident of village- Arenda, P.O. & P.S.- Khunti, District- Khunti, PIN Code- 835210 …... Appellant/ Plaintiff Versus 1. Rakesh Jaiswal, S/o Late Dhananjay Prasad Jaiswal 2. Ritesh Jaiswal, S/o Late Dhananjay Prasad Jaiswal Both residents of village- Arenda, P.O. & P.S.- Khunti, District- Khunti, at present residing at Auto Stand Salkia, 120, GT Road, 5th Floor, Howrah-6, Pincode- 711106 ….. Respondents/ Defendants For the Appellant : Mr. S.K.Vishwakarma, Adv P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the learned counsel for the appellant. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree dated 11.05.2018 passed by the learned Principal District Judge, Khunti in Civil Appeal no. 03 of 2017 by
Legal Reasoning
which, learned First Appellate Court dismissed the appeal, and confirmed the judgment and decree passed by learned trial court in the original Tittle Suit no. 04 of 2015 dated 08.05.2017 by which, the learned trial court dismissed the suit of the plaintiff filed with a prayer for performance of the contract and to execute the sale deed in favour of the plaintiff, ex-parte. 2 S.A. 233 of 2018 3. The case of the plaintiff in brief is that the plaintiff and her husband proposed to purchase a suit land from the defendant who was in need of money and it was agreed between the parties that the defendant will transfer the suit land on payment of consideration amount of Rs. 55,000/- to the plaintiff and an agreement was executed by the parties to the suit on 11.07.2000, after the respondent received the full consideration amount of Rs. 55,000/-. The defendant undertook to execute the sale deed within one year from the date of said agreement. After expiry of the period of one year, the plaintiff approached the defendant for executing the sale deed but the defendant evaded from complying his part of the contract on one pretext or the other but assured to execute the sale deed. The plaintiff also pleaded that the defendant all of sudden left the village Arenda and settled at Howrah in the State of West Bengal. The defendant was again seen in Khunti on 02.02.2014 and the husband of the plaintiff met the defendant and requested to execute the sale deed and to perform his part of the contract but even then, the defendant did not execute the sale deed and again became untraceable. The plaintiff sent legal notice on 11.06.2015 and the notice was acknowledged by the defendant. The defendant replied to the notice by flatly refusing to execute the sale deed. The plaintiff asserted that the plaintiff has always been ready and still willing to perform his part of the contract; hence, the plaintiff filed the said suit. 4. The original defendant- Dhananjay Prasad, died during pendency of the suit and though his two sons were substituted in his place but they did not appear in the suit nor filed any written statement, hence, the suit proceeded ex- parte against the defendant. 5. In support of his case, the plaintiff examined two witnesses including herself as PW1 and Anand Kumar Kashyap as PW2. Learned trial court after considering the material available in the record, held that the suit is barred by 3 S.A. 233 of 2018 limitation being hit by Article 54 of the Limitation Act, 1963 and dismissed the suit ex-parte. 6. Being aggrieved by the judgment and decree passed by learned trial court , the appellant filed Civil Appeal No. 3 of 2017 before the learned Principal District Judge, Khunti which was heard and disposed of by learned First Appellate Court, as already indicated above. 7. Learned First Appellate Court considered that undisputedly the agreement was entered into between the parties on 11.07.2000. Learned First Appellate Court observed that the suit was filed after a lapse of fifteen years from the date of execution of the agreement, without assigning any cogent reason or explanation for the inordinate delay in filing the suit. Learned First Appellate Court observed that the plea that the defendant suddenly disappeared from Khunti and permanently settled at Howrah, cannot extend the period of limitation. Learned First Appellate Court also took note of the fact that in the recital of the agreement, it has specifically been mentioned that the deed of sale, was to be executed within one year from the date of execution of the agreement dated 11.07.2000. Learned First Appellate Court also observed that the plaintiff has not come up with any pleading or proof as to what step was taken by the plaintiff, in order to ascertain the whereabouts of the defendant and there was no plausible reason for the plaintiff not to file the suit against the defendant within the stipulated time, in terms of Article 54 of the Limitation Act, 1963. 8. Learned First Appellate Court also took note of the fact that the it is the definite case of the plaintiff that at the time of execution of the deed of agreement, the possession of the suit land was delivered to the plaintiff by the defendant but the same has not been mentioned in the agreement for sale entered into between the parties, which was filed in the court. Learned First Appellate Court also considered that if the plaintiff has been in possession of the suit land as claimed by her, why she made prayer for restoration of 4 S.A. 233 of 2018 possession at the time of the filing of the plaint. Learned First Appellate Court further observed that though as admitted by the plaintiff, the defendant was seen on 02.02.2014 at Khunti but it remains unexplained as to why the plaintiff made inordinate delay in sending a notice of more than one year and four months from the date of his last seen i.e. on 11.06.2015. Learned First Appellate Court also considered that the witnesses examined by the plaintiff did not say anything about the defendant – Dhananjay Prasad, suddenly missing from the village in the year 2002 and having been settled permanently at Howrah and otherwise also, there is no evidence, either oral or documentary to the effect that the defendant was missing and was not seen in the village between 2001 to 2014. Learned First Appellate Court observed that the cause of action made out in the plaint, is imaginary and fictitious and went on to hold that the suit is barred by limitation and finding no merit, dismissed the appeal and affirmed and confirmed the judgment passed by the trial court.
Legal Reasoning
9. Mr. S.K.Vishwakarma, learned counsel for the appellant by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Ahmmadsahab Abdul Mulla (deceased by L.Rs.) v. Bibijan and Ors. reported AIR 2009 SC 2193, submits that in the said judgment the reference, which was made to the Hon’ble Three Judges Bench of the Hon’ble Supreme Court of India was as under :- Whether the use of the expression debt, used in Article 54 of this Schedule to Limitation Act, 1963, is suggestive of specific date in the calendar? And the same was answered by the Hon’ble Supreme Court of India in para 7 which reads as under: “7. The inevitable conclusion is that the expression 'date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on 'when the plaintiff has notice that performance is refused'. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out 5 S.A. 233 of 2018 an intention from other circumstances. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression 'date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. We answer the reference accordingly. The matter shall now be placed before the Division Bench for deciding the issue on merits.” (Emphasis supplied) and submits that learned courts below could not properly appreciate the intent and purpose of Article 54 of Schedule to the Limitation Act, 1963. 10. It is next submitted by Mr. Vishwakarma that in the present case, as no date has been mentioned as to by which date, the agreement was to be performed, hence, both the courts below ought to have held that the suit is not barred by the limitation, hence, it is submitted by Mr. Vishawakarma that the impugned judgment and decree passed by both the courts below be set aside by formulating appropriate substantial question of law. 11. Having heard the submissions made at the Bar and after going through the materials available in the record, the undisputed fact remains that the agreement for sale between the parties was entered into on 11.07.2000 and there is specific date fixed in the agreement for the defendant to execute the sale deed within one year from the date of execution of the agreement which means, that the defendant was to execute the sale deed on or before 10.07.2001. So, by no stretch of imagination it can be said that in this case, no specific date of the calendar was agreed to between the parties to execute the specific performance of contract. So far as the judgment of the Hon’ble Supreme Court of India in the case of Ahmmadsahab Abdul Mulla (deceased by L.Rs.) v. Bibijan and Ors. (supra) is concerned, the facts of that case has not been mentioned in the said judgment. The case of S. Brahmanand and others v. K. R. Muthugopal (D) and others reported in AIR 2006 SC 40, was referred to by the Hon’ble Supreme Court of India in the case of Ahmmadsahab Abdul Mulla ( deceased by L.Rs.) v. Bibijan and Ors. (supra) and in the 6 S.A. 233 of 2018 case of S. Brahmanand and others v. K. R. Muthugopal (D) and others (supra), in the original agreement, a date was fixed but by subsequent letter, the defendant requested for postponing the performance to future date without fixing any further date for performance but the facts of this case is different from the case of S. Brahmanand and others v. K. R. Muthugopal (D) and others. (supra) because in this case, the date fixed for performing the contract was not extended for any indefinite period. Further, in the case of Ahmmadsahab Abdul Mulla (deceased by L.Rs.) v. Bibijan and Ors. (supra), the Hon’ble Supreme Court of India has categorically laid down inter alia, that whether the date was fixed, are to be established with reference to the materials and evidence to be brought on record. 12. So in this case, in view of the admitted facts of the plaintiff – appellant, which is corroborated by the agreement entered into between the parties, since the date of agreement was 11.07.2000 and the sale deed was to be executed by the defendant as per the terms of the agreement between the plaintiff and the defendant, within one year from the date of the agreement, so this court has no hesitation in holding that the date fixed for performance of contract, in the present case, was till 10.07.2001, so, the time period for limitation began to run in this case on 11.07.2001 and the suit having been admittedly filed more than three years from that date, which expired on 10.07.2004 and the suit having been filed on 13.07.2015, this court has no hesitation in holding that both the courts below have not committed any error by holding that the suit is barred by limitation. 13. Under such circumstances, this court is of the considered view that there is absolutely no substantial question of law involved in this appeal nor there is any perversity in the concurrent finding of facts by the courts below, accordingly, this appeal being without any merit is dismissed but in the circumstances, without any cost. 7 S.A. 233 of 2018 14. Let a copy of this Judgment be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 1st February, 2023. Smita /AFR