Sardara Singh v. Ravinder Singh

Mr.RS Malhotra, Advocate for the appellant. <><><> TEJINDER SINGH DHINDSA, J. CM No.1760-C of 2010 This is an application seeking condonation of delay of 35 days in re-filing the present second appeal. The application is duly supported by an affidavit of Mr.RS Malhotra, learned counsel appearing for the appellant.

2. In view of the averments made in the application, sufficient cause has been shown for condonation of delay of 35 days in re-filing the appeal. Delay condoned.

3. CM disposed of. RSA No.621 of 2010

5. The plaintiff-appellant is in second appeal before this Court. Briefly noticed, the plaintiff filed a suit for recovery of RSA No.621 of 2010 (O&M) 2 `1,58,500/- against the defendant by pleading that an agreement had been executed in his favour in respect of a shop and 3-1/2 marlas of land along with boundary wall for a sale-consideration of `1,75,000/-, and out of such total amount, a sum of `75,000/- had been paid to the defendant towards earnest money. Thereafter, it came to the knowledge of the plaintiff from the revenue record that the shop in question had, in fact, been built on Government land. Accordingly, a sale-deed of land measuring 3-1/2 marlas was executed by the defendant in favour of the plaintiff on 30.7.1996, for a consideration of `16,500/- after adjusting the remaining amount by executing a separate receipt dated 30.7.1996 in respect to the boundary wall of the shop as also the malba upon receiving an amount of `1,58,500/- from the plaintiff. It was pleaded that possession of land measuring 1 marla was handed over and the malba in question was not handed over against receipt of `1,58,500/-. Accordingly, a suit for permanent injunction was filed before the Civil Judge (Junior Division), Gurdaspur and the same was decided on 24.8.1998. In such suit, pertaining to issue No.4, the finding regarding receipt of `1,58,500/- was given in favour of the respondent. In the appeal, the District Judge, Gurdaspur modified such finding and when the matter was taken up in second appeal before this Court, it had been held that the receipt of `1,58,500/- was not admissible as evidence for transaction of sale of immovable property but the same could not be taken into consideration for the other purposes. Under such circumstances, it was stated that cause of action for instituting a suit for recovery had arisen upon the decision in regular second appeal by the High Court.

6. The suit was contested and a written statement was filed taking RSA No.621 of 2010 (O&M) 3 up a specific plea that the suit was barred by limitation. On merits, the receipt of `1,58,500/- was specifically denied.

7. Upon the pleadings of the parties, the following issues were framed by the trial Court:

1. Whether the plaintiff is entitled to the recovery of the suit amount along with interest? OPP

2. Whether the suit is not maintainable?OPD

3. Whether the suit is time barred? OPD

4. Whether the suit is barred under Order 2 Rule 2 CPC? OPD

5. Relief.

8. The trial Court, upon appraisal of evidence, decreed the suit in favour of the plaintiff and held him entitled to recover `1,58,500/- from the defendant on the basis of receipt dated 30.7.1996 along with interest @ 6% per annum from the date of receipt till realization. As regards the question of limitation, the trial Court decided Issue No.3 in favour of the plaintiff holding that the suit had been filed within three years from the date of order passed by the High Court i.e. 27.8.2004 in the previous litigation between the parties.

9. Aggrieved of the same, the defendant-respondent filed a civil appeal and vide impugned judgment dated 6.5.2009 passed by the District Judge, Gurdaspur, the appeal had been accepted and the suit filed by the plaintiff was held to be hopelessly time barred.

10. I have heard Mr.RS Malhotra, learned counsel appearing for the appellant at length.

11. The receipt dated 30.7.1996, Exhibit P3, forms the entire basis RSA No.621 of 2010 (O&M) 4 for having instituted the suit for recovery at the hands of the plaintiff, appellant herein. The entire case set up in the plaint was that an amount of `1,58,500/- had been paid by the plaintiff-appellant to the respondent in consideration of sale of malba and the boundary wall of the shop but it was asserted that the possession thereof had not been delivered. Receipt, Exhibit P3, contained a recital to the contrary i.e. possession of malba and the boundary wall having been handed over to the respondent at the time of the execution of the receipt itself.

12. Under such factual backdrop, the question as regards the suit having been filed within limitation or not would have to be answered in the light of the provisions contained in Section 2(j) of the Limitation Act, 1963 wherein the period of limitation has been defined to mean the period prescribed for any suit, appeal or application prescribed in the Schedule, and the “prescribed period” means the period of limitation computed in accordance with the provisions of this Act. The relevant portion of the Schedule prescribing the period of limitation would read in the following terms: “PART I – SUITS RELATING TO ACCOUNTS xxxxxxx PART II – SUITS RELATING TO CONTRACTS xxxxxxx

47. For money paid upon an Three years The date of the failure. Existing consideration which afterwards fails.”

13. A bare reading of the relevant entry in the Schedule prescribing period of limitation contained in part II would make it apparent that RSA No.621 of 2010 (O&M) 5 limitation for filing suits in respect of money paid upon an existing consideration, which afterwards fails, is three years and the time from which such period of limitation begins to run is the date of the failure. In the case in hand, the limitation would commence from the date of execution of the receipt i.e. 30.7.1996 itself as it was the case of the plaintiff-appellant himself that the consideration had failed immediately on execution of the receipt, Exhibit P3. The suit for recovery instituted on 5.11.2004 pertaining to a receipt dated 30.7.1996 would clearly be barred by limitation.

14. I find no infirmity in the impugned judgment and order dated

6.5.2009 passed by the first Appellate Court holding the suit to be time barred.

15. The instant appeal raises no question of law, much less a substantial question of law.

17. The present appeal must fail and is, accordingly, dismissed. Appeal dismissed. FEBRUARY 13, 2012 SRM ( TEJINDER SINGH DHINDSA ) JUDGE Note: Whether to be referred to Reporter? Yes/No