Full Judgment Text
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2023INSC898
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.6075 OF 2023
( @ SPECIAL LEAVE PETITION (CIVIL) NO.4477/2019 )
SABBIR (DEAD) THROUGH LRS … APPELLANT(S)
VERSUS
ANJUMAN (SINCE DECEASED) THROUGH LRS. … RESPONDENT(S)
O R D E R
AHSANUDDIN AMANULLAH, J.
Leave granted.
2. Heard learned counsel for the parties.
3. Both the original parties to the agreement to sell
being dead, are now represented through their Legal
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2023.10.10
18:13:32 IST
Reason:
Representatives (LRs). Appellants are LRs of the
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defendant whereas the Respondents are the LRs of the
plaintiff.
4. The present appeal is directed against the Final
Judgment and Order dated 18.07.2018 (hereinafter
referred to as the “Impugned Judgment”) passed by the
High Court of Judicature at Allahabad (hereinafter
referred to as “the High Court”) in Second Appeal
No.1574 of 1984 by which the second appeal filed by
the respondents was allowed; judgment of the First
Appellate Court was set aside, and; judgment of the
Trial Court was affirmed and restored.
THE FACTUAL PRISM:
5. An Agreement to Sell (hereinafter referred to as
“ATS”) was executed in favour of the respondents by
the appellants on 31.07.1975. The ATS envisioned that
the appellants had to apply for permission to sell the
property within eight days and upon permission being
received, the same was to be intimated to the
respondents and the Sale Deed was to be executed
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within 15 days from receipt of such intimation by the
respondents. Earnest money of Rs.1,000/- was paid out
of the total sale consideration of Rs.6,000/-. The
appellants did not apply for any permission to sell
which led to the respondents filing Suit No. 5 of 1981
on 01.01.1981 for specific performance of the ATS. The
suit was decreed by judgment dated 08.03.1982. The
appellants filed Appeal No.118 of 1982 which was
allowed by the First Appellate Court vide judgment
dated 09.05.1984. The respondents thereafter filed
Second Appeal No.1574 of 1984 which was allowed by the
High Court on 02.04.2010. The appellants then carried
the case to this Court, which remanded the matter to
the High Court. On remand, the High Court again
allowed the Second Appeal by its judgment dated
18.07.2018, reversing the finding(s) of the First
Appellate Court. The High Court’s judgment dated
18.07.2018 is impugned herein.
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SUBMISSIONS BY THE APPELLANTS:
6. Learned counsel for the appellants submitted that
the Trial Court had totally mis-appreciated the facts
and law while decreeing the suit. It was stated that
the First Appellate Court, after appreciation of the
facts in their correct perspective and applying the
law to the same, rightly reversed the Trial Court’s
view, and dismissed the suit. It was contended that
the High Court without giving any cogent reasons, on
wrong appreciation of the material/facts and law, had
reversed the judgment of the First Appellate Court.
Learned counsel submitted that our interference was
called for. It was contended that the First Appellate
Court had rightly come to the conclusion that in the
background of the various clauses in the ATS, the
respondents had not taken any steps despite the
appellants not having applied for permission for five
years; which showed that the respondents were not
ready and willing to perform their part of the
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contract, and therefore, the suit was barred by
limitation.
7. It was submitted that Clauses 3 & 4 of the ATS
dated 31.07.1975 would indicate that the time for
moving the court for specific performance started upon
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expiry of the 8 day from 31.07.1975 and thus, filing
of the suit on 01.01.1981 was clearly beyond the
period specified to institute such case.
SUBMISSIONS BY THE RESPONDENTS:
8. Learned counsel for the respondents submitted
that the Trial Court had rightly held that the
appellants had to apply for permission and upon
getting the same had to intimate to the respondents
and within fifteen days of such intimation, the
respondents were to get the Sale Deed executed. As the
appellants had not even applied and thus, no
permission was ever obtained, they had not informed
the respondents and therefore, the suit would not be
hit by limitation. It was his submission that the suit
was filed within the limitation period.
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9. It was further contended that the respondents had
orally shown their willingness to the appellants to
pay the balance amount and get the Sale Deed executed
in terms of the time-frame as per the ATS but the
appellants stoutly refused to act as per the terms of
the ATS. It was submitted that the respondents, who
were the tenants, had even got the property
reconstructed in the year 1978 by investing
Rs.5,000/- after getting the maps approved by the
concerned Municipal Corporation through the
appellants.
ANALYSIS, REASONING AND CONCLUSION:
10. Having considered the matter, the Court finds
that the Impugned Judgment cannot be sustained. The
true typed copy of the ATS dated 31.07.1975 has been
brought on record by the learned counsel for the
appellants. Clause 3 thereof stipulates that the
appellants within 8 days from that date, for sale of
the property, would apply for permission before the
District Magistrate, Saharanpur, Uttar Pradesh and
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upon the same being granted shall communicate it to
the respondents through registered post. Thereafter,
it was stipulated that within 15 days from such
intimation, the respondents shall get the Sale Deed
executed either in their favour or in favour of a
person of their choice and the expenses would be borne
by the respondents. Further, Clause 4 stipulated that
in case the appellants did not apply for permission
within the stipulated time ‘ or ’ after getting
permission, did not inform the respondents and get the
deed executed in favour of either the respondents or
anyone of their choice then the respondents would have
the right to get the sale of the property in question
executed in their favour through the Court, and also
take possession through the Court. A conjoint and
harmonious reading of the relevant Clauses clearly
indicates that the onus was on the appellants to apply
within 8 days for permission and upon the permission
being received, to intimate to the respondents,
whereafter the respondents had to get the Sale Deed
executed within 15 days. It was clarified that in the
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event of failure to do so i.e., either of not applying
for permission ‘ or ’ not intimating the respondents
upon receipt of permission, the respondents had the
right to move the Court for getting the sale executed
as also for possession. Thus, from the ninth (9th) day
onwards, the onus would shift on the respondents, if
within 8 days the appellants had not even applied for
permission. Since the consequences of non-performance
of the duty cast upon the appellants of applying
within 8 days or non-intimation of permission having
been granted, in either contingency, a right accrued
to the respondents to move Court.
11. In this background, the respondents cannot take
the plea that they would be entitled to indefinitely
wait till the appellants informed them about the
permission. As soon as the first eight days expired,
the respondents had to show due diligence by being
vigilant and conscious of their rights and were
required to act promptly. There being no notice given
to the appellants by the respondents for five and a
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half years to indicate the reason why they kept
waiting or that despite their willingness to comply
with their portion of the obligations under the ATS,
the appellants had not discharged their obligations
under the ATS and why the respondents should not move
before the Court for enforcement of the ATS, as
contemplated thereunder, coupled with the fact that in
the entire plaint, there is not even a whisper with
regard to the respondents having ever called upon the
appellants or given notice to them that they were
ready and willing to pay the balance amount and get
the Sale Deed executed, in our considered view does
not aid the respondents. We see nothing on the record
to fathom a valid or justifiable reason for the
respondents to have waited for five and a half years
before instituting the suit.
12. From perusal of the plaint on the record it,
transpires that there is a statement in Paragraph No.6
that till the month of October, 1980, the original
respondent (since deceased) and her husband (now, as
Legal Representative) had asked the appellants to
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execute the Sale Deed and then an eviction notice was
served on the original respondent (since deceased) and
her husband (now, as Legal Representative) and his
brother. It has further been stated that this was
after the respondents asked the appellants to execute
the Sale Deed within 15 days after taking permission.
Thus, nowhere it has been even indicated, in clear
terms, that the respondents were ready and willing to
pay the balance amount and get the Sale Deed executed
in their favour. In view thereof, from their own
pleadings in the plaint, even after five and a half
years, there being no averment that the respondents
were ready and willing to perform their obligations
under the ATS and pay the balance/remaining amount is
enough for the suit of the respondents to be dismissed
on the ground of limitation alone. The ATS is dated
31.07.1975 and the suit was filed on 01.01.1981. The
limitation for filing a suit for specific performance,
as per Article 54 of the Schedule to The Limitation
Act, 1963 is 3 years ‘ from the date fixed for
performance or if no such date is fixed, when the
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plaintiff has notice that the performance is refused. ’
In Ghewarchand v Mahendra Singh , (2018) 10 SCC 588 , it
was observed that when deciding upon the question of
limitation, it is mainly required to see the plaint
allegations and how the plaintiff has pleaded the
accrual of cause of action for filing of the suit.
Apropos limitation, this Court observed, in Basawaraj
v Land Acquisition Officer , (2013) 14 SCC 81 as under:
‘ 12. It is a settled legal proposition that
law of limitation may harshly affect a
particular party but it has to be applied
with all its rigour when the statute so
prescribes. The court has no power to extend
the period of limitation on equitable
grounds. “A result flowing from a statutory
provision is never an evil. A court has no
power to ignore that provision to relieve
what it considers a distress resulting from
its operation.” The statutory provision may
cause hardship or inconvenience to a
particular party but the court has no choice
but to enforce it giving full effect to the
same. The legal maxim dura lex sed lex which
means “the law is hard but it is the law”,
stands attracted in such a situation. It has
consistently been held that, “inconvenience
is not” a decisive factor to be considered
while interpreting a statute.
13. The statute of limitation is founded on
public policy, its aim being to secure
peace in the community, to suppress fraud
and perjury, to quicken diligence and to
prevent oppression. It seeks to bury all
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acts of the past which have not been
agitated unexplainably and have from lapse
of time become stale. According to
Halsbury's Laws of England, Vol. 28, p.
266:
“605. Policy of the Limitation Acts.—
The courts have expressed at least
three differing reasons supporting the
existence of statutes of limitations
namely, (1) that long dormant claims
have more of cruelty than justice in
them, (2) that a defendant might have
lost the evidence to disprove a stale
claim, and (3) that persons with good
causes of actions should pursue them
with reasonable diligence.”
An unlimited limitation would lead to a
sense of insecurity and uncertainty, and
therefore, limitation prevents disturbance
or deprivation of what may have been
acquired in equity and justice by long
enjoyment or what may have been lost by a
party's own inaction, negligence or laches.
(See Popat and Kotecha Property v. SBI
Staff Assn. [(2005) 7 SCC 510], Rajender
Singh v. Santa Singh [(1973) 2 SCC 705: AIR
1973 SC 2537] and Pundlik Jalam Patil v.
Jalgaon Medium Project [(2008) 17 SCC 448:
(2009) 5 SCC (Civ) 907].) ’
(emphasis supplied)
13. For reasons aforesaid, we set aside the Impugned
Judgment. The judgment and order passed by the First
Appellate Court, dismissing the suit, stands
restored. The appeal is, accordingly, allowed.
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14. The respondents had paid, in 1975, Rs.1,000 to
the appellants. The respondents are entitled to
refund thereof. We quantify such lump-sum refund,
factoring in the time elapsed, at Rs.1,50,000 to be
paid on/before 01.01.2024 to the respondents by the
appellants.
15. In the extant circumstances, there shall be no
order as to costs.
.....................J.
[VIKRAM NATH]
.....................J.
[AHSANUDDIN AMANULLAH]
NEW DELHI.
SEPTEMBER 22, 2023