Full Judgment Text
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PETITIONER:
TARLOK SINGH
Vs.
RESPONDENT:
VIJAY KUMAR SABHARWAL
DATE OF JUDGMENT: 25/03/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (4) 245 1996 SCALE (3)558
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
Shorn of all the details regarding diverse litigations
that went on between the parties, suffice it to state that
the appellant is the owner of the lands. The respondent is
successor-in-interest. The respondent’s father admittedly
had an agreement of sale on December 21, 1984 executed by
the appellant to alienate the lands. In view of the pending
proceedings time for conveyance was further extended by
agreement dated August 18, 1984 stipulating that the
appellant shall be required to execute the sale deed within
15 days from the date of the order vacating the injunction
granted in a suit. We are informed that the suit was
initially dismissed and thereafter a review application
was also dismissed as withdrawn on March 22, 1986.
Initially, the respondent had instituted the suit on
December 23, 1987 for perpetual injunction. The application
under Order 6, Rule 17, CPC came to be filed for converting
the suit into one for specific performance of agreement
dated August 18, 1984. That application was filed on July
17, 1989. By order dated August 25, 1989 the amendment was
allowed. The appellant carried the matter in revision to the
High Court in C.R. No.2724/89. The High Court by order dated
November 29, 1989 had held thus:
"I do not find any illegality or
irregularity in the order passed by
the trial Judge. However, the
vendor will be at liberty to take a
specific plea in the written
statement which he will file
pursuant to the amended plaint that
the suit is beyond limitation and
that the suit was even beyond
limitation on the date when the
application for amendment was
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filed. After the amended written
statement is filed the trial Judge
will frame proper issues ind
dispose of the same according to
law.
In view of the above directions, the appellant has
pleaded that the suit was barred by limitation. The trial
Court negatived it and decreed the suit. On appeal, it was
confirmed. Second appeal No.RSA No.2485/93 by order dated
July 6, 1994, the Punjab & Haryana High Court dismissed it.
Thus, this appeal by special leave.
The only question is: whether the suit is barred by
limitation? Pursuant to the agreement dated December 21,
1984, time was extended for specific performance which
started running after 15 days from the date the stay was
vacated. It is now admitted position that review petition
was dismissed on March 22, 1986. Thus, the limitation began
to run on April 6, 1986. The question, therefore, is:
whether the suit for specific performance is within the
limitation? Article 54 of the Schedule to the Limitation Act
21 of 1963 reads thus:
"For specific performance of a
contract the period of limitation
is 3 years. The limitation begins
to run from the date fixed for the
performance, or, if no such date is
fixed, when the plaintiff has
notice that performance is refused.
Shri Prem Malhotra, learned counsel for the respondent,
contended that since the respondent had refused performance
the suit must be deemed to have been filed on December 23,
1987 and, therefore, when the amendment was allowed, it
would relate back to the date of filing the suit which was
filed within three years from the date of the refusal.
Accordingly, the suit is not barred by limitation. Shri U.R.
Lalit, learned senior counsel for the appellant, contended
that in view of the liberty given by the High Court the
appellant is entitled to raise the plea of limitation. The
suit filed after expiry of 3 years from 1986 is barred by
limitation. The question is: as to when the limitation began
to run? In view of the admitted position that the contract
was to be performed within 15 days after the injunction was
vacated, the limitation began to run on April 6, 1986. In
view of the position that the suit for perpetual injunction
was converted into one for specific performance by order
dated August 25, 1989, the suit must be deemed to have been
instituted on August 25, 1989 and the suit was clearly
barred by limitation. We find force in the stand of the
appellant. We think that parties had, by agreement,
determined the date for performance of the contract. Thereby
limitation began to run from April 6, 1986. Suit merely for
injunction laid on December 23, 1987 would not be of any
avail nor the limitation began to run from that date. Suit
for perpetual injunction is different from suit for specific
performance. The suit for specific performance in fact was
claimed by way of amendment application filed under Order 6,
Rule 17 CPC on September 12, 1979. It will operate only on
the application being ordered. Since the amendment was
ordered on August 25, 1989 the crucial date would be the
date on which the amendment was ordered by which date,
admittedly, the suit is barred by limitation. The courts
below, therefore, were not right in decreeing the suit.
The appeal is accordingly allowed. The suit stands
dismissed. No costs.
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