FATEHJI & COMPANY & ANR.versusL.M. NAGPAL & ORS.

                    [2015] 6 S.C.R. 389


              FATEHJI & COMPANY & ANR.                        A
                             v.
                  L.M. NAGPAL & ORS.
              (Civil Appeal No.3912 Of 2015)
                                                              B
                      APRIL 24, 2015
     [V. GOPALA GOWDA AND C. NAGAPPAN, JJ.]
     Limitation Act, 1963 - Art. 54 - Suit for specific
performance of contract- Limitation period- Suit for specific c
performance of sale agreement filed by the plaintiffs on
29. 4. 1994 against the defendants - Performance of contract
was fixed till 2. 12. 73, however, by subsequent letters
defendants sought extension of time till 1.2.1977 -
Application u/Or. VII r. 11 seeking rejection of the plaint as D
barred by limitation - Trial court held that the suit was barred
by limitation - However High Court set aside the order of
the trial court - On appeal, held: Last extension sought for
by the defendants expired on 1. 2.1977 - Suit seeking specific
performance was filed much beyond the period of three years E
- On facts, averment by the plaintiff that the last and final
cause of action accrued and arose to them after 1991 when
the defendants succeeded in hiding themselves and started
avoiding the plaintiffs, cannot be accepted - Thus, the order
passed by the High Court is set aside and that of the trial F
court is restored- Code of Civil Procedure, 1908 - Or. VII r.
11.
        Allowing the appeal, the Court
       HELD: 1.1 The fact that the plaintiffs were put in G
possession of the property agreed to be sold on the date
of agreement itself would not make any difference with
regard to the limitation of filing the suit for specific
performance. In fact both the courts below rightly held
that Article 54 of the Limitation Act does not make any H
                           389
390         SUPREME COURT REPORTS                  f2015] 6 S.C.R.


A difference between a case where possession of the
  property has been delivered in part performance of the
  agreement or otherwise. In the same way the courts
  below concurrently held even if any permission is to be
  obtained prior to the performance/completion of the
B contract, the mere fact that the defendants have not
  obtained the said permission would not lead to inference
  that no cause of action for filing the suit for specific
  performance would arise. Further it is also not the case
  for postponing the performance to a future date without
C fixing any further date for performance. [Para 7) [394-E-
  H; 395-A]

              1.2 The plaintiffs averred in the plaint that the last
      and final cause of action accrued and arose to them after
D     1991 when the defendants succeeded in hiding
      themselves and started avoiding the plaintiffs and the
      cause of action being recurring and continuous one, they
      filed the suit on 29.4.1994. The original cause of action
E     became available to the plaintiffs on 2.12.1973 the date
      fixed for the performance of the contract and thereafter,
      the same stood exter.ded till 1.2.1977. Though the
      plaintiffs claimed that oral extension of time was given,
      no particulars as to when and how long, were not
F     mentioned in the plaint. The suit for specific performance
      was filed by the plaintiffs on 29.4.1994, much beyond
      the period of three years. On the other hand even after
      knowing the dishonest intention of the sons of the
      second defendant with regard to the suit property in the
G     year 1985, the plaintiffs did not file the suit immediately.
      The suit having been filed in the year 1994 is barred by
      limitation under Article 54 of the Limitation Act. The High
      Court erred in reversing the well considered order of
H     the trial court rejecting the plaint as barred by limitation
  FATEHJI & COMPANY & ANR. v. L.M. NAGPAL & ORS.             391


 and the impugned judgment is set aside. [Para 9, 1O]         A
 [395-D-H; 396-A]



       Ahmadsahab Abdul Mui/a (2) (Dead) by proposed Lrs. ·
                                                               8
  vs. Bibijan and ors. 2009 (5) SCR 476 : (2009)5 SCC 462;
  Church of Christ Charitable Trust and Educational Charitable
  Society represented by its Chairman vs. Ponniamman
  Educational Trust represented by its Chairperson/Managing
  Trustee 2012 (6) SCR 404 : (2012) 8 SCC 706; S. c
· Brahmanand and ors. vs. K.R. Muthugopal (Dead) and ors.
  2005 (4) Suppl. SCR 461: (2005) 12 SCC 764; Panchanan
  Ohara and ors. vs. Monmatha Nath Maity (Dead) through
  Lrs. and Anr. 2006 (2) Suppl. SCR 520: (2006) 5 SCC 340;
  Nitanjan Kumar and ors. vs. Dhyan Singh and Anr. (1976) 4 D
  sec 89 - referred to.
                    Case Law Reference
 2009 (5) SCR 476           Referred to.           Para 5
 2012 (6) SCR 404           Referred to.           Para 5     E
 2005 (4) Suppl. SCR 461 Referred to.              Para 5
 2006 (2) Suppl. SCR 520 Referred to.              Para 5
(1976) 4 sec 89             Referred to.           Para 5
       CIVILAPPELLATE JURISDICTION: Civil Appeal              F
 No. 3912 of2015.

       From the Judgment and Order dated 19.07.2013 of
the High Court of Delhi at New Delhi in RFA No. 350of1997.
                                                              G
     Abhinav Vashisth, Shekhar Prit Jha, Naveen Kr.
Chaudhary, Sun ii Puri for the Appellants.

       S. N. Bhat for the Respondents.

       The Judgment of the Court was delivered by             H
392         SUPREME COURT REPORTS                   (2015] 6 S.C.R.


A            C. NAGAPPAN, J. 1. Leave granted.

           2. This appeal is preferred against the judgment and
  order dated 19.7.2013 in RF.A. no.350 of 1997 passed by
  the High Court of Delhi in which the High Court allowed the
B Appeal by setting aside the order dated 7 .8.1997 of the Court
  of Additional District Judge, Delhi rejecting the plaint in Suit
  no.87 of 1994.

                3. Briefly the facts are as follows : The perpetual
c     lease hold right in respect of the suit land as vacant plot was
      granted in favour of original lessee Col. A.N. Kapur by regis-
      tered lease deed dated 16.4.1962 by the Government of
      India and he built two storied building with barsati and he
      sold his rights in the said property to the first defendant-Firm
D     by registered sale deed dated 6.5.1963. The first defendant
      entered into a written agreement of sale dated 2.7.1973 in
      respect of the suit property with Smt. Ram Pyari. As per the
      terms of the agreement the possession of the suit property
      including the building was handed over to Smt. Ram Pyari
E     Nag pal on the date of agreement itself. The date for execu-
      tion of the sale deed was fixed for 2.12.1973. Extension of
      time for execution of sale deed on the plea of obtaining per-
      mission to sell the property from the lessor was sought by
      the defendants by way of letters and the last of such exten-
F     sion was sought for six months w.e.f. August 1976. The
      sons of second defendant in July 1985 filed a suit seeking
      for declaration that the suit property is joint family property
      and the sale made by defendants in favour of plaintiffs be
      declared as null and void, was filed against defendants 2, 3
G     and the plaintiffs and on contest the same was dismissed
      on 5.4.1989. According to the plaintiffs the final cause of
      action accrued and arose after August 1991 when the de-
      fendants began hiding themselves and avoiding the plain-
H     tiffs and they filed the suit on 29.4.1994 seeking for a de-
      cree for specific performance of the agreement of sale dated
 FATEHJI & COMPANY &ANR. v. L.M. NAGPAL & ORS.                 393
               [C. NAGAPPAN, J.]

2.7.1973 against the defendants.                                 A

       4. The defendants 1 to 3 filed an application under
Order VII Rule 11 CPC on 10.10.1996 seeking for rejection
of the plaint as barred by the law of limitation. The Trial
Court after hearing both sides by a speaking order held that B
the suit is patently barred by the law of limitation and al-
lowed the application by rejecting the plaint. The plaintiffs
preferred appeal in RFA no.350 of 1997 and the High Court
by the impugned judgment allowed the appeal by setting
aside the order of the Trial Court and restored the suit to file. C
Aggrieved by the same the defendants have preferred the
present appeal. For the sake of convenience, the parties
are hereinafter referred to as they were arrayed in this suit.

        5. The learned senior counsel appearing for the ap- o
pellants/defendants submitted that the suit patently appears
to be barred by law of limitation by looking at the plaint aver-
ments and the High Court committed manifest error in arriv-
ing at a finding that the suit has to be tried. He relied on the
decisions of this Court in Ahmadsahab Abdul Mulla E
(2)(Dead) by proposed Lrs. vs. Bibijan and ors. (2009)5
SCC 462 and Church of Christ Charitable Trust and Edu-
cational Charitable Society represented by its Chairman
vs. Ponniamman Educational Trust represented by its
Chairperson/Managing Trustee (2012) 8 SCC 706. Per F
contra the learned counsel appearing for the respondents
contended that although the agreement of sale dated
2.7.1973 had a fixed date for performance, the defendants
by subsequent letters sought for extension for obtaining
permission of lessor viz. Land & Development Office (L&DO) G
and the said permission was not taken till now and the High
Court has rightly dismissed the claim for rejection of plaint.
He relied on three decisions of this Court in 5. Brahmanand
and ors. vs. K.R. Muthugopal (Dead) and ors. (2005) 12 H
SCC 764, Panchanan Ohara and ors. vs. Monmatha Nath
394        SUPREME COURT REPORTS                  [2015] 6 S.C.R.


A     Maity (Dead) through Lrs. and anr. (2006) 5 SCC 340 and
      Niranjan Kumar and ors. vs. Dhyan Singh and anr. (1976)
      4 sec 89.

           6. We considered the rival submissions. The specific
B performance is claimed of a written agreement of sale dated
  2. 7 .1973 and as per the terms the performance of the
  contract was fixed till 2.12.1973. The defendants by
  subsequent letters dated 7.4.1975, 1.10.1975 and 1.8.1976
  sought for extension of time to enable them to obtain
C permission of lessor and the last extension of six months
  expired on 1.2.1977. In view of Order VII Rule 11(a) and
  11 (d) the Court has to satisfy that the plaint discloses a cause
  of action and does not appear to be barred by any law. Article
  54 of the Limitation Act stipulates that the limitation for filing
D the suit for specific performance of the contract is three years
  from the date fixed for the performance or if no such date is
  fixed, when the plaintiff has noticed that performance is
  refused.

E         7. The fact that the plaintiffs were put in possession
  of the property agreed to be sold on the date of agreement
  itself would not make any difference with regard to the
  limitation of filing the suit for specific performance. In fact
  both the courts below have rightly held that Article 54 of the
F Limitation Act does not make any difference between a case
  where possession of the property has been delivered in part
  performance of the agreement or otherwise. In the same
  way the courts below have also concurrently held even if
  any permission is to be obtained prior to the performance/
G completion of the contract, the mere fact that the defendants
  have not obtained the said permission would not lead to
  inference that no cause of action for filing the suit for specific
  performance would arise. Further it is also not the case for
H postponing the performance to a future date without fixing
  any further date for performance. The last extension for a
 FATEHJI & COMPANY &ANR. v. L.M. NAGPAL & ORS.                      395
               [C. NAGAPPAN, J.]

period of six months w.e.f. 1.8.1976 sought for by the               A
defendants expired on 1.2.1977. The present suit seeking
for specific performance was filed by the plaintiffs on
29.4.1994, much beyond the period of three years.

        8. Yet another circumstance was pointed out to prove         B
the laches on the part of the plaintiffs. The sons of the second
defendant filed a suit in July 1985 against defendants 2, 3
and the plaintiffs seeking for declaration that the present
suit property is their ancestral joint family property and the
sale made by the defendants in favour of the plaintiffs be           C
declared as null and void. The plaintiffs herein contested
the said suit and it came to be dismissed on 5.4.1989. The
suit for specific performance was not filed within three years
from the said date also.
                                                                     D
        9. The plaintiffs averred in the plaint that the last and
final cause of action accrued and arose to them after August
1991 when the defendants succeeded in hiding themselves
and started avoiding the plaintiffs and the cause of action
being recurring and continuous one, they filed the suit on           E
29.4.1994. As already seen the original cause of action
became available to the plaintiffs on 2.12.1973, the date
fixed for the performance of the contract and thereafter the
same stood extended till 1.2.1977 as requested by the
defendants. Though the plaintiffs claimed that oral extension        F
of time was given, no particulars as to when and how long,
were not mentioned in the plaint. On the other hand even
after knowing the dishonest intention of the sons of the
second defendant with regard to the suit property in the
year1985, the plaintiffs did not file the suit immediately. The      G
suit having been filed in the year 1994 is barred by limitation
under Article 54 of the Limitation Act.

      10. We are of the view that the High Court committed
manifest error in reversing the well considered order of the         H
396          SUPREME COURT REPORTS                    (2015] 6 S.C.R.


A     Trial Court rejecting the plaint as barred by the law of limitation
      and the impugned judgment is liable to be set aside. In the
      result, the appeal is allowed and the impugned judgment of
      the High Court is set aside and the order of the Trial Court is
      restored. No costs.
B
      Nidhi Jain                                          Appeal allowed.