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CASE NO.: Appeal (civil)  4190 of 2000

PETITIONER: Ahmadasahab Abdul Mulla (D) by proposed LRs

RESPONDENT: Bibijan & Ors

DATE OF JUDGMENT: 21/04/2008

BENCH: Dr. ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO. 4190  OF 2000

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Karnataka High Court allowing the  Second appeal filed by the respondents under Section 100 of  the Code of Civil Procedure, 1908 (in short the ’CPC’). The  present respondents are the plaintiffs.  They had filed the suit  for specific performance of the contract on sale which was  decreed by the trial court but was dismissed on the ground of  limitation by the first Appellate Court and therefore the  Second Appeal was filed.   

2.      Background facts in a nutshell are as follows:

The plaintiff No.1’s husband entered into an agreement of  sale of house property No.CTS 2565, Ward No.5, of Mudhol  corresponding Municipal No. 536, on 15-11-1974 for consi- deration of Rs.6,000/-. A sum of Rs.1000/- was paid and  subsequently two sums of Rs.300/- and Rs.600/- were paid  on 21-12-1974 and 13-8-1975. But in the mean time, a suit  was filed by the defendant’s wife and children in 0. S.  No.72/76, wherein the plaintiff’s husband was made a party.  questioning the agreement of sale, and the suit came to be  dismissed on 4-8-1977. The first appeal preferred in R.  A.84/77 subsequently numbered as R, A, 83/79 came to be  dismissed on 18-8-1979 and the second appeal preferred in  RSA No.385/80 also came to be dismissed on 5-6-1980.  Therefore the present suit is filed on 15.9.1981 for specific  performance of agreement of sale.         The defendant contended that the suit house belonged to  his deceased father and his deceased father made an oral gift  of the suit, property in favour of himself and his wife, and  minor children by delivery of possession. As he had no source  of income to meet his family needs, the deceased husband of  the plaintiff promised to lend him money and the defendant  agreed to give the property as security. Under such  circumstances he executed the suit agreement and received  loan from Modinsaheb. He has not parted with the possession.  He further contended that the suit is barred by limitation and  the plaintiff was never ready and willing. Ultimately, he  resisted the suit by contending that the suit house is the only

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shelter for him and his family members he cannot be directed  to comply with agreement of sale. The trial Court accepted the agreement as to the payment  made thereon as correct, and holding that the defendant is not  a debtor within the meaning of the relevant Act, granted the  decree for specific performance rejecting the plea of non- joinder and loan raised by the defendant.         The appellate Court found that the trial court is right in  accepting the case of the plaintiff regarding the agreement and  parting with the possession by way of part performance and  also that no hardship would be caused to the defendant by  grant of specific performance as provided under Section 20 of  the Specific Relief Act, 1963 (in short ’the Act’).  But on the  ground of limitation, holding that the pendency of the other  suit will not save the limitation within the meaning of section  14 of the Limitation Act, 1963 (in short ’Limitation Act’)  dismissed the suit.

The second appeal was admitted on the following  questions of law:

"Whether the contention taken that the  cause of action for filing the suit arises only,  when the other suit questioning the title of his  own wife and children, was over as per dictum  of Lakshminarayana Reddiar v. Singaravelu  Naicker & Anr. AIR 1963 Mad.24".

The High Court noticed that as held by the Madras High  Court in Lakshminarayan’s case (supra) the time taken for  redemption wherein the title deed was primarily involved has  to be excluded under Section 14 of the Limitation Act. It was  held that no contra decision was cited and, therefore, with  reference to Section 113 of the Limitation Act, 1908 (in short  the ’Old Act’) this suit was within time.

3.      Learned counsel for the appellant submitted that the true  import of Section 113 of the Limitation Act has not been kept  in view.

4.      Learned counsel for the respondent on the other hand  supported the order of the High Court.

5.      In S. Brahmanand v. K.R. Muthugopal (2005 12) SCC  764) after noticing the decisions rendered by various High  Courts, this Court inter alia observed as follows:

"16. It would be useful to set out the  provisions of Article 54 before critically  appraising the arguments presented to us on  both sides.

"Description of suit    Period of limitation            Time from  which  period  begins to  run

54.     For     specific                Three years     The date fixed  performance of a  contract for the

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performance, or,  if no such date  is fixed, when  the plaintiff has  notice that  performance is  refused."

        17. Though, at first blush, it may appear that the  use of the expression "date" used in this article of  the Limitation Act, 1963 is suggestive of a specific  date in the calendar, we cannot forget the judicial  interpretation of this expression over a long period  of time. Different High Courts took different views of  the matter, which has been a subject-matter of  controversy. Some interpreted the expression  strictly and literally, while others have taken an  extended view.

18. In Kashi Prasad v. Chhabi Lal the High Court  dealing with Article 113 of the Limitation Act, 1908,  which was in pari materia with Article 54 of the  Schedule to the Limitation Act, 1963, took the view  that the force of the word "fixed" implies that the  date should be fixed definitely and should not be left  to be gathered from the surrounding circumstances  of the case. It must be a date clearly mentioned in  the contract whether the said contract be oral or in  writing.

19. In Alopi Parshad v. Court of Wards also the  Court was concerned with Article 113 of the  Limitation Act, 1908. A suit for specific performance  was brought on an agreement of sale where the time  for performance of the contract was "after passing of  a decree". Though no date for performance was fixed  for the agreement, the trial court had opined that  time must be held to have begun to run from the  date on which the decree was passed in view of the  maxim id certum est quod certum reddi potest ("That  is sufficiently certain which can be made certain".)  The Lahore High Court was of the view that statutes  of limitation must be strictly construed and that the  respondents before it had failed to bring a case  specifically within the purview of the first part of  Article 113 and that the case did not fall within the  first part but fell within the second part of Article  113. The judgment of the Allahabad High Court in  Kashi Prasad was approvingly referred to and  followed. This judgment was taken in appeal before  the Privy Council and approved by the Privy Council  in Lala Ram Sarup v. Court of Wards.          20. In Kruttiventi Mallikharjuna Rao v. Vemuri  Pardhasaradhirao a contract was entered into on  18-7-1934 and the vendor promised to execute the  sale deed when both his brothers who were  studying elsewhere returned to the village for the  next vacation i.e. in May-June 1935. The High  Court held (AIR p.      218h) that this was "too  indefinite to be regarded as fixing a ’date’ for the  performance of the contract and the period of  limitation must be computed from the date of  refusal to perform".

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21. In R. Muniswami Goundar v. B.M. Shamanna  Gouda interpreting the expression "date fixed" in  Article 113 of the Limitation Act, 1908 the doctrine  of id certum est quod certum reddi potest was  pressed into service along with its exposition in  Broom’s Legal Maxims and it was held that it was  wide enough to include a date which though at the  time when the contract was made was not known,  but could be ascertained by an event which  subsequently was certain of happening.

22. In Hutchegowda v. H.M. Basaviah upholding  the view in Muniswami Goundar it was held that an  agreement to execute the sale deed after the  "Saguvali chit" is granted fell within the first part of  Article 113 of the Limitation Act, 1908.

23. In Purshottam Sava v. Kunverji Devji the  judgment of the Madras High Court in R.  Muniswami Goundar was followed and it was held  that the expression "date fixed" can be interpreted  as meaning either the date fixed expressly or a date  that can be fixed with reference to a future event  which is certain to happen.

24. In Lakshminarayana Reddiar v. Singaravelu  Naicker it was held that the phrase occurring in the  third column of Article 113 of the Limitation Act,  1908 "the date fixed for the performance" must not  only be a date which can be identified without any  doubt as a particular point of time, but it should  also be a date which the parties intended should be  the date when the contract could be performed.

25. In Shrikrishna Keshav Kulkarni v. Balaji  Ganesh Kulkarni the agreement for sale of a  property stated that the sale was to be executed  after the attachment which the creditors had  brought, was raised. Noticing the fact that there was  absence of any indication as to when the  attachment would be raised, the Court treated it as  a case in which no date was fixed for performance of  the contract and, therefore, falling within the  second part of Article 54 of the Limitation Act, 1963.

26. P. Sivan Muthiah v. John Sathiavasagam  arose from a suit for specific performance with an  alternative prayer for recovery of advance paid  under the agreement of sale. Referring to Article 54  of the Limitation Act, 1963 the Court took the view  that the expression "date fixed" could mean either  the date expressly fixed or the date that can be fixed  with reference to a future event, which is certain to  happen. If the date is to be ascertained depending  upon an event which is not certain to happen, the  first part of Article 54 would not be applicable, and  in such an eventuality, it is only the latter part of  Article 54 that could be invoked by treating it as a  case in which no date had been fixed for  performance and the limitation would be three years  from the date when the plaintiff had notice that  performance is refused. This was a case where  performance was due after the tenants in the  property had been vacated. The Court took the view

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that since eviction of the tenants was an uncertain  event, the time must be deemed to have run only  from the date when the plaintiffs had notice that the  performance had been refused by the defendants.

27. In Ramzan v. Hussaini a suit was filed for  specific performance of a contract of sale in respect  of a house. The property was mortgaged and  according to the plaintiff, the defendant had agreed  to execute a deed of sale on the redemption of the  mortgage by the plaintiff herself, which she did in  1970. In spite of her repeated demands, the  defendant failed to perform his part, which resulted  in a suit being filed. The question that arose before  this Court was whether the agreement was one in  which the date was "fixed" for the performance of  the agreement or was one in which no such date  was fixed. This Court answered the question in the  affirmative by holding that, although a particular  calendar date was not mentioned in the document  and although the date was not ascertainable  originally, as soon as the plaintiff redeemed the  mortgage, it became an ascertained date. This Court  also agreed with the view expressed in the Madras  High Court in R. Muniswami Goundar and held that  the doctrine id certum est quod certum reddi potest  is clearly applicable. It also distinguished Kruttiventi  Mallikharjuna Rao and Kashi Prasad as cases that  arose out of their peculiar facts.

28. In Tarlok Singh v. Vijay Kumar Sabharwal the  parties by agreement determined the date for  performance of the contract, which was extended by  a subsequent agreement stipulating that the  appellants shall be required to execute a sale deed  within 15 days from the date of the order vacating  the injunction granted in a suit. The suit was  initially dismissed and, thereafter, a review  application was also dismissed as withdrawn on 22- 3-1986. On 23-12-1987 a suit was filed for  perpetual injunction. In that suit, an application  came to be made under Order 6 Rule 17 CPC for  converting it into a suit for specific performance of  an agreement dated 18-8-1984. This amendment  was allowed on 25-8-1989. It was held that since  the amendment was ordered on 25-8-1989, the  crucial date for examining whether the suit was  barred by limitation was 25-8-1989. Since the  injunction was vacated when the original suit was  initially dismissed and the review application came  to be dismissed on 22-3-1986, it was held that it  was a situation covered by the first part of Article 54  and, in any event, on 25-8-1989 the suit was barred  by limitation."

6.      This court took the view that judgments of different High  Courts have taken different views and were at variance with  the decision of the Privy Council. However, in view of the  decisions in Ramzan v. Hussaini (1990(1) SCC 104)  and in  Tarlok Singh v. Vijay Kumar Sabharwal (1996(8) SCC 367)  there was no necessity to go into the larger issue as the  plaintiffs were entitled to succeed in that case in altogether on  different grounds.

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7.      It appears from the judgment in S.Brahmanand’s case  (supra) this court felt that there was a need for clarifying legal  position. But declined to refer the matter to a larger Bench  because of the different factual scenario and the fact that the  decisions were holding field for long time and there were  decisions of the co-ordinate Bench of two Hon’ble Judges  taking a particular view.

8.      In view of the importance of the issues involved, we feel it  would be proper if this case is heard by a Bench of three  Hon’ble Judges. We, therefore, refer the matter to a larger  Bench.  The records be placed before the Hon’ble Chief Justice  of India for necessary directions.