Sunday, 19 August 2018

When issue of limitation will not be mixed question of law and fact?

In this context, the learned counsel for the appellant is justified in relying upon a recent judgment of this Court passed in the case of Naginchand vs. Vinod (supra) wherein it has been held that when a specific date was fixed for performance of contract, the limitation period under Article 54 of the Limitation Act, 1963, would begin to run from the date fixed for performance of the contract. This Court held in the said case that on the face of the plaint pleading, it was possible to hold that it was not a case which involved a mixed question of law and fact requiring the parties to adduce evidence to prove the fact that the suit was not within limitation. A perusal of the plaint in the present case also shows that a date was fixed for performance of contract and that the period of limitation stood triggered on the said date.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Appeal Against Order No. 30/2017

Decided On: 21.02.2018

 Gaurav  Vs.  Tukaram Pandurang Dhagekar and Ors.

Hon'ble Judges/Coram:
Manish Pitale, J.

Citation: 2018(4) MHLJ 709

1. Heard.

2. Admit. Heard finally with the consent of the learned counsel appearing for the parties.

3. The question that arises for consideration in this appeal is, as to whether proceedings initiated by the predecessor of respondent Nos. 1(i) to 1(iii) in the form of suit for declaration, permanent injunction and specific performance of contract, deserved to be nipped in the bud by rejection of plaint on the ground that the suit was barred by limitation. An application filed by the defendant in the aforesaid suit under Order 7 Rule 11 (d) of the Code of Civil Procedure (CPC), for rejection of plaint was allowed in the first instance by the trial Court. But, on an appeal filed by the plaintiff, the order of the Trial Court was reversed and the suit was restored for being decided on merits.

4. The predecessor of respondent Nos. 1(i) to 1(iii) i.e. the plaintiff Tukaram Dhagekar had filed a suit for declaration, permanent injunction and specific performance of contract on 29.06.2011, claiming that a registered sale deed dated 13.10.1983 was executed by the said plaintiff in favour of Kanibai Agrawal, wife of defendant No. 1 (respondent No. 2 herein) in respect of the suit property, which was located in Survey No. 24/1, district Akola. It was claimed that the said sale deed was nominal and that it was executed by way of security for a loan transaction and further that an agreement was executed in the year 1986 in favour of the plaintiff, wherein it was agreed that a sale deed would be executed in favour of the plaintiff in respect of the said suit property by accepting five times valuation and that it was specifically stated in the said agreement that such sale deed would be executed upto 13.10.1997. It was claimed that the said agreement was executed by the said defendant No. 1 in favour of the plaintiff.

5. The plaintiff further contended that in view of the said agreement stamp papers were purchased on 1.12.1986 for execution of sale deed in favour of the plaintiff, but, the defendant No. 1 expressed that if the sale deed was executed within 12 years, capital gains tax would be charged and that, therefore, the sale deed was not executed and the stamp papers were returned. Thereafter, in March 1987, it is alleged that defendant No. 1 expressed that when the sale deed could be executed upto 13.10.1997 and when the plaintiff himself was in possession of the suit property, portions of which were disposed of in the form of plots, the sale deed could be executed subsequently. Thereafter, again on 11.07.1997 the plaintiff purchased stamp papers for execution of the sale deed in terms of the said agreement but, again the defendant No. 1 avoided execution of the sale deed on the ground that capital gains would be created in favour of his wife Kanibai. It is the case of the plaintiff in the suit that the said Kanibai and her husband defendant No. 1 agreed that the sale deed could be executed at any time as and when demanded by the plaintiff because only formality of registration of sale deed remained to be completed, particularly when the plaintiff was in possession of the suit property and he had sold part of the same.

6. It is further the case of the plaintiff that in the year 2002, he sold seven plots from the suit land on which the defendant No. 1 had put his signature as witness on the sale deeds. This demonstrated that the defendant No. 1 was party to such transactions. Thereafter on 5.5.2006, Kanibai died. In the year 2011, according to the plaintiff, the defendant Nos. 1 to 6 were intending to execute sale deed in respect of the suit land as legal heirs of deceased Kanibai, in favour of defendant No. 7. Immediately, the plaintiff issued public notice in newspaper on 15.04.2011 informing the public at large that no one should enter into any transaction in respect of the suit property. But, the said defendants published a reply denying the claim of the plaintiff and further on 19.05.2011 a notice was published through advocate on behalf of defendant No. 7 in respect of the proposed purchase of the suit property from defendant Nos. 1 to 6. The plaintiff raised objection and yet the said defendants intended to go ahead with the transaction.

7. On the basis of the aforesaid events as pleaded by the plaintiff, the aforesaid suit was filed for declaration that the sale deed dated 13.10.1983 executed by the plaintiff in favour of Kanibai was nominal and never intended to be acted upon, further for permanent injunction restraining defendant Nos. 1 to 6 from creating third party rights in the suit property, with a further prayer for specific performance of contract, directing the defendant Nos. 1 to 6 to execute sale deed in respect of the suit property in favour of the plaintiff. In the said suit, it was claimed that the cause of action initially arose on 13.10.1983 and finally on 19.05.2011 when the aforesaid notice was published through Advocate on behalf of defendant No. 7 in respect of the proposed transaction.

8. The defendant No. 1, filed an application under Order 7 Rule 11 of the C.P.C. in the said suit, praying for rejection of the plaint as the suit was hopelessly barred by time. It was stated that the period of limitation for raising grievance and for making the prayers in the suit were clearly beyond the period of limitation even if the pleadings made on behalf of the plaintiff in the suit were accepted on the face of the record. This application was marked as Exh. 14. Another application raising preliminary objection about maintainability of the suit was filed on behalf of defendant Nos. 3 and 4 (Exh. 18). Both the applications were taken up together for consideration by the trial Court.

9. By common order dated 26.08.2011, the trial Court considered both the aforesaid applications and held that the suit was barred by limitation under Articles 54 and 58 of the Limitation Act, 1963 and that the plaint deserved to be rejected under Order 7 Rule 11 (d) of the C.P.C. as being barred by the Law of Limitation. Aggrieved by the aforesaid order of the trial Court, the plaintiff filed an appeal before the District Court.

10. By the impugned judgment and order, the District Court has allowed the appeal and held that considering the complexity of the facts of the case, it could not be said that the suit was barred by limitation and that therefore, it was necessary that the order of the trial Court be set aside and the suit be restored to its original stage for consideration on merits. During the pendency of the aforesaid appeal, the appellants herein purchased the suit property from the defendant Nos. 1 to 6. They were joined as respondent Nos. 8 to 10 before the appellate Court. As the appellants were now the interested parties in the fate of the litigation, they were aggrieved by the said order of the appellate Court and they have filed the present appeal before this Court.

11. Mr. A.C. Dharmadhikari, learned counsel appearing on behalf of the appellant, submitted that the appellate Court committed a grave error in allowing the appeal and setting aside the order of the trial Court because the suit filed by the plaintiff in the present case was clearly barred by limitation under Articles 54 and 58 of the Limitation Act, 1963, even if, the contents of the plaint were read as it is. It was pointed out that even if the averments made in the plaint were accepted, the cause of action for the filing of the suit could not be said to have arisen by issuing a public notice dated 15.04.2011 by the plaintiff. It was submitted that when specific date of 13.10.1997 was fixed in the agreement between the parties for execution of the sale deed, the first part of Article 54 of the Limitation Act, 1963, applied and the period of limitation expired upon completion of three years from the said date i.e. 13.10.1997. It was submitted that the appellate Court committed a grave error in failing to appreciate that dates and events pleaded by the plaintiff and recorded by the Appellate Court in paragraph 25 of the impugned order, showed that the suit filed by the plaintiff was barred by limitation. According to the learned counsel for the appellants, the facts of the present case and the contents of the plaint were not properly appreciated by the appellate Court and the Court failed to appreciate that the bar of limitation could not be avoided by clever drafting on the part of the plaintiff. The learned counsel for the appellants placed reliance on the judgments of the Hon'ble Supreme Court in the cases of Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust - MANU/SC/0515/2012 : (2012) 8 Scc, Saradamani Kandappan vs. S. Rajalakshmi- MANU/SC/0717/2011 : (2011) 12 Supreme Court Cases 18 and Janardhanam Prasad vs. Ramdas - MANU/SC/7067/2007 : (2007) 15 Supreme Court Cases 174 and judgment of this Court in the case of Naginchand vs. Vinod - MANU/MH/2316/2017 : 2018(1) Mh.L.J. 433.

12. Per contra, Mr. S.V. Sohoni, learned counsel appearing on behalf of the respondent Nos. 1(i) to 1(iii) submitted that the judgment and order of the appellate Court was fully justified and that it was based on correct appreciation of the facts and law. It was submitted that the appellate Court was justified in holding that the present case involved complicated facts and that the point of limitation could be decided only after giving opportunity to the parties to adduce evidence, as it was a mixed question of law and facts. It was submitted that there were sufficient pleadings in the plaint to demonstrate that the date fixed in the agreement i.e. 13.10.1997, stood relaxed and that the actual knowledge of the defendants denying to abide by the agreement, came to the knowledge of the plaintiff only when they proposed to sell the suit property in the year 2011. It was contended that events that occurred in the present case, demonstrated that there was nothing sacrosanct about the aforesaid date agreed between the parties and that the period of limitation was triggered when the actual cause of action arose for the plaintiff in the year 2011. The learned counsel for the said respondents relied upon the judgment of the Hon'ble Supreme Court in the case of Nathulal vs. Phoolchand - MANU/SC/0492/1969 : AIR 1970 Supreme Court 546.

13. The question for consideration, as noted above, has arisen in the backdrop of the aforesaid events and the most crucial aspect of the instant case is, as to when can it be said that the cause of action arose for the plaintiff, even as per the pleadings in the plaint. The paragraph pertaining to the accrual of the cause of action in the plaint reads as follows:-

"The cause of action for filing the suit arose initially on 13.10.1983 and thereafter on 26.10.86, 19th July, 1997, 15.4.2011, 16.4.2011, 19.5.2011 when the public notice was published at Akola Tq. And Distt. Akola within the jurisdiction of this Hon. Court."
The plaintiff has claimed that the cause of action initially arose on 13.10.1983 when the sale deed was executed in favour of Kanibai and that it arose on various dates subsequently till 19.05.2011 when the defendant No. 7 issued a public notice in respect of the proposed transaction concerning the suit land. The prayers in the suit are for declaring the registered sale deed dated 13.10.1983 as nominal and not intended to be acted upon and further for specific performance of contract pertaining to the agreement between the plaintiff and defendant No. 1 for execution of sale deed in favour of the plaintiff. It was stated in the plaint itself that the date 13.10.1997 was specifically agreed upon between the parties for execution of such sale deed in favour of the plaintiff. The question, therefore, is whether the said fixed date would be reference point for calculation of limitation in the present case.

14. The plaintiff has pleaded that events that took place subsequent to the said date demonstrated that the parties to the agreement had not insisted upon the aforesaid fixed date being the last date for execution of sale deed and that the cause of action accrued to the plaintiff even subsequent to the said date. The plaintiff has claimed that although by registered sale deed dated 13.10.1983 the suit land was sold to Kanibai, wife of defendant No. 1, but, even then the plaintiff continued in possession of the land in question and that with full knowledge of the defendants, he continued to sell plots of land from the suit property. According to the plaintiff, this demonstrated that the sale deed was nominal, being security for loan transaction. According to the plaintiff, even after the date of 13.10.1997 fixed in the agreement, in the year 2002, sale deeds were executed in respect of plots located in the suit property in favour of third parties, wherein the defendant No. 1 had put signatures as witness. This also demonstrated that the sale deed dated 13.10.1983 was nominal and that the effect of the date of 13.10.1997 fixed in the agreement for execution of sale deed in favour of the plaintiff in respect of the suit property stood diluted. On the basis of such pleadings, the plaintiff has sought reliefs in the suit.

15. If the aforesaid date of 13.10.1997 is taken as date fixed and outer limit for execution of sale deed in favour of plaintiff, there cannot be any doubt that the suit filed by the plaintiff was barred by limitation. But, even if subsequent events are taken into account, all that such events demonstrate is that the plaintiff continued to enter into transaction in respect of the suit property, within the knowledge of defendant No. 1. It is also significant that the sale deed dated 13.10.1983 was executed in favour of Kanibai, wife of defendant No. 1, while the agreement for execution of sale deed in respect of the very same land by 19.10.1997 was executed between defendant No. 1 and the plaintiff. It is also an admitted position that the said Kanibai died on 05.05.2006.

16. In this situation, the contention of the plaintiff is required to be appreciated that the cause of action arose for him on 15.04.2011, when he published a notice in the newspaper informing the public at large that no one should enter into transaction in respect of the suit property, or that it arose on 19.05.2011, when the defendant No. 7 issued a public notice regarding proposed purchase of suit property from defendant Nos. 1 to 6. The pleadings in the plaint, in respect of the point when limitation started running, are vague and the following statement is made in the plaint to indicate that the sale deed could have been executed any time beyond the fixed date of 13.10.1997 :-

"It was also expressed by the defendant No. 1, that the property is already in possession of the plaintiff and he has already converted the said property for residential purposes in Gunjthewari system. Deceased Kanibai and defendant No. 1, has agreed that sale deed can be executed at any time as and when demanded by the plaintiff as the only formality of registration of the sale deed remains to be done."
17. Thus, it becomes evident that the plaintiff admits that a date was fixed in the agreement between the parties for execution of the sale deed, which was 13.10.1997. Applying first part of Article 54 of the Limitation Act, the period of limitation was triggered immediately on the fixed date and it expired in three years. Beyond the said period, the extension of the period of limitation as claimed by the plaintiff, is based on vague pleadings and such pleadings show that an effort is being made to somehow bring the suit within limitation. Even if the subsequent events, as stated in the plaint are taken into consideration, it cannot be said that the cause of action arose for the plaintiff in the year 2011.

18. A perusal of the plaint shows that an attempt is made on the part of the plaintiff to somehow stretch the facts of the present case, so as to show as if cause of action could arise even beyond the period of three years from the date fixed in the agreement i.e. 13.10.1997, in order to justify filing of the present suit in the year 2011. This is an attempt by way of clever drafting to create a cloud of doubt in the mind of the Court that determination of limitation in the present case is a mixed question of law and fact. On this basis, an attempt is made to show as if a full dress trial is required and an illusion of cause of action is sought to be created to ensure that the suit is not nipped in the bud. This has been deprecated by the Hon'ble Supreme Court in various judgments and it has been held that bogus litigation can be shot down at the earliest stage. In this context, the learned counsel appearing on behalf of the appellant is justified in relying upon the judgment of the Hon'ble Supreme Court in the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), wherein the Hon'ble Supreme Court has held as follows:-

"12. It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal & Anr., MANU/SC/0034/1977 : (1977) 4 SCC 467, wherein while considering the very same provision, i.e. Order VII Rule 11 and the duty of the trial Court in considering such application, this Court has reminded the trial Judges with the following observation:

"5. ..........The learned Munsif must remember that if on a meaningful - for formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And if clever drafting has created the illusion of a cause of action nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them....."
It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order VII Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order X of the Code. "

19. In order to decide the application filed by the appellant under Order 7 Rule 11 of the C.P.C., only the plaint is to be read and it has to be examined as to what is the cause of action sought to be agitated by the plaintiff and on that basis it has to be ascertained as to when limitation period for agitating grievance in respect of such cause of action has been triggered. In the present case, the plaintiff is seeking declaration in respect of sale deed dated 13.10.1983 executed by him in favour of Kanibai, wife of defendant No. 1, claiming that the same was nominal and it was never intended to be acted upon and the plaintiff has also sought specific performance of contract in respect of agreement executed between him and the defendant No. 1, wherein aforesaid date of 13.10.1997 was fixed, by which date sale deed was to be executed in favour of the plaintiff in respect of the suit property. As regards declaration in respect of sale deed dated 13.10.1983, the period of limitation of three years under Article 58 of the Limitation Act, 1963, stood triggered on that very date itself and, therefore, the suit filed by the plaintiff on 29.06.2011 was barred by limitation on the face of it. In respect of the prayer for specific performance, as recorded above, since there was a fixed dated of 13.10.1997 upto which sale deed was to be executed in favour of the plaintiff, limitation period of three years under first part of Article 54 of the Limitation Act, 1963, stood triggered on 13.10.1997 itself. Therefore, even for this prayer in the suit which was filed on 29.06.2011, the limitation period had expired long back.

20. The plaintiff, has relied upon certain events and actions of the defendants to claim that cause of action actually arose for him in the year 2011. These events have been noted in detail in the impugned order at paragraph 25. None of the said event has the effect of extending the period of limitation for the plaintiff to agitate his grievance in respect of the prayers made in the suit. If the plaintiff was aggrieved by failure of the defendants in executing sale deed in his favour even after expiry of the period on 13.10.1997, he ought to have approached the Court within the period of three years from the said date. Nothing prevented him from doing so. In fact, contents of the plaint show that according to the plaintiff the defendants continued to avoid execution of sale deed on and after 13.10.1997, on the excuse that Kanibai would have to bear the liability of capital gains tax. The plaintiff has stated this very reason being given by the defendants while avoiding execution of sale deed even earlier. Once the plaintiff was aware that the defendants were avoiding execution of sale deed in terms of the agreement on and after 13.10.1997, he ought to have filed the suit within three years from the said date and the said period could not stand extended for the reason that the defendants kept silent even when the plaintiff proceeded to dispose of some part of the suit property.

21. The law of limitation is based on public policy wherein parties are not permitted to agitate stale claims. The parties who sleep over their rights are not entitled to knock the doors of the Court, whenever they rise from their slumber. The effect of failure on the part of the plaintiff to approach the Court within the period of limitation cannot be overcome on the basis of the vague pleadings made in the plaint that have been quoted above in para 16. Once it is held that the suit filed by the plaintiff, on a plain reading of the plaint, is barred by limitation, the Court is bound to exercise power under Order 7 Rule 11(d) of the C.P.C. to reject the plaint and to ensure that the parties are not required to undergo the rigors of a full dress trial.

22. In this context, the learned counsel for the appellant is justified in relying upon a recent judgment of this Court passed in the case of Naginchand vs. Vinod (supra) wherein it has been held that when a specific date was fixed for performance of contract, the limitation period under Article 54 of the Limitation Act, 1963, would begin to run from the date fixed for performance of the contract. This Court held in the said case that on the face of the plaint pleading, it was possible to hold that it was not a case which involved a mixed question of law and fact requiring the parties to adduce evidence to prove the fact that the suit was not within limitation. A perusal of the plaint in the present case also shows that a date was fixed for performance of contract and that the period of limitation stood triggered on the said date.

23. It is also relevant that the question as to what can be said to be a fixed date in the context of Article 54 of Limitation Act, 1963, has also been considered by the Hon'ble Supreme Court in various judgments including Madina Begum vs. Shiv Murti Prasad - MANU/SC/0836/2016 : (2016) 15 Supreme Court Cases 322. It has been held that when a date can be marked on the calendar, it is a fixed date, being a crystallised notion, as opposed to a situation where specific date is not discernible from the pleadings and documents on record. In the present case, since the date 13.10.1997 is specifically pleaded in the plaint itself by the plaintiff and in the agreement of which he is seeking specific performance, the period of limitation clearly triggers from the said date.

24. In the light of the above and the position of law that has evolved in this context, it is evident that the appellate Court in the instant case committed an error by holding that the question of limitation or the starting point thereof was a mixed question of fact and law and that therefore, the application filed for rejection of plaint under Order 7 Rule 11 (d) of the C.P.C. could not have been granted. The appellate Court erred in setting aside the order of the trial Court while relegating the parties to a full dress trial, when it was not warranted even in the face of the pleadings in the plaint.

25. Accordingly, this appeal is allowed, the impugned judgment and order of the appellate Court is set aside and the order of the trial Court is restored. There shall be no order as to costs.


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