Singh Vs. Vijay Kumar Sabharwal  INSC 448 (25 March 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (4) 245 1996 SCALE (3)558
O R D
have heard learned counsel on both sides.
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as withdrawn on March
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:
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 filed. After the amended written
statement is filed the trial Judge will frame proper issues ind dispose of the same according to law.
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.
this appeal by special leave.
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
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.
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.
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
appeal is accordingly allowed. The suit stands dismissed. No costs.