Mulla (D) By Prop. LRS Vs. Bibijan & Ors  INSC 676 (1 April 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4190 OF 2000 Ahmmadsahab
Abdul Milla (dead) By proposed Lrs. ....Appellants Versus Bibijan and Ors.
Dr. ARIJIT PASAYAT,
reference was made to a three-Judge Bench, by reference order dated 21st April,
2008. The relevant question is whether the use of the expression
"date" used in Article 54 of the Schedule to Limitation Act, 1963 (in
short the `Act') is suggestive of a specific date in the calendar. In S. Brahmanand
v. K.R. Muthugopal (2005 (12) SCC 764) a Bench of this Court did not go into
this issue. It decided the appeal on the factual scenario applicable. It was
however noticed that several High Courts have dealt with the matter
differently. In all these cases, for example in Kashi Prasad v. Chhabi Lal (AIR
1933 All 412), Alopi Parshad v. Court of Wards (AIR 1938 Lah 23), Lala Ram
Sarup v. Court of Wards (AIR 1940 PC 19), Kruitiventi Mallikharjuna Rao v.
Vemuri Pardhasaradhirao (AIR 1944 Mad 218), R. Muniswami Goundar v. B.M.
Shamanna Gouda (AIR 1950 Mad 820), Hutchegowda v. H.M. Basaviah (AIR 1954 Mys
29), Purshottam Sava v. unverji Devji (AIR 1954 Sau 104), Lakshminarayana
Reddiar v. Singaravelu Naicker (AIR 1963 Mad 24), Shrikrishna Keshav Kulkarni
v. Balaji Ganesh Kulkarni ( AIR 1976 Bom 342), P. Sivan Muthiah v. John
Sathiavasagam (1990 (1) MLJ 490), the High Courts had decided the issue in the
background of Article 113 of the Limitation Act, 1908 (hereinafter referred to
as the `Old Act'). Article 113 of the Old Act is in pari materia with Article
54 of Schedule to the Act. Some of the High Courts 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. Some
other High Courts, however, took a different view. There are two decisions of
this Court i.e. Ramzan v. Hussaini (1990 (1) SCC 104) and Tarlok Singh v. Vijay
Kumar Sabharwal (1996 (8) SCC 367). In Tarlok Singh's case (supra) the factual
scenario was noticed and the case was decided after referring to Article 54 of
the Schedule to the Act. Ramzan's case (supra) related to the specific
performance of contingent contract. It was held that the expression `date fixed
for performance' need not be ascertainable in the face of the contract deed and
may be ascertainable on the happening of a certain contingent event specified
in the contract.
54 of the Schedule to the Act reads as follows:
Description of suit Period of limitation Time from which Period begins to run
54 For specific performance three years The date fixed for the Of a contract
performance or, if no Such date is fixed, when the plaintiff has notice that
performance is refused."
counsel for the appellants submitted that purposive interpretation has to be
given to the expression "the date fixed".
judgments in Ramzan and Tarlok Singh cases (supra) were rendered in a different
factual scenario and the discussions do not throw much light on the controversy
to Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition 2005, the word `date'
means as follows:
"Date. (As a
noun) The point of time at which a transaction or event takes place; time given
time in some way
ascertained and fixed; in a deed, that part of the deed or writing which
expresses the day of the month and year in which it was made, (2 Bl. Commn.
304; Tomlin). In
Bement v. Trenton Locomotive, etc., Mfg. Co., 32 NLJ 513 (515), it is said :
`The primary signification of the word date, is not time in the abstract, nor
time taken absolutely but, as its derivation plainly indicates, time given or
specified time in some way ascertained and fixed; this is the sense in which
the word is commonly used. When we speak of the date of a deed, we do not mean
the time when it was actually executed but the time of its execution, as given
or stated in the deed itself.
"Where a deed
bears no date, or an impossible date, and in the deed reference is made to the
`date', that word must be construed `delivery'; but if the deed bears a
sensible date, the word `date', occurring in the deed, means the day of the
date, and not that of the delivery" (Elph. 123, citing Styles v. Wardle, 4
though sometimes used as the shortened form of "day of the date", is
not its synonym; but mean the particular time on which an instrument is given,
executed, or delivered (Howard's Case, 1 Raym. Ld 480; Armitt v. Breame, 2 Raym
Ld 1076; Pewtress v Annan, 9 Dowl 828, at pp. 834, 835).
4 "The word
`date' is much more commonly descriptive of a day than of any smaller division
of time" (per Simpson v. Marshall, 37 SLR 316).
means day, so that where a cover note providing for temporary insurance of a
motor car expires "15 days after date of commencement" it runs for
the full 15 days after the day on which it was to commence (Cartwright v. Mac
Cormack; Trafalgar Insurance Co. (Third Party), (1963) 1 WLR 18)."
in essence means having final or crystallized form or character not subject to
change or fluctuation.
inevitable conclusion is that the expression `date fixed for the performance'
is a crystallized notion. This is clear from the fact that the second part
"time from which period begins to run" refers to a case where no such
date is fixed. To put it differently, when date is fixed it means that there is
a definite date fixed for doing a particular act. Even in the second part the
stress is on `when the plaintiff has notice that performance is refused'. Here
again, there is a definite point of time, when the plaintiff notices the
refusal. In that sense both the parts refer to definite dates. So, there is no
question of finding out an intention from other circumstances.
Whether the date was
fixed or not the plaintiff had notice that performance is refused and the date
thereof are to be established with reference to materials and evidence to be
brought on record. The expression `date' used in Article 54 of the Schedule to
the Act definitely is suggestive of a specified date in the calendar. We answer
the reference accordingly. The matter shall now be placed before the Division
Bench for deciding the issue on merits.
reference is disposed of accordingly.
(Dr. ARIJIT PASAYAT)
(HARJIT SINGH BEDI)