Sabbir (Dead) Through Lrs vs Anjuman (Since Deceased) Through Lrs

1 2023INSC898 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.6075 OF 2023 (@ SPECIAL LEAVE PETITION (CIVIL) NO.4477/2019)

SABBIR (DEAD) THROUGH LRS … APPELLANT(S)

VERSUS

ANJUMAN (SINCE DECEASED) THROUGH LRS. … RESPONDENT(S)

O R D E R

AHSANUDDIN AMANULLAH, J.

Leave granted.

2. Heard learned counsel for the parties.

3. Both the original parties to the agreement to sell

being dead, are now represented through their Legal Signature Not Verified Digitally signed by

Representatives Neetu Khajuria Date: 2023.10.10 18:13:32 IST (LRs). Appellants are LRs of the Reason:

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defendant whereas the Respondents are the LRs of the

plaintiff.

4. The present appeal is directed against the Final

Judgment and Order dated 18.07.2018 (hereinafter

referred to as the “Impugned Judgment”) passed by the

High Court of Judicature at Allahabad (hereinafter

referred to as “the High Court”) in Second Appeal

No.1574 of 1984 by which the second appeal filed by

the respondents was allowed; judgment of the First

Appellate Court was set aside, and; judgment of the

Trial Court was affirmed and restored.

THE FACTUAL PRISM:

5. An Agreement to Sell (hereinafter referred to as

“ATS”) was executed in favour of the respondents by

the appellants on 31.07.1975. The ATS envisioned that

the appellants had to apply for permission to sell the

property within eight days and upon permission being

received, the same was to be intimated to the

respondents and the Sale Deed was to be executed 3 within 15 days from receipt of such intimation by the

respondents. Earnest money of Rs.1,000/- was paid out

of the total sale consideration of Rs.6,000/-. The

appellants did not apply for any permission to sell

which led to the respondents filing Suit No. 5 of 1981

on 01.01.1981 for specific performance of the ATS. The

suit was decreed by judgment dated 08.03.1982. The

appellants filed Appeal No.118 of 1982 which was

allowed by the First Appellate Court vide judgment

dated 09.05.1984. The respondents thereafter filed

Second Appeal No.1574 of 1984 which was allowed by the

High Court on 02.04.2010. The appellants then carried

the case to this Court, which remanded the matter to

the High Court. On remand, the High Court again

allowed the Second Appeal by its judgment dated

18.07.2018, reversing the finding(s) of the First

Appellate Court. The High Court’s judgment dated

18.07.2018 is impugned herein.

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SUBMISSIONS BY THE APPELLANTS:

6. Learned counsel for the appellants submitted that

the Trial Court had totally mis-appreciated the facts

and law while decreeing the suit. It was stated that

the First Appellate Court, after appreciation of the

facts in their correct perspective and applying the

law to the same, rightly reversed the Trial Court’s

view, and dismissed the suit. It was contended that

the High Court without giving any cogent reasons, on

wrong appreciation of the material/facts and law, had

reversed the judgment of the First Appellate Court.

Learned counsel submitted that our interference was

called for. It was contended that the First Appellate

Court had rightly come to the conclusion that in the

background of the various clauses in the ATS, the

respondents had not taken any steps despite the

appellants not having applied for permission for five

years; which showed that the respondents were not

ready and willing to perform their part of the 5 contract, and therefore, the suit was barred by

limitation.

7. It was submitted that Clauses 3 & 4 of the ATS

dated 31.07.1975 would indicate that the time for

moving the court for specific performance started upon

expiry of the 8th day from 31.07.1975 and thus, filing

of the suit on 01.01.1981 was clearly beyond the

period specified to institute such case.

SUBMISSIONS BY THE RESPONDENTS:

8. Learned counsel for the respondents submitted

that the Trial Court had rightly held that the

appellants had to apply for permission and upon

getting the same had to intimate to the respondents

and within fifteen days of such intimation, the

respondents were to get the Sale Deed executed. As the

appellants had not even applied and thus, no

permission was ever obtained, they had not informed

the respondents and therefore, the suit would not be

hit by limitation. It was his submission that the suit

was filed within the limitation period. 6

9. It was further contended that the respondents had

orally shown their willingness to the appellants to

pay the balance amount and get the Sale Deed executed

in terms of the time-frame as per the ATS but the

appellants stoutly refused to act as per the terms of

the ATS. It was submitted that the respondents, who

were the tenants, had even got the property

reconstructed in the year 1978 by investing

Rs.5,000/- after getting the maps approved by the

concerned Municipal Corporation through the

appellants.

ANALYSIS, REASONING AND CONCLUSION:

10. Having considered the matter, the Court finds

that the Impugned Judgment cannot be sustained. The

true typed copy of the ATS dated 31.07.1975 has been

brought on record by the learned counsel for the

appellants. Clause 3 thereof stipulates that the

appellants within 8 days from that date, for sale of

the property, would apply for permission before the

District Magistrate, Saharanpur, Uttar Pradesh and 7 upon the same being granted shall communicate it to

the respondents through registered post. Thereafter,

it was stipulated that within 15 days from such

intimation, the respondents shall get the Sale Deed

executed either in their favour or in favour of a

person of their choice and the expenses would be borne

by the respondents. Further, Clause 4 stipulated that

in case the appellants did not apply for permission

within the stipulated time ‘or’ after getting

permission, did not inform the respondents and get the

deed executed in favour of either the respondents or

anyone of their choice then the respondents would have

the right to get the sale of the property in question

executed in their favour through the Court, and also

take possession through the Court. A conjoint and

harmonious reading of the relevant Clauses clearly

indicates that the onus was on the appellants to apply

within 8 days for permission and upon the permission

being received, to intimate to the respondents,

whereafter the respondents had to get the Sale Deed

executed within 15 days. It was clarified that in the 8 event of failure to do so i.e., either of not applying

for permission ‘or’ not intimating the respondents

upon receipt of permission, the respondents had the

right to move the Court for getting the sale executed

as also for possession. Thus, from the ninth (9th) day

onwards, the onus would shift on the respondents, if

within 8 days the appellants had not even applied for

permission. Since the consequences of non-performance

of the duty cast upon the appellants of applying

within 8 days or non-intimation of permission having

been granted, in either contingency, a right accrued

to the respondents to move Court.

11. In this background, the respondents cannot take

the plea that they would be entitled to indefinitely

wait till the appellants informed them about the

permission. As soon as the first eight days expired,

the respondents had to show due diligence by being

vigilant and conscious of their rights and were

required to act promptly. There being no notice given

to the appellants by the respondents for five and a 9 half years to indicate the reason why they kept

waiting or that despite their willingness to comply

with their portion of the obligations under the ATS,

the appellants had not discharged their obligations

under the ATS and why the respondents should not move

before the Court for enforcement of the ATS, as

contemplated thereunder, coupled with the fact that in

the entire plaint, there is not even a whisper with

regard to the respondents having ever called upon the

appellants or given notice to them that they were

ready and willing to pay the balance amount and get

the Sale Deed executed, in our considered view does

not aid the respondents. We see nothing on the record

to fathom a valid or justifiable reason for the

respondents to have waited for five and a half years

before instituting the suit.

12. From perusal of the plaint on the record it,

transpires that there is a statement in Paragraph No.6

that till the month of October, 1980, the original

respondent (since deceased) and her husband (now, as

Legal Representative) had asked the appellants to 10 execute the Sale Deed and then an eviction notice was

served on the original respondent (since deceased) and

her husband (now, as Legal Representative) and his

brother. It has further been stated that this was

after the respondents asked the appellants to execute

the Sale Deed within 15 days after taking permission.

Thus, nowhere it has been even indicated, in clear

terms, that the respondents were ready and willing to

pay the balance amount and get the Sale Deed executed

in their favour. In view thereof, from their own

pleadings in the plaint, even after five and a half

years, there being no averment that the respondents

were ready and willing to perform their obligations

under the ATS and pay the balance/remaining amount is

enough for the suit of the respondents to be dismissed

on the ground of limitation alone. The ATS is dated

31.07.1975 and the suit was filed on 01.01.1981. The

limitation for filing a suit for specific performance,

as per Article 54 of the Schedule to The Limitation

Act, 1963 is 3 years ‘from the date fixed for

performance or if no such date is fixed, when the 11 plaintiff has notice that the performance is refused.’

In Ghewarchand v Mahendra Singh, (2018) 10 SCC 588, it

was observed that when deciding upon the question of

limitation, it is mainly required to see the plaint

allegations and how the plaintiff has pleaded the

accrual of cause of action for filing of the suit. Apropos limitation, this Court observed, in Basawaraj

v Land Acquisition Officer, (2013) 14 SCC 81 as under:

‘12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all 12 acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p.

266:

“605. Policy of the Limitation Acts.— The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.”

An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510], Rajender Singh v. Santa Singh [(1973) 2 SCC 705: AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448:

(2009) 5 SCC (Civ) 907].)’ (emphasis supplied)

13. For reasons aforesaid, we set aside the Impugned

Judgment. The judgment and order passed by the First

Appellate Court, dismissing the suit, stands

restored. The appeal is, accordingly, allowed. 13

14. The respondents had paid, in 1975, Rs.1,000 to

the appellants. The respondents are entitled to

refund thereof. We quantify such lump-sum refund,

factoring in the time elapsed, at Rs.1,50,000 to be

paid on/before 01.01.2024 to the respondents by the

appellants.

15. In the extant circumstances, there shall be no

order as to costs.

.....................J. [VIKRAM NATH]

.....................J. [AHSANUDDIN AMANULLAH]

NEW DELHI.

SEPTEMBER 22, 2023