MADINA BEGUM & ANR.versusSHIV MURTI PRASAD PANDEY & ORS.

                              [2016) 5 S.C.R. 92


A                        MADINA BEGUM & ANR.
                                         v.
                 SHIV MURTI PRASAD PANDEY & ORS.
                       (Civil Appeal No. 6687 of2016)
B                              AUGUST I, 2016
           [MADAN B. LOKUR AND R.K. AGRAWAL, JJ.]
             Limitation Act, 1963: Schedule 1, Article 54 - Suit for specific
    performance - Challenged on the ground of limitation - Held: The
    agreement between the parties did not specify a calender date as
c   the fixed date for performance of the agreement - Hence, the
    limitation of three years would begin when the plaintiff has notice
    that the defendant has refitsed the performance of agreement - In
    the instant case, High Court fell in error ii1 ignoring the absence
    of a specified date for the performance of the agreement and in
D   setting aside the decree passed by trial court.
             Code of Civil Procedure, 1908: s.96 - First appeal - Scope
    of - Held: Sitting as a court of first appeal it is the duty of the High
    Court to deal with all the issues and evidence led by the parties
    before recording its findings - In the present appeal, High Court
E   only considered the issue of limitation and did not consider the
    other issues in the appeal - This was impermissible - Matter remitted
    to High Court to decide on merits.
            Remanding the matter back to High Court, the Court
           HE:D: It is a little unfortunate that the parties have to
F   undergo another round of litigation which could easily have been
    avoided if the settled legal principles laid down by this Court
    from time to time were followed in regard to the requirements of
    Section 96 of the Code of Civil Procedure. [Para 26][100-D-E]
          Ahmadsahab Abdul Mulla (2) (Dead) v. Bibijan and
G         Ors. 2009 (5) SCR 476 : (2009) 5 SCC 462 - followed.
          Rathnavathi and Another v. Kavita Ganashamdas (2015)
          5 sec 223 - relied on.
          Vinod Kumar v. Gangadhar 2014 (10) SCR 1050
H
                                    92
MADINA BEGUM & ANR. v. SHIV MURTI PRASAD PANDEY                                  93
                    & ORS.

      (2015) 1 SCC 391; Madhukar v. Sangram 2001 (3) SCR                         A
      138 : (2001) 4 sec 756 - referred to.
                          Case Law Reference
        2009 (5) SCR 476           followed                   Para 18
          (2015) 5 sec 223         relied on                  Para 20            B
          2014 (10) SCR 1050 referred to                      Para24
          2001 (3) SCR 138         referred to                Para24
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6687
of2016.
                                                                                 c
        From the Judgment and Order dated 16.08.2013 of the High
Court of Madhya Pradesh at Jabalpur in First Appeal No. 175 of2011.
       Shyam Divan, Sr. Adv., Manish Pitale, Sushil Kumar Agrawal,
Ms. Deeplaxmi S. Matwankar, Chander Shekhar Ashri, Advs. for the
Appellants.                                                                      D
        Ms. Vibha Datta Makhija, Sr. Adv., Navin Prakash, Tarun Gulia,
Anantha Narayana M. G., Ms. Disha Yaish, Akshat Shrivastava, Advs.
for the Respondents.
          The Judgment of the Court was delivered by
                                                                                 E
         MADAN B. LOKUR, J. I. The two questions for our
consideration are whether the suit filed by the appellant Madina Begum
was barred by limitation in terms of the first part ofArticle 54 of Schedule
I of the Limitation Act, 1963 and whether the High Court ought to have
decided the first appeal filed by Madina Begum not only on the preliminary
issue of limitation but also on all other issues. As far as the first question   F
is concerned our answer is in the negative and as far as the second
question is concerned, in our opinion, the High Court ought to have
considered all the issues in the first appeal rather than only the preliminary
issue oflimitation.
        2. The land in dispute in this appeal is 1.63 acres ofagricultural       G
land bearing khasra nos. 438, 439, 440 and 456 (total area being 2.13
acres) in Patwari Halka No. 26 Gram Amkhera, Tehsil and District
Jabalpur.
          3. There was a dispute about the title of the entire aforesaid
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94             SUPREME COURT REPORTS                           [2016] 5 S.C.R.


A    land and to resolve that dispute, Guiab Bai claiming to be the owner and
     in possession of the entire land, filed Suit No. 479A of 1994 in the Court
     of the Additional District Judge in Jabalpur. The defendants in the suit
     were Amar Singh and Jaswant Singh. The prayer made by Guiab Bai in
     her plaint was for a declaration with regard to her title and possession.
     She also prayed for an injunction restraining the defendants Amar Singh
B
     and Jaswant Singh from interfering with her possession.
               4. On 2na August, 2001 the suit was decreed in favour of Guiab
     Bai and thereafter on 3'd September, 200 I she entered into an agreement
     to sell 1.63 acres of agricultural land being the disputed property to Madina
     Begum. The consideration for the sale was Rs. 4,89,000/- out of which
c    an advance of Rs. 1,25,000/- was paid by Madina Begum to Guiab Bai.
     This fact is recorded in the agreement to sell.
             5. What we are concerned with in this appeal is the interpretation
     of Clause 3 of the agreement to sell which reads as follows:-

D           "3 That Party no. I has sold 1.63 acres land at the rate of
            Rs. 3,00,000/- (Rs. Three lakh) per acre and Pai1y no. I
            Guiab Bai has obtained Rs. 1,25,000/- (One lakh twenty
            five thousand) as advance. The rest of the amount of Rs.
            3,64,000/- (Rs. Three lakh sixty four thousand) would be
            paid by Party no. 2 to Party no. 1 within the period of six
E           months from this date and having received it the party no. I
            will execute Benama Registry in favour of Party no. 2 or
            any such person specified by party no. 2 in one part or
            many parts."
              6. Apparently on coming to know that Guiab Bai had agreed to
F    sell the disputed land to Madina Begum an appeal being F.A. No.399 of
     2001 was filed by Amar Singh and Jaswant Singh in the High Court of
     Madhya Pradesh challenging the decree dated 2nd August, 2001. An
     interim application under Order XXXIX Rules I and 2 of the Code of
     Civil Procedure was filed along with the appeal. The application was
G
     taken up for consideration on 22nd September, 2001 and while issuing
     notice in the application it was directed as follows:-
            "ln the meanwhile till the disposal of M(C) P. No. 3231/
            200 I, status quo regarding possession over the suit property
            shall be maintained and the respondent shall not alienate
            the suit property."
H
MADINA BEGUM & ANR. v. SHIV MURTI PRASAD PANDEY.                               95
          & ORS. [MADAN B. LOKUR, J.]

         7. On l 61h November, 200 I Guiab Bai executed a Will (which          A
was registered) in which she categorically mentioned that she had
negotiated the sale of 1.63 acres of land to Madina Begum and had
given possession thereof to her but the remaining amount and registration
of the sale remained to be completed. In her Will, Guiab Bai appointed
Shiv Murti Prasad Pandey and Devendra Prasad Pandey (respondents
                                                                               B
herein) as her executors. The Will mentioned that upon her demise, her
agricultural land except 1.63 acres will devolve on Shiv Murti Prasad
Pandey and Devendra Prasad Pandey and in the event of her death
before the registration of the sale deed it would be their responsibility to
execute and register the sale deed in favour of Madina Begum.
Unfortunately, Guiab Bai passed away on 2nd January, 2002.                     c
        8. Thereafter, F.A. No. 399 of 200 I filed by Amar Singh and
Jaswant Singh was heard by the High Court and came to be dismissed
on 28th September, 2006. We are told that the decree passed by the
High Court has attained finality.
        9. Upon the dismissal of the aforesaid appeal, it appears that         D
Madina Begum required Shiv Murti Prasad Pandey and Devendra Prasad
Pandey to execute the sale deed but apparently they did not take any
steps in this regard. On the contrary, it appears that on or about 2nd
August, 2008 the land in dispute was mutated in the name of Anita Jain
pursuant to a sale made in her favour by Shiv Murti Prasad Pandey and          E
Devendra Prasad Pandey.
         10. When Madina Begum came to know of the transfer of the
disputed land, she sent a notice to Shiv Murti Prasad Pandey and Devendra
Prasad Pandey on 131h August, 2008 calling upon them to execute the
sale deed in terms of the agreement to sell dated 3rd September, 2001           F
and the Will executed by Guiab Bai on J6th November, 200 I. The notice
was replied to by Shiv Murti Prasad Pandey and Devendra Prasad
Pandey and we are told that they declined to execute the sale deed.
This led to Madina Begum filing a suit, inter alia, for specific performance
of the agreement being Suit No. 17A of2008 (perhaps renumbered later
as 41Aof2010) in the Court of the Additional District Judge, Jabalpur.         G

        11. The defendants in the suit namely Shiv Murti Prasad Pandey
and Devendra Prasad Pandey and Anita Jain filed their written statement
and one of the contentions raised was that the suit was barred by limitation
having been instituted more than three years beyond the date specified
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96            SUPREME COURT REPORTS                          [2016] 5 S.C.R.


A    in the agreement to sell dated 3'd September, 200 I. It was also submitted
     that Madina Begum had given an advance of only Rs. 90,000/- which
     had since been returned to her and that on J9•h November, 2001 the
     agreement to sell between Guiab Bai and Madina Begum was cancelled.
             12. On the pleadings, one of the issues framed by the Trial Court
B    was issue No. 8: Whether the suit is time barred?
              13. The Trial Court considered the issue whether the suit filed
     by Madina Begum was barred by time and answered it in the negative.
     It was held in paragraph 38 of the decision rendered on I" February,
     2011 as follows:-
c          "38. On perusal of the record it is gathered that agreement
           Ex. P-1 was executed on 03.09.2001 and thereafter stay
           has been granted by Hon 'ble High Court in first appeal on
           22.09 .200 I but the first appeal was finally decided on
           28.09.2006 vide Ex. P-5 since it was dismissed and in this
D          manner, the stay order had become ineffective on
           28.09.2006. Thereafter, the plaintiffs have sent notice to
           the defendants in August 2008 i.e. after two years from the
           date of decision in the first appeal which was dismissed on
           28.09.2006 which was done within prescribed period ofthree
           years. Therefore, it cannot be said that the plaintiffs had
E          filed the suit beyond the period oflimitation with a view to
           harass the defendan_ts. Thus, issues No. 8 and 9 are being
           answered against the defendants."
              14. Even though the issue oflimitation was decided in her favour,
     the suit filed by Madina Begum was dismissed on merits. Feeling
F    aggrieved by the dismissal of the suit on merits Madina Begum preferred
     First Appeal No. 175 of201 I in the High Court of Madhya Pradesh and
     that led to the impugned judgment and order dated J 6•h August, 2013.
     The Division Bench hearing the appeal did not go into the merits of the
     dispute between the parties but only adverted to the issue of limitation
G    and since it was found that the institution of the suit was barred by time
     (contrary to the conclusion of the Trial Court) there was no necessity of
     considering the merits of the case.
             15. In comingtothe conclusion thatthe suit was barred by time,
     the High Court considered Article 54 of Schedule I of the Limitation
     Act, 1963 (for short, "the Act"). The discussion thereon was briefand it
H
MADINA BEGUM & ANR. v. SHN MURTI PRASAD PANDEY                               97
          & ORS. [MADAN B. LOKUR, J.]


reads as follows:-                                                           A
         "Under Article 54 of the Limitation Act, the prescribed
         period oflimitation for filing a suit of specific performance
         of a contract is three years and the period of three years
         has to be calculated based on two contingencies i.e. the
         date fixed for performance of the contract or if no such            B
         date is fixed, the date when the plaintiffs had notice about
         refusal of the performance by the defendants. In this case,
         admittedly, a date for performance is fixed i.e. six months
         from the date of execution of the contract and, therefore,
         as a specific period for performance is fixed, the period of
         limitation would be three years w.e.f. 3.03.2002 i.e. the
                                                                             c
         date when the period of six months for execution of the
         sale-deed lapsed."
          16. The High Court held that since the suit was barred by
limitation, the Trial Court committed a grave error in recording a finding
that the suit was within limitation.                                         D
         17. The interpretation of the first part ofArticle 54 of Schedule
I of the Act is no longer res-integra. Article 54 reads as follows:-

        "54.   For     specific Three years     The date fixed for
               performance of                   the    perfonrumce, .        E
                                    '
               a contract                       or, if no such date
                                                is fixed, when the
                                                plaintiff has notice
                                                that performance is
                                                refused"
                                                                             F


          18. In Alzmadsalzab Abdul Mui/a (2) (Dead) v. Bibijan and
Ors. 1 the following question was considered by a three judge Bench of
this Court: "Whether the use of the expression "date" used in Article 54
of the Schedule to the Limitation Act, 1963"iffl'short "the Act") is         G
suggestive of a specific date in the calendar?"
         19. While answering this question on a reference made to the
three judge Bench, this Court considered the meaning of the word "date"

 1
     (2009) 5 sec 462                                                        H
98             SUPREME COURT REPORTS                          [2016] 5 S.C.R.


A    and "fixed" appearing in Article 54. Upon such consideration, this Court
     held that the expression "date fixed for the performance" is a crystallized
     notion. When a date is fixed it means there is a definite date fixed for
     doing a particular act. Therefore, there is no question of finding out the
     intention from other circumstances. It was reiterated that the expression
     "date" is definitely suggestive of a specified date in the calendar.
B
     Paragraphs II and 12 of the Report in this regard are of importance and
     they read as follows:-
           "11. The 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
c          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
D          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.
           12. Whether the date was fixed or not the plaintiff had notice
E          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
F          Division Bench for deciding the issue on merits."
              20. Quite independently and without reference to the aforesaid
     decision, another Bench of this Court in Ratlmavat/1i and Anotlter v.
     Kavita Ganashamdas" came to the same conclusion. It was held in
     paragraph 42 of the Report that a mere reading of Article 54 would
G    show that if the date is fixed for the performance of an agreement, then
     non-compliance with the agreement on the date would give a cause of
     action to file a suit for specific performance within three years from the
     date so fixed. But when no such date is fixed, the limitation of three
     years would begin when the plaintiff has notice that the defendant has
H     't20I5J s sec 223
MADINA BEGUM & ANR. v. SHIV MURTI PRASAD PANDEY                                  99
          & ORS. [MADAN B. LOKUR, J.]

refused the performance of the agreement. It was further held, on the            A
facts of the case that it did not fall in the first category of Article 54
since no date was fixed in the agreement for its performance.
      21. The Clauses of the agreement for consideration m
Rathnavathi were Clauses 2 and 3 and they read as follows:-
                                                                                 B
       "2. The purchaser shall pay a sum of Rs. 50,000 (Rupees
      fifty thousand only) as advance to the seller at the time of
      signing this agreement, the receipt of which the seller hereby
      acknowledges and the balance sale consideration amount
      shall be paid within 60 days from the date of expiry oflease
      period.                                                                    c
      3. The seller covenants with the purchaser that efforts will
      be made with the Bangalore Development Authority for
      the transfer of the schedule property in favour of the
      purchaser after paying penalty. In case it is not possible
                                                                                 D
      then the time stipulated herein for the balance payment and
      completion of the sale transaction will be agreed mutually
      between the parties."

         22. As far as the present appeal is concerned, the agreement
between Guiab Bai and Madina Begum did not specify a calendar date               E
as the date fixed for the performance of the agreement. Consequently,
the view expressed in A/1madsa/iabAbdul Mui/a and Ratlmavat/1i on
the first part of Article 54 clearly applies to the facts of the case. In
taking a contrary view, ignoring the absence of a specified date for the
performance of the agreement and reversing the Trial Court, the High
Court has fallen in error.                                                       F

         23. It is not necessary for us to multiply authorities on the subject
particularly when the issue has been conclusively settled by a Bench of
three learned judges of this Court in Al1madsaliabAbdu/ Mui/a and we
see no reason to take a different view.
                                                                                 G
         24. The second question that requires consideration is whether
the High Court was right in merely deciding the issue o:liu•itation in a
first appeal filed under Section 96 of the Code of Civil Pr01.edure without
going into the merits of the case. Quite recently, in Vinod Kumar v.

                                                                                 H
100             SUPREME COURT REPORTS                            [2016) 5 S.C.R.



A     Gangadhar3 this Court had occasion to consider the issue whether,
      under Section 96 of the Code of Civil Procedure, the first appellate court
      ought to decide all the issues before it or not. Reference was made to a
      very large number of decisions rendered by this Court and it was
      concluded, particularly relying upon Madhukar v. Sangram• decided
      by a Bench of three learned judges of this Court that sitting as a court of
B
      first appeal it is the duty of the High Court to deal with all the issues and
      evidence led by the parties before recording its findings.
               25. In so far as the present appeal is concerned, the High Court
      only considered the issue of limitation and did not consider the other
      issues in the appeal. This was impermissible. The result is that since we
c     do not agree with the view taken by the High Court on the issue of
      limitation, there is no option but to set aside the view expressed by the
      High Court and following the decisions of this Court, remand the matter
      to the High Court to decide the remaining issues in the first appeal filed
      4nder Section 96 of the Code of Civil Procedure.
D
               26. It is a little unfortunate that the parties have to undergo
      another round of litigation which could easily have been avoided ifthe
      settled legal principles laid down by this Court from time to time were
      followed in regard to the requirements of Section 96 of the Code of Civil
      Procedure. This is quite apart from the delay caused in the resolution of
E     the dispute between the parties.
               27. In view of our discussion, the appeal is allowed and the
      impugned judgment and order of the High Court dated l 61h August, 2013
      is set aside and the matter is remanded to the High Court for deciding
      the remaining issues in the appeal on merits.
F

      Devika Gujral                              Matter remanded back to High Court.




      't201si 1sec391
      • (2001) 4 sec 756