RSA No.642 of 2007 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 27.05.2008. Rajinder Kaur ... Appellant Versus Jagtar Singh ... Respondent. CORAM HON'BLE MR.JUSTICE PERMOD KOHLI Present: Mr.VM Gupta, Advocate,for the appellant. Ms.Preeti Khanna, Advocate,for the respondent. PERMOD KOHLI, J. The judgment of reversal dated 24.10.2006, passed by the learned District Judge, Ropar, in Civil Appeal No.122 of 19.12.2005, is in question before this Court in the present Regular Second Appeal. The brief facts available on the record are being noticed here- under. The present appellant filed a suit for refund of the earnest money and damages to the tune of Rs.2,32,000/-. The case of the appellant- plaintiff is that the defendant-respondent claiming to be co-sharer in RSA No.642 of 2007 -2- possession of land measuring 19 Marlas, entered into an agreement to sell with the plaintiff on 06.05.1997 through her husband Sukhwinder Singh for a consideration at the rate of Rs.8000/- per marla and an amount of Rs.50,000/- was paid as earnest money at the time of the execution of the agreement. As agreed to, the sale deed was to be executed by 31.12.1997. It is further alleged that in the month of July, 1997, the defendant- respondent expressed necessity of some more money out of the balance sale consideration and an amount of Rs.10,000/- was further advanced vide cheque No.0132929 dated 21.07.1997, drawn on the State Bank of Patiala, Ropar. An endorsement in this regard was made on 21.07.1997 on the agreement. According to the plaintiff, another amount of Rs.11,000/- was advanced vide Bank Draft No.680587 dated 24.07.1997 followed by another endorsement dated 24.07.1997 on the agreement. According to the plaintiff due to non availability of the current jamabandi from Halka Patwari by the stipulated date of 31.12.1997, the parties with their mutual consent extended the date for execution of the sale deed upto 20.01.1998 on payment of a further amount of Rs.40,000/- out of the balance sale consideration with similar endorsement on the agreement to sell. Again the period for performance of the agreement was extended upto 25.02.1998 on payment of another amount of Rs.5000/- with proper endorsement. The plaintiff claims to have paid a total amount of Rs.1,16,000/- as earnest money in the above manner. During this period, one Kirpal Singh, co-sharer in the joint khata, field a Civil Suit bearing No.RT-93 of 19.06.1997 against the RSA No.642 of 2007 -3- defendant and plaintiff in the present suit alongwith others for injunction in respect to joint khata of land. In the said suit, an injunction order was passed . During the pendency of the suit, defendants in that suit were restrained from alienation and possession etc. In view of the injunction, red entry was incorporated in the revenue record vide Rapat No.63 dated 16.10.21998 by the Halka Patwari. Finally, the aforesaid suit was decreed on 09.05.2001, whereby the defendants in the said suit were restrained from alienating the specific portion of the suit land till final partition. The land, subject matter of the agreement to sell, was also part of the suit land in the said case. It is further stated that another co-sharer, Sukhwinder Singh filed Civil Suit for perpetual injunction in respect of the joint khata including the suit land agreed to be sold by virtue of the agreement dated 06.05.1997. The trial Court, however, refused to grant any injunction. However, on appeal being preferred, the learned District Judge, Ropar, ordered maintenance of status-quo with regard to alienation, construction and possession vide order dated 26.09.2001. This direction was also duly reflected in the revenue record/jamabandi vide Rapat No.132 dated 20.10.2001. The plaintiff-appellant alleged that in view of the decree dated 09.05.2001 and the interim order dated 26.09.2001, the defendant became incapacitated to sell the land in terms of the agreement dated 06.05.1997. In view of the above position and on termination of the Civil Suit No.RT-93 of 1997, vide judgment and decree dated 09.05.2001, the plaintiff filed a suit for recovery i.e. refund of the earnest money of Rs.1,16,000/- and damages of the like amount, total amounting to Rs.1,32,000/-. Present Civil Suit No.103 of 2002 was instituted on RSA No.642 of 2007 -4- 20.09.2002. The defendant-respondent herein resisted the suit by filing detailed disclaimer taking various defences/pleas, inter alia, including the plea of limitation. The trial Court framed as many as eight issues. However, the relevant issues are Nos.1,4,5 and 6. The same are reproduced hereunder:- 1. Whether the defendant executed the agreement of sale dated 6.5.97 as alleged? OPP 4. Whether the plaintiff is entitled to the recovery of Rs.2,32,000/- from the defendant as claimed? OPP 5. Whether the suit of the plaintiff is neither competent nor maintainable? OPD 6. Whether the suit of the plaintiff is not within limitation? OPD The learned trial Court after discussing the evidence, decided issue Nos.1,2 and 3 in favour of the plaintiff. While considering the question of limitation under issue No.6, the learned trial Court held the suit to be within limitation on the ground that the period for which stay order remained in operation is to be excluded under Section 15 of the Limitation RSA No.642 of 2007 -5- Act, 1963 (hereinafter referred to as “the Act”) and the suit of the plaintiff-appellant herein was decreed to the extent of recovery of Rs.1,16,000/- with costs and interest at the rate of 6% per annum from the institution of the suit till realisation of the decretal amount, vide judgment and decree dated 23.11.2005. Aggrieved of the same, the defendant preferred an appeal being Civil Appeal No.122 of 2005, assailing the passing of the decree for recovery of Rs.1,16,000/- and the plaintiff-appellant also preferred an appeal being Civil Appeal No.2 of 2006, against the denial of double the amount of earnest money by the learned trial Court. Both these appeals have been decided by the impugned judgment and decree dated 24.10.2006. The learned Lower Appellate Court allowed the appeal by reversing the findings on issue No.6 i.e. the question of limitation and dismissed the suit of the present plaintiff-appellant as barred by limitation. It is under the above circumstances, the present appeal has come up before me. I have heard the learned counsel for the parties at length and perused the record of the case. The following substantial question of law arises for consideration:- “Whether benefit of Section 15 (1) of the Limitation Act to exclude the time of the RSA No.642 of 2007 -6- continuance of the injunction or order preventing filing of the suit, is available only when the party is restrained from institution of the suit?” Considering the mandate of Section 15 (1) of the Act, in the facts and circumstances of the present case, the learned Lower Appellate Court declared the suit to be barred by time and dismissed the same by reversing the findings of the learned trial Court on the question of limitation i.e. issue No.6. The short question needs to be considered is the validity of the judgment of the learned Lower Appellate Court which, inter alia, revolve on the question whether mere pendency of litigation and interim stay of alienation and transfer of possession is sufficient, to exclude the period of continuance of injunction/stay from period of limitation in filing the suit. It is appropriate to examine the question in the light of the provisions of Section 15 (1) of the Act. This section is reproduced as under:- “15. Exclusion of time in certain other cases: (1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the RSA No.642 of 2007 -7- continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.” XXX XXX XXX From the bare reading of the above section, it appears that in computing the period of limitation of any suit or application for execution of the decree, the period of continuance of the injunction or order has to be excluded where the institution of the suit or execution of the decree has been stayed by such injunction order. In the present case, admittedly, the period for performance of the agreement was initially fixed upto 31.12.1997 which was extended upto 20.01.1998 and, thereafter, upto 25.02.1998. Under Article 54 of the Limitation Act, the period for filling the suit for specific performance is three years. Article 54 of the Limitation Act is reproduced as follows:- “Description of the suit: For specific performance of a contract. Period of Limitation: Three years. Time from which period begins to run: The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.” RSA No.642 of 2007 -8- From the above Article, it is apparent that the period of limitation of three years commence from the date of performance of the agreement or where no period is prescribed, from the date of expiry of the period of notice for performance of the contract. In the present case, admittedly, the date of performance is specified as 25.02.1998. The limitation for filing the suit for specific performance was three years i.e. upto 24.02.2001. However, the suit came to be filed on 20.09.2002. The explanation tendered in the plaint is that one Kirpal Singh instituted Civil Suit bearing No.RT-93 of 1997, wherein interim injunction was issued restraining the defendants from alienation and transfer of possession. This interim injunction remained operative during the pendency of the suit which came to be decided vide judgment and decree dated 09.05.2001, whereby the defendants were restrained from alienating specific portion of the suit land. Indisputedly, the plaintiff and the defendant i.e. the vendor and the vendee of agreement dated 06.05.1997 were defendants in Civil Suit bearing No.RT-93 of 1997 filed by Kirpal Singh. They were bound by the injunction and the decree. Thereafter, another civil suit came to be filed by Sukhwinder Singh, another co-sharer, against the vendor and the vendee and another injunction was issued by the learned Lower Appellate Court (District Judge, Ropar), maintaining status-quo regarding alienation, construction and possession vide order dated 26.09.2001. There is nothing on record to show that this injunction was vacated by the time the present suit came to be filed on 20.09.2002 which means that the present suit for refund of the earnest money and damages has been filed during the RSA No.642 of 2007 -9- operation of the injunction order dated 26.09.2001 in the suit filed by Sukhwinder Singh and the decree dated 09.05.2001 passed in Civil Suit filed by Kirpal Singh. From the interim orders passed in Civil Suit No.RT-93 of 1997 and the subsequent injunction order dated 26.09.2001, it appears that in the first suit filed by Kirpal Singh, injunction was with regard to alienation and possession, whereas the second injunction was in regard to alienation, construction and possession. Even though, the plaintiff-appellant herein i.e. Vendor and the defendant-respondent Purchaser were parties, but at no stage any Court passed any order of stay restraining the present plaintiff from instituting the suit. Two injunctions passed by the different Courts in different suits were confined to the question of alienation, possession and construction. Section 15 (1) of the Limitation Act is clear in its language. It is only where institution of the suit or execution of the decree is stayed by any injunction, the period during which such stay operates, is to be excluded in computing the period of limitation for filing a suit or execution of the decree, as the case may be. Mere pendency of the suit or any kind of injunction except restraint order in respect to institution of the suit or execution of a decree, does not provide for exclusion of period during which such injunction remains in operation. Section 15 (1) of the Act was initially considered by the Privy Council in Narayan Jivangouda Patil and another Vs. Puttabai and others, A.I.R. (32) 1945 Privy Council, 5, wherein the following observations have been made:- RSA No.642 of 2007 -10- “The question whether in a particular case a party has been restrained by an injunction or order from instituting a suit must always depend for its decision upon the order, or the decree, made in the case. It appears to their Lordship's there is nothing in the injunction or in the decree to support the contention that the appellant was prevented from instituting a suit for possession in 1920, or at any time before the expiry of the period of limitation. The various restraints imposed on the appellant by the decree cannot be made to mean by any process of interpretation that he is thereby prevented from instituting a suit for possession for the suit properties. It is not maintained that there is any express order restraining him from instituting such a suit. Mr. Parikh, the learned counsel for the respondents, said that the injunction or order relied upon, to be effective should contain an express prohibition, but it is not necessary to consider that point as their Lordships are satisfied that there is no prohibition, either express or even implied in the injunction or RSA No.642 of 2007 -11- the decree in the present case, which restrains the appellant from instituting a suit for possession. Sir Thomas Strangman contended strongly that since the title contending parties was involved in the suit it would be quite futile to institute a suit for possession. Their Lordships are unable to appreciate this point for the institution of a suit can never be said to be futile, if it would thereby prevent the running of limitation. For the above reasons their Lordships hold that the appellants' suit was barred by limitation, and also that the appellant was not entitled to restitution and other reliefs claimed by him in his petition under S.144 and S.151, Civil P.C. They will therefore humbly advise His Majesty that this appeal should be dismissed with costs of the contesting respondents.” Hon'ble the Supreme Court also considered the scope of Section 15 (1) of the Act in the case of Siraj-ul-Haq Khan and others Vs. The Sunni Central Board of Waqf U.P. And others, A.I.R. 1959, Supreme Court, 198, wherein the following observations have been made:- RSA No.642 of 2007 -12- “The next question which calls for our decision is whether the appellants' suit is saved by virtue of the provisions of S.15 of the Limitation Act. That is the only provisions on which reliance was placed before us by Mr. Dar on behalf of the appellants. Section 15 provides for “the exclusion of time during which proceedings are suspended” and it lays down that “in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded”. It is plain that, for excluding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling under S.15, RSA No.642 of 2007 -13- the party instituting the suit would be such institution be in contempt of court. If an express order or injunction is produced by a party that clearly meets the requirements of S.15. Whether the requirements of S.15 would be satisfied by the production of an order or injunction which by necessary implication stays the institution of the suit is open to argument. We are, however, prepared to assume in the present case that S.15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation. But, in our opinion, there would be no justification for extending the application of S.15 on the ground that the institution of the subsequent suit would be inconsistent with the sprit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation equitable considerations are immaterial and irrelevant, and in applying RSA No.642 of 2007 -14- them effect must be given to the strict grammatical meaning of the words used by them: Nagendra Nath Dey Vs. Suresh Chandra Dey, 34 Bom. LR, 1065: (AIR 1932 P.C., 165).” In view of the above settled proposition of law based upon the clear and unambiguous language of Section 15 (1) of the Act, the exclusion provided under Section 15 of the Limitation Act is available only where a party is prevented from institution of the suit. Any other kind of injunction does not bring the suit within the scope of the exclusion determined/incorporated in Section 15 as also Article 54 of the Act. It is also admitted position in law that Section 5 of the Act has no application to the suits. The last contention of the learned counsel for the plaintiff- appellant is that he has not instituted the suit for specific performance, but for recovery. As a matter of fact, the remedy of the plaintiff-appellant was the suit for specific performance or in the alternative recovery. The relief of recovery in such a case is always in the alternative and even if it is the only relief or the principal relief, such relief emanate from the principal relief of specific performance, be it a relief of specific performance or refund of the earnest money and also damages which is primarily and substantially based upon the breach of the agreement to sell and the limitation commence when breach occurs i.e. when the agreement to sell was required to be performed RSA No.642 of 2007 -15- either where a specified date is mentioned for such a performance or whereby a notice for performance is fixed on expiry of such period. Therefore, the center point of commencement of the limitation is the date of breach of the agreement. The breach in the present case was 25.02.1998. Three years period as prescribed under Article 54 of the Act has expired on 24.02.2001. The present suit was filed on 20.09.2002 is clearly barred by time and Section 3 of the Limitation Act is clearly attracted, the suit is liable to be dismissed. No substantial question of law arises. The judgment and decree passed by the learned Lower Appellate Court is hereby affirmed and consequently, the appeal is dismissed with no order as to costs. 27.05.2008. (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES