Case Note & Summary
The case involves a second appeal by the original defendant no.10, Smt. Tulsabai wd/o Ramkrishna Avatade, against the judgment and order dated 17th July, 2008 passed by the learned District Judge-1 at Pandharakwada in Regular Civil Appeal No.77/2003, which was dismissed. The appeal stems from the judgment and decree dated 3rd September, 2001 passed by the learned Joint Civil Judge, Senior Division, Yavatmal in Special Civil Suit No.95/1991. The plaintiff, Smt. Rajani wd/o Rajkumar Punyani, had instituted the suit for possession, damages and costs on the ground that she is the owner of the land bearing Gat No.53 (Old S.No.34) admeasuring 4H 31R situated at village Khadaki, Taluqa Maregaon, Dist. Yavatmal. The suit land was originally allotted in favour of one Shri Rajkumar Punyani, husband of the plaintiff, in 1967-68 by the Government. After his death, the plaintiff and her son (original defendant no.2) became owners and were cultivating as Class II occupants. The suit land could not be alienated or sold without prior permission of the Government. In 1995, the first defendant's brother was assigned the work of summer season (unhalwai) on payment of charges, but he took disadvantage and cultivated the suit land and inducted the name of the first defendant, who took forcible possession pleading that she had purchased under an agreement to sell. The first defendant contended that there was an oral agreement to sell the suit land for Rs.49,000/-, with Rs.36,000/- paid as earnest money and possession handed over to her, and she agreed to pay Rs.13,000/- at the time of sale deed pursuant to an agreement to sell dated 25.5.1992. Later, on 29.4.1994, it was agreed to obtain permission of the Collector. The substantial question of law framed was whether the counterclaim for specific performance of contract could be said to be barred by limitation. The court held that the counterclaim was barred by limitation as it was filed beyond three years from the date of refusal or from the date fixed for performance, and dismissed the appeal.
Headnote
A) Limitation Act, 1963 - Article 54 - Specific Performance - Counterclaim - Limitation for counterclaim for specific performance of contract is governed by Article 54 of the Limitation Act, 1963, which prescribes a period of three years from the date fixed for performance, or if no such date is fixed, when the plaintiff has notice that performance is refused. In the present case, the agreement to sell was dated 25.5.1992, and the defendant claimed possession was delivered on that date. The suit was filed in 1991, and the counterclaim was filed in 1995. The court held that the counterclaim was barred by limitation as it was filed beyond three years from the date of refusal or from the date fixed for performance. (Paras 1-6) B) Limitation Act, 1963 - Article 54 - Specific Performance - Counterclaim - Date of Refusal - The court considered that the plaintiff had filed a suit for possession in 1991, which itself indicated refusal to perform the alleged agreement. The defendant's counterclaim filed in 1995 was therefore beyond the limitation period of three years from the date of refusal. The substantial question of law was answered in the affirmative, holding that the counterclaim was barred by limitation. (Paras 4-6)
Issue of Consideration
Whether the counterclaim for specific performance of contract could be said to be barred by limitation?
Final Decision
The Second Appeal is dismissed. The judgment and order dated 17th July, 2008 passed by the learned District Judge-1 at Pandharakwada in Regular Civil Appeal No.77/2003 is confirmed. The substantial question of law is answered in the affirmative, holding that the counterclaim for specific performance of contract is barred by limitation. No order as to costs.
Law Points
- Limitation for counterclaim
- Specific performance
- Article 54 of Limitation Act
- 1963
- Date of refusal
- Cause of action
