- (1.)This appeal has been instituted by an unsuccessful plaintiff whose suit for specific performance of an agreement to sell a flat on the front portion of the second floor of house bearing No. E-14/7, Vasant Vihar, New Delhi, has been dismissed on an application moved by the defendant Nos. 1 and 2 (respondent Nos. 1 and 2 herein) under Order VII Rule 11 Civil Procedure Code.
(2.)The respondent Nos. 1 and 2 had premised their application under Order VII Rule 11 on two principal factors. Firstly, it was contended that by his own pleading in paragraph 14 of the suit, the plaintiff/appellant has specifically alleged that the owner Shri K.M. Sharma, who was the predecessor in interest of the applicants, had tried to, "block the entry of the plaintiff" on or about 14.07.1989 because of which, he was constrained to file FIR No. 149/89 with the Police Station Vasant Vihar. At the same time, it is also contended by the plaintiff in, inter alia, paras 8 & 11 of his plaint that possession of the said premises had already been handed over by the owner's Attorney to him under an Agreement to Sell executed by the Attorney on the owner's behalf which, inter alia, also obliged the owner to approbate and ratify the Attorney's acts and to sign the transfer documents in due course; and therefore, in terms of Article 54 of the Limitation Act, the cause of action in the matter arose on 14.07.1989. Secondly, even if it is assumed that the mere act of blocking the plaintiff's entry to the suit premises by the owner, as aforesaid, cannot be taken to suggest that performance of the contract was refused by the owner, Shri K.M. Sharma; the notice of refusal of performance by the owner can certainly be attributed to the appellant/plaintiff on 6.2.1990 when the appellant/plaintiff had filed a criminal complaint against the Attorney of the owner before the Court of the metropolitan magistrate. Since the suit was filed on 28.11.1994, and limitation for filing such a suit was admittedly prescribed by the second limb of Article 54 of the Limitation Act, which requires such a suit to be filed within three years after the plaintiff/appellant had notice that performance was refused, therefore, even if knowledge of refusal of performance can be attributed to the date of filing of the complaint i.e. 6.2.1990, the suit was barred by limitation. Of course, if knowledge can be attributed to the earlier date of 14.07.1989 when the plaintiff has pleaded that the owner, Shri K.M. Sharma himself blocked the entry of the plaintiff to the said premises, the same result would follow.
(3.)Although the court below has chosen to accept the contention of the defendants/respondent Nos. 1 and 2 to the effect that the filing of the aforesaid complaint on 6.2.1990 demonstrates clearly that the appellant/plaintiff had notice of repudiation by that date; the other contention that the plaintiff/appellant, in fact, had notice of repudiation by the owner on 14.07.1989 itself, has not been examined further by the trial court.