# Mahesh Chandra Sharma (deceased) v. Avinash Kumar

- **Citation:** (2021) 5 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-05-05
- **Case number:** Second Appeal No. 1873 of 1985
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-chandra-sharma-deceased-v-avinash-kumar-46966
- **Pages:** 25

## Headnote

A. Civil Law - Specific Performance of
Contract - Uttar Pradesh Regulation of
Money-Lending Act, 1976 - Code of Civil
Procedure,1908 - Section 100 - The law of
pleadings poses certain limitation on
parties as well as the Courts - The law of
pleadings ensures that no party can spring a
surprise upon its adversary and render the latter
without opportunity to defend itself. The courts
cannot travel beyond pleadings and cannot
grant relief which is not sought. Similarly, the
court cannot receive evidence of facts which are
not stated in the pleadings. (Para 10)

B. Maturity of cause of action - Code of
Civil Procedure,1908 - Order VII Rule 11;
Limitation Act, 1963- Article 54, Sections
2(j), 3 - Article 54 of the Act of 1963 would
certainly not be relevant to the matter. It would
be relevant for the purpose of reckoning
limitation; not the maturity of the cause of
action. In the opinion of this Court where a date
is fixed for the purpose of performance of a
contract relating to the sale of an immovable
property, but the vendor says that he never
entered into that agreement or it is forged, or
raises a plea of non est factum or still more, like
the case here, asserts that the contract does not
at all embody the true intention of parties about
290 INDIAN LAW REPORTS ALLAHABAD SERIES
a solemn promise to sell the property, but one
merely to serve as a security, the breach occurs
as soon as this stand is taken (by the vendor).
The cause of action arises immediately. (Para
11, 16)

The filing of a suit when there is cause of
action though premature does not raise a
jurisdictional question. A right that accrues
on the expiry of a certain period of time is, no
doubt, a deficiency, if the time stipulated by a
contract has not expired. But, it would not lead
to the Court being totally or inherently without
jurisdiction. If that plea is promptly raised, the
Court may return the plaint or dismiss the suit
with liberty to bring it afresh, on the expiry of
time when the cause of action matures. (Para
17, 20)

A plea as to non-maintainability of the suit
on the ground of its being premature
should
be
promptly
raised
by
the
defendant and pressed for decision. It will
equally be the responsibility of the court
to examine and promptly dispose of such
a plea. The plea may not be permitted to
be raised at a belated stage of the suit.
(Para 20)

In the present case, where the defendant has
disowned the suit agreement and his liability
under it, giving rise to a mature and perfect
cause of action before the suit was instituted. In
view of the defendant's stand, there is
absolutely no scope for the plaintiff to have
waited for the two years contemplated under
the suit agreement to expire. (Para 22)

No plea regarding prematurity was ever raised
in the written statement. Had it been done,
though in error, the suit might have been
dismissed

## Text

_Characters 0–39,980 of 87,016. This is a partial read: ask again with offset=39980 for what follows._

5 All. Mahesh Chandra Sharma(deceased) Vs. Avinash Kumar
289
However, their conviction and sentence
under Section 323/34 I.P.C. by the trial
Court is hereby confirmed. Their sentences
are reduced to already undergone. They are
on bail and they need not surrender. Their
bail bonds are cancelled and sureties
discharged.

Appellants are directed to file
personal bond and two sureties each in the
like amount to the satisfaction of the Court
concerned in compliance of Section 437-A
of the Code of Criminal Procedure, 1973.

The appeal is partly allowed.

(48) Let a copy of this judgment and
the original record be transmitted to the
trial
court
concerned
forthwith
for
necessary information and compliance.

(49) The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person
(s)
(preferably
Aadhar
Card)
mentioning the mobile number (s) to which
the said Aadhar Card is linked before the
concerned Court/Authority/Official.

(50)

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)05ILR A289
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2021

BEFORE
THE HON'BLE J.J.MUNIR, J.

Second Appeal No. 1873 of 1985
WITH
Second Appeal No. 2315 of 1985

Mahesh Chandra Sharma (deceased)
 ...Appellant
Versus
Avinash Kumar ...Respondent

Counsel for the Appellant:
Sri N.C. Rajvanshi, Sri M.K, Rajvanshi, Sri
Vinay Kumar Mishra

Counsel for the Respondent:
Sri N.L. Agarwal, Sri Mahtab Alam, Sri N.L.
Ganguly, Sri Pradyamna Kumar Yadav, Sri
Rakesh Pratap Singh

A. Civil Law - Specific Performance of
Contract - Uttar Pradesh Regulation of
Money-Lending Act, 1976 - Code of Civil
Procedure,1908 - Section 100 - The law of
pleadings poses certain limitation on
parties as well as the Courts - The law of
pleadings ensures that no party can spring a
surprise upon its adversary and render the latter
without opportunity to defend itself. The courts
cannot travel beyond pleadings and cannot
grant relief which is not sought. Similarly, the
court cannot receive evidence of facts which are
not stated in the pleadings. (Para 10)

B. Maturity of cause of action - Code of
Civil Procedure,1908 - Order VII Rule 11;
Limitation Act, 1963- Article 54, Sections
2(j), 3 - Article 54 of the Act of 1963 would
certainly not be relevant to the matter. It would
be relevant for the purpose of reckoning
limitation; not the maturity of the cause of
action. In the opinion of this Court where a date
is fixed for the purpose of performance of a
contract relating to the sale of an immovable
property, but the vendor says that he never
entered into that agreement or it is forged, or
raises a plea of non est factum or still more, like
the case here, asserts that the contract does not
at all embody the true intention of parties about
290 INDIAN LAW REPORTS ALLAHABAD SERIES
a solemn promise to sell the property, but one
merely to serve as a security, the breach occurs
as soon as this stand is taken (by the vendor).
The cause of action arises immediately. (Para
11, 16)

The filing of a suit when there is cause of
action though premature does not raise a
jurisdictional question. A right that accrues
on the expiry of a certain period of time is, no
doubt, a deficiency, if the time stipulated by a
contract has not expired. But, it would not lead
to the Court being totally or inherently without
jurisdiction. If that plea is promptly raised, the
Court may return the plaint or dismiss the suit
with liberty to bring it afresh, on the expiry of
time when the cause of action matures. (Para
17, 20)

A plea as to non-maintainability of the suit
on the ground of its being premature
should
be
promptly
raised
by
the
defendant and pressed for decision. It will
equally be the responsibility of the court
to examine and promptly dispose of such
a plea. The plea may not be permitted to
be raised at a belated stage of the suit.
(Para 20)

In the present case, where the defendant has
disowned the suit agreement and his liability
under it, giving rise to a mature and perfect
cause of action before the suit was instituted. In
view of the defendant's stand, there is
absolutely no scope for the plaintiff to have
waited for the two years contemplated under
the suit agreement to expire. (Para 22)

No plea regarding prematurity was ever raised
in the written statement. Had it been done,
though in error, the suit might have been
dismissed as premature, with liberty to sue
afresh, when the cause of action had ripened.
Here, since the plea about prematurity was
never raised, it would indeed be the greatest
travesty of justice to hold the plaintiff disentitled
at the appeal stage, on that ground, where
otherwise, both the Courts have found the
plaintiff entitled to a decree for specific
performance.
This
again,
is
the
most
hypothetical
proposition
on
which
the
defendant's case can receive consideration. On
facts, however, this proposition or this facet of
the defendant's case need not be considered.
(Para 23)

It must also be remarked that even if the suit
were to be held as one instituted before time,
the prematurity would not be one that relates to
a jurisdictional fact. The Court, therefore, would
have jurisdiction to entertain the suit and grant
relief, particularly, when no plea to that effect
was raised by the defendant before the Court of
trial or in the grounds of appeal. (Para 24)

C. Admissibility of evidence - Indian
Evidence Act, 1872- Section 65(c) - The
objection as to mode of proof of document
has to be taken at the earliest stage, when
the document is laid in evidence and if not
taken, it cannot be subsequently raised,
once
the
document
is
admitted
in
evidence. The reason is not far to seek. If an
objection about the mode of proof of a
document were to be taken, as soon as it is laid,
the person relying on the document can take
steps to strictly prove the document in
accordance with law. (Para 28)

The plaintiff, on his part, took steps to lay the
necessary foundation for reception of secondary
evidence by filing what appears to be a copy of
the report dated 19.02.1982, lodged with Police
Station Harduaganj, about loss of the suit
agreement. The defendant waived formal proof
of this document before the lower Appellate
Court, a fact recorded in that judgment. In the
opinion of this Court, therefore, sufficient
foundation was laid by the plaintiff to lead
secondary evidence about contents of the suit
agreement and whatever objection about the
mode of proof, if at all could be taken, was
given up by the defendant before the lower
Appellate Court. (Para 29, 30)

The courts below were held to be justified in law
to admit secondary evidence of agreement
dated 02.05.80.

D. Validity of decree of refund of earnest -
Specific
Relief
Act,
1963
-
Section
22(1)(b) - That relief could not have been
granted, as the plaintiff has not at all sought
relief regarding refund of any earnest money or
deposit paid or made by him, in the alternative,
if his claim for specific performance were to fail.
5 All. Mahesh Chandra Sharma(deceased) Vs. Avinash Kumar
291
In a situation of that kind, to pass a decree for
refund of earnest as the lower Appellate Court
has done, would be impermissible in view of the
provisions of Section 22 (1) (b) of the Specific
Relief Act, 1963. (Para 32)

E. Specific Relief Act, 1963 - Section 20 -
Once a suit for specific performance has
been filed, any delay as a result of the
court process cannot be put against the
plaintiff as a matter of law in decreeing
specific performance. However, it is within
the discretion of the Court, regard being
had to the facts of each case, as to
whether some additional amount ought or
ought not to be paid by the plaintiff once a
decree of specific performance is passed
in its favour, even at the appellate stage.
(Para 33)

Bearing in mind the astronomical rise in prices
of real properties, the Courts of late have
introduced a principle where to do some equity
to parties, who are not themselves directly
responsible for the long delays of litigation,
when compelled to specifically perform almost
ancient contracts, are to be given succor that
lends some relevance and sense in monetary
worth of the present time. (Para 33)

There is nothing on record to show that the
plaintiff, or for that matter, the defendant have,
in any manner, contributed to the delay. It is a
delay, resulting from the process of Court,
which, cannot be put against the plaintiff to
decline specific performance. At the same time,
the lapse of time is so long that it has altered all
monetary values and placed parties in a position
that they could not have imagined in the day
that they bargained the contract. To the parties
who contracted, it is like time travel to the
future. The demand of equity would, therefore,
require the plaintiff to pay consideration for the
sale, that has some monetary relevance in the
present time. (Para 35)

This Court is of opinion that the plaintiff ought
to pay consideration for the suit property
reckoned at 1/4th value of its current market
worth.
This
reduced
consideration,
the
defendant must accept, to answer his old
obligations that he has observed in utter
breach. (Para 36)

Second Appeal no. 1873 of 1985 stands
allowed with costs throughout.
Second Appeal no. 2315 of 1985 strands
dismissed. (E-3)

Precedent followed:

1. Ganga Prasad Rai Vs Kedar Nath & anr., 2019
(3) ARC 624 (Para 10)

2. Malkhan Singh Vs Raghubir Singh, AIR 1981
Allahabad 96 (Para 11)

3. Smth Vs Heptanstall, AIR 1938 Rangoon 134
(Para 17)

4. Vithalbhai (P) Ltd. Vs Union Bank of India
(2005) 4 SCC 315 (Para 18)

5. Section 65(c) of the Indian Evidence Act,
1872 (Para 28)

6. R.V.E. Venkatachala Gounder Vs Arulmigu
Viswesaraswami & V.P. Temple & anr., (2003) 8
SCC 752 (Para 28)

7.
Ferrodous
Estates
(Pvt.)
Ltd.
Vs
P.
Gopirathnam (Dead) & ors., 2020 SCC OnLine
SC 825 (Para 33)

Precedent distinguished:

1. Harihar Prasad & ors. Vs Udaibir Singh & anr.
1978 AWC 79 (Para 13)

(Delivered by Hon'ble J.J. Munir, J.)

1. These two second appeals have
arisen from a suit for specific performance
of contract. Second Appeal No. 1873 of
1985 has been preferred by the plaintiff,
whereas Second Appeal No. 2315 of 1985
has been brought by the defendant. Both
appeals have been heard together. Second
Appeal No. 1873 of 1985 shall be treated to
be the leading case.
292 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The facts giving rise to the two
appeals are these :

Original Suit No. 144 of 1982 for
specific performance of contract was
instituted by Mahesh Chand against one
Rampal
Singh,
seeking
specific
performance of a registered agreement to
sell dated 02.05.1980, executed in favour of
Mahesh Chand by Rampal Singh. Mahesh
Chand is hereinafter referred to as the
'plaintiff', which includes reference to his
legal heirs and representatives, since
substituted in his stead. Rampal Singh, who
died pending appeal before the lower
Appellate Court and was substituted there
by his sole heir and legal representative,
Avinash Kumar, is hereinafter referred to
as the 'defendant.'

3. The plaintiff's case is that a
registered
agreement
to
sell
dated
02.05.1980 was executed between him and
the
defendant,
where
the
defendant
covenanted to sell, for an agreed sale
consideration of Rs. 15,000/-, his 1/5th
share in the agricultural land of Khata no.
254, plot no. 545, admeasuring 24 bigha 10
biswa 11 biswansi, situate at Village
Azimabad Machhua, Pargana and Tehsil
Koil, District Aligarh. The said land is
hereinafter referred to as the ''suit property'.
The registered agreement to sell dated
02.05.1980 shall be called the 'suit
agreement'.

4. It is the plaintiff's case that
antecedent to the execution of the suit
agreement, the defendant received, by way
of earnest, a sum of Rs. 1440/-. The
defendant further received a sum of Rs.
2,000/- at the time of execution and
registration of suit agreement before the
Sub-Registrar. Thus, out of the total sale
consideration, the defendant received in
earnest a total sum of Rs. 3440/-. It was
covenanted
between
parties
that
the
defendant would execute a sale deed
conveying the suit property in favour of the
plaintiff within two years of the date of the
suit agreement. It is the plaintiff's case that
he has been always ready and willing to
perform his part of contract and is still
ready and willing. The defendant has been
elusive about the performance required of
him in terms of the suit agreement and
evaded his liabilities thereunder. The suit
was instituted on 13.04.1982, alleging that
the defendant, on 15.03.1982, refused to
settle the matter amicably and out of Court.

5. The defendant contested the suit by
filing a written statement dated 12.07.1982.
The defendant denied the execution of the
suit agreement. He pleaded that he never
received a sum of Rs. 1,440/- by way of
earnest. Rather, he received a loan from the
plaintiff in the sum of Rs. 2,000/- agreeing
to pay the plaintiff interest @ 3% per
month. It was agreed inter partes that the
loan, together with the accrued interest,
would be repaid within a period of two
years. The plaintiff, in order to evade the
provisions of the of the Uttar Pradesh
Regulation of Money-Lending Act, 1976
got the suit agreement executed, where Rs.
3,440/- were shown as earnest. The suit
agreement was registered. The defendant
has pleaded that for a fact, no agreement
covenanting to transfer the suit property
was in the parties' contemplation. The
defendant has also averred that he paid a
sum of Rs. 2,920/- to the plaintiff in
August,
1981,
liquidating
the
entire
outstanding due to the plaintiff, the
principal and the interest included. The
plaintiff discharged the suit agreement by
endorsing on its reverse that he does not
wish to secure a sale deed and had received
back his earnest. It is further averred by the
5 All. Mahesh Chandra Sharma(deceased) Vs. Avinash Kumar
293
defendant that the plaintiff, however, did
not return the suit agreement in original,
where
he
made
the
last
mentioned
endorsement, telling the defendant that it
was of no use to the defendant, as the
plaintiff had already endorsed discharge
thereon. The defendant has gone on to say
that he is a simpleton and believed the
plaintiff's last mentioned representations,
leaving the suit agreement back with him.
It has also been averred that the plaintiff
has never been ready and willing to secure
execution of the sale deed. It has also been
asserted for a fact that the value of the suit
property, contemporaneous to the execution
of the suit agreement, was no less than Rs.
35,000/-. As such, there could be no reason
for the defendant agreeing to sell the suit
property for a sale consideration of Rs.
15,000/-.

6. The Trial Court, on the basis of
pleadings of parties, and after hearing them,
struck the following issues (translated into
English from Hindi vernacular):

"(i)
Whether
the
defendant
executed the agreement dated 02.05.1980 in
favour of the plaintiff agreeing to execute a
sale deed for a sale consideration of Rs.
15,000/- and received an earnest in the sum
of Rs. 3440/-?

(ii) Whether the plaintiff has
always been ready and willing to perform
his part of the contract?

(iii) To what relief, if any, is the
plaintiff entitled?"

7. The Trial Court held in favour of the
plaintiff on all issues and decreed the suit for
specific performance. The defendant appealed
the decree to the learned District Judge, Aligarh
vide Civil Appeal No. 14 of 1984. The
learned Third Additional District Judge, before
whom the appeal came up for determination,
partly allowed the same, setting aside the decree
for specific performance granted by the Trial
Court and substituting it by a direction for
refund of the earnest. The plaintiff has also been
held entitled to receive interest on the earnest
money @ 6% per annum from the date of suit
till realization. The plaintiff has been held
entitled to receive costs from the defendant in
the Trial Court and the lower Appellate Court.
Aggrieved by the decree of the lower Appellate
Court, both the plaintiff and the defendant have
appealed to this Court under Section 100 of the
Code of Civil Procedure1. The plaintiff has
appealed from that part of the decree of the
lower Appellate Court, by which specific
performance has been denied. The defendant
has appealed the other part, whereby he has
been ordered to refund the earnest together with
interest. This is how these two appeals have
come up. The plaintiff's appeal was admitted to
hearing by this Court on 04.11.1985, on the
following substantial question of law :

"Whether the plaintiff could be
refused the relief of specific performance simply
because the suit was premature."

8 . The defendant's appeal was instituted
later, on 20.12.1985. It was admitted to hearing
on 21.02.1995 on the two substantial questions
framed in the memo of appeal, as questions A
and B. These read :

"A. Whether the courts below are
justified in law to admit secondary
evidence of agreement dated 02.05.1980?

B. Whether the decree for money
passed by court below is justified in law in
view of the fact that the real controversy
has not been adjudicated upon."
294 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Heard Mr. Vinay Kumar Mishra,
learned Counsel for the plaintiff and Mr.
Mahtab Alam, learned Counsel appearing
for the defendant in both the appeals.

10. Mr. Vinay Kumar Mishra, learned
Counsel, in support of the plaintiff's appeal,
has urged that the substantial question of
law framed in that appeal ought to be
answered in the negative. He submits that
the lower Appellate Court, like the Trial
Court, has found for the plaintiff on all
issues. The findings on those issues are
pure findings of fact that cannot be
reopened at the instance of the defendant
here, or undone, answering the substantial
questions of law said to be involved in the
defendant's appeal. Mr. Mishra urges that
no substantial question of law is involved
in the appeal preferred by the defendant,
which ought to be determined under subSection 5 of Section 100 of the Code.
Learned Counsel has argued that so far as
the plaintiff's appeal is concerned, the only
point that has veered the lower Appellate
Court away from the right course into
setting aside the decree for specific
performance granted by the Trial Court is
an issue that was brought up during hearing
of the appeal before the lower Appellate
Court. The point on which the lower
Appellate
Court
has
accepted
the
defendant's case is that the suit is
premature. Mr. Mishra, learned Counsel,
submits that this was not at all a plea taken
by the defendant in his written statement or
at any stage during trial. Admittedly, this
point does not figure as a ground in the
memorandum of appeal filed before the
lower Appellate Court. The point was
sprung during hearing before the lower
Appellate Court, and, surprisingly accepted
with no basis to it in the parties pleadings,
evidence, case, or submissions at any
earlier stage of the proceedings. This kind
of a plea could not be suddenly urged,
according to the learned Counsel, at the
hearing of the appeal before lower
Appellate Court, with no basis to it. The
lower Appellate Court, in its submission,
grossly erred in permitting it to be urged,
let alone accepting it. In support of his
submissions
under
reference,
learned
Counsel has placed reliance upon a
decision of this Court in Ganga Prasad Rai
v. Kedar Nath and Another, 2019 (3) ARC
624. Learned Counsel for the plaintiff has
invited the attention of the Court towards
that part of the decision, where the
principle
forbidding
the
Court
from
examining a party's case never pleaded, has
been expressed in the following words:

"41.
The
rules
relating
to
pleadings are set out in Order 6 C.P.C.
under the heading "Pleadings Generally".
The case of a party is set forth in the
pleadings in the plaint. The plaint must
conform to the provisions of Order 6
C.P.C. The law relating to the pleadings is
stated with clarity in the C.P.C. and settled
with finality in various judgments of the
courts. The party has to state its case in a
concise form in the plaint/written statement
by pleading all material facts. The
pleadings should not be vague. However,
while construing the pleadings, the courts
do not adopt a hypertechincal approach.
The purpose of the pleadings is also to
alert the adversary to the case of the party.
This will enable the adversary/opposite
party to assert its defence and or refutal in
its pleadings and tender its evidence in
regard thereto. The law of pleadings
ensures that no party can spring a surprise
upon its adversary and render the latter
without opportunity to defend itself. The
law of pleadings poses certain limitations
on parties as well as the courts. The courts
cannot travel beyond pleadings and cannot
5 All. Mahesh Chandra Sharma(deceased) Vs. Avinash Kumar
295
grant relief which is not sought. Similarly,
the court cannot receive evidence of facts
which are not stated in the pleadings."

11. On the merits of the plea, Mr.
Vinay Kumar Mishra, learned Counsel,
submits that the lower Appellate Court
went utterly wrong in law in holding the
suit to be premature. He points out that the
reasoning of the lower Appellate Court is
based on a flawed perception about the law
relating to maturity of the cause of action.
It is the learned Counsel's submission that
the lower Appellate Court committed a
manifest error of law in holding that the
time period for performance being two
years, determinable from the date of the
suit agreement, which is one dated
02.05.1980,
the
suit
instituted
on
13.04.1982 was premature. He submits that
the manifest error lies in ill appreciating the
way the cause of action would arise in a
case, where the defendant repudiates his
liability under a contract to sell immovable
property by disowning the covenant as an
instrument not at all embodying a bona fide
agreement
between
parties
to
sell.
According
to
the
learned
Counsel,
whenever the vendor says that for whatever
reason he disowns a contract to sell or
repudiates it in any manner, the period of
time at the end of which performance falls
due, becomes irrelevant. In the face of that
kind of a stand by the vendor, cause of
action arises immediately. It is here that the
lower Appellate Court has erred in
insisting, in the submission of Mr. Mishra,
that the plaintiff ought to have waited for
the passage of two years from the date of
suit agreement before instituting the suit. In
support of his submission, Mr. Mishra has
placed reliance upon a decision of this
Court in Malkhan Singh v. Raghubir
Singh, AIR 1981 Allahabad 96. He has
drawn the attention of this Court
towards the decision in Malkhan Singh
(supra), where it is held:

"15. In regard to the last
submission made by the learned counsel for
the appellant that the suit was not
maintainable as it was premature. In
regard to this submission also. In my
opinion, it has no substance. In regard to
this question also there was no plea in the
written statement nor any issue for any
argument either before the trial court or
the appellate court nor any grounds was
taken before the lower appellate court or
before this Court. The only argument which
is now sought to be made is that the
appellant could have executed the sale
deed by 4th June, 1971 and since the suit
was filed on 2-6-1971, the suit was
premature.
This
argument
is
also
fallacious. In the agreement the appellant
had agreed to execute the sale deed by 4th
June, 1971. On 6th May, 1971 a notice was
sent to the appellant to execute the sale
deed by virtue of the agreement dated 5-91970. This notice was not accepted by the
appellant and was served by refusal. The
case of the appellant throughout had been
that he had not executed the agreement at
all. In the circumstance, the suit cannot be
said to be premature as it was filed after
the appellant had clearly refused to execute
the sale deed in favour of the plaintiffrespondent. In the circumstances, I do not
find that the suit is premature. There is
another aspect of the matter. On the date
when the decree was passed by the trial
court, the suit was clearly maintainable
and even till that date the appellant had not
signified his assent to execute the sale
deed, therefore, it cannot be said that the
decree passed by the trial court was in any
manner illegal."
296 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Mr. Mahtab Alam, learned
Counsel for the defendant, has refuted the
submissions of Mr. Mishra on both scores.
He has urged that so far as the suit being
premature is concerned, that plea is based
on unrebutted facts discernible from the
plaint. It is not a plea that had to figure in
the
written
statement
and
tried
in
accordance with law. The point is one that
lends itself to the exercise of power by the
Court akin to that under Order VII Rule 11
of the Code. It is a case, where on a reading
of the plaint, the Court could determine at
any stage that the suit, when instituted, was
clearly premature. According to Mr.
Mahtab Alam, no evidence was required to
prove it. As such, in the submission of
learned Counsel for the defendant, the
findings of the lower Appellate Court
cannot be faulted on ground that there was
no pleading by the defendant to consider or
sustain such a plea.

13. Repelling the other submission of
Mr. Mishra, the learned Counsel for the
defendant submits that once a period of
time is specified in a contract at the end of
which performance falls due, a suit
instituted prior to expiry of that period is
clearly premature. In his submission, no
cause of action arose in this case on the
date when the suit was instituted, inasmuch
as the period of two years reckoned from
the date of execution of the contract was
not yet over. Mr. Mahtab Alam, learned
Counsel for the defendant, emphatically
submits that the availability, including the
prematurity of the cause of action, is to be
judged with reference to the date when the
suit was instituted. Subsequent events or
the passage of time would not supply the
want or contribute to the maturity of the
cause of action. In support of his
submission on this count, learned Counsel
for the defendant has reposed faith in the
decision of this Court in Harihar Prasad
and others v. Udaibir Singh and another
1978 AWC 79, where it was held by Hari
Swarup, J. thus :

"3. The last contention raised by
the learned counsel is that the suit was
liable to be dismissed as it was premature.
The
submission
is
that
the
alleged
agreement was dated May 19, 1969 and,
provided two months time to the transferor
to execute the sale. The suit had been filed
on July 11, 1969, i.e before the expiry of
the two months period envisaged by the
agreement.

4. There appears prima facie
merit in each one of the contentions raised
by the learned counsel for the appellant.
However, in view of the fact that the suit
had been instituted before the expiry of the
two months' period contemplated by the
agreement, the suit was liable to be
dismissed on the ground that it was
premature. I accordingly do not consider it
necessary to deal with the other points
raised by the learned counsel for the
appellant for purposes of the decision of
the appeal.

5. Article 54 of Schedule E to the
Limitation Act prescribes the period of
limitation
for
a
suit
for
specific
performance of a contract. The time for
filing of the suit begins to run from:

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

In the present case as the date
was fixed as two months from the date of
the
agreement,
the
limitation
will
commence running from 19-7-1960 and the
5 All. Mahesh Chandra Sharma(deceased) Vs. Avinash Kumar
297
suit could not have been filed before the
date had expired.

6. Clause (e) of rule 1 of Chapter
VII of the Code of Civil Procedure requires
that the plaint shall contain the facts
constituting the cause of action and the
date when it arose. In the case of specific
performance of a contract the cause of
action arises only after the time for the
performance of the contract expires. In the
present case, the time to perform the
contract had not expired till 11-7-1969
when the suit was filed. The plaintiff thus
had no cause of action for maintaining the
suit under Section 9 of the of the Specific
Relief Act.

7. In Gulzar Singh v. Kalyan
Chand, ILR XV 399 it was held that "a
plaintiff is not entitled to a decree in his
suit unless by proof or admission or default
of pleading, he shows that when he
instituted that suit he was entitled to a
decree." In Dorga Prasad v. Secy. of State,
AIR 1945 PC 62, it was pointed out that the
relief claimed in the suit must be confined
to matters existing at the date when the suit
was instituted. In U Ba Maung v. U Chit
Halaing, AIR 1941 Rangoon 27, the
observation in Smith v. Heptanstall, AIR
1938 Rangoon 134 was repeated which
was to the following effect:

"Nothing arising after action
brought can either create a new, or
complete a then incomplete, cause of action
entitling the plaintiff to any relief in that
same then existing suit."

Applying the principles of law
laid down in these cases it must be held
that the plaintiff had instituted the suit for
specific
performance
of
the
alleged
contract on a date when the suit did not
lie because the defendant still had time to
perform the contract and could not be held
to committed default. The suit could have
been filed only after the defendant had
committed the default in performing the
contract.
No
decree
for
specific
performance of contract could thus be
passed in favour of the plaintiff in the
present suit. The relief available under the
Specific Relief Act is a discretionary relief
and the court could not have exercised its
discretion in favour of the plaintiff in a suit
for the filing of which the limitation had not
even begun to run."

14. This Court has keenly considered
the submissions advanced by learned
Counsel for both parties and perused the
record. Article 54, that figures in Part II of
the First Division of the Schedule to the
Limitation Act, 19632, reads as follows:

Description
of Suit
Period of
Limitation

Time from
which
period
begins run

54.
For
specific
performance
of a contract
Three
years

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

15. The aforesaid Article is to be read
in conjunction with the provisions of
Section 2(j) and 3 of the Act of 1963. The
Act is a statute of limitation that provides
298 INDIAN LAW REPORTS ALLAHABAD SERIES
for the time prescribed, within which
various
proceedings,
including
suits,
appeals, revisions, or applications of
different kind and in various jurisdictions
have to be instituted. It is neither the
purpose or the object of the Act of 1963 to
mandate when the cause of action for a
particular kind of a suit would arise or to
determine when a cause of action for a
particular suit would become mature. It is
neither the subject nor the substance of this
statute. In keeping with its object and
subject, the Act nowhere forbids that a suit
instituted prior to a point of time indicated
in the schedule, when limitation would
begin to run, is premature. The object and
the subject of the Act is to fetter out old
and stale claims that the law regards on
ground of wider public policy, no longer
worthy of determination on merits. The
statute is designed to give effect to one of
the most fundamental principles that the
law comes to aid of the vigilant and not
those who sleep over their rights. In
keeping with the aforesaid purpose of the
Act of 1963, the schedule indicates a point
of time for limitation to commence. It does
not mean at all that a suit instituted prior in
point of time to that mentioned in the
schedule to the Act, for a particular kind of
suit, must be regarded as premature. The
prematurity of the cause of action has to be
tested on other parameters of the law. In a
suit relating to breach of contract, of which
a suit for specific performance is one
specie, the maturity or prematurity of the
cause of action may well depend on the
terms of the contract.

16. Article 54 of the Act of 1963
would certainly not be relevant to the
matter. It would be relevant for the purpose
of reckoning limitation; not the maturity of
the cause of action. In the opinion of this
Court where a date is fixed for the purpose
of performance of a contract relating to the
sale of an immovable property, but the
vendor says that he never entered into that
agreement or it is forged, or raises a plea of
non est factum or still more, like the case
here, asserts that the contract does not at all
embody the true intention of parties about a
solemn promise to sell the property, but
one merely to serve as a security, the
breach occurs as soon as this stand is taken
(by the vendor). The cause of action arises
immediately. There is another facet of the
matter. It is that submission of the learned
Counsel for the defendant that the cause of
action has to be judged with reference to
the date when it arises and cannot be
perfected pending suit, if it is premature on
the date of the suit.

17. In view of what this Court has
held regarding the maturity of the cause of
action in the case of a suit for specific
performance, where the vendor denies the
existence of the contract or otherwise
repudiates his liability, this facet of the
defendant's plea does not require to be
squarely determined. But, since this plea
has been urged with much force and on the
authority of Harihar Prasad (supra), it
may well be examined. The principle that
this Court followed in Harihar Prasad is
founded on the authority of an old Rangoon
decision in Smith vs. Heptanstall, AIR
1938 Rangoon 134 which applies to what
are called jurisdictional facts. These are
facts which vest the Court with jurisdiction
to try the suit. If these be wanting on the
date when the suit was instituted, a
pendente lite emergence of jurisdictional
facts would not relate back to the date of
institution of the suit and serve to supply a
total lack of jurisdiction. But, this is not
true of facts, such as expiry of the
particular period of time at the end of
which a right accrues. A right that accrues
5 All. Mahesh Chandra Sharma(deceased) Vs. Avinash Kumar
299
on the expiry of a certain period of time is,
no doubt, a deficiency, if the time
stipulated by a contract has not expired.
But, it would not lead to the Court being
totally or inherently without jurisdiction. If
that plea is promptly raised, the Court may
return the plaint or dismiss the suit with
liberty to bring it afresh, on the expiry of
time when the cause of action matures.

18. The view that this Court takes is
squarely supported by the decision of S.D.
Agarwal, J. in Malkhan Singh (supra) on
both facets of the matter that have been
considered by His Lordship, as would
appear from the decision in Malkhan Singh.
The earlier decision in Harihar Prasad
relied upon by the defendant was not
considered in Malkhan Singh. If it were
just these two conflicting authorities, both
rendered by learned Single Judges of this
Court, this Court's agreement with the
principle laid down in Malkhan Singh
might have necessitated reference to a
larger Bench. But the issue is no longer res
integra in view of the decision of the
Supreme Court in Vithalbhai (P) LTD. v.
Union Bank of India (2005) 4 SCC 315.

19. The appeal before their Lordships
of the Supreme Court arose from a suit for
eviction, mesne profits, declaration and
perpetual injunction, brought by the lessor
against his lessee, who held on a fixed term
lease. However, on service of a notice to
deliver vacant possession to the lessor on
the date of end of the lease term, the lessee
responded by refusing to vacate. He also
denied the lessor's entitlement to recover
possession on ground that the lessor's title
had come to an end due to eviction by a
paramount
title
holder.
In
those
circumstances, the suit was instituted by the
lessor twelve weeks prior to expiry of term
of the lease. It was in those facts and
circumstances that the lessee raised a plea
about the suit being premature. The suit
was tried on the original side of the
Calcutta High Court, where the learned
Single Judge repelled the plea about the
suit being premature. On merits, the suit
was decreed. A Division Bench, on appeal,
reversed
the
decree,
leading
the
unsuccessful lessor to appeal by special
appeal. Their Lordships of the Supreme
Court, after a consideration of the plaintiff's
submissions about the suit not being
premature, expressed opinion that it was
not indeed premature. The plaintiff-lessor's
submission in this regard and their
Lordships remarks in Vithalbhai (P) Ltd.
(supra) read thus:

"8. The learned counsel for the
plaintiff-appellant submitted that in the
present case the suit cannot be said to have
been filed as premature on the date of its
institution. He submits that in the response
dated 8-11-1983, the defendant-respondent
had
clearly
disputed
the
plaintiff's
entitlement
to
evict
the
defendantrespondent on 25-6-1984, the date of expiry
of the lease and therefore a cloud was cast
on the title of the plaintiff. The plaintiff was
therefore fully justified in bringing the suit
after the receipt of the reply dated 8-111983. In the alternative, it was submitted
that assuming that the suit was premature
on the date of its institution, it became ripe
during its pendency and was certainly so
on the date on which the written statement
was filed by the defendant, and that the
court has the power to take notice of such
event and, therefore, to decree the suit.

9. In our opinion, a suit based on
a plaint which discloses a cause of action is
not necessarily to be dismissed on trial
300 INDIAN LAW REPORTS ALLAHABAD SERIES
solely because it was premature on the date
of its institution if by the time the written
statement came to be filed or by the time
the court is called upon to pass a decree,
the plaintiff is found entitled to the relief
prayed for in the plaint. Though there is no
direct decision available on the point but a
few cases showing the trend of judicial
opinion may be noticed."

20. After the decisive remarks in
paragraph no. 9 of the report in Vithalbhai
(P) Ltd. (supra), their Lordships proceeded
to undertake a copious review of authority
on the point and summarized the position
of the law:

"20. No amount of waiver or
consent can confer jurisdiction on a court
which it inherently lacks or where none
exists. The filing of a suit when there is
cause of action though premature does not
raise a jurisdictional question. The claim
may be well merited and the court does
have jurisdiction to hear the suit and grant
the relief prayed for but for the fact that the
plaintiff should have waited a little more
before entering the portals of the court. In
such a case the question is one of
discretion. In spite of the suit being
premature on the date of its institution the
court may still grant relief to the plaintiff if
no manifest injustice or prejudice is caused
to the party proceeded against. Would it
serve any purpose, and do the ends of
justice compel the plaintiff being thrown
out and then driven to the need of filing a
fresh suit -- are pertinent queries to be
posed by the court to itself.

21.