# Shrimati Anjuman Plaintiff v. Sri Shabbir

- **Citation:** (2010) 2 ILRA 452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-02
- **Case number:** Second Appeal No.1574 of 1984
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shrimati-anjuman-plaintiff-v-sri-shabbir-41581
- **Pages:** 3

## Headnote

Code of Civil Procedure-Section 100- Suit
for specific Performence-agreement to
sale-executed
on
31.7.75-defendent/
Respondent encouraged the appellant to
invest
more
money
in
raising
constructions-one of the condition of
agreement was to obtain permission
before
execution
of
sale
deed-no
permission obtained as yet-Trail Court
decreed the suit-first appellate court
dismissed
the
suit
as
barred
by
limitation-only in October, 1980 refused
to execute the sale-suit filed in 1981well within time-Substantial question of
law regarding erroneous approach of
Appellate court decided affirmatively.

Held: Para 11

It appears from the record that after
taking
advance
of
Rs.1,000/-the
defendant
respondent
executed
agreement to sell dated 31.7.1975. He
had not objected to raise construction by
the plaintiff appellant, rather he had
encouraged her to raise construction.
This does not amount to refusal for
giving rise to cause for filing the suit in
October,
1980,
the
defendant
respondent
inadvertently
refused
to
execute the sale-deed in pursuance of
agreement dated 31.7.1975 giving rise
to cause of action to the plaintiff
appellant for filing the suit as such the
suit was well within time.

## Text

452 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the
District
Judge,
Ballia
regarding
compulsory retirement of the appellantpetitioner on the recommendation of the
screening committee and the order of the
learned Single Judge dated 29.8.2006
deserve to be set aside.

8. The Special Appeal is allowed and
the impugned judgement and order of the
learned Single Judge dated 29.08.2006
passed in Civil Misc. Writ Petition No.
41874 of 2006(Dwarika Singh Versus State
of U.P. and others) is set aside and the civil
misc. writ petition detailed above is allowed
and the order of the learned District Judge,
Ballia
dated
11.7.2006
retiring
the
appellant-petitioner compulsorily from his
service is set aside and the appellantpetitioner will be reinstated in service with
all consequential service benefits forthwith.
---------
APPELLATE JUISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2010

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Second Appeal No.1574 of 1984

Shrimati Anjuman ...Plaintiff-Appellant
Versus
Sri Shabbir

 ...Opposite Party

Counsel for the Petitioner:
Sri M.A.Qadeer
Sri Ravi Kiran Jain
Sri M.Islam
Sri R.K. Awasthi
Sri Shamim Ahmad

Counsel for the Respondent:
Sri H.S.Nigam
Sri Ashfaq Ahmad Ansari
Sri Mohd. Arif
Sri Virendar Kumar

Code of Civil Procedure-Section 100- Suit
for specific Performence-agreement to
sale-executed
on
31.7.75-defendent/
Respondent encouraged the appellant to
invest
more
money
in
raising
constructions-one of the condition of
agreement was to obtain permission
before
execution
of
sale
deed-no
permission obtained as yet-Trail Court
decreed the suit-first appellate court
dismissed
the
suit
as
barred
by
limitation-only in October, 1980 refused
to execute the sale-suit filed in 1981well within time-Substantial question of
law regarding erroneous approach of
Appellate court decided affirmatively.

Held: Para 11

It appears from the record that after
taking
advance
of
Rs.1,000/-the
defendant
respondent
executed
agreement to sell dated 31.7.1975. He
had not objected to raise construction by
the plaintiff appellant, rather he had
encouraged her to raise construction.
This does not amount to refusal for
giving rise to cause for filing the suit in
October,
1980,
the
defendant
respondent
inadvertently
refused
to
execute the sale-deed in pursuance of
agreement dated 31.7.1975 giving rise
to cause of action to the plaintiff
appellant for filing the suit as such the
suit was well within time.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. The case is taken up in the revised
list. None has appeared on behalf of
defendant respondent. Heard Sri M.A.
Qadeer, learned counsel for the plaintiff
appellant and perused the record.

2. This second appeal arises out
against the judgment and decree dated
9.5.1984 passed by the Civil Judge,
Saharanpur in Regular Civil Appeal No.
118 of 1982 arising out of Original Suit
2 All] Dwarika Singh V. State of U.P. and another
453
No. 5 of 1981, Sabbir Ahmad versus
Mohd. Anwar and another.

3. The second appeal was admitted
on the substantial question of law as to
whether the findings of the lower
appellate Court that the suit was barred by
time was erroneous?

4. The facts as culled out from the
record are that the defendant respondent
executed an agreement dated 31.7.1975
for sale of property which was described
in schedule 'A' of the plaint for a
consideration of Rs.6,000/- for which he
had
also
received
an
advance
of
Rs.1,000/-.The agreement provided that
Sri Sabbir, defendant respondent will seek
permission for sale of the said property
from the District Magistrate, Saharanpur/
Ceiling Authority and will accordingly,
inform the plaintiff appellant within 15
days
about
having
received
the
permission. Thereafter within 15 days
from the aforesaid information having
been received Smt. Anjuman wife of
Anwar, the plaintiff appellant will get the
sale-deed executed from the Registration
department. It further provided that if
defendant appellant fails to comply with
the conditions of the agreement to sell,
Smt. Anjuman will have right to get the
sale-deed executed through the Court. The
defendant respondent instead of getting
permission to sell from the District
Magistrate, prolonged the execution of
sale-deed on one pretext or the other.

5. It appears that the property in suit
fell down in the year 1978 and was
reconstructed by the plaintiff appellant
with the consent of the defendant
respondent
after
getting
the
map
sanctioned from the Nagar Palika.

6. When defendant respondent was
still dilly dallying in executing the saledeed,
the
plaintiff
appellant
Smt.
Anjuman filed original suit no. 5 of 1981,
Smt. Anjuman versus Sri Sabbir which
was decreed by the trial Court vide its
order and judgment dated 8.3.1982.

7. Aggrieved by the aforesaid
judgment and decree dated 8.3.1982, the
defendant respondent filed Civil Appeal
No. 118 of 1981. The first Appellate
Court vide its order and judgment dated
9.5.1984 allowed the appeal with costs by
setting aside the order and judgment of
the trial Court on a finding that the suit
was filed beyond limitation. It is in the
aforesaid backdrop substantial question of
law on question of limitation has been
framed in the second appeal.

8. The only ground of challenge in
this appeal pressed by the counsel for the
appellant is that the finding recorded by
the first appellate Court that the suit filed
by the plaintiff appellant was barred by
limitation is erroneous and that the
findings in this regard recorded by the
trial Court have been ignored by the lower
Appellate Court.

9. The contention of learned counsel
for the plaintiff appellant is that it was
proved from the evidence on record in
support of the pleadings in the plaint that
defendant respondent had been giving
assurances for executing the sale-deed
and
simultaneously
he
was
also
encouraging the appellant to spend money
by
raising
constructions
and
make
improvement on the property in dispute.
In this manner, he kept the appellant in
dark and thereafter he finally refused to
execute
the
sale-deed
sometime
in
October, 1980. Further contention of
learned counsel for the appellant is that
454 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the suit was within time from the date of
its institution as earlier the defendant
respondent had not refused to execute the
sale-deed, rather he had been encouraging
the plaintiff appellant to invest money for
raising construction for which he had also
received an advance of Rs.1,000/-.

10. It is lastly submitted by the
learned counsel for the appellant that it
was one of the terms and conditions of the
agreement to sell that the defendant
respondent will seek permission from the
District Magistrate and will inform the
plaintiff appellant regarding grant of
permission for the purpose of transfer of
the property by way of sale. It is stated
that in the facts and circumstances of this
case the trial Court has committed an
error apparent in law in holding that as no
notice was given by the plaintiff appellant
to defendant respondent as to why he was
not executing the sale-deed, hence the suit
was time barred from the date of
agreement to sell had been entered into
between the parties.

11. It appears from the record that
after taking advance of Rs.1,000/- the
defendant respondent executed agreement
to sell dated 31.7.1975. He had not
objected to raise construction by the
plaintiff
appellant,
rather
he
had
encouraged her to raise construction. This
does not amount to refusal for giving rise
to cause for filing the suit in October,
1980,
the
defendant
respondent
inadvertently refused to execute the saledeed in pursuance of agreement dated
31.7.1975 giving rise to cause of action to
the plaintiff appellant for filing the suit as
such the suit was well within time.

12. For all these reasons, the
substantial question of law involved in
this appeal as to whether the finding of
the lower appellate Court that the suit was
barred by time is erroneous, is answered
in affirmative.

13. The appeal is accordingly
allowed and the order and judgment of the
lower appellate Court are set aside and
that of the trial Court is affirmed. No
order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.05.2010

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Application No. 1797 of 2010
Case: U/S 482/378/407

Sudhakar Singh @ Bhannu Singh
Pradhan

 ...Petitioner
Versus
State Of U.P. Thru. Prin. Secy. Home And
Another

 ...Respondent

Counsel for the Petitioner:
Sri Arjun Singh Somvanshi

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure- Section 482Direction of Same day-offense under
section
452,323,504,506
I.P.C.-
application disposed of in terms of Lal
Kamlendra Pratap Singh-if surrendered
within
period
of
one
month-bail
application be considered on same daytill then there shall be no arrest.

Held: Para 4

It is, however, provided that if the
applicants Sudhakar Singh alias Bhannu
Singh Pradhan, Laxman, Shri Chand alias
Lala
Chauhan,
Bhannu
Singh
alias
Satyapal Singh, Ramendra alias Vinda
Singh in Complaint Case No. 2081 of