# Smt. Ahmadunnisa v. Smt. Jubeda - **Citation:** (2016) 5 ILRA 1714 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-05-05 - **Bench:** Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ahmadunnisa-v-smt-jubeda-43810 - **Pages:** 7 ## Headnote Shri R.C. Singh Held - Para 1: The Court heard both parties and examined the records. Para 2: Plaintiff (Ahmadun Nisha) sued for specific performance based on a 1973 agreement to sell. Defendant (Jubeda) received half the consideration, agreeing to transfer the property once the government lifted the ban on urban sales. Para 3: Defendant denied the intent to sell, claiming the document was meant to be a tenancy agreement and that the plaintiff committed fraud by misrepresenting the nature of the deed. Para 4: The Trial Court originally decreed the suit in favor of the plaintiff, ordering the execution of the sale deed. Para 5: The Trial Court found the defendant's "tenancy" defense concocted, noting the defendant admitted to the registered deed and receipt of money. Para 6: The Trial Court ruled the document was executed with a "conscious mind" in the presence of the defendant's husband, and the plaintiff was ready and willing to perform. Para 7: On appeal, the First Appellate Court reversed the decree, dismissing the suit as time-barred because it was filed years after the government ban was lifted. Para 8: The plaintiff filed this Second Appeal against the dismissal. Para 9: Two legal questions were framed: whether limitation started from the date of refusal and whether the court could dismiss the suit without a specific plea that "time was of the essence." Para 10: It is admitted the ban was lifted in November 1975. The contract required execution within one month of that lifting. The suit was only filed in 1986. Para 11: Appellant argued the suit was timely because the "refusal" only happened in 1986 after a legal notice. Para 12: Respondent argued time was the essence; the cause of action arose in 1975, making a 1986 filing nearly nine years late. 5 All. Smt. Ahmadunnisa Vs Smt. Jubeda 1715 Paras 13-17: The Court reviewed various precedents (Bhajan Lal, Jamil Ahmad, etc.) regarding Article 54 of the Limitation Act, which sets a three-year window from either the "fixed date" or the "date of notice of refusal." Para 18: The Court noted the plaintiff's own plaint admitted the cause of action first arose in November 1975. Para 19: Since the contract fixed a date (one month after the ban lifted), the deadline was December 1975. Para 20: Under the Limitation Act, the suit should have been filed by December 1978. No explanation was given for the eight-year delay. Para 21: The Court rejected the claim that a 1984 refusal reset the clock; the suit was already "dead" by limitation in 1978. Para 22: The Court concluded that since a specific timeframe was linked to a known event (lifting the ban), time was the essence. The First Appellate Court's finding of a time-bar was correct. Para 23: The Trial Court's initial judgment was found to be erroneous for failing to appreciate these facts. Para 24: The First Appellate Court's judgment is confirmed as legally sound. Para 25: The Second Appeal is dismissed. List of Citations Bhajan Lal and another Vs. Bal Govind and another, 2007 (4) AWC 3832. Jamil Ahmad Vs. Sayeed Ahmad and others, 2008 (1) AWC 736. The Gunwantbhai Mulchand Shah and others Vs. Anton Elis Farel and others, 2006 (2) AWC 1475 (SC). Ahmmadsahab Abdul Mulla (D) by proposed L.Rs. Vs. Bibijan and others, 2009 (2) AWC 1863 (SC). R.K. Parvatharaj Gupta Vs. K.C. Jayadeva Reddy, 2006 (2) AWC 1336 (SC). ## Text 1714 INDIAN LAW REPORTS ALLAHABAD SERIES ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.05.2016 BEFORE THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Second Appeal No.- 743 Of 1989 Smt. Ahmadunnisa ...Appellant Versus Smt. Jubeda ...Respondent Counsel for the Appellant: Shri Shashi Nandan Counsel for the Respondent: Shri R.C. Singh Held - Para 1: The Court heard both parties and examined the records. Para 2: Plaintiff (Ahmadun Nisha) sued for specific performance based on a 1973 agreement to sell. Defendant (Jubeda) received half the consideration, agreeing to transfer the property once the government lifted the ban on urban sales. Para 3: Defendant denied the intent to sell, claiming the document was meant to be a tenancy agreement and that the plaintiff committed fraud by misrepresenting the nature of the deed. Para 4: The Trial Court originally decreed the suit in favor of the plaintiff, ordering the execution of the sale deed. Para 5: The Trial Court found the defendant's "tenancy" defense concocted, noting the defendant admitted to the registered deed and receipt of money. Para 6: The Trial Court ruled the document was executed with a "conscious mind" in the presence of the defendant's husband, and the plaintiff was ready and willing to perform. Para 7: On appeal, the First Appellate Court reversed the decree, dismissing the suit as time-barred because it was filed years after the government ban was lifted. Para 8: The plaintiff filed this Second Appeal against the dismissal. Para 9: Two legal questions were framed: whether limitation started from the date of refusal and whether the court could dismiss the suit without a specific plea that "time was of the essence." Para 10: It is admitted the ban was lifted in November 1975. The contract required execution within one month of that lifting. The suit was only filed in 1986. Para 11: Appellant argued the suit was timely because the "refusal" only happened in 1986 after a legal notice. Para 12: Respondent argued time was the essence; the cause of action arose in 1975, making a 1986 filing nearly nine years late. 5 All. Smt. Ahmadunnisa Vs Smt. Jubeda 1715 Paras 13-17: The Court reviewed various precedents (Bhajan Lal, Jamil Ahmad, etc.) regarding Article 54 of the Limitation Act, which sets a three-year window from either the "fixed date" or the "date of notice of refusal." Para 18: The Court noted the plaintiff's own plaint admitted the cause of action first arose in November 1975. Para 19: Since the contract fixed a date (one month after the ban lifted), the deadline was December 1975. Para 20: Under the Limitation Act, the suit should have been filed by December 1978. No explanation was given for the eight-year delay. Para 21: The Court rejected the claim that a 1984 refusal reset the clock; the suit was already "dead" by limitation in 1978. Para 22: The Court concluded that since a specific timeframe was linked to a known event (lifting the ban), time was the essence. The First Appellate Court's finding of a time-bar was correct. Para 23: The Trial Court's initial judgment was found to be erroneous for failing to appreciate these facts. Para 24: The First Appellate Court's judgment is confirmed as legally sound. Para 25: The Second Appeal is dismissed. List of Citations Bhajan Lal and another Vs. Bal Govind and another, 2007 (4) AWC 3832. Jamil Ahmad Vs. Sayeed Ahmad and others, 2008 (1) AWC 736. The Gunwantbhai Mulchand Shah and others Vs. Anton Elis Farel and others, 2006 (2) AWC 1475 (SC). Ahmmadsahab Abdul Mulla (D) by proposed L.Rs. Vs. Bibijan and others, 2009 (2) AWC 1863 (SC). R.K. Parvatharaj Gupta Vs. K.C. Jayadeva Reddy, 2006 (2) AWC 1336 (SC). (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. Heard the arguments of learned counsel for the parties and perused the records. 2. Original suit no. 2315 of 1986 (Smt. Ahmadun Nisha v. Smt. Jubeda) was filed for specific performance of contract. The plaint case in brief was that registered agreement to sell dated 05.03.1973 was executed between the parties, by which defendant Smt. Jubeda had agreed to sell her property in question to plaintiff Smt. Ahmadunnisa for a consideration of Rs. 4,000/- and had received advance consideration of Rs. 2,000/-. It was agreed that defendant will execute the saledeed of this property to plaintiff after withdrawal of ban of sale of urban property by government. But later on, defendant had not executed the sale-deed in spite of reminder, then plaintiff had sent her legal notice dated 03.03.1980 and also orally requested. The plaintiff has been ready ad willing to perform his part of contract by paying remaining consideration for getting the sale-deed executed but defendant was not willing to perform her part of contract, therefore, plaintiff had filed suit for specific performance of aforesaid registered agreement for sale. 3. Defendant Smt. Had filed written statement in original suit, by which plaint case was not denied. It was further pleaded that defendant had no intention to sell her property nor she had executed any agreement for sale, and not received any advance consideration. In fact plaintiff's husband needed a house for rent and he showed his willingness to defendant for taking her house on tenancy for which defendant was ready. But defendant's husband had asked to get the document of tenancy prepared and registered, for which plaintiff came with her husband to court. The 1716 INDIAN LAW REPORTS ALLAHABAD SERIES defendant received Rs. 2000/- as advance rent. The plaintiff's husband, with ulterior motive, colluded with scribe and witnesses who prepared the document. In place of document of tenancy, they prepared the document of agreement for sale by playing fraud on defendant and her husband. Plaintiff had filed this suit for specific performance of contract on basis of incorrect facts. This suit is time barred and is liable to be dismissed. 4. After framing issues, accepting evidences and affording opportunity of hearing to parties, the Court of 4th Additional Munsif, Gorakhpur had decreed the original suit by its judgment dated 18.01.1988 and directed the defendant to receive remaining consideration of Rs. 2,000/- from plaintiff and execute the sale-deed of disputed property, failing which plaintiff would be entitled to get the sale-deed executed through court. 5. In this judgment, trial court had appreciated the evidences and contentions of the parties and gave specific finding that in this matter execution of registered deed of contract of sale and receiving of Rs. 2000/- has been admitted by defendant. But it is not proved that plaintiff had taken any house on rent from defendant, or that any such amount was ever returned by defendant to plaintiff. Trial court held that defence of defendant is concocted version. 6. The trial court had also held that in this matter registered agreement to sell was executed in presence of husband of defendant who is government official and had played active role in the transaction in question; and also that there is no evidence that transaction in question was for tenancy, or that any amount of Rs. 2,000/- was refunded by defendant. Trial court had given finding that document in question was executed by conscious mind, and there is no evidence that any forgery was committed by plaintiff. On the basis of evidences the trial court had also given finding that the plaintiff has been ready and willing to perform is part of contract regarding execution of sale-deed, which is proved from evidences. On the basis of these findings, trial court had decreed the original suit. 7. Against the judgment of trial court, Civil Appeal no. 64 of 1988 (Smt. Jubeda v. Smt. Ahmadun Nisha) was preferred by defendant of the original suit. This appeal was heard and allowed by the judgment dated 13.01.1989 of 10th Additional District Judge, Gorakhpur. In this judgment the first appellate court had not framed the point of determination but decided the civil appeal with finding that after raising of ban on sale of property in question, the belated suit was filed beyond period of limitation, without any proper explanation of such delay; therefore suit is dismissed as being barred by time. 8. Aggrieved by the judgments of the first appellate court, present second appeal has been preferred by the plaintiff of the original suit. 9. At the time of admission of this appeal following substantial questions of law were adopted: 5 All. Smt. Ahmadunnisa Vs Smt. Jubeda 1717 (1) Whether the court below has wrongly held that the suit was barred by limitation inasmuch as the period of limitation actually commenced from the date of refusal of the defendant from execution the sale-deed? (2) Whether the court below was justified in setting aside the judgment of the Trial Court in the absence of any pleading in the w.s. that time was essence of the contract? 10. It has been admitted fact between the parties that at the time of execution of registered agreement for sale dated 5.3.1973, government had imposed ban on sale of urban immovable property. It is mentioned in said deed of agreement to sell that after lifting of said ban sale-deed in question will executed within one month. It is also proved from the evidences that Government had lifted ban for the sale of transfer of immovable urban property in the month of November, 1975. According to plaint averment, defendant resiled from the terms of agreement to sell, therefore she had given registered notice dated 3.9.1986 to defendant for execution of sale-deed and when defendant had failed to execute sale-deed, then she was forced to institute the original suit for specific performance of contract. 11. Learned counsel for the plaintiff-appellant contended that, in fact, the defendantrespondent had refused the execution of sale-deed in year 1986, then plaintiff had given her the legal notice and instituted original suit thereafter within time, therefore, suit is not time barred. He further contended that in this matter, the time was not essence of the contract, therefore when plaintiff refused to execute sale-deed in year 1984 and year 1986 after service of notice dated 3.9.1986, then original suit was instituted on 29.9.1986. He contended that in such matter cause of action arises from the time of refusal by defendant, therefore the cause of action arose after legal notice dated 3.9.1986. 12. These contentions were refuted by learned counsel for the respondent, who contended that in this particular matter, time was the essence of the contract, as it was specifically mentioned in the contract in question that sale-deed would be executed within one month after lifting of the ban on sale of immovable property. He contended that such ban was lifted in November, 1975, well within knowledge of plaintiff, but he had not been willing to perform his part of contract, so he had not given any notice till year 1996 and suit was filed after about nine years of arising of cause of action. Therefore, it is time barred. 13. Learned counsel for the appellant relied on Bhajan Lal and another Vs. Bal Govind and another, 2007 (4) AWC 3832, in which this Court had held as under:- "14. From the aforesaid, it is clear, that for the purpose of institution of a suit for specific performance, two dates are material, namely, the date fixed for specific performance of agreement and if such date is not fixed, in that event, the date when the plaintiffs had notice that the performance was refused. Consequently, the date of the execution of the agreement is immaterial. What is material is, the date of the refusal of the performance of the agreement of the defendants........" 1718 INDIAN LAW REPORTS ALLAHABAD SERIES 14. Appellant side had also relied on Jamil Ahmad Vs. Sayeed Ahmad and others, 2008 (1) AWC 736, in which Single Bench of this Court had held as under:- "11.......The time of three years, for filing a suit begins to run from the date fixed for the performance and if no such date is fixed, then from the date when the plaintiff had noticed that the performance was refused.........." 15. The Gunwantbhai Mulchand Shah and others Vs. Anton Elis Farel and others, 2006 (2) AWC 1475 (SC), was also relied by appellant side in which the Apex Court had held:- "8............But in a case where no time for performance was fixed, the Court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof....." 16. In Ahmmadsahab Abdul Mulla (D) by proposed L.Rs. Vs. Bibijan and others, 2009 (2) AWC 1863 (SC, the Apex Court had held as under:- "7. The inevitable conclusion is that the expression 'date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act......" 17. In R.K. Parvatharaj Gupta Vs. K.C. Jayadeva Reddy, 2006 (2) AWC 1336 (SC), the Apex Court had held as under:- "18. Thus, even though the time for performance was not fixed in the agreement for sale, on receipt of the notice, the respondent had notice that the performance was being refused, if he failed to fulfil his obligation under the contract within 15 days of receipt of the notice. 19. The suit was, therefore, in terms of the requirement of Article 54 of the Limitation Act, should have been filed within a period of three years from the date of expiry of fifteen days from the date of receipt of the said notice." 18. These verdicts make it clear that when there has been a date fixed in the contract for sale, the limitation for suit for specific performance shall start running from time fixed in such contract. It is also settled legal position that when any specific date is not fixed in contract for sale and/or when time for execution of sale-deed is not essence of contract, then the limitation would start from the date when defendant refused to perform his part of contract. In present matter, cause of action, for the suit is mentioned in paragraph 12 of the plaint, which is as under:- "12. That the cause of action for the suit for the first time arose in the month of 'Novr. 1975' when the ban for the transfer of immovable property was lifted by the State Govt. And again in the month of Jan. 1978 when the plff approached the defdt for execution of sale-deed and 5 All. Smt. Ahmadunnisa Vs Smt. Jubeda 1719 again in the month of Novr. 1984 and finally on 3.9.1986 when the registered notice was sent and the defdt failed to execute the sale-deed in favour of the plff after the expiry of the period mentioned in the notice regarding the property situated in Mohalla Turkmanpur city of Gorakhpur within the territorial and pecuniary jurisdiction of this Hon'ble court." 19. Admittedly, according to terms of written registered contract for sale, the sale-deed had to be executed within one month from lifting of ban by Government on sale of such property and said ban was lifted in November, 1975. There is no plaint averment that plaintiff had no knowledge of the fact of lifting of such ban. Therefore, according to terms of contract sale-deed had to be executed within one month from lifting of such ban in November, 1975, which is up to December, 1975. 20. Admittedly, plaintiff was not ready to perform his part of contract and had not taken any step for execution of sale-deed, so cause of action for execution of sale-deed arose to plaintiffappellant firstly in November, 1975 and cause of action for the suit arose one month thereafter in December, 1975, when defendant-respondent had not executed sale-deed. In these circumstances, in view of the provisions of Section 54 of Indian limitation Act regarding three period of imitation for institution of said suit, the original suit for specific performance of contract in question would have been within time till December, 1978. But neither such suit was filed nor any satisfactory explanation was given by plaintiff-appellant for not taking steps for filing the suit. Therefore, original suit appears clearly barred by limitation. 21. When the suit had become time barred in December, 1978, then there was no reason for plaintiff to wait again till year 1984 or 1986. According to plaintiff-appellant's case in year 1984 the defendant had refused to execute sale-deed but simply assured that whenever she would be mentally prepared to execute the sale-deed, she will inform the plaintiff. This fact has not been proved from evidences. Even, for the sake argument, if this fact is accepted to be true, this means that plaintiff had refused even in 1984 to execute the sale and had not informed any particular time for execution of sale-deed. From the perusal of paragraph 12 of the plaint, as above, which discloses the cause of action for the suit, it is clearly evident that suit is time barred. 22. From the evidences, it is proved that parties had not taken any steps, without any reason to execute sale-deed within one month from lifting of ban on such sale as agreed between them and within three years thereafter. These acts of plaintiff in itself are proof of refusal by defendantrespondent to execute sale-deed. In present matter, definite time for execution of sale-deed was agreed between the parties, which was within one month from the lifting of ban of sale by Government and said ban was lifted in November, 1975 within knowledge of parties. Therefore, after lapse of period of one month, the limitation for the original suit started running in December, 1975 and ended in December, 1978. Therefore, in light of legal position discussed in the citations relied by appellant's side, suit was time barred because time was the essence of the contract and definite period was fixed for execution of sale-deed in question in explicitly clear words in the document of contract in question. These facts were properly and meticulously scrutinized and discussed by first appellate court. The finding of first appellate court in this regard is based on 1720 INDIAN LAW REPORTS ALLAHABAD SERIES proper appreciation of evidences and is found correct. In fact, cause of action for the suit arose in December, 1975 and had run till December, 1978 because time was essence of the contract as specifically mentioned in agreement to sell in question. So suit filed in year 1986 is clearly barred by limitation and alleged refusal mentioned in plaint after notice dated 3.9.1986 cannot be accepted as actual date of refusal. Refusal to perform her part of contract by defendant-respondent can be properly inferred by circumstances as well as conduct of the parties. This was correctly done by the lower appellate court. Accordingly, first substantial question of law is decided in negative, against the appellant and in favour of the respondent. 23. On the basis of above discussion, it is proved that since specific time for execution of sale-deed in question was given in contract for sale in question, which has been within knowledge of the parties, therefore the time was essence of the contract in question, therefore the original suit instituted after lapse of three years period of instituting suit ending in December, 1978, was time barred. The findings of trial court in this regard were erroneous without appreciating the merits of the facts. Therefore, they were rightly reversed by first appellate court, which was justified in setting aside the judgment of trial court for this reason. Accordingly, second substantial question of law is also decided against the appellant and in favour of the respondent. 24. In view of the above, it is hereby held that first appellate court had properly and correctly appreciated the available facts, circumstances and adduced evidences, and thereafter gave its correct finding by reversing the judgment of trial court and allowing the appeal and dismissing the original suit. There appears no factual or legal error in the impugned judgment of first appellate court. Therefore, said judgment is hereby confirmed. 25. Accordingly, this second appeal is dismissed. -------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.05.2016 BEFORE THE HON'BLE SHASHI KANT GUPTA, J. THE HON'BLE KAUSHAL JAYENDRA THAKER, J. Criminal Appeal No.- 766 Of 1984 Mahesh Kahar ...Appellant Versus State Of U.P. ...Respondent Counsels for the Appellant: Shri S.A.N. Shah, Shri Ajatshatru Pandey, G.S. Chaturvedi Counsel for the Respondent: