- (1.) This application under Article 227 of the Constitution of India is directed against an order dated 31st May, 2002 passed by the learned 2nd Additional District Judge at Alipore in C.R. No. 427 of 2001 affirming the order being No. 13 dated 15th May, 2001 passed by the learned Civil Judge, Senior Division, 6th Court at Alipore in Title Suit No. 138 of 2000.
(2.) The defendant is the petitioner before this Court in this application under Article 227 of the Constitution of India.
(3.) The facts leading to the filing of this revisional application is set out hereunder : (a) The opposite parties herein as plaintiffs filed a suit for specific performance of contract against the defendant petitioner herein. The said suit which was filed in the Court of the learned Civil Judge, Senior Division, 6th Court at Alipore was registered as Title Suit No. 138 of 2000. (b) In the said suit the plaintiffs-opposite parties were seeking to enforce the contract, for assignment of the unexpired period of lease-hold interest of the defendant in the Government land, by way of specific performance of contract. The said agreement was executed between the parties on 27th June, 1991. (c) The plaintiffs-opposite parties claimed that though the agreement provides for completion of the said transaction within 31st December, 1991 but the defendant-petitioner could not perform her obligation under the said agreement by obtaining necessary permission from the Government for transferring her lease-hold interest in the said property in favour of the plaintiffs-opposite parties within the said stipulated date. (d) Since the suit property is the Government land, there was restriction in transferring such land by the defendant, without obtaining permission from the Government. Accordingly, the defendant agreed to transfer her lease-hold interest in the said land in favour of the plaintiffs after obtaining necessary permission from the Government. (e) The plaintiffs-opposite parties repeatedly requested the defendant-petitioner to complete the said transaction but the defendant-petitioner deferred the said transaction from time to time on the ground of delay in the process of grant of permission by the authority concerned. It was also represented by the defendant- petitioner to the plaintiffs-opposite parties that delay is being caused due to delayed movement of the files in the Government departments. The defendant-petitioner also requested the plaintiffs- opposite parties to move slowly as there was delay in granting such permission by the Government. (f) The plaintiffs-opposite parties sincerely relied upon such representation of the defendant-petitioner but ultimately when the defendant-petitioner cancelled the said agreement by Advocate's notice dated 5th September, 1997, the instant suit was filed on 4th July, 2000 on the basis of the cause of action which arose on 27th June, 1991, 5th September, 1997 and also on various otherdates (g) In such a suit the defendant-petitioner filed an application under Order 7 Rule 11 (d) of the Code of Civil Procedure, inter alia, praying for rejection of the said plaint on the ground that the suit is barred by limitation. In the said application the defendant-petitioner claimed that since a particular date was fixed in the contract itself for performance of the contract, the suit for specific performance of contract should have been filed within 3 years from the date so fixed for performance of such contract. The defendant-petitioner claimed that 31st December, 1991 was the date fixed for performance of the said contract, and thus the suit which was filed on 4th July, 2000, is barred by the laws of limitation. Accordingly, the defendant prayed for rejection of the said plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure. (h) The plaintiffs-opposite parties contested the said application for rejection of plaint by filing objection denying the allegations of the defendant-petitioner. In the said objection it was claimed that since the suit was filed within 3 years from the date of refusal of the execution and registration of the deed of assignment by the defendant-petitioner, the suit is not barred by limitation. The plainliff-opposite parties claimed that the period of limitation should be counted from the date of notice of cancellation of the agreement issued by the learned Advocate of the defendant-petitioner, on 5th September, 1997. (i) Thus, in substance the plaintiffs-opposite parties claimed that the period of limitation should be counted from the date when performance of the agreement was refused for the first time by the defendant and not from the date which was fixed in the agreement itself for performance thereof. The plaintiffs-opposite parties prayed for dismissal of the said application on the aforesaid grounds. (j) The learned Trial Judge by his order being No. 13 dated 15th May, 2001 was pleased to reject the petitioner's application under Order 7 Rule 11 (d) of the Civil Procedure Code on the ground that the suit is not barred by limitation as the cause of action of tho suit arose on 5th July, 1997 as also on other dates. (k) According to the learned Trial Judge the defendant petitioner cannot take the plea of limitation as the defendant-petitioner herself defaulted in obtaining permission from the Government as well as from the Income-tax authorities for executing the deed of assignment within the stipulated period. (I) Being aggrieved by the said decision of the learned Trial Judge, the defendant-petitioner herein preferred an application under Section 115(A) of the Code of Civil Procedure before the learned 2nd Additional District Judge at Alipore. The said revisional application which was registered as C.R. No. 427 of 2001 was dismissed by the learned 2nd Additional District Judge at Alipore on 31st May, 2002 by holding inter alia, that the learned Trial Judge did not commit any jurisdictional error in rejecting the said application warranting interference under Section 115(A) of the Code of Civil Procedure. (m) The learned 2nd Additional District Judge, at Alipore concurrently found that since the defendant-petitioner could not fulfil her obligation under the Contract within the stipulated period, the cause of action of the suit cannot arise on the expiry of the last date for performance of the contract, i.e, 31st December, 1991. According to the learned Court below, the cause of action of the suit actually arose on the date when the defendant-petitioner failed to perform her part of the contract and not from the date fixed in the contract itself. (n) Challenging the said decision of the learned 2nd Additional District Judge at Alipore the defendant-petitioner preferred the instant application under Article 227 of the Constitution of India.;