The instant appeal as also C.R. No.313-D of 1999, are being disposed of together, as both involve common question of law and facts.
2. Appellant filed a suit for possession with regard to suit land, whereas respondent also filed a suit for specific performance of the agreement to sell dated 13-12-1976, executed between the parties, qua the same property. Both the suits were consolidated, the suit of the appellant was dismissed, while that of the respondent was allowed by the learned Civil Judge. Appeals filed by the appellant also failed.
3. The back drop of the case is that the appellant vide agreement dated 13-12-1976, agreed to sell the suit land measuring 49 and half Marlas in favour of the respondent and the respondent was also allegedly, put in possession of the suit property under the sale agreement. As per contents of this agreement, Exh.P-8, the respondent was obliged to pay the balance amount of consideration by or before 20-3-1977, and to seek the finalization of the transaction. However, before that date could reach, respondent on 31-1-1977, moved an application under section 14 of the Arbitration Act, 1940 for seeking the award to be made rule of the Court, on the ground that the dispute with regard to the same agreement had arisen between the parties, which was resolved through arbitration and the award has been pronounced by the arbitrator.
4. The appellant defended this application on legal and factual premises. Anyhow the learned trial Court after framing of issues and recording of evidence, dismissed the application of the respondent under section 14 against which, the respondent preferred an appeal before the learned A.D.J., but he failed; his revision petition No.692 of 1984 also remained unsuccessful. Respondent challenged the matter before the Honourable Supreme Court in C.P. No.590 of 1984, which was allowed on 10-7-1988 and the Honourable Supreme Court, came to the following conclusion:-- "The sole grievance of the petitioner is that the only question before the Courts below was whether there had been a proper reference to arbitration but while deciding this question, they have also recorded a finding on the existence of the agreement of sale between the parties also which was a matter entirely extraneous to the proceedings before them. There is substance in this grievance and the learned counsel for the respondents conceded that no finding could be recorded on the existence or non--existence of the agreement in the proceedings initiated by the petitioner before the trial Court. In the circumstances, we would direct that the finding on the said question will not prejudice him in any proceedings which the petitioner may initiate for the enforcement of the said agreement. The appeal is accepted to this extent. There will be no order as to costs.
It is thereafter, that on 8-8-1988, the respondent filed a suit for specific performance and the appellant, the suit for possession.
4-A. Learned counsel for the appellant contends that the respondent had not mentioned in the plaint the reasons seeking exemption from limitation, because admittedly the date for performance of the agreement was 20-3-1977 and the present suit has been filed on 8-8-1988, which was hopelessly barred by time in view of Article 113 of the Limitation Act 1908. It is also contended that no separate application under section 14 of the Limitation Act, was moved and without there being such an application, the Court has no authority to condone the delay. Though an attempt has also been made to argue the case on merits, but when confronted that the learned ADJ in its judgment has stated that except the point of limitation, no other plea was pressed, the learned counsel for the appellant concedes the above position and restricted himself to the limitation question.
5. I have heard learned counsel for the parties and perused the record According to paragraph No.2, of the plaint, in his suit for specific performance, the respondent in very clear terms has stated about the previous litigation between the parties, arising out of his application under section 14 of the Arbitration Act. It is not disputed, rather admitted position on the record, that such proceedings commenced on 31-7-1977 and terminated at the level of the Honourable Supreme Court on 10-7- 1988. Meaning thereby that throughout, the respondent never slept over his rights but had been pursing the matter. Ins the previous proceedings, the respondent has based his rights on the award, which according to him, was pronounced by the arbitrator touching upon the dispute between the parties arising out the agreement to sell. Therefore, when the respondent had p based his cause of action on the award, thus until and unless, the matter was finally settled in those proceedings, he had no cause of action to seek the enforcement of the agreement to sell, through a suit for specific performance. Had he done so, during the proceedings pending under the Arbitration Act, the situation would have been a real predicament. Because for the respondent, it was not legally possible to sustain both the actions simultaneously. As the filing of his suit for specific performance would have frustrated the earlier proceedings. Thus immediately after the judgment of the Supreme Court, the present suit was filed and necessary facts were incorporated in the plaint, which squarely satisfy the requirement of Order 7, rule 6, C.P.C.
As regards the other plea that respondent did not move any application under section 14 of the Limitation Act, suffice it to say, that strictly such provision has no relevance to the proposition in hand, because earlier proceedings under the Arbitration Act, had not terminated on account of the jurisdictional flaw.
H.B.T./M-1603/L