1. This is a plaintiffs' First Appeal against the judgment and decree passed by the Additional District Judge Guna, whereby their suit for specific performance or in the alternative for return of earnest money was dismissed.
2. The admitted facts of the case are that respondent No. 1, in his capacity as a karta of the Joint Hindu family consisting of respondents Nos. 1, 2 and 3, by an agreement dated 20-11-1951agreed to sell to the plaintiffs certain blocks from a garden commonly known as 'Tadaiyyawalli Bagia' situate at Ashoknagar for a total sum of Rs. 13001 /-and obtained an advance of Rs. 3200/- from them, It was stipulated in the agreement that the defendant will on payment of the balance of Rs. 9801/-within 8 days by the plaintiffs execute a separate registered sale dead in favour of each of the plaintiffs. It was also agreed that in case of default the plaintiffs will be entitled to take legal proosedings for execution and registration of the sale deed. The defendants did not execute any sale deed in favour of the plaintiffs till 29-11-1951.
Thereafter the plaintiffs served a notice on the defendants stating that they had come to know that the vendors were not the owners of the land agreed to be sold, but were only 'pucca krishaks' thereof. The vendors were, therefore, called upon to satisfy the plaintiffs about their title in respect of the land in question, The defendants not having complied with the terms of the notice the plaintiffs filed a suit on 3-4-1953 for refund of the advance money together with interest thereon, alleging that the land agreed to be sold in fact belonged to the State Government, and that the defendants were holding it only as 'kashtkar mourusi'. That suit was decreed by the trial Court, but the decree was reversed on appeal by the District Judge Guna on the ground that the contract was specifically enforceable, inasmuch as a 'pucca' tenant could sell his holding as provided for in Section 70 of the M. B. Land Revenue and Tenancy Act. It was further held that the period of 8 days stipulated in the agreement for execution of the sale deed was not of the essence of the contract. The contract could, therefore, be specifically enforced even after the stipulated period had expired.
In pursuance of this decision the plaintiffs served a notice on defendant Hukumchand on the 28th of October, 1958 calling upon him to execute sale-deeds in respect of the plots of land agreed to be sold to each of the plaintiffs. But the land had in the meanwhile been sold on 28-12-1956 to the respondents Nos. 5, 6 and 7 under a registered sale deed. Hence the present suit for specific performance of the contract dated the 20th of November, 1951, or in the alternative for refund of the advance money together with interest thereon.
3. The suit was contested mainly on the grounds that it was barred by the provisions of Order 2 Rule 2 C. P. C. and that it was time-barred. Both of these contentions were upheld by the trial Court. The plaintiffs have, now come up in appeal against the judgment and decree passed by the Court of first instance.
4. I shall take up first the question of limitation. The learned counsel for the appellants contended that since time was not the essence of the contract in this case the date fixed in the agreement to sell could not be treated as the starting point for the period of limitation provided under Article 113 of the Limitation Act. He could not cite any authority in support of this proposition. The question whether time is the essence of the contract is, in my opinion, not at all relevant for determining whether the first or the second part of Column 3 in Article 113 applies to a particular case. Where time for performance of the contract is fixed, limitation forthwith begins to run as from that time, irrespective of the question of notice or refusal to perform. Authorities are uniform on the point that where a time is fixed for performance, the second part of Column 3 in Article 113 can have no application.
On realising this position the learned counsel for the appellant argued that there was an acknowledgment of the liability in the written statement filed on 98-5-1993 by the defendants in the former suit. It is true that in the written statement, a copy of which has been filed as Ex. P/2, the defendants had categorically stated that they were still prepared to perform the contract. But even assuming that this acknowledgment of liability under the contract would attract the application of Section 19 of the Limitation Act, the present suit, which was filed on 22-6-1959, would still be barred by limitation.
In order to get over this difficulty the learned counsel for the appellants contended that the time spent by the plaintiffs in prosecuting the earlier suit should have been excluded in view of the provisions of Section 14. He contended that the present case would be covered by the Clause 'defect of a like nature' within the meaning of Section 14 of the Limitation Act. In support of this contention the learned counsel referred to the decision in Maneklal v. Shivlal, AIR 1939 Bom 26. I am afraid that this decision can have no application to the present case.
In the present case the plaintiff came forward in the former suit with the specific plea, which was altogether misconceived, that the contract was void due to the fact that the defendants were not the owners of the property agreed to be sold. The failure of a suit on the ground that it is misconceived or premature will not afford any ground for the application of Section 14 of the Limitation Act to the subsequent suit. See Amarnath v. Ralll, 121 ind Cas 70: (AIR 1930 Lah 211) and Dwarkanath v. Atulchandra, ILR 46 Gal 870: (AIR 1919 Gal 381). It may further be observed that indulgence under Section 14 can be granted only in case where the error is an error which might be committed by a reasonable and prudent person exercising due care and attention. In the present case there could be no ground under the law for the plaintiffs to assume that the defendants had no right to sell the land in question. The earlier suit was filed merely with a view to somehow avoid the performance of the contract. The delay in demanding specific performance of the contract, as also the fact that the present suit was not filed till long after the sale of the land to respondents Nos. 5, 6 and 7 point to the conclusion that the plaintiffs were never really keen to purchase the land. In this view of the matter it cannot be said that the former suit was prosecuted in good faith by the plaintiffs. I am, therefore, clearly of the opinion that benefit of Section 14 of the Limitation Act could not be given to the plaintiffs in the present case.
5. For the reasons stated above the finding of the trial Court that the suit is barred by limitation is hereby upheld.
6. in view of our decision on the question of limitation it is not necessary to decide the further question whether the present suit was barred by the provisions of Order 2 Rule 2 C, P. C. We would, however, like to observe that the learned trial Judge seems to have overlooked althogether the fact that on the allegations made in the former suit the relief of specific performance could not be claimed by the plaintiffs. The plaintiffs could no doubt base their suit on two mutually exclusive grounds, but they were not legally bound to do so. A suit for specific performance and a suit for return of earnest money are based on different causes of action,--See Parangodan v. Perumtoduka, ILR 27 Mad 380 and Munni Babu v. Koer Kamtaslngh, AIR 1928 All 321. The provisions of Order 2 Rule 2 govern reliefs arising out of the same cause of action, and not different causes of action arising out of the same transaction.
7. In the result we do not see any force inthis appeal. It is hereby dismissed with costs.