Sanjiv Khanna JUDGMENT
S. Abdul Nazeer, J.
1. Delay condoned. Leave granted.
2. This is the Plaintiff's appeal challenging the judgment and decree in RFA No. 1731 of 2006 dated 09.02.2012 passed by the High Court of Karnataka at Bangalore, whereby the High Court has confirmed the judgment and decree passed by the trial court in O.S. No. 32 of 2005 dated 09.06.2006.
3. The Plaintiff filed the above suit against the Respondents/Defendants for specific performance of the agreement to sell dated 30.3.2000. The agreement provided that the sale was to be executed within three years from the date of the agreement, subject to the Defendants fulfilling certain obligations.
4. Defendant No. 1 filed the written statement and the other Defendants filed a memo adopting the same as their written statement. Defendant No. 1 admitted the execution of the agreement to sell in favour of the Plaintiff. However, the Defendant pleaded that the suit was barred by limitation. It was further contended that Plaintiff was not ready and willing to perform his part of the contract.
5. Based upon the rival pleadings of the parties, the trial court framed the following issues:
1. Whether the Plaintiff proves that, the Defendants 1 and 2 their father have executed an agreement to sell on 30.3.2000 for Rs. 2,00,000/- in favour of the Plaintiff after receiving Rs. 1,50,000/- as earnest money?
2. Whether the Plaintiff proves that, he is always ready and willing to perform his part of contract?
3. Whether the suit of the Plaintiff is barred by limitation?
4. What order or decree?
6. The Plaintiff got himself examined as PW-1 and Ex. P-1, P1(a) to (c) were marked in his evidence. The Defendant No. 1 was examined as DW1 and three other witnesses were examined as DW-2 to 4. On appreciation of the evidence on record, the trial court held that the suit was barred by time. It was also held that the Plaintiff was not ready and willing to perform his part of the contract. The suit was accordingly dismissed.
7. As noticed above, the High Court has confirmed the said decree of the trial court.
8. We have heard Shri S.N. Bhat, learned Counsel for the Appellant/Plaintiff. Though notice was served on the Respondents, no one has entered appearance on their behalf.
9. Shri Bhat, learned Counsel, has made two-fold submissions. Firstly, he submits that the High Court has passed a cryptic judgment without reappreciating the evidence on record. It was argued that the first appeal filed by the Plaintiff Under Section 96 of the Code of Civil Procedure, 1908 (for short 'the Code of Civil Procedure') was a continuation of the suit and it was incumbent upon the High Court to reassess the entire evidence on record. It was argued that the High Court as an appellate court has failed to follow the guidelines provided Under Order XLI Rule 31 of the Code of Civil Procedure while deciding the appeal. Secondly, it was argued that the agreement to sell was dated 30.03.2000, providing for three years' time from the date of the agreement to complete the execution of the sale deed. The suit was filed on 28.01.2005 which was well within time. Referring to Article 54 of the Schedule to the Limitation Act, 1963, (for sho........