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Judgment
Ramesh Madhav Bapat, J.—The petitioners herein were the owners of an old construction, portion of which was leased out to the defendants. The plaintiffs-petitioners herein felt it necessary to demolish the structures and construct a new building. The defendants-respondents herein agreed to vacate the premises on condition that the plaintiffs-petitioners herein would lease out a portion of the premises in the newly constructed building. The plaintiffs-petitioners herein agreed to do so. Accordingly the parties entered into an agreement. The plaintiffs-petitioners herein constructed a new building and a portion of which was leased out to the defendants-respondents herein on 1-3-1993 for enhanced rent of Rs.1500/- p.m. It was agreed between the parties that the rent would be paid on or before 5th day of every month.
When the matter stood thus, after some time the plaintiffs-petitioners herein felt it necessary to evict the defendants-respondents herein as they required the premises for their own use and occupation. Therefore, the plaintiffs-petitioners herein issued a notice to the defendants-respondents herein u/s 106 of the Transfer of Property Act and ultimately filed OS No.632 of 1994 in the Court of the I Addl. District Munsif, Tirupati.
On receipt of summons, the defendants-respondents herein appeared and filed written statements.
During the pendency of the suit, defendants-respondents herein filed IA No.1650 of 1997 on 30-11-1997 seeking permission of the Court to file counter-claim alleging that the plaintiffs-petitioners herein had executed an agreement of lease agreeing to lease out the premises for a period of eight (8) years but the plaintiffs-petitioners herein though agreed did not come forward to register the lease-deed and therefore it was contended by the defendants-respondents herein in the proposed counterclaim to enforce an alleged agreement of lease dated 15-12-1992.
The aforesaid IA i.e., IA No.1650 of 1997, was allowed by the learned District Munsif and therefore the plaintiffs-petitioners herein have filed the present revision.
Sri K. V. Subrahmanya Narusu, the learned Counsel for the plaintiffs-petitioners herein submitted at the Bar that the counter-claim to which the defendants-respondents herein want to put in the suit is expressly barred by limitation and therefore the learned District Munsif erred in allowing IA No. 1650 of 1997.
While rebutting the aforesaid arguments of the learned Counsel for the petitioners herein, Sri K.S. Gopalakrishnan, the learned Counsel for the respondents herein brought to my notice Article 54 of the Limitation Act which reads as under:
THE SCHEDULE
(Period of Limitation)
[See Sections 2(j) and (3)]
First Division-Suits
Description of suits Period of limitation Time from which period begins to run
1 to 53 XX XX
For specific performance of a contract Three years
The date fixed for the performance, or if no such date is fixed when the plaintiff has noticed that performance is refused.
With the provisions contained in Article 54 of the Limitation Act, the learned Counsel for the respondents herein submitted at the Bar that in the agreement of lease, no time limit was fixed and moreover the petitioners herein did not refuse to perform the part of their contract and therefore the counter-claim is very much within the limitation.
The learned Counsel for the petitioners herein invited my attention to the registered notice issued by the plaintiffs-petitioners herein to the defendants-respondents herein on 14-7-1994 in which the very existence of alleged agreement was denied by the plaintiffs-petitioners herein and therefore it was submitted by the learned Counsel for the plaintiffs-petitioners herein that the time for limitation started running from 14-7-1994 and thus the IA, filed by the defendants-respondents herein is beyond a period of three years and thus it is barred by limitation.
The question for consideration of this Court is whether the word used in the Article 54 ''refused'' is synonymous to the word used in the notice sent by the plaintiffs-petitioners herein denying the very existence of the agreement.
As stated earlier in Article 54 of the Limitation Act, the word used "when the performance is refused", the limitation starts running from that date but in the notice referred to above, the very existence of agreement was denied emphatically which goes to the root of the matter. If at all, the existence of the agreement is denied, the question of refusing to perform the part of the contract on the part of the plaintiffs-petitioners herein would not arise. Therefore, the denial made by the plaintiffs-petitioners herein has a greater force i.e., more force than the word ''refused''. The existence of such alleged agreement is emphatically denied by the plaintiffs-petitioners herein and therefore the limitation has to be counted from the date of the reply notice issued by the plaintiffs-petitioners herein to the defendants-respondents herein i.e., from 14-7-1994.
In the circumstances described to above, this Court is of the considered view that the counter claim which the defendants-respondents herein wanted to make in the aforesaid suit is clearly barred by limitation as per Article 54 of the Limitation Act. This Court is not called upon to decide as to whether the denial of existence of alleged agreement is genuine or otherwise but the fact remains that the denial of the existence of such agreement is there in the reply notice issued by the plaintiffs-petitioners herein to the defendants-respondents herein on 14-7-1994. Therefore, this Court is of the considered view that Article 54 of the Limitation Act comes in the way of the defendants-respondents herein to seek the permission of the Court to file counter-claim which is barred by limitation. The defendants-respondents herein cannot be allowed to file the counter-claim so as to bring their claim within the period of limitation. Therefore, this Court holds that the order passed in IA No.1650 of 1997 by the learned District Munsif is erroneous and therefore it is set aside.
The learned Counsel for the defendants-respondents herein submitted that while presenting the counter-claim, the defendants-respondents herein had paid the adequate Court fee which may be refunded to them. The said prayer is granted.
The order passed in this revision will not be any bar to decide and dispose of the defence taken by the defendants in the original written statements on its merits. The defendants-respondents herein are allowed to take all types of defences permissible under law.
With these directions, the Civil Revision Petition is disposed of. No costs.