The Judgment of the Court was delivered by

Bopanna, J.:— This is a defendant's appeal against the judgment and decree of the VI Additional City Civil Judge, Bangalore City, in O.S No. 10373 of 1980 dated 19-3-1986 decreeing the suit of the plaintiffs for specific performance of the agreement of sale of immoveable property dated 10-8-1974 executed by the defendant in favour of the plaintiffs and for other incidental reliefs.

2. On service of notice regarding admission, the respondents entered appearance through a Counsel. Thereafter the appeal came up for admission on 15-6-1987. As it appeared to us that the issue relating to limitation had not been prima facie decided correctly, it was made known to the learned Counsel appearing for the parties that the appeal would be heard on the point of limitation as to whether the suit was filed in time. Accordingly, at request, the appeal was adjourned to 22-6-1987. Again on 22-6-1987, it was adjourned to-day.

3. The point for consideration is whether the trial Court is justified in law in holding that the suit is not barred by time?

4. Necessary facts which are not much in controversy and as found by the trial Court are as follows:

The appellant-defendant executed an agreement of sale on 10-8-1974 in favour of respondents 1 to 4 plaintiffs 1 to 4 agreeing to sell the suit schedule property to respondents 1 to 4 for a sum of Rs. 30,000/-. He also received a sum of Rs. 5,000/- as advance from the respondents. The balance of the consideration amount was required to be paid within a period of six months from the date of the agreement and the sale deed was required to be obtained. The relevant-portions of the agreement are as follows:

“2. The purchasers have this day paid an advance of Rs. 5,000/- (Rupees five thousand only) to the hands of the Vendor, the receipt of which the Vendor hereby acknowledges.

3. The balance of sale consideration of Rs. 25,000/- (Rupees twenty-five thousand only) shall be paid by the purchaser to the vendor at the time of execution of the sale deed before the Sub-Registrar.

4. The said balance of sale consideration shall be paid in full within a period of six months from this date.

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9. Similarly if the purchasers do not complete the transactions within the time stipulated under this agreement, the vendor is at liberty to forfeit the advance amount of Rs. 5000/- (Rupees five thousand only).”

Thus the parties agreed that the agreement was to be performed within a period of six months from the date of the agreement. The appellant has not disputed the agreement. The suit property is a residential house consisting of ground and first floor. Under Clause 6 of the agreement, the appellant had agreed to deliver vacant possession of the ground floor of the suit premises which was in his personal occupation. The first floor was in the possession of the tenant by name Abdul Sattar. The said Abdul Sattar filed a suit in O.S No. 2095/1974 on 28-10-1974 in the Court of the First Munsiff, Bangalore, against the appellant and the 1st respondent herein seeking a decree for permanent injunction restraining the appellant from alienating the suit premises in favour of respondent-1 or any other party. On the same day, he also obtained an order of temporary injunction restraining the appellant from alienating the suit property in favour of respondent-1 or any other party. That suit was founded on an agreement of sale alleged to have been executed by the appellant in favour of the said Abdul Sattar on 15-9-1974. The order of temporary injunction was in force from 28-10-1974 to 25-11-1976 and on 25-11-1976, the suit was dismissed for default. On 3-12-1976, the said Abdul Sattar filed a Miscellaneous Application to set aside the order of dismissal and to restore the suit. On 17-4-1978, the order dismissing the suit for default was set aside and the suit was restored. Thereafter on 27-8-1980 the suit was dismissed on merits. The appeal R.A No. 775/1980 preferred against the judgment and decree of the learned Munsiff was also dismissed. The present suit was filed by respondents 1 to 4 on 3-12-1980 seeking specific performance of the agreement of sale dated 10-8-1974.

5. The trial Court very curiously, on the basis of the concession made by the learned Counsel appearing on both sides, has held that the limitation for the purpose of filing the suit commenced on 25-11-1976. The relevant portion of the judgment is as follows:

“That being the case, it is agreed by the Counsel for the plaintiffs and the counsel for the defendant that the limitation for the purpose of filing of the suit could not have commenced at all till the dismissal of the suit in O.S No. 2095/74 on 25-11-1976.”

The learned trial Judge has further proceeded to determine the question of limitation again on the concession made by the learned Counsel appearing for both sides. The learned trial Judge further observed:

“It is agreed both by the plaintiffs and the defendant that defendant could have executed a sale deed in favour of the plaintiff in respect of the suit property and the plaintiff after paying balance of sale consideration could have demanded the defendant to execute the sale deed in respect of the said property in favour of plaintiffs between 25-11-76 and 16-4-78. Therefore, it is clear that the limitation for the filing of the suit had to be calculated from 26-11-76 up to 17-4-78 i.e, the period during which the plaintiff could have filed a suit against the defendant for specific performance between the date of dismissing the suit O.S 2095/74 for default on 25-11-76 and the restoration of the suit to the file after allowing the Mis. Application, be one year four months and 23 days. The 3 years period of limitation calculated started from 26-11-76 would expire on 26-11-79 and the suit filed after 26-11-79 would have been barred by time but for the fact that O.S 2095/74 was restored to file on 17-4-78 and was pending till 27-8-80 and was dismissed on merits on 27-8-1980.”

Thereafter the learned trial Judge has further held that the period from 25-11-1976 to 27-8-1980 shall also have to be excluded because on the restoration of the suit, the order of temporary injunction also stood restored and it was in force till the dismissal of the suit on 27-8-1980. Thus he came to the conclusion that on excluding the period from 28-10-1974 to 27-8-1980, the suit, though filed on 3-12-1980, was well within time as it was filed within three months and 6 days from 27-8-1980. The learned trial Judge was also of the view that the limitation commenced on the expiry of six months from 10-8-1974 i.e, 10-2-1975. But he held, as already pointed out, that the period occupied by the pendency of the suit was required to be excluded. Such exclusion, it appears to us, was made by the learned trial Judge keeping in view Section 15 of the Limitation Act, 1963 (hereinafter referred to as the ‘Act’) though he has not specifically referred to the said Section.

6. We are of the view that the approach made by the learned trial Judge is on the face of it erroneous. It is the duty of the Court to decide the question as to when the limitation commences, depending upon the nature of the suit. The decision on such question shall have to be of the Court. It cannot be founded on the submission made by the Counsel for the parties. Limitation affects the jurisdiction of the Court. If the suit is barred by limitation, the Court has no jurisdiction to entertain it. Therefore, as the parties cannot confer jurisdiction on the Court by consent, the question of limitation as to the original cause of action cannot be decided on the concession made by the parties. Section 5 of the Limitation Act does not apply to the original cause of action so as to extend the period of limitation by concession made by the parties. The expression ‘prescribed period’ as per clause (j) of Section 2 of the Act means, the period of limitation computed in accordance with the provisions of the Act. Sub-section (1) of Section 3 of the Act further provides that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Therefore, it is the duty of the Court to decide the question of limitation.

7. Thus the Trial Court ought to have decided on its own reasoning as to when the period of limitation commenced for the purpose of filing the suit in question instead of acting upon the concessions made by both parties, as the decision on such question had a bearing on the jurisdiction of the Court to entertain the suit.

8. Article 54 occurring in the Schedule to the Act relates to the suit for specific performance of contract. It reads thus:

Art. No. Description of suit Period of Limitation Time from which period begins to run 54. 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 notice that performance is refused.

9. It is clear from the contents of column No. 3 of Article 54 that it consists of two parts. The first part relates to cases where the agreement for sale fixes the date for performance and second part relates to cases where the agreement does not fix any date for performance and in such a case the limitation begins to run when the plaintiff has notice that performance is refused. No doubt normally in the case of an agreement for sale relating to immoveable property, time is not the essence of the contract unless the agreement in clear terms provides for it without any ambiguity. The question whether time is the essence of the contract is relevant for the purpose of determining the question as to who has committed breach of the agreement; but it is not relevant for deciding the question as to commencement of the period of limitation. In a case where the date for performance of the agreement is fixed, as per first part of Article 54, the limitation begins to run from the date fixed for the performance. The clear meaning of this is that irrespective of the fact whether the time is the essence of the contract or not, the period of limitation begins to run from the date fixed for the performance of the agreement. There is no ambiguity whatsoever. This is also the view taken by the High Courts of Madras and Madhya Pradesh.

10. In R. Muniswami Gounder v. B.M Shamanna Gouda . AIR 1950 Madras 820. Subba Rao, J. (as he then was), speaking for the Bench while considering the first part of the third column of Article 113 (Now Article 54) has held thus:

“The principle underlying this article is apparent. When the date is fixed under the first part of Col. 3, limitation begins to run forthwith as the date is certain. But where no such time is fixed and where the party against whom the limitation runs is not in a position to know of the occurrence of the contingency contemplated by the contract, time begins to run only when he has notice of the refusal of the performance. The question is what is the meaning to be attached to the words ‘date fixed’ in the first part of Col. 3. Do they mean the date of calendar or are they comprehensive enough to include a date which can be ascertained with reference to an event certain to happen? The principle applicable is the doctrine of id certum est quods certum reddy potest.”

After considering several decisions bearing on the point, it was held that if the date could be ascertained with reference to an event certain to happen, it would be a ‘date fixed’ within the meaning of Article 113 of the Old Limitation Act (Present Article 54 of the Limitation Act).

11. In Sumerchand Hukumchand v. Hukumchand Mathurdas . AIR 1965 M.P 177. it is held that the question whether the time is the essence of the contract is not at all relevant for determining whether the first or the second part of Col. 3 in Article 113 (equivalent to present Article 54) 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 of refusal to perform. It is also further observed therein that the 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.

12. Thus in the instant case, the limitation has commenced on 10-2-1975, i.e the date fixed in the agreement for performance of the contract.

13. We shall now see whether the Trial Court is justified in law in excluding the period from 28-10-1974 to 27-8-1980.

14. In this regard, it is relevant to bear in mind that in construing the provisions of the Limitation Act equitable considerations are immaterial and irrelevant. While applying the rules of limitation, effect must be given to the strict grammatical meaning of the words used therein. (See: Nagendranath Dey v. Suresh Chandra Dey . AIR 1932 PC 165.) As it is already pointed out the order of injunction obtained by Abdul Sattar on 28-10-1974 in O.S No. 2095/74 was to restrain the appellant from alienating the suit property to the 1st respondent or to any other party. It did not restrain the respondents from filing the suit for specific performance nor the respondents were in any way prevented by reason of such an order of temporary injunction from filing the suit. Section 15(1) of the Act reads thus:

“15(1): In computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.”

The facts as found by the Trial Court, in our view, did not enable respondents 1 to 4 to exclude the period from 28-10-1974 to 27-8-1980 because they were not prevented from filing the suit. What all Section 15(1) provides for is that the time intervening between the date on which the institution of the suit was stayed and the date on which the stay order was vacated shall be excluded in computing the period of limitation. In this case, as already pointed out, there was no order of injunction in the suit filed by Abdul Sattar restraining respondents 1 to 4 from filing a suit against the appellant for specific performance of the agreement in question. What was obtained by him was an interim order of injunction restraining the appellant from alienating the property in question in favour of respondent-1 or any other party and, therefore, Section 15(1) of the Limitation Act did not permit the Trial Court to exclude the time from 28-10-74 to 27-8-1980. By excluding that period, it held that the suit filed on 3-12-1980 was within time.

15. This point had come up for consideration before the Privy Council in Narayan Jivangouda Patil v. Puttabai . AIR 1945 PC 5.. In that case, an order of injunction was operating against the defendant in the suit restraining him from interfering with the plaintiff's possession. It was held by the Privy Council that the defendant was not restrained from bringing a suit for possession so as to exclude the period during which injunction was issued by Trial Court and dissolved by Privy Council. In that suit for declaration and possession, a temporary injunction which was subsequently confirmed by the decree restrained the defendant from interfering with plaintiff's possession and the defendant was also prevented from causing obstruction in any way to the plaintiff in removing the crops grown by him or in accepting or recovering the amount of rent of the said lands from the tenants. It was held by the Privy Council that there was no prohibition, either express or even implied, in the injunction or the decree which restrained the defendant from instituting a suit for possession; that the institution of a suit could not be said to be futile, if it would thereby prevent the running of limitation only because the title of the parties was involved in the suit; that the subsequent suit by defendants after 12 years from the date of dispossession was barred by limitation and that Section 15 did not entitle the defendant to exclude the time between the plaintiff's suit and decision of the Privy Council. This decision was followed by the Supreme Court in Siraj Ul-Haq Khan v. The Sunni Central Board of Wakf U.P . AIR 1959 SC 198. (see para 20 of the Judgment of the Supreme Court). The Supreme Court while considering the effect of Section 15(1) of the Limitation Act referred to the decision of the Privy Council adverted to above and observed as follows:

“For excluding the time under Section 15, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling under Section 15, the party instituting the suit would by such institution be in contempt of Court. If an express order or injunction is produced by a party that clearly meets the requirements of Section 15. Even assuming that Section 15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation, there would be no justification for extending the application of Section 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them.”

17. The Supreme Court in its subsequent decision in The Director of Inspection of Income Tax (Investigation) New Delhi v. Pooran Mall and Sons . 1975 4 SCC 568 has also expressed the same view in para 8 of its Judgment.

18. In Thakurdas Narayandas Darbar v. Khaleel Saheb Abasaheb Janvekar . AIR 1962 Mysore 14., it is held that Section 15 can have no application unless it is established that by some order made by the Court, the plaintiff was prevented from instituting the suit for the recovery of the mesne profits to which he was entitled.

19. In the light of the foregoing, we are left with no doubt that the Learned Trial Judge has not cared to look into Section 15(1) of the Act. If only the provisions of Section 15(1) of the Act had been looked into in the light of the various decided cases, there would not have been any difficulty whatsoever for the Learned Trial Judge to hold that the provisions of Section 15(1) of the Act were not attracted. In view of the foregoing, we are of the view that the Trial Court has seriously erred in excluding the time taken by Abdul Sattar before the Trial Court in litigating against the appellant and respondent-1. In our view, limitation commenced on the expiry of the period of 6 months mentioned under the agreement of sale dated 10-8-1974 and thus the suit filed on 3-12-1980 was hopelessly barred by time. Therefore, it is unnecessary to go into the other contentions raised by the appellant though they also merit serious consideration. Suffice to say that the Trial Court did not exercise the discretion properly and judiciously in granting a decree for specific performance of the agreement as the facts proved do not satisfy the requirements of law.

18. Accordingly, this appeal is allowed, the judgment and decree of the Trial Court are set aside and the suit filed by the plaintiffs-respondents 1 to 4 is dismissed.