The Judgment of the Court was delivered by
Raghuvir, J.
This L.P.A arises out of a purchaser's suit for specific performance of agreement of sale (Ex. A-2) dated 1-2-1961 by which the defendant's father Sriramulu, who died on 3-4-1961, having received Rs. 200/-, agreed to sell the house No. 3/10 of Thallarevu village in East Godavari District, and received Rs. 100/- on 15-3-1961 out of the total consideration of Rs, 400/-. In Ex. A-2 the parties fixed the date for performance as on 1-6-1961 or earlier. The suit, however, was filed on 12-11-1968.
2. The suit bouse was the subject matter of dispute in O.S No. 30/60 on the file of the District Munsiff's Court at Kakinada, in which Manepalli Veeraraju claimed possession. Sriramulu, the defendant in the suit, was defending his title to the house. The suit was dismissed on 20-1-1961, twelve days earlier to the execution of the agreement of sale, Ex. A-2. The suit ultimately culminated in S A. No. 777/65 and this Court on 17-7-1968 finally dismissed the suit. The plaintiff, at first, on 18-5-1961 issued notice and demanded performance and again on 4-9-1968, after tbe suit is finally decided, issued, for the second time, notice for performance of the agreement,
3. The defendants resisted the specific performance on the ground that it was barred by limitation under Articles 113 of the Limitation Act (Act 9 of 1908) (Art. 54 of Act 36 of 1963).
4. Mr Poornaiab, the learned counsel for the plaintiff-appellant, submits. Veeraraju's suit was decided finally on 17-7-1968. Therefore, the purchaser-plaintiff could not have instituted the suit prior to that date. It is urged, in the circumstances of the case, it should be hold that the cause of action arose on the day when O.S No. 30/60 was finally decided in favour of the vendors, as, it is argued, laying a suit for specific performance earlier to that date would have been infructuous. The impediment to the title of the defendants was finally removed and immediately the suit is filed. The cause of action, it is argued, should be construed to have arisen also on 12-11-1968. In the alternative it is argued, the cause of action stood suspended till that date. It is conceded by the learned counsel that under Ex. A-2 the cause of action arose on 1-6-1961 and under the institution of the suit under Article 113 of Act 9 of 1908 has to be made within three years from the day when the cause of action arose.
In Muthukorakkai Chetty v. Madar Ammal . 43 Madras 185 FB. at 211. Seshagiri Aiyyar J., speaking for the Full Bench, observed: “Broadly speaking, the decisions of the Board fall under two beads”.
5. The cases, then, are collected at page 211 of the Report and further the learned Judge held:
“It was argued, not without some plausibility, that the first class of cases recognise the doctrine that where a party, in whose favour a cause of action has arisen, cannot usefully pursue a remedy at the time, his right of action is postponed to a subsequent date……………” the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computation and the excusing of delay, etc., which are provided in the limitation Act, the language of the third column of the first sche-dule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the causing of action from a date when the remedy is available to the party. This is a rule of construction and not a rule of law…………”…
6. The Madras High Court in two subsequent decisions in Sundaram- rrta v. Abdul Khadar . 64 M.L.J 664. and in Ramaiya v. Suryanarayana . AIR 1949 Mad. 279. doubted the ratio decidendi of the Full Bench decision in Muthukorakkai Chetty v. Madar Ammal . 43 Mad. 185 FB..
7. In Narayana Patil v. Puttabai . AIR 1945 P.C 5. the Privy Council, considering a suit instituted on 25-11-1932, where the plaintiff urged to exclude the period, under Sec. 15 of the Limitation Act (Act 9 of 1908) between 25-11-1920 and 4-11-1932, as “continuously the suit was stayed for various orders of temporary injunctions and permanent injunctions as embodied in the decree by the High Court”, held:
“………………there is nothing in the injunction or in the decree to support the contention that the appellant (plaintiff) was prevented from instituting a suit for possession in 1920, or at any time before the expiry of the period of limitation”,
and made a significant observation:
“………………the institution of a suit can never be said to be futile, if it would thereby prevent the running of limitation”.
and confirmed the dicta of the Full Bench though not referred in the decision Sundaramma v. Abdul Khader.
8. Having regard to the decision in Narayan Patil v. Puttabai we hold the decision in Muthukorakkai Chetty v. Madar Ammal is no more good law.
9. Sri Poornaiali, then, referred to the decision in Laxminarayana v. Singaravelu where Ganapathi Pillai J., held:
“……………The doctrine of imputing intention to the parties to a contract which may at times be at variance with the terms of a contract reduced to writing is a doctrine which has found acceptance of late with Courts. This doctrine really rests upon the principle of construing an agreement with reference to the real situation or context in which it was entered into and not relying upon the mere wording of the contract as fixing the real intention of the parties………………”.
10. This doctrine based on the intention of the parties appears to be in conflict with two out of the three basic postulates supporting the existence of the statutes of limitation; first being that long duration claims have more of cruelty than justice in them, the second that persons with good causes of action should pursue them with reasonable diligence, (the third being that a defendant might have lost the evidence to disprove a stale claim-vide para 330 at page 181 of the Halsbury's Laws of England 3rd Edn, Vol. 24).
11. Lotd Hobhouse in Mussamat Bassokuar v. Lala Dhum Singh propounded a somewhat similar theory:—
“It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not. And it would be a lamentable state of the law if it were found that a debtor, who for years has been insisting that his creditor shall take payment in a particular mode, can, when it is decided that he cannot enforce that mode, turn round and say that the lapse of time has relieved him from paying at all”.
12. But, the Supreme Court in Siraj-Ul-Haq v. S.A Board of Waqf . AIR 1959 S.C 1908. held the observation obiter and adopted the dicta laid in Nagendra Nath Dey v. Suresh Chandra Dey . 59 A.A 283. by D.F Mulla, viz, “equitable considerations are out of place, strict grammatical meaning of the words is the safeguide”.
13. In this view, we agree with our learned brother Venkatarama Sastry J., that the suit is barred by limitation. The appeal fails and is dismissed. The appellants to pay costs.
L.P.A Dismissed.