PURSHOTTAM Vs. RAMDAYAL

JUDGEMENT

(1.) THIS is a Plaintiff's second appeal whose suit for the recovery of Rs. 2850/ - from the Defendant -Respondent has been rejected by the Courts below on the ground that the suit was barred by limitation. The Plaintiff alleged that on 4 -3 -1941 one Raghuwar entered into an agreement with the Plaintiff for the sale of certain zamindari property in consideration of Rs. 900/ - which Raghuwar had borrowed from the Plaintiff and also a sum of Rs. 600/ - which Raghuwar's brother owed to the Plaintiff, that after the agreement Raghuwar applied to the Revenue Authorities for permission to sell the property to the Plaintiff. But the Defendants claiming a right of pre -emption over the property filed objections to the intended sale in favour of the Plaintiff; that the proceedings for the sale of the property to the Plaintiff were thus stayed pending the disposal of the said objections; that in the meantime Raghuwar died and the zamindari property was entered in the names of the Defendants, who were his legal representatives, that as the Defendants were not willing to sell the property to the Plaintiff, he gave a notice to the Defendants on 14 -7 -1948 to sell the property to him or to return the amount which formed the consideration for the agreement to sell, that on 23 -7 -1948 the Defendants gave a reply refusing to sell the property to the Plaintiff or to pay the amount claimed by the Plaintiff.

(2.) MR . Ramkrishna Dikshit learned Counsel the Appellant argued that the Plaintiff's suit (sic) one for the recovery of money paid on the fail of the consideration for an agreement and (sic) governed by Article 13, Gwalior Limitation Act which prescribed a limitation period of six year from the date of the accrual of the cause of action and that the cause of action for the Plaintiff suit arose on 8 -12 -1942 when the Naib Suba refused to sanction the sale of the zamindari property to the Plaintiff. In reply Mr. Shivdayal learned Counsel for the Respondent said that the cause of action for the Plaintiff's suit for a (sic) return of the consideration money arose on the expiry of the period of four months mentioned (sic) the agreement dated 4 -3 -1941 for the sale of property and that, therefore, the Plaintiff should have filed his suit within six years of 4 -7 -1941.

(3.) THE view I have taken of the question of (sic)tation in the present case is supported by the (sic) Council decision in - 'Amma Bibee v. Udit (sic) Misra', 31 All 68 (A). In that case the Defendants against whom a decree for foreclosure was outstanding agreed to sell within one month certain immovable property to the Plaintiff and the Plaintiff paid into Court as part of the consideration 'the amount due by the Defendants under the foreclosure decree. The Defendants, however, failed to sell the property to the Plaintiff. Thereupon the Plaintiff instituted a suit against the Defendants for a refund of the money paid by him, alleging that the Defendants had failed to sell the property within one month. The Allahabad High Court agreeing with the decision of the trial Court held on the evidence that the period of one month fixed by the parties for the completion of the sale was not of the essence of the contract, and that, therefore, the Plaintiff, could not rescind the contract and recover the money he had paid.