BHUPESH CHANDRA KAR Vs. DURGA PRASAD GUPTA

JUDGEMENT

(1.) THIS First Appeal is at the instance of a plaintiff in a suit for specific performance of contract and is directed against the judgment and decree dated december 19, 1997 passed by the Assistant District Judge, First Court, Barasat, dist. North 24-Parganas in Title Suit No. 309 of 1986 thereby dismissing the suit solely on the ground that the same was barred by limitation. Being dissatisfied, the plaintiff has come up with the present First Appeal.

(2.) THE appellant before us filed a suit for specific performance of contract being Title Suit No. 309 of 1986 in the Court of the then Assistant District Judge, barasat, thereby praying for grant of a decree for the specific performance of contract for sale of about 7 cottahs 33 sq. ft. of land with a two-storied building on the allegation that the plaintiff was a tenant under the defendant in respect of the building portion and the plaintiff agreed to sell the entire suit property at a price of Rs. 61,001/- after taking a sum of Rs. 8,000/-as earnest money. According to the plaintiff, subsequently, on three other occasions, the defendant received a further sum of Rs. 38,000/- towards the said consideration money and, thus, the defendant received a total amount of Rs. 46,000/- out of the consideration amount of Rs. 61,000/ -. As the defendant filed three different suits for eviction against the plaintiff from three different tenanted portions occupied by him and in one of those proceedings, while giving evidence, he expressed his intention not to perform his part of the contract, the cause of action for filing the suit had arisen from that date.

(3.) INITIALLY, the suit was decreed ex parte. The defendant filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree but such application was dismissed.