Whereas the decision of the Supreme Court in the of Urvashiben
and another vs. Krishnakant Manuprasad Trivedi (supra) is fully
applicable to the case in hand, in which it has been held :-
“12. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance.
The said Article reads as under :
Suits for Specific Performance 3 Years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice
that performance is refused
13. From a reading of the aforesaid Article, it is clear that when the date is fixed for performance, limitation is three years from such date. If no such date is fixed, the period of three years is to be computed from the date when the plaintiff, has notice of
refusal. When rejection of plaint is sought in an application filed under O.VII R.11, same is to be considered from the facts of each case, looking at the averments made in the plaint, for the purpose of adjudicating such application. As averred in the plaint, it is the case of the plaintiff that even after payment of the entire consideration
amount registration of the document was not made and prolonged on some grounds and ultimately when he had visited the site on 25.05.2017 he had come to know that the same land was sold to third parties and appellants have refused performance of contract. In such event, it is a matter for trial to record correctness or otherwise of
such allegation made in the plaint. In the suits for specific performance falling in the second limb of the Article, period of three years is to be counted from the date when it had come to the notice of the plaintiff that performance is refused by the defendants.
For the purpose of cause of action and limitation when it is pleaded that when he had visited the site on 25.05.2017 he had come to know that the sale was made in favour of third parties and the appellants have refused to execute the Sale Deed in which event same is a case for adjudication after trial but not a case for rejection of plaint under O.VII R.11(d) of CPC.”
7. In the present case, no date or period has been fixed for
performance of the agreement or for execution of sale deed and the plaintiff has come with the case that he was put in possession on the date of agreement of sale and during life time, the vendor Narayandas and after his death the defendant 1 assured the plaintiff to execute the sale deed but first time on 08.11.2021 by way of reply to the notice, he has denied from the agreement. Further, the plaintiff claiming himself to be in possession of the disputed land, has also prayed relief of permanent injunction restraining the defendants from making interference in possession of the plaintiff.
8. As such, in view of the aforesaid facts and legal position, at thepresent stage of suit, the plaint cannot be rejected under Order 7 Rule 11(d) CPC and the impugned order does not suffer from any legal infirmity.
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CIVIL REVISION No. 281 of 2022
BHERU CHANDANI Vs SHIVKUMAR GUPTA
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
This revision coming on for admission this day, the court passed
the following:
ORDER
This civil revision has been preferred by the applicants/defendants
4-5 challenging the order dated 13.04.2022 passed by 3rd Civil Judge
Senior Division, Satna in Civil Suit No.17-A/2022 whereby learned trial
Court has dismissed the defendants 4-5’s application under Order 7 Rule 11 CPC.
2. Learned counsel for the applicants/defendants 4-5 placing reliance
on the decision of Supreme Court in the case of Fatehji and Company
and another vs. L.M Nagpal and others (2015) 8 SCC 390 submits that
if from the allegations made in the plaint itself, suit for specific
performance is barred by limitation, then the learned Court can reject the
plaint under Order 7 Rule 11(d) CPC and in the present case agreement in
question is said to have been executed on 24.01.2001 but the instant suit
appears to have been filed on 03.01.2022, therefore, the same is clearly
barred by limitation and it ought to have been rejected under Order 7
Rule 11(d) CPC. He submits that without considering this aspect of the
matter learned Court below has erred in dismissing the application under
Order 7 Rule 11 CPC.
3. Learned counsel for the respondent 1/plaintiff by placing reliance
on the decision of Supreme Court in the case of Urvashiben and another
vs. Krishnakant Manuprasad Trivedi (2019)13 SCC 372 submits that in
the agreement of sale in question, no time has been fixed for execution of
sale deed, therefore, as per decision of Supreme Court in the case of
Urvashiben (supra), the plaint in the instant case cannot be rejected
under Order 7 Rule 11(d) CPC and in such cases the question of
limitation is a mixed question of fact and law, which is beyond the
purview of order 7 Rule 11(d) CPC. As such no illegality has been
committed by learned trial Court in dismissing the application of the
applicants/defendants 4-5.
4. Heard learned counsel for the parties and perused the impugned
order, agreement of sale as well as copy of plaint.
5. Apparently in the agreement of sale in question, no time has been
fixed for execution of sale deed, therefore, the decision of Supreme Court
4
in the case of Fatehji and Company and another (supra) is not
applicable to the present case, wherein it has been held :-
“5. We considered the rival submissions. The specific performance is claimed of a
written agreement of sale dated 2.7.1973 and as per the terms the performance of the
contract was fixed till 2.12.1973. The defendants by subsequent letters dated
7.4.1975, 1.10.1975 and 1.8.1976 sought for extension of time to enable them to obtain
permission of lessor and the last extension of six months expired on 1.2.1977. In
view of Order VII Rule 11(a) and 11(d) the Court has to satisfy that the plaint discloses
a cause of action and does not appear to be barred by any law. Article 54 of the
Limitation Act stipulates that the limitation for filing the suit for specific performance
of the contract is three years from the date fixed for the performance or if no such
date is fixed, when the plaintiff has noticed that performance is refused.
8. The plaintiffs averred in the plaint that the last and final cause of action accrued
and arose to them after August 1991 when the defendants succeeded in hiding themselves
and started avoiding the plaintiffs and the cause of action being recurring and
continuous one, they filed the suit on 29.4.1994. As already seen the original cause of
action became available to the plaintiffs on 2.12.1973, the date fixed for the performance
of the contract and thereafter the same stood extended till 1.2.1977 as requested
by the defendants. Though the plaintiffs claimed that oral extension of time
was given, no particulars as to when and how long, were not mentioned in the plaint.
On the other hand even after knowing the dishonest intention of the sons of the sec -
ond defendant with regard to the suit property in the year1985, the plaintiffs did not
file the suit immediately. The suit having been filed in the year 1994 is barred by limitation
under Article 54 of the Limitation Act.”
6. Whereas the decision of the Supreme Court in the of Urvashiben
and another vs. Krishnakant Manuprasad Trivedi (supra) is fully
applicable to the case in hand, in which it has been held :-
“12. It is fairly well settled that, so far as the issue of limitation is concerned, it is a
mixed question of fact and law. It is true that limitation can be the ground for rejection
of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is
well settled that for the purpose of deciding application filed under O.VII R.11 only
averments stated in the plaint alone can be looked into, merits and demerits of the
matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation
Act, 1963 prescribes the limitation of three years, for suits for specific performance.
The said Article reads as under :
Suits for Specific
Performance
3 Years The date fixed for the performance, or, if no
such date is fixed, when the plaintiff has notice
that performance is refused
13. From a reading of the aforesaid Article, it is clear that when the date is fixed for
performance, limitation is three years from such date. If no such date is fixed, the period
of three years is to be computed from the date when the plaintiff, has notice of
refusal. When rejection of plaint is sought in an application filed under O.VII R.11,
same is to be considered from the facts of each case, looking at the averments made
in the plaint, for the purpose of adjudicating such application. As averred in the
plaint, it is the case of the plaintiff that even after payment of the entire consideration
amount registration of the document was not made and prolonged on some grounds
and ultimately when he had visited the site on 25.05.2017 he had come to know that
the same land was sold to third parties and appellants have refused performance of
contract. In such event, it is a matter for trial to record correctness or otherwise of
such allegation made in the plaint. In the suits for specific performance falling in the
second limb of the Article, period of three years is to be counted from the date when
it had come to the notice of the plaintiff that performance is refused by the defendants.
For the purpose of cause of action and limitation when it is pleaded that when
he had visited the site on 25.05.2017 he had come to know that the sale was made in
favour of third parties and the appellants have refused to execute the Sale Deed in
which event same is a case for adjudication after trial but not a case for rejection of
plaint under O.VII R.11(d) of CPC.”
7. In the present case, no date or period has been fixed for
performance of the agreement or for execution of sale deed and the
plaintiff has come with the case that he was put in possession on the date
of agreement of sale and during life time, the vendor Narayandas and
after his death the defendant 1 assured the plaintiff to execute the sale
deed but first time on 08.11.2021 by way of reply to the notice, he has
denied from the agreement. Further, the plaintiff claiming himself to be in
possession of the disputed land, has also prayed relief of permanent
injunction restraining the defendants from making interference in
possession of the plaintiff.
8. As such, in view of the aforesaid facts and legal position, at the
present stage of suit, the plaint cannot be rejected under Order 7 Rule
11(d) CPC and the impugned order does not suffer from any legal
infirmity.
9. Resultantly, civil revision fails and is hereby dismissed. However,
no order as to costs.
10. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
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