Code of Civil Procedure, 1908 – Or.VII, r.11(d) – Rejection of plaint on the ground that suit was barred by limitation – Respondent-plaintiff case was that the predecessor-in-title of the appellants-defendants had agreed to sell the suit property to him and executed agreement to sell for a sale consideration – Time was not the essence of the contract – Total consideration amount was paid by the respondent – Respondent visited the property after about
25 years and found that the suit property was sold to third party – Suit filed for specific performance of agreement to sell by the respondent – Appellant-defendant filed application u/Or.VII, r.11(d) of CPC to reject the plaint on the ground that suit was barred by limitation – Application allowed by the trial Court – However, order was set aside by the High Court – On appeal, held: When rejection of plaint is sought in an application filed u/Or.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 – In instant case, it is a matter for trial to record correctness or otherwise of allegations made in the plaint – The merits and demerits of the matter cannot be gone into, while deciding the application filed u/Or.VII, r.11 of CPC – At this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in case on hand, it cannot be said that suit was barred by limitation – Furthermore, it is settled that when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that defendant has refused the performance of the agreement – The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial – Limitation Act, 1963 – Art.54. Dismissing the appeals, the Court
HELD: 1. From a reading of the Article 54 of Limitation Act, 1963, 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, 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, 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. [Para 12][1249-D-G]
2. In cases falling in second limb of Article 54, finding can be recorded only after recording evidence. Furthermore, when the time is not fixed in the agreement, the limitation of three years to file a suit for specific performance would begin when the plaintiff has noticed that defendant has refused the performance of the agreement. [Para 14][1251-E-F]
3. In the instant case, the merits and demerits of the matter cannot be gone into at this stage, while deciding an application filed under O.VII R.11 of the CPC. It is fairly well settled that at this stage only averments in the plaint are to be looked into and from a reading of the averments in the plaint in the case on hand, it cannot be said that suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial. Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under O.VII R.11(d) of CPC. [Para 15][1252-A-C]
Gunwantbhai Mulchand Shah & Ors. v. Anton Elis Farel & Ors.(2006) 3 SCC 634 : [2006] 2 SCR 886; Rathnavathi & Anr. v. Kavita Ganashamdas (2015) 5 SCC 223 ; Balsaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors.(2006) 5 SCC 658 ; Chhotanben & Anr. v. Kiritbhai Jalkrushnabhai Thakkar & Ors.(2018)
6 SCC 422 : [2018] 3 SCR 422 – relied on.
Prabhakar v. Joint Director, Sericulture Department & Anr. (2015) 15 SCC 1 ; T. Arivandandam v. T.V. Satyapal & Anr (1977) 4 SCC 467 : [1978] 1 SCR 742 ; Hardesh Ores (P) Ltd. v. Hede & Co. (2007) 5 SCC 614 : [2007]
6 SCR 608 ; Dilboo (Smt.) (Dead) by LRs & Ors. v. Dhanraji (Smt.) (Dead) & Ors.(2000) 7 SCC 702 : [2000] 3 Suppl. SCR 214 ; I.T.C. Limited v. Debts Recovery Appellate Tribunal & Ors.(1998) 2 SCC 70 : [1997] 6 Suppl. SCR 683 ; Raj Narain Sarin (Dead) through LRs. & Ors. V. Laxmi Devi & Ors. (2002) 10 SCC 501 ; N.V. Srinivasa Murthy & Ors. v. Mariyamma (Dead) by Proposed LRs. & Ors.(2005) 5 SCC 548 : [2005] 1 Suppl. SCR 411 ; Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 : [2017] 5 SCR 294 ; Church of Christ Charitable Trust &
Educational Charitable Society v. Ponniamman
Educational Trust (2012) 8 SCC 706 : [2012] 6 SCR
404 ; Madina Begum & Anr. v. Shiv Murti Prasad Pandey & Ors. (2016) 15 SCC 322 : [2016] 5 SCR
92 ; Ahmadsahab Abdul Mulla(2)(Dead) by Proposed LRs. v. Bibijan & Ors. (2009) 5 SCC 462 : [2009] 5 SCR 476 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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