IMPORTANT POINTS
For deciding application under Order VII Rule 11(d), 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.
Facts about date of knowledge and refusal of execution of sale deed are matter of adjudication, not a case for rejection of plaint.

JUDGMENT

R. Subhash Reddy, J.

1. Leave granted.

2. These civil appeals are preferred by the defendants in Civil Suit No.930 of 2017, on the file of the City Civil Court, Ahmedabad, aggrieved by the judgment and decree of the High Court of Gujarat dated 10.07.2018 passed in Regular First Appeal No.160 of 2018 and Civil Application No.1 of 2018.

3. The respondent-plaintiff has filed Civil Suit No.930 of 2017 for specific performance of the Agreement to Sell dated 13.03.1992 with regard to suit schedule property, i.e. Final Plot No.147 of Town Planning Scheme No.3 of Mouje Shekhpur-Khanpur of Ahmedabad, admeasuring 2821 Sq.Mtrs. It is the case of the plaintiff that the predecessor-in-title of the appellant-defendants, one Chaitanyabhai Patel, had agreed to sell the suit schedule property to him and execute Agreement of Sale / Sale Deed for a sale consideration of Rs.32 lacs. The total consideration amount of Rs.32 lacs was paid during the period from 15.01.1990 to 05.09.1991. It is stated that such payments are acknowledged by vouchers. It was the case of the respondent-plaintiff that, time was not the essence of the contract, and citing financial problems, the Sale Deed was not executed. It is alleged that deceased Chaitanyabhai Patel has given trust and belief that he will execute the Sale Deed. However, recently when the respondent-plaintiff had visited the suit schedule property on 25.05.2017 he has come to know that the said property was sold to third party in view of increase in prices. It is alleged in the plaint that the appellant- defendants have expressed that they will not execute the Sale Deed. Hence, the suit is filed.

4. In the aforesaid suit, the appellant-defendants have filed application under Order VII Rule 11(d) of the Code of Civil Procedure (CPC) to reject the plaint on the ground that suit is barred by limitation. The said application was contested by the respondent herein. However, trial court, by order dated 27.12.2017, allowed the application and ordered to reject the plaint.

5. As against the same, respondent-plaintiff preferred Regular First Appeal No.160 of 2018 before the High Court of Gujarat at Ahmedabad. By the judgment and decree dated 10.07.2018, the High Court has allowed the appeal filed by the respondent by setting aside the order of the trial court dated 27.12.2017. As against the same, these civil appeals are filed.

6. We have heard Sri Anshin H. Desai, learned senior counsel for the appellants and Sh. Dushyant Dave, learned senior counsel for the respondent-plaintiff.

7. In these appeals, it is contended by Sri Desai, learned senior counsel appearing for the appellants that the alleged Agreement to Sell is dated 13.03.1992 and the suit is filed in the year 2017, i.e., after a period of 25 years and even according to the case of the respondent-plaintiff there is no communication at all in between the period from 1992 to 2017. It is submitted that except stating that he had visited the site on 25.05.2017 on which date he has come to know the said plot is sold to third parties, there is nothing on record to show that the suit is within limitation. Referring to Article 54 of the Limitation Act, 1963 it is contended by learned counsel that even in absence of prescribing time for executing the Sale Deed, the period of three years is to be computed from the date of refusal. It is submitted that by waiting for a period of 25 years and by merely stating that he had visited the site on 25.05.2017 on which date, the appellants have refused to execute the Sale Deed, such a suit is filed. It is submitted that the suit filed is frivolous, vexatious and ex-facie barred by limitation. It is contended that even in absence of fixing any period for executing the Sale Deed, it is not open to respondent-plaintiff to file the suit after 25 years of alleged Sale Deed / Agreement to Sell. It is further stated that t