A plaint cannot be dismissed under Order VII Rule 11 when limitation depends on disputed facts, requiring a full trial to establish cause of action.

ORDER :

V SRISHANANDA, J.

Heard Sri.Rajesh Gowda, learned counsel for revision petitioners. This Court did not deem it fit to issue notice to the respondent.

2. Defendants Nos.1 to 5 in O.S.No.56/2019 are the revision petitioners challenging the dismissal of the application vide I.A.No.6 under Order VII Rule 11(a) and (d) of Code of Civil Procedure (hereinafter ‘CPC’ for short).

3. Facts in the nutshell which are utmost necessary for disposal of the present revision petition are as under:

A suit for specific enforcement of the contract of agreement to sell dated 17.12.1997 in respect of the following immovable property (hereinafter referred to as suit property) came to be filed by the plaintiff:

“All that piece and parcel of land bearing Sy.No.92 (present No.92/P48), measuring 2-00 acres, assessed at Rs.4-00, situated at Mavahalli village, Robertsonpet Hobli, Bangarpet Taluk, and the same is bounded on:

4. Pursuant to the suit summons, defendant entered appearance and filed written statement inter alia filed an application under Order VII Rule 11 of CPC to dismiss the suit for want of cause of action and suit is barred by limitation.

5. Plaintiff opposed the said application and by impugned order.

6. Learned Trial Judge has dismissed the said application inter alia holding in paragraph Nos.8 to 15 as under:

“8. In the present case, the plaintiff has specifically pleaded that he entered into a sale agreement on 17.12.1997 with late N. Lokanath, paid the entire sale consideration, and was put in possession of the property. The revenue entries were transferred to his name with the consent of the executant in M.R. No.21/98-99. After the death of the executant, the defendants remained silent and subsequently challenged the katha and refused to execute the sale deed after notice dated 21.01.2019. Thus, the plaint prima facie discloses a cause of action for enforcement of the agreement and for protection of the plaintiff’s possession.

9. Regarding limitation, Article 54 of the Limitation Act provides two possible starting points-the date fixed for performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.

10. In the present case, the plaint nowhere shows that any date was fixed for execution of the sale deed. On the contrary, it states that the defendants refused performance only after receipt of the notice dated 21.01.2019. Hence, the question as to when the plaintiff had notice of refusal of performance is a disputed question of fact that cannot be decided without trial.

11. The Hon’ble Supreme Court and High Courts have consistently held that when limitation depends on disputed facts, the plaint cannot be rejected under Order VII Rule 11(d). Reference may be made to Popat and Kotecha Property v. State Bank of India Staff Association (2005) 7 SCC 510 and Hardesh Ores (P) Ltd. v. Hede & Co. (2007) 5 SCC 614.

12. The decisions relied upon by the learned counsel for the defendants—

ILR 2014 KAR 223 (N. Kumar & Anr. v. Suri Appa Rao), and 2023 (2) AKR 348 (AIR Online 2023 KAR 777)

were rendered in circumstances where the pleadings themselves clearly revealed that the date for performance had expired long back and there was an unequivocal refusal by the executant, leaving no factual dispute on limitation.

13. However, in the present case, the plaintiff has specifically pleaded continuous possession, acceptance of revenue transfer by the executant, and refusal of performance only in 2019. Therefore, the factual matrix is distinguishable. These precedents apply only when the plaint on