The question of limitation is a mixed question of law and fact and cannot be decided based solely on the averments in the plaint. The court emphasized that such issues require evidence and should be adjudicated at the time of deciding the matter on merits.

ORDER

Chandra Dhari Singh, J. (Oral)--The present petition is filed under Section 115 of the Code of Civil Procedure, 1908 (hereinafter "CPC") on behalf of the petitioner seeking the following reliefs:

"i. To call for the records of CS No. 424/2020 titled Sunil Sharma & Ors. Vs. Parveen Kumar from the court of Sh. Ajay Gulati, ADJ Central, THC Delhi which is now fixed on 20.7.2023.

ii. Be pleased to set-aside/quash/annul the impugned order dated 15.4.2023 passed Ajay Gulati, ADJ Central, THC Delhi in civil suit No. 424/2020 titled as Sunil Sharma & Ors. Vs. Parveen Kumar.

iii. And be pleased to allow the application under order 7 rule 11 read with Section 151 CPC on behalf of the defendant.

iv. Pass such other and further order/orders as this Hon'ble Court may deem just, fit and proper in the facts and circumstances of the case."

2. The facts leading to the filing of the instant petition are reproduced herein for reference:

a. An Agreement to Sell dated 9th September 2004 (hereinafter "ATS"), was executed between the petitioner and the respondents which include Mr. Sunil Sharma and Mr. Sanjay Sharma (since deceased). It is alleged that in the said ATS `the entire second floor along with roof rights'1/2of property bearing No. 1619 to 1631, measuring about 310 Sq. Yard, situated at Bahadurgarh Road, (hereinafter "Suit Property") was to be transferred by way of sale in favour of the respondents by the petitioner. The date fixed for the execution of the sale deed was 31st January 2005.

b. In pursuance to the said ATS, part payment of the total sale consideration was made in favour of the petitioner by the respondents and accordingly the petitioner handed over the possession of the Suit Property to the respondents.

c. Thereafter, at the request of the petitioner, the date of the execution of the sale deed got extended several times, due to the reason that the step brothers of the petitioner are the recorded owner of the Suit Property and that they reside in Canada. In absence of the recorded owners, the sale deed could not be executed in favour of the respondents.

d. Meanwhile, in the year 2010, the petitioner executed a separate agreement to sell with Mr. Sanjay Sharma (since deceased). However, as stated above, the possession of the Suit Property was already with the respondents, therefore, the petitioner was estopped to enter into another agreement.

e. After a duration of 13 years, the petitioner sent a notice dated 13th April 2018, to the respondents seeking the possession of the Suit Property. Consequently, on 21st August 2018, a suit for possession and permanent injunction was filed by the petitioner against the respondents and the same is pending before the Trial Court. In the said suit, the petitioner had stated that the title of the Suit Property is in favour of the petitioner vide a Gift Deed dated 1st June 2018.

f. In view of the aforesaid, the respondents (plaintiffs before the learned Trial Court) filed a Civil Suit bearing No. 424/2020, seeking specific performance of the ATS against the petitioner (defendant before the learned Trial Court). In the said suit, the petitioner filed an application under Order VII Rule 11, read with Section 151 of the CPC, for rejection of the plaint of the respondents on the ground that it is barred by limitation. The same was dismissed by the learned ADJ, Central District, Tis Hazari Court, Delhi vide the impugned order dated 15th April 2023. Aggrieved by the same, the petitioner has filed the present petition.

3. Learned counsel appearing on behalf of the petitioner submitted that the learned Trial Court had failed to appreciate that as per Article 54 of Limitation Act, 1963, the limitation for specific performance of a contract is three years from the date fixed for the performance or if no such date is fixed, when the respondents had noticed that performance is refused. It is submitted that the present suit is, thereby, barred by the limitation.

4. It is submitted that the learned Trial Cour