The issue of limitation for specific performance of a contract is a mixed question of fact and law, and the plaint cannot be rejected solely based on the averments in the plaint.

JUDGMENT :

1. In the present Civil Revision Application filed under Section 115 of the Code of Civil Procedure, 1908 (“the CPC” for short) the applicants seek to challenge order dated 18.01.2021 passed by Judge, Court No.12, City Civil Court, Ahmedabad, rejecting the application of the defendants below Exh.48 moved in Civil Suit No.1311 of 2012 seeking rejection of plaint under Order VII Rule 11 of CPC.

2. The parties shall be referred as per their status before the trial court.

3. Learned advocate Mr.Majmudar has submitted that the suit is barred by limitation under the provisions of Article 54 of the Limitation Act, 1963 (the Limitation Act) since the plaintiffs in the plaint, have sought specific performance of agreement to sell dated 05.06.1975 after delay of 35 years i.e. till the institution of the suit in the year 2012. Learned advocate Mr.Majmudar has invited the attention of this Court to the notices issued by the plaintiffs on 08.02.1980, 30.08.1983, 31.05.1981 and 26.12.1984 calling upon the defendants to execute a registered sale deed in view of the agreement to sell executed in the year 1975. Thus, he has submitted that the plaintiffs were having the knowledge about such refusal to execute the sale deed in the year 1984 at the most and hence, the suit should have been instituted within three years from such date and hence, the plaint is liable to be rejected under Order VII Rule 11(d) of the CPC. Learned advocate Mr.Majmudar has submitted that the agreement to sell dated 05.06.1975 specifically provides 12 months period of validity and in view of the above period provided in the agreement to sell, the suit is barred by limitation, which has been instituted after a period of 35 years. It is further submitted that the cause of action, as mentioned in the plaint, is allegedly oral refusal by the defendants for execution of the sale deed on 21.04.2012, which cannot be considered in order to bring the suit within the period of limitation. Thus, he has submitted that the impugned order rejecting the application seeking rejection of the plaint under Order VII Rule 11 of the CPC may be quashed and set aside and the plaint may also be rejected.

3.1 In support of the aforesaid submissions, learned advocate Mr.Majmudar has relied upon the judgments of the Apex Court in the cases of Dahiben vs. Arvindbhai Kalyanji Bhanusali, (2020) 7 S.C.C. 36 and Fatehji & Company vs. L.M.Nagpal, (2015) 3 S.C.C. 390 and the judgment of this Court in the case of Shantaben wd/o. Darubhai Jibhai vs. Hasmukhbhai Bhailalbhai Patel, 2012 (2) G.L.R. 1719.

4. In response to the aforesaid submissions, learned Mr.M.T.M Hakim for learned Advocate Ms.Isa Hakim has submitted that the dates specified in the agreement to sell dated 05.06.1975 was extended by the defendants in view of the communication dated 08.09.1979. It is submitted that the plaintiffs have paid the entire amount to the defendants and last such payment was made on 08.09.1976, however, despite the same since the sale deed was not executed the plaintiffs had issued notices to the defendants on 08.02.1980, 30.08.1983, 31.05.1981 and the last notice was on 26.12.1984, however, since nothing was done, the plaintiffs had waited for specific performance of execution of the sale deed. It is submitted that in the plaint it is specifically averred by the defendant No.1 that on 21.04.2012 for the first time the plaintiffs have been orally informed that they would not be executing the sale deed and would transfer the suit property to someone else. Learned advocate has submitted that as per the provisions of Article 54 of the Limitation Act, the time for limitation will begin from the date fixed for the specific performance and if no such date is fixed, when the plaintiffs have noticed that the performance is refused. Thus, it is submitted that when in the year 2012, the plaintiffs had refused the per