The main legal point established in the judgment is the significance of the conduct of the parties in specific performance cases, the need for specific and factual pleadings to establish the cause of action, and the consequences of deemed refusal in the context of time limitation for seeking relief.

ORDER :

1. Heard leaned advocate Mr. J. F. Mehta for appellant and learned advocate Mr. Hriday Buch for learned advocate Mr. Kumar H. Trivedi for respondent Nos.1 to 3.

2. Upon joint request and consent of learned advocates for respective parties, this matter is taken up for the final hearing.

3. Brief facts of the case are as under:

3.1. The appellant-original plaintiff had filed Special Civil Suit No.88 of 2023 before the learned Principal Senior Civil Judge, Sanand for a relief of specific performance of the agreement to sell dated 27.09.2002, cancellation of sale deed and permanent injunction. Original defendant Nos.1 to 3 i.e. present respondent Nos.1 to 3 filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as ‘the code’) on the ground of limitation and wanting of a cause of action. The learned trial Court has allowed the Special Civil Suit No.88 of 2023 and rejected the plaint vide order dated 08.11.2023 below Exhibit-12. Being aggrieved and dissatisfied with said order, present appellant is before this Court.

4. Learned advocate Mr. J. F. Mehta for appellant submitted that the appellant filed a suit for specific performance of contract of a notarized agreement to sell dated 27.09.2002. Pursuant to the said agreement to sell, plaintiff was handed over the possession of the suit land, which is situated at village Rampura, Taluka Sanand, District Ahmedabad having Khata No.130 and old survey/Block No.7 part new Block/Survey No.11 admeasuring 8475 square meter of old tenure land. It is submitted that the appellant also paid consideration by cheque on 23.04.2001. However, the registered sale deed was not executed in favour of the appellant. The respondent Nos.1 to 3 executed registered sale deed dated 06.07.2023 in favour of the respondent Nos.4 to 6 and when the entry in the revenue record was mutated, the appellant came to know about the execution of the said sale deed. It is submitted that by virtue of the notarized agreement to sale dated 27.09.2002, the plaintiff was in possession of the suit land. However, respondent Nos. 1 to 3 executed the registered sale deed in favour of the respondent Nos.4 to 6, which is null and void. It is submitted that without cancellation of the notarized agreement to sell dated 27.09.2002, the execution of the registered sale deed dated 06.07.2023 is null and void and does not bind the appellant.

4.1 It is further submitted that the appellant has disclosed the cause of action in the plaint. The cause of action is bundle of facts and for the purpose of the assessing cause of action, the entire plaint has to be read over. The respondent Nos.1 to 3 have disputed the existence of agreement to sell dated 27.09.2002 and for such grievance, the suit cannot be rejected under the provisions of Order 7 Rule 11 of the Code. It is further submitted that while considering an application under Order 7 Rule 11 of the Code, averments made in the plaint and documents produced along with plaint are required to be seen. It is submitted that the relief of specific performance would be governed by the clauses of the agreement to sell and the appreciation of the agreement to sell would require a trial. It is also submitted that the entire sale consideration has been paid by the appellant to respondent Nos.1 to 3, which can be seen from the agreement to sell itself. Since the entire sale consideration has been paid by the appellant, respondent Nos.1 to 3 put the appellant in possession of the suit land and therefore, under Section 53(A) of the Transfer of Property Act, 1882 (for short, hereinafter referred to as ‘the Act’) under the principles of part performance of the contract, the appellant has every right to seek a relief for specific performance of the agreement to sell and applying the provisions of Section 53(A) of the Act, the plaint cannot be rejected under the provisions of Order 7 Rule 11 of the Code.

4.2 By referring to Clause 4 of the agreement