A suit for specific performance must disclose a cause of action and be filed within the limitation period; failure to do so results in dismissal.

ORDER :

1. The present First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 against the judgment dated 12.04.2023 as well as decree drawn on 24.04.2023 in Special Civil Suit No.217 of 2021 by the learned 5th Additional Senior Civil Judge, Gandhinagar.

2. The brief facts of the case are that the appellant-original plaintiff has filed the Special Civil Suit No.217 of 2021 for a relief of specific performance of a notorised agreement to sell dated 23.03.2010 together with a relief of permanent injunction. The defendant No.3 filed an application Exhibit-10 under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908. The learned Principal Senior Civil Court, Gandhinagar, vide order dated 12.04.2023 allowed the application of defendant No.3 and rejected the plaint.

3. Being aggrieved and dissatisfied with the judgment and decree, the appellant-plaintiff is before this Court.

4. Learned advocate for the appellant has submitted that original owner of the land i.e. defendant No.3 Tribhovanbhai Narandas Patel executed a registered agreement to sell dated 04.10.2006 in favour of the defendant No.1 Shivubhai Shamadbhai Patel for the lands bearing Survey No.8/8, Hector Aare Sq. Mtr. 0-52-61, Survey No.9/1, Hector Aare Sq. Mtr. 0-19-22, Survey No.9/3, Hector Aare Sq. Mtr. 0-19-22, Survey No.9/4, Hector Aare Sq. Mtr. 0-19-22, Survey No.10/1, Hector Aare Sq. Mtr. 0-21-25, Survey No.10/2, Hector Aare Sq. Mtr. 0-19-22, Survey No.10/3, Hector Aare Sq. Mtr. 0-31-36, Survey No.11/1, Hector Aare Sq. Mtr. 0-04-52, Survey No.11/2, Hector Aare Sq. Mtr. 0-47-55, Survey No.11/3, Hector Aare Sq. Mtr. 0-44-52 and Survey No.16/3, Hector Aare Sq. Mtr. 0-32-37 of Village Bhatt, Taluka & District Gandhinagar. Defendant No.2 as a power of attorney holder of defendant No.3 executed a notorised agreement to sell dated 23.03.2010 to purchase rights of registered agreement to sell dated 04.10.2006 which was executed by defendant No.3 in favour of defendant No.1. It is further submitted that the plaintiff and defendant No.1 agreed consideration at Rs.70 lakhs and it was agreed between the parties that as and when the entire consideration is paid to defendant No.1, possession of the land shall be handed over to the plaintiff. Pursuant to the said agreement to sell dated 23.03.2010, plaintiff paid Rs.5 lakhs in cash as part of sale consideration. It is further submitted that in the said agreement to sell, no outer limit was fixed for the execution of registered sale deed. It is further submitted that the clause No.3 of the said agreement suggests that defendant No.1 was to get the Title Clearance Certificate from the approved Solicitor. The time limit of the said Banakhat was fixed for 24 months from the date of obtaining Title Clearance Certificate. The time limit of agreement to sell was agreed to be extended automatically, till Title Clearance Certificate is not obtained.

4.1. Thus, the submission of learned advocate for the appellant is that the time was not the essence of the contract. It is further submitted that plaintiff waited for the Title Clearance Certificate to be obtained by defendant No.1. However defendant No.1 did not obtain necessary Title Clearance Certificate from the approved Solicitor and when the plaintiff came to know on 29.11.2021, that the defendants are trying to transfer the suit land in question to third party, suit was filed for a specific performance coupled with permanent injunction. It is further submitted that the invocation of provisions of Order 7 Rule 11 (d) of the Code of the Civil Procedure, 1908, has no place in the facts and circumstances of the case.

4.2. It is further submitted that the averments made in the plaint require full fledged trial and unless an opportunity is given to the plaintiff to prove the averments made in the plaint, the plaint cannot be rejected at the threshold. It is further submitted that the cause of action of filing the present suit is also pleaded in the plaint. The plaint ought n