The accrual of cause of action and the applicability of limitation in specific performance suits should be considered based on the averment of plaint and documents referred therein as a whole, and the issue of limitation is a mixed question of fact and law.

JUDGMENT

1. Petitioner-defendant No.1 has preferred this revision petition under Section 115 CPC assailing the order dated 13.01.2021 passed by Additional District Judge No.3, Jaipur District, Jaipur in Civil Suit No.185/2019 whereby and whereunder petitioner’s application under Order VII Rule 11 CPC has been dismissed.

2. Heard counsel for both parties and perused the impugned order and the plaint as also the other material placed on record.

3. It appears from the record that respondent-plaintiffs have instituted the civil suit for specific performance of contract on the basis of an agreement dated 26.09.1998 in relation to the agricultural land in question and it has been averred that total sale consideration was agreed to the amount of Rs.9,81,000/- and out of which Rs.1,00,000/- was paid and the rest was to be paid at the time of registration of sale deed. It is averred that in the agreement, it was mentioned that since the agricultural land is not mutated in the name of vendor, therefore, after getting the mutation, he will inform and then the sale deed would be registered.

4. Learned counsel for petitioner submits that in the agreement dated 26.09.1998, a time limit was fixed for making compliance by 30.03.1999, which was extended till 15.10.1999, therefore, the limitation started from that date and as per first part of Section 54 of the Limitation Act, the present civil suit for specific performance instituted on 18.10.2013 is barred by limitation.

Reliance has been placed on the judgment passed by Hon’ble Supreme Court in case of Fatehji and company & Anr. vs. L.M. Nagpal & Ors. [AIR 2015 SC 2301].

5. Per contra, learned counsel for respondents has opposed the argument and contended that as per the averment of plaint as a whole, the cause of action arose to the plaintiff to institute the present suit, only when the defendant No.1 refused to execute the sale deed. He has argued that the limitation shall not be counted, as argued by the petitioner but would be started from the date, when cause of action accrued to the plaintiff for filing the suit for specific performance.

Counsel for respondent-plaintiffs has been placed reliance on the judgment passed by this Court in case of Ram Singh and Ors. vs. Bhikam Chand and Ors. [2015 (3) DNJ 1265].

6. The trial court, vide impugned order dated 13.01.2021, has dismissed the application with observation that in the present suit, the issue of limitation is a mixed question of fact and law and therefore, would be adjudicated after framing of the issue and recording of evidence of the parties during course of trial.

7. The Supreme Court, recently in case of Shakti Bhog Food Industries Limited vs. Central Bank of India and Anr., [(2020) 17 SCC 260] has observed that ordinarily the issue of limitation would be treated as a mixed question of fact and law.

The Hon’ble Supreme Court has discussed catena of judgments and has held that in order to observe the accrual of cause of action for the purpose of filing the suit and for the purpose of limitation, the averment of plaint and documents referred therein would be considered as a whole.

8. In the case at hand, perusal of the pleadings of plaint goes to show that the plaintiff has averred in Para 5 of the plaint that since in the agreement itself, it was one of the agreed condition that the vendor/defendant’s father would get the mutation of the lands in question in his name and then intimate to the plaintiffs which has not done by him, therefore, the cause of action did not accrued on the date fixed in the agreement as neither the mutation was entered into nor any information was supplied.

Reference of some litigation is also mentioned in the plaint due to which the mutation was not entered into. Reference of one criminal FIR No.173/1998 is also given in the plaint. It is further averred that plaintiff before filing of suit sent the balance sale amount of Rs.8,81,000/- through two demand drafts and served a legal notice dated 25.07.2013 and thereaf