Limitation is a mixed question of law and fact, requiring resolution of factual disputes before determining the applicability of limitation in specific performance suits.

ORDER :

The first defendant in O.S.No.297 of 2020 on the file of the I Additional District Court, Madurai has filed the above revision petition challenging the dismissal of an application filed under Order 7 Rule 11(d) of C.P.C.

(A)Facts which are not disputed are as follows:

2.One Mr.Sundaragopal is the owner of the property. He had executed a registered power deed in favour of the fourth defendant namely A.Jayachandran on 21.03.2012 for dealing with the property including a right to alienate the same. Based upon the above said power deed, the fourth defendant has entered into a registered sale agreement with the plaintiff on 16.07.2012. Under the said sale agreement, the total sale consideration was fixed at Rs.32,00,000/-. Out of which, a sum of Rs. 10,00,000/- is said to have been paid as advance amount to the power agent. A period of two years was fixed as time to complete the sale deed.

3.The original owner of the property had cancelled the power deed on 19.07.2012 and thereafter, he had passed away on 08.11.2019 leaving behind the defendants 1 to 3 as his legal heirs. The plaintiff had issued a legal notice to the defendants on 07.11.2020 calling upon them to execute a sale deed after receiving the balance sale consideration of Rs.5,00,000/-. The first defendant has sent a reply notice on 18.11.2020 contending that the power deed has ready been cancelled and the original owner had not received any amount from the power agent. The fourth defendant had sent a reply on 26.11.2020 that he was not aware of the alleged cancellation of power deed and whatever he had received from the agreement holder, he had paid it to late Sundaragopal.

4.In view of the above said facts, the suit for specific performance came to be filed. Pending suit, the first defendant had filed I.A.No.11 of 2023 to reject the plaint under Order 7 Rule 11(d) of C.P.C on the ground that the suit is clearly barred by limitation. After contest, the said application was dismissed by the trial Court on the ground that the limitation is a mixed question of law and facts and therefore, it cannot be decided in an application for rejection of plaint. Challenging the said order, the present civil revision petition has been filed.

(B)Contentions of the counsels appearing on either side are as follows:

5.The power deed was executed by the original owner on 21.03.2012. Based upon the said power deed, the power agent / 4^th defendant has executed a registered sale agreement in favour of the plaintiff on 16.07.2012. The advance amount of Rs.10,00,000/- said to have been paid to the power agent was not handed over to the principal. Therefore, he had cancelled the power deed on 19.07.2012. No further amount was received either by the original owner or his legal heirs. The legal notice was issued by the plaintiff only on 07.11.2020 which is not only beyond the period of two years mentioned in the sale agreement, but also three years after the period mentioned in the sale agreement. The suit came to be filed only on 07.12.2020. Therefore, the suit is clearly barred by limitation. When there is no factual dispute with regard to the dates and events, the issue of limitation need not be relegated to trial.

6.The learned counsel for the petitioner had relied upon the Hon'ble Division Bench judgement of our High Court reported in 2020 (1) CTC 38 (K.Murali Vs. M.Mohamed Shaffir); 2021 (1) TLNJ 72 (Civil) (Gowrishankar and another Vs.Balakumar and others); 2021(3) Madras Weekly Notes (Civil) 176 (G.Anandthapadmanaban Vs.Jayalakshmi P.Balu @ Chinnasamy) and the judgment of the Hon'ble Supreme Court reported in 2019 (2) CTC 823 (Raghwendra Sharan Singh Vs.Ram Prasanna Singh (dead) by Lrs. in support of his contentions.

7.Per contra, the learned counsel appearing for the respondent/plaintiff had contended that the cancellation of power deed was not brought to the notice of the power agent or the agreement holder. Out of total sale consideration of Rs.32,00,000/-, Rs.27,00,000/- has already been