IMPORTANT POINT
Rejection of plaint – When rejection of plaint is sought in application filed under O.VII R.11, same is to be considered from facts of each case, looking at averments made in plaint.

ORDER

This civil revision has been preferred by the applicants/defendants 4-5 challenging the order dated 13.04.2022 passed by 3rd Civil Judge Senior Division, Satna in Civil Suit No.17-A/2022 whereby learned trial Court has dismissed the defendants 4-5’s application under Order 7 Rule 11 CPC.

2. Learned counsel for the applicants/defendants 4-5 placing reliance on the decision of Supreme Court in the case of Fatehji and Company and Another vs. L.M Nagpal and Others (2015) 8 SCC 390 submits that if from the allegations made in the plaint itself, suit for specific performance is barred by limitation, then the learned Court can reject the plaint under Order 7 Rule 11(d) CPC and in the present case agreement in question is said to have been executed on 24.01.2001 but the instant suit appears to have been filed on 03.01.2022, therefore, the same is clearly barred by limitation and it ought to have been rejected under Order 7 Rule 11(d) CPC. He submits that without considering this aspect of the matter learned Court below has erred in dismissing the application under Order 7 Rule 11 CPC.

3. Learned counsel for the respondent 1/plaintiff by placing reliance on the decision of Supreme Court in the case of Urvashiben and another vs. Krishnakant Manuprasad Trivedi (2019)13 SCC 372 submits that in the agreement of sale in question, no time has been fixed for execution of sale deed, therefore, as per decision of Supreme Court in the case of Urvashiben (supra), the plaint in the instant case cannot be rejected under Order 7 Rule 11(d) CPC and in such cases the question of limitation is a mixed question of fact and law, which is beyond the purview of order 7 Rule 11(d) CPC. As such no illegality has been committed by learned trial Court in dismissing the application of the applicants/defendants 4-5.

4. Heard learned counsel for the parties and perused the impugned order, agreement of sale as well as copy of plaint.

5. Apparently in the agreement of sale in question, no time has been fixed for execution of sale deed, therefore, the decision of Supreme Court in the case of Fatehji and Company and another (supra) is not applicable to the present case, wherein it has been held:—

“5. We considered the rival submissions. The specific performance is claimed of a written agreement of sale dated 2.7.1973 and as per the terms the performance of the contract was fixed till 2.12.1973. The defendants by subsequent letters dated 7.4.1975, 1.10.1975 and 1.8.1976 sought for extension of time to enable them to obtain permission of lessor and the last extension of six months expired on 1.2.1977. In view of Order VII Rule 11(a) and 11(d) the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. Article 54 of the Limitation Act stipulates that the limitation for filing the suit for specific performance of the contract is three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that performance is refused.

8. The plaintiffs averred in the plaint that the last and final cause of action accrued and arose to them after August 1991 when the defendants succeeded in hiding themselves and started avoiding the plaintiffs and the cause of action being recurring and continuous one, they filed the suit on 29.4.1994. As already seen the original cause of action became available to the plaintiffs on 2.12.1973, the date fixed for the performance of the contract and thereafter the same stood extended till 1.2.1977 as requested by the defendants. Though the plaintiffs claimed that oral extension of time was given, no particulars as to when and how long, were not mentioned in the plaint. On the other hand even after knowing the dishonest intention of the sons of the second defendant with regard to the suit property in the year1985, the plaintiffs did not file t