In a suit for specific performance, where no fixed date for performance is stipulated, the limitation period commences only upon the plaintiff receiving notice of refusal. Summary rejection of a plaint under Order VII Rule 11 is inappropriate where the limitation issue involves complex questions of fact and law.

Headnote:(A) Civil Procedure Code, 1908 - Order VII Rule 11 - Rejection of plaint - Limitation Act, 1963 - Article 54 - Specific performance - Limitation period - Commencement of - When no specific date for performance is fixed, limitation commences from the date when the plaintiff has notice that performance is refused - Summary dismissal of a suit under Order VII Rule 11 is improper when the question of limitation involves mixed questions of fact and law regarding the timing of knowledge of refusal. (Paras 6, 13)

(B) Contract Law - Specific performance - Doctrine of 'time is essence of contract' - Where an agreement stipulates conditions for partition and title clearance with an automatic extension of time for execution of the deed, time cannot be considered as the essence of the contract, thereby precluding summary dismissal for limitation. (Paras 8, 9, 10)

Facts of the case:
The appellant challenged the trial court's order rejecting the plaint under Order VII Rule 11 concerning a suit for specific performance of an agreement to sell. The trial court held the suit was barred by limitation under Article 54 of the Limitation Act. The appellant contended that the contractual terms provided for automatic extension of time for the performance of the contract, and the cause of action accrued significantly later upon discovery of subsequent transactions.

Findings of Court:
The court found that when an agreement lacks a specific date for performance and contains clauses for automatic extension based on title clearance, the limitation period is not triggered by the execution date of the agreement but by the date of refusal. Summary disposal was found to be in excess of jurisdiction.

Issues: The primary issue was whether the trial court erred in summarily rejecting the plaint as time-barred under the provisions of the Code of Civil Procedure, in light of the terms of the agreement to sell and Article 54 of the Limitation Act.

Ratio Decidendi: The court concluded that when the limitation period depends on the date of notice of refusal, the issue cannot be resolved summarily under Order VII Rule 11 as it constitutes a mixed question of fact and law requiring detailed inquiry rather than premature dismissal.

Result: Appeal allowed; order of trial court set aside; suit restored.

Table of Content
1. factual background of the suit for specific performance. (Para 1 , 2)
2. summary of procedural history and initial legal contentions. (Para 3 , 4)
3. interpretation of time-essence clauses and article 54 limitation act. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12)
4. applying limitation period from knowledge of breach/refusal. (Para 13)
5. restoration of suit and final appellate order. (Para 14 , 15 , 16 , 17 , 18)

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-

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Approved for Reporting	Yes	No
		No

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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 23/03/2026

JUDGMENT

1. This appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) challenges the order passed below Exhibit-1 in Civil Suit No.400 of 2024, whereby the learned Chamber Judge, City Civil Court, exercising the suo-moto powers, rejected the plaint under Order VII Rule 11 of ‘the Code’ held that the suit is ex-facie time barred.

2. Facts in a nutshell are as under:-

2.1 The appellant - plaintiff has filed a suit for specific performance and ancillary relief against the defendant No.1, who is the owner of the land bearing Survey No.914/2/3, admeasuring 0-24-28 Hectare sq. mtr. Of Mouje Vatva Gaam, Taluka: Ahmedabad City having Khata No.2103 (Suit property), agreed to sale to the plaintiff and thereby, an agreement to sell was executed on 03.05.2014. It was registered with Entry No.798.

2.2 In addition thereto, on 06.05.2014, the possession agreement was executed by Mr. Maheshbhai Mashabhai Bharwad, who was in possession of the suit property. It was notarized possession agreement having registered at Serial No.40 in the register of Notary Mr. Vijay Pathak and Rs. 9,75,000/- was fixed as the sale consideration. The total sale consideration was paid and the agreement to sale contained the receipt of the total sale consideration. Therefore, it is an agreement to sale coupled with the interest as the possession was also handed over to the plaintiff.

2.3 According to the plaintiff, as per the conditions of the agreement to sale, when suit property, which is a part of the unpartitioned land is partitioned and the title of the property became clear and marketable,defendant was required to execute the sale deed. However, without informing to the plaintiff and without partitioning the land, two sale deeds are executed on 04.11.2015 vide the registered sale deed Nos. 2328 and 2329.

2.4 Plaintiff came to know about the selling of the two parts of the total land only on 17.01.2024 when he searched the title of the property from the Office of the Sub-Registrar.

2.5 After obtaining the papers, the plaintiff filed the suit for specific performance for the said agreement to sale registered on 03.05.2014.

2.6 In alternate, plaintiff prayed for the relief of Rs.35,50,000/- towards the damage as well as refund of the sale consideration, also prayed the relief to cancel the sale deed executed in favor of defendant Nos.2 and 3 in the year 2015 with the peripheral relief of restraining the defendants from changing the hands of the suit property.

2.7 The learned trial Court at the time of admission of the suit, exercised the suo-moto powers and was pleased to reject the suit in exercise of jurisdiction under Order VII Rule 11(a) and (d) of ‘the Code’.

2.8 Being aggrieved, the original plaintiff has preferred this first appeal. Summons/notice is issued, but none remained present for the other side.

3. Heard learned advocate appearing for the appellant.

4. It is relevant to refer the order passed by the coordinate Bench while issuing notice. The order dated 22.01.2025 being relevant, reads as under:-

“1. Heard Mr. Monil R. Shah, learned advocate on record for the appellant. Learned advocate has placed on record the paper book of the documents forming part of the

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2026 Supreme(Online)(Guj) 8416

IN THE HIGH COURT OF GUJARAT AT AHMEDABADJ. C. Doshi, JSudhir Tulsidas Saini – AppellantVersusKanubhai Shankarbhai Patel – RespondentR/FIRST APPEAL NO. 4215 of 2024|CIVIL APPLICATION (FOR STAY) NO. 1 of 2024

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J. C. Doshi, J
Sudhir Tulsidas Saini – Appellant
Versus
Kanubhai Shankarbhai Patel – Respondent
R/FIRST APPEAL NO. 4215 of 2024|CIVIL APPLICATION (FOR STAY) NO. 1 of 2024