A suit for specific performance can be reinstated if evidence suggests a potential extension of the contract despite the expiration of the limitation period.

Sathish Ninan, J.

The suit for specific performance of an agreement for sale was rejected by the trial court under Order VII Rule 11 of the Code of Civil Procedure , as barred by limitation.

2. The agreement sought to be enforced in the suit is dated

15.03.2012. The suit is filed only on 02.12.2021. Under the agreement, the period fixed for performance was six months.

3. The plaint allegation is that, though the plaintiffs were ready and willing to proceed with the agreement, the defendant was postponing the execution. On the last date for compliance of the agreement viz. 14.09.2012, the defendant disclosed that there are some mistakes in the survey numbers relating to the property. It was agreed that the property would be conveyed as soon as the said mistake is corrected. The plaintiffs having paid ₹ 20 lakhs R.F.A. No.355 of 2022 towards advance sale consideration agreed to the defendants' request. It was agreed that the property would be conveyed on curing the defects in the survey numbers. Though the defendant was approached on various occasions, the plaintiffs were told that the process of correction was not completed. The suit has been filed alleging that on 25.11.2021 plaintiff got reliable information that the defendant is attempting to sell the properties to third parties in breach of the agreement with the plaintiffs.

4. The trial court held that the plaint does not disclose about any agreement extending the period for performance and that no document evidencing such extension is produced. The trial court held that the plaint does not even contain even a plea of an oral agreement extending the period. Accordingly, the court proceeded to reject the plaint under Order VII Rule 11 CPC.

5. We have heard learned counsel on either side.

6. Limitation is generally considered to be a mixed question of law and fact. Of course there would be cases where limitation would be apparent even on the plaint averments. When ex facie the suit is beyond the prescribed period of limitation the plaint is R.F.A. No.355 of 2022 liable to be rejected under Order VII Rule 11(d) CPC.

7. Under the agreement for sale in question, an amount of ₹ 20 lakhs is claimed to have been paid as advance sale consideration. It is so recited in the agreement. At paragraph 12 of the plaint, it is pleaded thus:-

“12. However, the defendant assured the plaintiffs that he had already initiated proceedings to correct the survey numbers and the property will be conveyed to the plaintiffs, even though the same may not be possible within the period of agreement. The plaintiffs expressed its displeasure and anguish on the conduct of the defendant, however, have to agree for the same as the plaintiffs had already parted with a huge sum of Rs.20,00,000/- as advance sale consideration, as per the agreement for sale dated 15.03.2012. Therefore, both the plaintiffs and defendant agreed to extent the period of agreement to such period as may be required by the defendant to correct the mistake in survey numbers and to execute sale deed after curing the defects, as originally agreed as per the agreement……..”

The above is a plea varying the period of performance of the agreement; the time for performance is fixed as, as and when the mistake in the survey numbers is got corrected by the defendant. If the plaintiffs are able to prove such an agreement, then how far the plea of limitation would succeed is to be considered. Whether there has been an agreement in the manner as pleaded by the plaintiffs, is a matter of evidence. In the light of the R.F.A. No.355 of 2022 specific plea in the plaint varying the period for performance, we are of the view that, ex facie it could not be held that the suit is barred by limitation. We find that the rejection of the plaint on the ground of limitatio