,,
R. Subhash Reddy, J.",,
1. Leave granted.,,
2. These civil appeals are preferred by the defendants in Civil Suit No.930 of 2017, on the file of the City Civil Court, Ahmedabad, aggrieved by the",,
judgment and decree of the High Court of Gujarat dated 10.07.2018 passed in Regular First Appeal No.160 of 2018 and Civil Application No.1 of,,
2018.,,
3. The respondent-plaintiff has filed Civil Suit No.930 of 2017 for specific performance of the Agreement to Sell dated 13.03.1992 with regard to suit,,
schedule property, i.e. Final Plot No.147 of Town Planning Scheme No.3 of Mouje Shekhpur-Khanpur of Ahmedabad, admeasuring 2821 Sq.Mtrs. It",,
is the case of the plaintiff that the predecessor-in-title of the appellant-defendants, one Chaitanyabhai Patel, had agreed to sell the suit schedule",,
property to him and execute Agreement of Sale / Sale Deed for a sale consideration of Rs.32 lacs. The total consideration amount of Rs.32 lacs was,,
paid during the period from 15.01.1990 to 05.09.1991. It is stated that such payments are acknowledged by vouchers. It was the case of the,,
respondent-plaintiff that, time was not the essence of the contract, and citing financial problems, the Sale Deed was not executed. It is alleged that",,
deceased Chaitanyabhai Patel has given trust and belief that he will execute the Sale Deed. However, recently when the respondent-plaintiff had",,
visited the suit schedule property on 25.05.2017 he has come to know that the said property was sold to third party in view of increase in prices. It is,,
alleged in the plaint that the appellant-defendants have expressed that they will not execute the Sale Deed. Hence, the suit is filed.",,
4. In the aforesaid suit, the appellant-defendants have filed application under Order VII Rule 11(d) of the Code of Civil Procedure (CPC) to reject the",,
plaint on the ground that suit is barred by limitation. The said application was contested by the respondent herein. However, trial court, by order dated",,
27.12.2017, allowed the application and ordered to reject the plaint.",,
5. As against the same, respondent-plaintiff preferred Regular First Appeal No.160 of 2018 before the High Court of Gujarat at Ahmedabad. By the",,
judgment and decree dated 10.07.2018, the High Court has allowed the appeal filed by the respondent by setting aside the order of the trial court dated",,
27.12.2017. As against the same, these civil appeals are filed.",,
6. We have heard Sri Anshin H. Desai, learned senior counsel for the appellants and Sh. Dushyant Dave, learned senior counsel for the respondent-",,
plaintiff.,,
7. In these appeals, it is contended by Sri Desai, learned senior counsel appearing for the appellants that the alleged Agreement to Sell is dated",,
13.03.1992 and the suit is filed in the year 2017, i.e., after a period of 25 years and even according to the case of the respondent-plaintiff there is no",,
communication at all in between the period from 1992 to 2017. It is submitted that except stating that he had visited the site on 25.05.2017 on which,,
date he has come to know the said plot is sold to third parties, there is nothing on record to show that the suit is within limitation. Referring to Article",,
54 of the Limitation Act, 1963 it is contended by learned counsel that even in absence of prescribing time for executing the Sale Deed, the period of",,
three years is to be computed from the date of refusal. It is submitted that by waiting for a period of 25 years and by merely stating that he had visited,,
the site on 25.05.2017 on which date, the appellants have refused to execute the Sale Deed, such a suit is filed. It is submitted that the suit filed is",,
frivolous, vexatious and ex-facie barred by limitation. It is contended that even in absence of fixing any period for executing the Sale Deed, it is not",,
open to respondent-plaintiff to file the suit after 25 years of alleged Sale Deed / Agreement to Sell. It is further stated that the so-called Agreement to,,
Sell is unregistered one, not supported by any payments through cheque. Vaguely stating that entire amount of consideration is paid, by way of cash",,
during the period from 15.01.1990 to 05.09.1991, the said suit is filed. It is contended by learned counsel that a well reasoned order passed by the trial",,
court is set aside by the High Court without recording any justifiable reasons. In support of his case for rejection of plaint under O.VII R.11, learned",,
counsel has placed reliance on judgment of this Court in the case of Prabhakar v. Joint Director, Sericulture Department & Anr. (2015) 15 SCC 1 ; T.",,
Arivandandam v. T.V. Satyapal & Anr. (1977) 4 SCC 467 ; Hardesh Ores (P) Ltd. v. Hede & Co. (2007) 5 SCC 61 4; Dilboo (Smt.) (Dead) by LRs,,
& Ors. v. Dhanraji (Smt.) (Dead) & Ors. (2000) 7 SCC 702; I.T.C. Limited v. Debts Recovery Appellate Tribunal & Ors. (1998) 2 SCC 70; Raj,,
Narain Sarin (Dead) through LRs. & Ors. V. Laxmi Devi & Ors. (2002) 10 SCC 50;1 N.V. Srinivasa Murthy & Ors. v. Mariyamma (Dead) by,,
Proposed LRs. & Ors. (2005) 5 SCC 548; Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 17 4and in the case of Church of Christ,,
Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706.,,
8. On the other hand Sh. Dushant Dave, learned senior counsel appearing for the respondent has submitted that the appellant-defendants sought",,
rejection of the plaint under O.VII R.11(d) of the CPC only on the ground that suit is barred by limitation. It is the contention by the learned counsel,,
that undisputedly time was not the essence of the contract, in which event as per Article 54 of the Limitation Act 1963, the period of limitation is three",,
years from the date of refusal. It is submitted that the limitation being a mixed question of fact and law, whether the suit is filed within a period of",,
three years from the date of refusal, is a triable issue, which can be adjudicated only after trial but same is no ground for rejection of the plaint at this",,
stage. It is submitted that for the purpose of considering the application under O.VII R.11(d), plain averments in the plaint are to be seen and no other",,
ground can be a ground for rejection of the plaint, under O.VII R.11(d). It is submitted that whether, from the averments in the plaint in a given case,",,
plaint is to be rejected or not under O.VII R.11, is to be considered with reference to facts of each case and from the case on hand, it cannot be said",,
that suit is barred by limitation, only by looking at the averments in the plaint. Learned counsel has contended that all the citations by learned counsel",,
for the appellants are not applicable to the facts of the case on hand and, in support of his arguments, reliance is placed in the case of Gunwantbhai",,
Mulchand Shah & Ors. v. Anton Elis Farel & Ors. (2006) 3 SCC 63 4; Rathnavathi & Anr. v. Kavita Ganashamdas (2015) 5 SCC 223; Madina,,
Begum & Anr. v. Shiv Murti Prasad Pandey & Ors. (2016) 15 SCC 322 and Chhotanben & Anr. v. Kiritbhai Jalkrushnabhai Thakkar & Ors. (2018),,
6 SCC 422.,,
9. Having heard learned counsel on both sides, we have perused the order passed by the trial court as well as the High Court and other material",,
placed on record.,,
10. The trial court has allowed the application filed by the appellant-defendants, by holding a finding that respondent-plaintiff, by clever drafting, has",,
created illusion of cause of action and stated that cause of action has arisen on 25.05.2017, but he failed to give justifiable explanation for",,
unreasonable delay in filing the suit. Trial court further held that when the plaintiff has not taken any action for 25 years, by clever drafting, the",,
plaintiff cannot bring an action within the period of limitation. Therefore, it has held that suit being barred by limitation, attracts rejection under O.VII",,
R.11(d) of CPC. The High Court has set aside the order of the trial court by recording a finding that going by the plain averments in the suit, it cannot",,
be stated that the same is barred by limitation.,,
11. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the",,
ground for rejection of plaint in exercise of powers under O.VII R.11(d) of the CPC. Equally, it is well settled that for the purpose of deciding",,
application filed under O.VII R.11 only averments stated in the plaint alone can be looked into, merits and demerits of the matter and the allegations by",,
Suits for Specific Performance,3 years,"The date fixed for the performance, or,
if no such date is fixed, when the
plaintiff has notice that performance is
refused
