JUDGMENT : 1. - The defendant-petitioners No. 2 to 5 filed this civil revision petition under Section 115 Civil Procedure Code against the order dated 30.11.2005 passed by the learned Additional District Judge (FT) No. 2, Jodhpur in Civil Original Suit No. 186 of 2004; whereby, the learned Judge rejected the application filed by defendants No. 2 to 5 under O. VII, R. 11 read with Section 151, Civil Procedure Code.2-3. Brief relevant facts of the case for just disposal of the case are stated as under: It is reveale from the record that originally, the plaintiffs No. 1 to 38 filed a civil suit for Specific Performance of Contract for sale of the immovable property situated at Jalam Vilas, Paota, Jodhpur. It is stated in the suit that initially an Agreement to Sale was come in existence on 22.09.1973 and thereafter it was extended and modified from time to time and fresh agreements were executed. Ultimately, the present suit for Specific Performance is based on the "Agreement to Sale" dated 23.09.1995 with regard to the property mentioned in the said agreement was filed on 20.02.2003 in the Court of District Judge, Jodhpur. Presently, the case was transferred to the learned Additional District Judge (FT) No. 2, Jodhpur vide order dated 29.07.2004. 4. The defendants filed their reply denying the claim of the plaintiffs. It was stated that the suit is hopelessly time barred in addition to other grounds of attack. The defendants No. 2 to 5 also filed a separate application under O. VII, R. 11 read with Section 151 Civil Procedure Code on 23.07.2005 stating therein that the suit is ex facie barred by limitation. It was alleged that the Urban Land Ceiling Act was abolished on 21.03.99 and present suit is filed after prescribed time of three years on 20.02.2003, thus, that is time barred, therefore, a prayer was made that the suit may be rejected.5. A reply to the said application was filed on behalf of certain plaintiffs. A separate reply to the application was filed by the plaintiff No. 38 refuting the allegations made in the application with taking further objection that after filing of the written statement, such objection by way of application cannot be raised and prayed that the application may be dismissed.6. A separate reply to the application was filed by the plaintiff No. 38 refuting the allegations made in the application with taking further objection that after filing of the written statement, such objection by way of application cannot be raised and prayed that the application may be dismissed.6. The learned Additional District Judge (FT) No. 2, Jodhpur after hearing both the sides rejected the said application filed by defendants No. 2 to 5 while observing that the point of limitation is related to the question of facts and law and, thus, it could not be decided before taking evidence, hence, vide order dated 30.11.2005 rejected the said application.7. Feeling aggrieved by that order, the present defendant-petitioners No. 2 to 5 filed this revision petition before this Court. Notices were issued to the opposite parties. With the consent of the parties, original record of the case was called for and final arguments were heard at the orders stage.8. During the course of arguments, the learned counsel for the revisionists submitted that the learned lower court has not properly appreciated and considered the contentions raised in this respect and in hasty manner passed an illegal order while rejecting the said application, therefore, has committed a jurisdictional error, thus, the order is not sustainable. It was further submitted that the plaintiffs in their suit, nowhere has stated that how their suit is within time prescribed by law of Limitation Act, 1963.9. The learned counsel for the petitioners contended that observations of the learned lower court that the question of limitation is a mixed question of facts and law, thus, it cannot be decided before taking of evidence is not correct in the circumstances of this case. The learned counsel for the petitioners tried to pursue by drawing attention towards the relevant paras of the suit mainly paras No. 4, 13, 18, 19 and 21 and on those basis, it was submitted that on the basis of these part of the pleadings, the plaintiffs were aware that the defendants were denying execution of the sale-deed, which requires no proof. The suit is time barred, thus, postponement to decide this issue was material irregularity and illegality in exercise of its jurisdiction. The suit is time barred, thus, postponement to decide this issue was material irregularity and illegality in exercise of its jurisdiction. It was further contended that the learned lower court has calculated time from the date of notice given before filing the suit but it was argued that the learned court-below failed to understand the scope of "notice" mentioned in Section 54 of the Limitation Act. It was urged that notice of refusal of specific performance should be inferred from the plaint itself and it is contended that the plaintiffs were having notice of refusal much earlier but the learned lower court has not considered this aspect in right perspective. It was submitted that no prior notice is required to send for filing the suit for Specific Performance of Contract. The plaintiffs have given notice on 04.02.2003 but by that time, the limitation to file the suit of three years had already expired as the Urban Land Ceiling Act was repealed on 22.03.1999. Thus, it was urged that ex facie, the suit was time barred and was liable to be rejected merely by cleverly drafting the plaint, the plaintiffs cannot file the suit, which is otherwise barred. It was contended that it was the duty and obligation of the learned lower court to find out that how the suit was within limitation. Merely on the cause mentioned in the order, the application was not liable to be rejected. It was contended that the learned trial court has no jurisdiction to try a suit which is barred by law of limitation and thus, the learned trial court usurped the jurisdiction, which otherwise, it does not have. It was contended by the learned counsel that a large number of plaintiffs have withdrawn their claims during pendency of the suit proceedings. It was contended that the learned trial court has no jurisdiction to try a suit which is barred by law of limitation and thus, the learned trial court usurped the jurisdiction, which otherwise, it does not have. It was contended by the learned counsel that a large number of plaintiffs have withdrawn their claims during pendency of the suit proceedings. The learned counsel for the petitioners also placed reliance on the authorities-(l) N.V. Srinivasa Murthy and Others v. Mariyamma and Others, 2005 (5) SCC 548 , (2) Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others, 2004 (3) SCC 137 , (3) Pearlite Liners (P) Ltd. v. Manorama Sirsi, 2004 (3) SCC 172 , (4) Manick Lal Seal and Another v. K.P. Chowdhary, AIR 1976 Cal 115 and (5) Smt. Kanchan Bai v. Khetsides (120) (1990) (2) RLW 427 in support of his contentions and prayed that the impugned order under challenge may be set aside and the revision petition be accepted. The said application may be allowed and the suit be dismissed as barred by limitation.10. On the contrary, the learned counsel for the respondents refuted the contentions raised by the petitioners side and supported the order of the learned lower court. It was submitted that question of limitation is mixed question of facts and law and thus, on mere reading of the plaint, the issue of limitation could not be decided. It was submitted that pleadings do not contain evidence part. The evidence is to be led by the parties, therefore, the learned lower court has rightly rejected the application filed by the applicant-defendants No. 2 to 5. It was further contended that the provision of O. VII, R. 11 Civil Procedure Code does not apply, where disputed question of facts have been raised. It was urged that taking the limited scope of the revision where no jurisdictional error is found in the order of the learned lower court, that order should be maintained and revision petition may be dismissed. The learned counsel for the respondents also placed reliance on (1) P. Vasunthi v. Suit. It was urged that taking the limited scope of the revision where no jurisdictional error is found in the order of the learned lower court, that order should be maintained and revision petition may be dismissed. The learned counsel for the respondents also placed reliance on (1) P. Vasunthi v. Suit. Vimala Martin and Another, (2) Mohanlal Sukhadia University v. Miss Priya Soloman, (3) Smt. Mariyamma v. N.V. Srinivasa Murthy and Others, AIR 2003 NOC (Kan.) 375 (4) Popat and Kotecha Property v. State Bank of India Staff Association, 2005 (7) SCC 510 , (5) Balasaria Constructions (P) Ltd. v. Hanuman Seva Trust and Others ( 2006 (5) SCC 658 ) (6) M/s. D.LF. Housing & Construction v. Sarup Singh and Others AIR 1971 SC 2324 and (7) Gunwant Bhai Mulchand Shah & Others v. Anton Elis Farel and Others, 2006 (3) SCC 634 in support of his submissions and again prayed that revision petition may be dismissed.11. I have considered the rival submissions made by the learned counsel for the parties and perused the impugned order as well as record of the case and also perused the authorities cited by the learned counsel.12. The main contention of the revisionists is that on mere reading of the plaint, the present suit is ex facie time barred. In this respect, I have gone through the relevant paras of the plaint mentioned during the course of arguments, in which, the plaintiffs have stated that the defendants always showing their inability to execute the sale-deed on the one count or the other but a clear undisputed denial to perform the contract cannot be inferred. It has been stated in the plaint that assurances were given to perform their part. I have also considered the grounds stated in the said application but no inference of refusal on the basis of the plaint can be drawn, therefore, without expressing any thing on the merit of the case from the bare reading of the relevant paras of the plaint clear position on the point of limitation that is suit is ex facie time barred, is not made out. The point of limitation in the instant case can only be determined after leading evidence by the parties. The point of limitation in the instant case can only be determined after leading evidence by the parties. In the case of N.V. Sriniwasa (supra), no relief for specific performance was claimed, therefore, the suit as framed was found barred by law of limitation and under other law, but that is not the position in the present suit.13. In case of Sopan Sukhdeo Sable (supra), which was related to Bombay Public Trust Act and there was a bar to try issues regarding enquiries into the affairs of a trust, therefore, this authority does not help the contentions raised by the learned counsel. In the case of Pearlite Liners (P) Ltd. (supra), the suit was related to specific performance of personal services that was not specifically enforceable but that is not the position in the present suit. In the case of Munick Lal Seal (supra), the scope of notice of refusal of performance has been dealt with. In the case of Smt. Kanchan Bai (supra), it has been observed that at the time of considering the question with regard to application under O. VII, R. 11, Civil Procedure Code only plaint averments will be looked into but as per discussions above, the point of limitation clearly cannot be determined from the mere reading of the plaint, therefore, these authorities do not help the contentions raised by the revisionists.14. On the contrary, in the cases of P. Vasanthi (supra), Mohanlal Sukhadia University (supra), Balasaria Constructions (P) Ltd. (supra) and Gunwant Bhai Mulchand Shah (supra), in these authorities, it has been observed that the question of limitation is a mixed question of facts and law. The point of limitation is to be decided after evidence. They all support the contentions. In case of Balasaria Constructions (P) Ltd. (supra), the Hon'ble Apex Court held as under: "After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11 (d) Civil Procedure Code and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case, on the reading of the plaint, it cannot be held that the suit is barred by time. Question of limitation is a mixed question of law and fact. Ex facie in the present case, on the reading of the plaint, it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure." 15. A reliance has been placed by the opposite party on the case of Popat and Kotecha Property (supra), wherein, it is held that Order 7, Rule 11 Civil Procedure Code attracts only when from the statement as made in the suit, it seems that the suit is clearly barred by law in the instance case as discussed above clear and undisputed position on the point of limitation as the suit is time barred, is not made out. Thus, as per the aforesaid discussion and from perusal of the order, the learned lower court after considering the contentions of the parties, has rightly rejected the application and has not committed any jurisdictional error, which caused any failure of justice, therefore, the order deserves to be maintained. 16. In the result, the revision petition is liable to be dismissed, hence, it is dismissed. The order dated 30.11.2005 passed by the learned Additional District Judge (FT) No. 2, Jodhpur is maintained. Looking to the facts of the case, it reveals that the written statements have already been filed, and a number of plaintiffs have withdrawn their claims, in the interest of justice, the learned lower court is directed to expedite the matter without influencing from any observation made in the order.Revision dismissed. *******