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Andhra High Court · body

2012 DIGILAW 920 (AP)

Nemuri Lakshminarayana v. K. Pushpalatha

2012-09-27

L.NARASIMHA REDDY

body2012
Judgment The 1st respondent filed O.S. No.546 of 2009 in the Court of the VII Additional Senior Civil Judge, Ranga Reddy District, for the relief of specific performance of an oral agreement of sale said to have been made on 05-08-2003 in respect of the suit schedule property. The petitioner figured as defendant No.2 and the 2nd respondent as 1st defendant. The petitioner filed I.A. No.114 of 2010 under Rule – 11 of Order VII CPC with a prayer to reject the plaint. He pleaded that even according to the 1st respondent, the date of agreement is 05-08-2003 and the suit filed in the year 2009 is clearly barred by limitation. The application was opposed by the 1st respondent. According to her, the limitation started from the date on which the petitioner refused to perform his part of contract and such refusal came be expressed when he got issued a notice, dated 10-05-2008. The trial Court dismissed the I.A. through order, dated 24-10-2011 Hence, this revision. 2. Heard the learned counsel for the petitioner and the learned counsel for the 1st respondent. 3. The suit filed by the 1st respondent is the one for specific performance of an agreement of sale, may be oral in nature. The petitioner, who figured as 2nd defendant wanted the plaint to be rejected on the ground that the suit is barred by limitation and that it does not disclose the cause of action. 4. Not only a defendant in a suit is entitled to file an application for rejection of the plaint in case the averments in the plaint lead to a conclusion that it is filed after expiry of the limitation, but also the Court is placed under obligation to bestow its attention as provided under Section 3 of the Limitation Act. However, while deciding that question, the averments in the plaint have to be taken on their face value. The truth or otherwise of the same be examined at that stage. 5. Article 54 of the Schedule – I of the Limitation Act prescribes the period of limitation for filing of suit for specific performance, as 3 years. The starting point for computation of this period is the date on which the defendant refused to perform his part of the contract. 6. 5. Article 54 of the Schedule – I of the Limitation Act prescribes the period of limitation for filing of suit for specific performance, as 3 years. The starting point for computation of this period is the date on which the defendant refused to perform his part of the contract. 6. The 1st respondent pleaded that the oral agreement was entered on 05-08-2003 for purchase of the property for Rs.1,00,000/-, a cheque for Rs.96,000/-was issued by the petitioner and that the same was encashed in September, 2003. The petitioner, however, pleaded that the payment was in relation to another transaction. The 1st respondent pleaded that the petitioner agreed to execute the sale deed within a period of six months, but has been dodging the matter for one pretext or the other. The period, if any, specified in the agreement of sale constitutes an important factor, while reckoning the period of limitation. What becomes essential is the date of refusal. Such refusal, according to the 1st respondent, emerged only when the petitioner got issued a notice on 10-05-2008. In the context of examining the matter with reference to Rule – 11 of Order – VII CPC, the contents of the plaint are to be taken into account. If the averment in the plaint, in the instant case, is taken into account, the suit is very much within limitation. At any rate, the dispute in this regard can certainly be a subject matter of an issue. The trial Court has taken correct view of the matter. 7. Accordingly, the Civil Revision Petition is dismissed. In case, the petitioner has raised the plea of limitation, the trial Court shall frame an issue on that. It shall endeavour to dispose of the suit expeditiously. There shall be no order as to costs. 8. The miscellaneous petition filed in this revision petition also stands disposed of.