JUDGMENT : Rejection of plaint under Order VII Rule 11, Code of Civil Procedure, 1908 (for short, ‘CPC’) is the genesis of this first appeal at the behest of appellants-plaintiffs. By the order impugned dated 18th of May 2012, learned Additional District Judge (Fast Track) No.2, Jodhpur Metropolitan, Jodhpur (for short, ‘learned trial Court’), while favourably entertaining the application of respondent-defendant under Order VII Rule 11 CPC, found that the suit for specific performance of contract and perpetual injunction laid by appellants is barred by limitation resulting in rejection of the plaint. Succinctly stated, the facts of the case are that appellants-plaintiffs instituted a civil suit against respondent-defendant for specific performance of contract and perpetual injunction. In this plaint, it is inter alia, averred by the appellants that husband of respondent Late Shri Taresh Kumar executed three agreements to sale dated 3rd of May 1995, 5th of August, 1995 and 12th of February, 1996 respectively in their favour to sell the property owned by him bearing Plot No.383, 3rd 'C' Road, Sardarpura, Jodhpur. The dimensions and total area of the property was mentioned in the agreements to sale. As per agreement to sale dated 3rd May 1995, consideration amount for sale of the property was settled between the parties to the tune of Rs.18,31,000/- and a recital to this effect is also incorporated in the instrument. It is further averred in the plaint that at the threshold appellants paid earnest money of Rs.1,00,000/- to Late Shri Taresh Kumar and later on Rs.4,65,000/-were paid on 16th May 1995. Dilating on the terms of agreement to sale, it is stated in the plaint that Late Shri Taresh Kumar handed over vacant possession of two shops as well as of first floor to first appellant and further agreed to execute registered sale-deed in favour of appellants within a period of six months on receipt of entire consideration amount. Appellants set out a specific case that Late Shri Taresh Kumar had agreed to hand over vacant possession of the property to the appellants without any charge after clearing all dues and in the event of his failure to pay double the amount, which he had received by then, with suitable damages and the appellants would be free to enforce specific performance of contract against him. That apart, certain other conditions were also incorporated in the agreement to sale. That apart, certain other conditions were also incorporated in the agreement to sale. the appellants pleaded in the plaint that Late Shri Taresh Kumar, in terms of agreement to sale, handed over possession of two shops measuring 17 X 10 ft. to the first appellant on 3rd May 1995 but no endeavour was made by him to comply with other terms and conditions of agreement to sale inasmuch as neither tenants were lawfully evicted from the property, nor dues were cleared by Late Shri Taresh Kumar. Another agreement to sale dated 5th of August 1995 is referred to in the pleadings and according to first appellant in terms of the agreement a sum of Rs.6,75,000/-, in total, was paid by him to Smt. Panchi Bai and Raghunandan Goyal with whom Late Shri Taresh Kumar had earlier entered into agreement to sale for the property in question. The payment of requisite amount by the appellants, in fact, facilitated withdrawal of the case laid by these two incumbents against Late Shri Taresh Kumar by way of compromise. Appellants set out a case with clarity and precision that requisite amount was paid by them through demand draft. Yet another agreement to sale also romped in by the appellants is dated 12th of February 1996 wherein the terms and conditions of agreement to sale dated 3rd of May 1995 were reiterated and Late Shri Taresh Kumar agreed to take requisite steps for eviction of tenants and clearing all dues of the property so as to make it free from all encumbrances. Appellants-plaintiffs have laid emphasis on a receipt dated 18th of October 1995, whereby Late Shri Taresh Kumar acknowledged receipt of Rs.7,00,000/- from appellants. In order to crave relief for specific performance of contract, appellants have pleaded that when Shri Taresh Kumar did not carry out his part of the contract in terms of the agreement a notice was served on him through their counsel but no heed was paid by Late Shri Taresh Kumar and he made no endeavour to abide by the terms of the agreements to sale. For impleading respondent Smt. Usha Sharma as party-defendant and showing cause of action against her, appellants have stated in the plaint that after serving of notice aforesaid by the appellants, Late Shri Taresh Kumar passed away and therefore being his wife, Smt. Usha Sharma is bound to carry out the obligations which Late Shri Taresh Kumar was required to carry out in terms of agreements to sale. According to appellants, a notice was served by the respondent to the first appellant as well as Ayub Khan wherein Ayub Khan was shown as tenant and intimation was conveyed to him terminating his tenancy. Acknowledging receipt of notice, according to appellants, it was replied by them through their counsel whereby respondent was called upon to perform the contract. However, as per the pleadings, respondent did not pay any heed to the notice and further no inclination was shown by her to perform the contract. Subsequent to that, the averments contained in the plaint reveal that appellants persuaded the respondent to carry out performance of the agreements, which were entered into by her Late husband, and further it was impressed upon the respondent that Late Shri Taresh Kumar had received handsome amount of Rs.7,00,000/-. For showing readiness and willingness on their part, appellants have pleaded with clarity and precision that they were always ready and willing to perform their part of contract but the respondent on one or other pretext evaded performance of contract and no specific reply was given by her. With a view to disclose cause of action for laying the suit, appellants have pleaded that all of a sudden a notice is received by them of the suit filed by respondent seeking declaration, mandatory injunction and mesne profit, wherein respondent sought a declaration that agreement, which was entered into between the appellants and respondent's Late husband Shri Taresh Kumar, be declared as null and void and the property be restored back to its original status, which was obtaining prior to execution of agreements to sale by Late Shri Taresh Kumar. It is in that background, as per the appellants, they knew with certainty that respondent declined to perform the contract by visualizing huge escalation in the price of real estates. It is in that background, as per the appellants, they knew with certainty that respondent declined to perform the contract by visualizing huge escalation in the price of real estates. The appellants have made out a specific case in the plaint for showing cause of action precisely on receipt of notice/summons of Civil Suit No.45/2011 instituted by respondent, Smt. Usha Sharma. Asserting their possession on the property, appellants have pleaded that they are using the property and, if specific performance of the agreement to sale is not ordered they would suffer irreparable loss. Thus, in order to show that suit has been filed within the prescribed period of limitation, appellants have placed heavy reliance on the suit filed by respondent and, as per their version, cause of action accrued to them on receipt of notice/summons of that suit, which according to appellants is within limitation. The respondent resisted the suit by laying application under Order VII Rule 11 CPC. In the application, respondent has averred that suit is barred by law inasmuch as it is presented after expiry of the period of limitation, therefore, the plaint is liable to be rejected under clause (d) of Rule 11 of Order VII CPC. In the application, it is, inter alia, averred by the respondent that agreement to sale executed by Late Shri Taresh Kumar cannot be specifically enforced as the agreement has become barred by limitation. In this respect, respondent has referred to notice dated 13th of March, 2007, which was sent through her lawyer to the appellants clearly indicating her intentions. As per version of respondent, notice is acknowledged by the appellants and a reply is also sent by their lawyer asking the respondent to withdraw the notice. The sum and substance of the averments made in the application clearly and unequivocally indicate that respondent has declined to perform the contract as early as 13th of March, 2007, and therefore, on the face of it suit is barred by limitation. The appellants contested the application and submitted reply refuting the averments contained in the application. In the reply, appellants have specifically pleaded that respondent never conveyed her unwillingness to perform the contract, and therefore, no cause of action accrued to the appellants for laying the suit. Reflecting on the conduct of the respondent, the appellants have pleaded that the suit filed by them is within limitation. In the reply, appellants have specifically pleaded that respondent never conveyed her unwillingness to perform the contract, and therefore, no cause of action accrued to the appellants for laying the suit. Reflecting on the conduct of the respondent, the appellants have pleaded that the suit filed by them is within limitation. An alternative plea was also raised that issue of limitation is a mixed question of law and fact, which can be adjudicated after evidence of rival parties and at the stage of disposal of the application under Order VII Rule 11 CPC, this issue cannot be decided and the plaint of the appellants cannot be thrown away at the threshold. In totality, a very brief reply to the application is submitted. The learned trial Court, thereafter, heard the arguments on the application submitted by respondent. After analyzing the averments contained in the plaint and the arguments advanced by rival parties at Bar, learned trial Court made endeavour to examine the documents which were placed on record by appellants-plaintiffs on which they have placed reliance. The argument advanced on behalf of respondent that appellants have made an affirmative attempt to wriggle out from the law of limitation by cleverly drafting the plaint found favour from the learned trial Court and in that background while construing the law governing the province of limitation relating to suit for specific performance of contract, i.e., Article 54 of the Limitation Act, 1963 (for short, ‘the Act’), the learned trial Court has rejected the plaint as barred by limitation by invoking Clause (d) of Rule 11 of Order VII CPC. In the impugned order, learned trial Court has considered the legal precedents on which rival parties have placed reliance. Learned counsel for the appellants, Mr. L.R. Mehta with Mr. Ramit Mehta submits that the issue of limitation is a mixed question of law and fact and the learned trial Court, while passing the impugned order, has completely ignored this aspect, therefore, impugned order is per-se vulnerable. Mr. Mehta would contend that legal position is no more res-integra that while considering application under Order VII Rule 11 CPC, a Court is required to presume the averments of plaint to be true and furthermore for the purpose of deciding such application only and only averments of the plaint can be looked into and no defence of the defendant can be taken into consideration. Mr. Mr. Mehta has urged that a plain reading of the plaint clearly and unequivocally reveals that cause of action to the appellants for laying a suit accrued to them on receipt of summons of the suit filed by the respondent for cancellation of agreement to sale in the year 2011 and therefore, cumulative reading of para 5 to 8 of the plaint makes it amply clear that the suit filed by appellants is within limitation. Mr. Mehta further submits that the learned trial Court has misdirected itself in relying on notice dated 13th of March, 2007, which was served by the respondent to construe the same as refusal to carry out to perform the contract. Mr. Mehta, with full vehemence, has argued that the issue relating to limitation is a mixed question of law and fact, which cannot be decided even as a preliminary issue. Lastly, Mr. Mehta has contended that by the impugned order, learned trial Court has rejected the plaint without properly reading the averments of the plaint, therefore, the order is vitiated in law. In support of his contentions, Mr. Mehta has placed reliance on following legal precedents:- • Foreshore Co-operative Housing Society Ltd. V/s. Praveen D. Desai (Dead) through LRs & Ors. [2015 AIR SCW 2671] • Fatehji & Company & Anr. V/s. L.M. Nagpal & Ors. [2015 AIR SCW 3401] • The Church of Christ Charitable Trust & Educational Charitable Society, rep. by its Chairman V/s. M/s. Ponniamman Educational Trust rep. by its Chairperson/Managing Trustee [ AIR 2012 SC 3912 ] • Ramesh B. Desai & Ors. V/s. Bipin Vadilal Mehta & Ors. [ (2006) 5 SCC 638 ] • Balasaria Construction (P) Ltd. V/s. Hanuman Seva Trust & Ors. [ (2006) 5 SCC 658 ] • N.V. Srinivasa Murthy & Ors. V/s. Mariyamma (Dead) by proposed LRs and Ors. [ (2005) 5 SCC 548 ] • Popat & Kotecha Property V/s. State Bank of India Staff Association [ (2005) 7 SCC 510 ] • Sopan Sukhdeo Sable & Ors. V/s. Assistant Charity Commissioner & Ors. [ (2004) 3 SCC 137 ]. • Kamlesh Babu & Ors. V/s. Lajpat Rai Sharma & Ors. [AIR 2008 SC (supp) 1931] In Foreshore Co-operative Housing Society Ltd. (supra), Hon’ble Apex Court had occasion to consider Section 9A (as inserted by Maharashtra Amendment 1977). V/s. Assistant Charity Commissioner & Ors. [ (2004) 3 SCC 137 ]. • Kamlesh Babu & Ors. V/s. Lajpat Rai Sharma & Ors. [AIR 2008 SC (supp) 1931] In Foreshore Co-operative Housing Society Ltd. (supra), Hon’ble Apex Court had occasion to consider Section 9A (as inserted by Maharashtra Amendment 1977). While examining the rigor of Section 9-A on the touchstone of Order 14 Rule 2 CPC, the Court held that Rule 9-A is mandatory and question of limitation can be tried as a preliminary issue. Therefore, there was no occasion for the Apex Court to consider the question of limitation on the anvil of clause (d) of Rule 11 of Order VII CPC and as such this judgment cannot render any assistance to the appellants. In Fatehji & Company & Anr. (supra), Hon’ble Apex Court examined the question relating to limitation in a suit for specific performance of contract and, while interpreting Article 54 of the Act, has declined to accept the claim of the plaintiff for oral extension of time in want of material particulars, as to why and how long period was extended. The Court finally concluded that a suit filed after three years even beyond period of extension is barred by limitation. The Court held: “The plaintiffs averred in the plaint that the last and final cause of action accrued and arose to them after August, 1991 when the defendants succeeded in hiding themselves and started avoiding the plaintiffs and the cause of action being recurring and continuous one, they filed the suit on 29.4.1994. As already seen the original cause of action became available to the plaintiffs on 2.12.1973, the date fixed for the performance of the contract and thereafter the same stood extended till 1.2.1977 as requested by the defendants. Though the plaintiffs claimed that oral extension of time was given, no particulars as to when and how long, were not (sic) mentioned in the plaint. On the other hand even after knowing the dishonest intention of the sons of the second defendant with regard to the suit property in the year 1985, the plaintiffs did not file the suit immediately. The suit having been filed in the year 1994 is barred by limitation under Article 54 of the Limitation Act.” As such the ratio decidendi of this verdict cannot help the cause of the appellants rather it comes to the aid of the respondent. The suit having been filed in the year 1994 is barred by limitation under Article 54 of the Limitation Act.” As such the ratio decidendi of this verdict cannot help the cause of the appellants rather it comes to the aid of the respondent. In the Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman (supra), Hon’ble Apex Court essentially considered clause (a) of Rule 11 of Order VII CPC, i.e., non-discloser of cause of action, and ultimately while noticing failure on the part of plaintiff to disclose cause of action upheld the order rejecting plaint. Therefore, this judgment is also not throwing light on the lis involved in the present appeal. In Ramesh B. Desai & Ors. (supra), Hon’ble Apex Court has dilated on the plea of limitation, more particularly, at the stage of considering application under Order VII Rule 11 CPC. True it is that the Court found that a plea of limitation cannot be decided as an abstract principle of law dehors the facts as in every case the starting point of limitation has to be ascertained, which is entirely a question of fact. The Court opined that the question of limitation is a mixed question of law and fact. However, the Court has not completely ruled out the powers of the Court under clause (d) of Order VII Rule 11 CPC to reject a plaint as barred by limitation, if it becomes apparent from the reading of the plaint. Therefore, on the basis of this verdict, I am afraid, it is difficult to comprehend that powers of a Court to reject a plaint as barred by limitation are completely chipped when from the averments of the plaint it is apparent that suit is barred by limitation. The Court held: “A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The Court held: “A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust it was held : (SCC 661, para 8) "8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC 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." This principle would be equally applicable to a Company Petition. Therefore, unless it becomes apparent from the reading of the Company Petition that the same is barred by limitation the petition cannot be rejected under Order 7 Rule 11(d) CPC.” In Balasaria Construction (P) Ltd. (supra), Hon’ble Apex Court noticing conflict of opinions in two earlier verdicts in case of N.V. Sinivasa Murthy (supra) and Popat & Kotehca Property (supra) referred the matter to three Judge Bench, but the issue was not resolved by three Judge Bench in view of the submissions made by counsel for both the parties. As a matter of fact, both the parties agreed that it is not an absolute proposition that an application under Order VII Rule 11(d) can never be based on the law of limitation. As a matter of fact, both the parties agreed that it is not an absolute proposition that an application under Order VII Rule 11(d) can never be based on the law of limitation. The said observation of the Bench of Hon’ble Apex Court is quoted in para 6 of the judgment which is as under: Before the three-Judge Bench, counsel for both the parties stated as follows:- ".....It is not the case of either side that as an absolute proposition an application under Order 7 and Rule 11 (d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 Rule 11 (d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case." Ultimately, in that verdict, the Court has noticed that the question relating to limitation is contentious and same cannot be decided without proper pleadings, framing of an issue of limitation and taking of evidence, and that being so, Court found that the suit is not barred by limitation. In N.V. Srinivasa Murthy & Ors. (supra), Hon’ble Apex Court has deprecated the practice of clever drafting with a view to get over the bar of limitation and payment of ad valorem Court fee. The Court further held that a suit, prima facie, barred by limitation, can be rejected at the threshold under clause (d) of Rule 11 of Order VII CPC. At the threshold, the Court noticed the clever drafting of the plaint and observed: With the assistance and on the comments and counter-comments of the parties, we have carefully gone through the contents of the plaint. We find that the plaint has been very cleverly drafted with a view to get over the bar of limitation and payment of ad valorem court fee. According to us, the plaint was rightly held to be liable to rejection if not on the alleged ground of non-disclosure of any cause of action but on the ground covered by clause (d) of Rule 11 of Order 7 of Code of Civil Procedure namely that “the suit appears from the statement in the plaint to be clearly barred by law”. Finally the Court held: Civil suit No.557 of 1990 was pending when the present suit was filed. In the present suit, the relief indirectly claimed is of declaring the sale deed of 5-5-1953 to be not really a sale deed but a loan transaction. Relief of re-conveyance of property under alleged oral agreement on return of loan has been deliberately omitted from the relief clause. In our view, the present plaint is liable to rejection, if not on the ground that it does not disclose “cause of action”, on the ground that from the averments in the plaint, the suit is apparently barred by law within the meaning of clause (d) of Order 7 Rule 11 of Code of Civil Procedure. The High Court does not seem to be right in rejecting the plaint on the ground that it does not disclose any “cause of action”. In our view, the trial court was right in coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself. The suit as framed is prima facie barred by the law of limitation, provisions of Specific Relief Act as also under Order 2 Rule 2 of the Code of Civil Procedure. Therefore, in substance, the ratio decidendi of this verdict is of no assistance to the appellants. On the contrary, it has completely repudiated the arguments of learned counsel for the appellants that issue relating to limitation is a mixed question of law and fact. In case of Popat & Kotecha Property (supra), Hon’ble Apex Court considered the true purport of clause (d) of Order 11 Rule VII CPC and issued a word of caution that said clause can be invoked in those cases where the statement made by plaintiff in plaint, without any doubt or dispute shows that the suit is barred by any law in force. The Court held: Clause (d) of Order VII Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 CPC. The Court held: Clause (d) of Order VII Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 CPC. Clause (d) of Rule 11 of Order VII applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force. Therefore, this judgment too cannot render any assistance to the appellants so as to construe that issue relating to limitation is a mixed a question of law and fact in abstract sense. In Sopan Sukhdeo Sable & Ors. (supra), Hon’ble Apex Court has dilated on this aspect of the matter and held that while deciding application under Order VII Rule 11 CPC (a) and (d), the averments in the plaint are germane. In view of this settled legal proposition, while considering such applications, the Court is required to meaningfully consider the averments of plaint to unearth truth by lifting veil of clever drafting. In Kamlesh Babu & Ors. (supra), Hon’ble Apex Court had the occasion to consider true purport of Section 3(1)(i) of the Act at the time of consideration of application under Order VII Rule 11(d) CPC. Hon’ble Court held that Section 3(1) of the Act casts a mandate upon the Courts to reject a plaint where the suit from statement in the plaint appears to be barred by any law including the law of limitation. The Court relying on decision in Balasaria Construction (P) Ltd. (supra), while acknowledging that limitation is a mixed question of law and fact rejected the plea raised under Article 136 of the Constitution which was not taken earlier. The Court held: It is no doubt true, as was pointed out by this Court in the case of Balasaria Construction (P) Ltd. (supra) and also in Narne Rama Murthy's case (supra), that if the plea of limitation is a mixed question of law and fact, the same cannot be raised at the appellate stage. We have no problem with the said proposition of law. What we are concerned with is whether the said proposition is applicable to the facts of this case. We have no problem with the said proposition of law. What we are concerned with is whether the said proposition is applicable to the facts of this case. In this case the plea of limitation had been raised in the written statement and though no specific issue was framed in respect thereof, a decision was given thereupon by the learned Trial Court. Apart from Section 3(1) of the Limitation Act, even Order 7 Rule 11(d) of the Code of Civil Procedure casts a mandate upon the court to reject a plaint where the suit appears from the statement in the plaint to be barred by any law, in this case by the law of limitation. Further, as far back as in 1943, the Privy Council in the case of Lachhmi Sewak Sahu vs. Ram Rup Sahu & Ors. [AIR 1944 Privy Council 24] held that a point of limitation is prima facie admissible even in the court of last resort, although it had not been taken in the lower courts. E. Converso, Mr. Harish Purohit with Dr. A.A. Bhansali, learned counsel for respondent, submits that a plain reading of para 5 to 7 of the plaint clearly and unequivocally reveals that the suit filed by appellants is barred by limitation and the whole attempt of the appellants is to camouflage the delayed presentation of the plaint by way of clever and ingenious drafting. Adverting to the impugned order, Mr. Purohit would contend that the learned trial Court has thoroughly examined the matter and has rightly non-suited the appellants on the ground of limitation, as such, impugned order warrants no interference. Mr. Purohit has strenuously urged that the issue relating to limitation may be a mixed question of law and fact if the facts are disputed or conflicted, but if on plain reading of the plaint it is apparent that suit is barred by limitation, Court’s power to reject the plaint at the threshold under clause (d) of Rule 11 of Order VII CPC can very well be pressed into service. Mr. Mr. Purohit further submits that the original agreement to sale was entered into by the appellant with Late Shri Taresh Kumar and during his lifetime no legal proceedings were launched by the appellants and even after his death for almost three years nothing was done by the appellants for enforcement of the agreement to sale, itself is sufficient to conclude that the suit is barred by limitation vis-à-vis respondent as per Section 16 of the Act. In the alternative, Mr. Purohit would contend that even otherwise notice dated 13th of March, 2007, on which appellants have placed reliance, is clear and unequivocal in terms, indicating the intentions of the respondent not to perform the contract, and therefore, from the date of receipt of that notice, the suit was barred by limitation, which has been rightly rejected by the learned Court below and therefore, the impugned order cannot be faulted. In support of his contentions, Mr. Purohit has placed reliance on following decisions: • T. Arivandandam V/s. T. V. Satyapal & Anr. [ AIR 1977 SC 2421 ] • Popat & Kotecha Property V/s. State Bank of India Staff Association [(2005) 3 CCC 350 (S.C.) • Kamlesh Babu & Ors. V/s. Lajpat Rai Sharma & Ors. [AIR 2008 SC (Supp) 1931] • I.T.C. Limited V/s. Debts Recovery Appellate Tribunal & Ors. [ (1998) 2 SCC 70 ] • Samar Singh V/s. Kedar Nath & Ors. [ AIR 1987 SC 1926 ]. • Md. Akhtar Hossain V/s. Suresh Singh & Ors. [ AIR 2004 Cal 99 ] • Bhagwan Das V/s. Goswami Brijesh Kumarji & Ors. [ AIR 1983 Raj. 3 ] • Sanjay Kaushish V/s. D.C. Kaushish & Ors. [ AIR 1992 Del. 118 ] • Smt. Nakubai Valu Dhokane (deceased by L.Rs.) V/s. Bhagwansingh Prakash Chandra [2008 (6) AIR Bom R 392] • The Maharashtra State Road Transport Corporation V/s. Raoji Hari Lad [ AIR 1977 Bom 1 ] • C. Natarajan V/s. Ashim Bai & Anr. [ AIR 2008 SC 363 ] • Fatehji & Company & Anr. V/s. L.M. Nagpal & ors. [2015(1) WLC (SC) Civil 798] I have bestowed my considerations to the arguments advanced by learned counsel for the parties, perused impugned order and also scanned the record of case. [ AIR 2008 SC 363 ] • Fatehji & Company & Anr. V/s. L.M. Nagpal & ors. [2015(1) WLC (SC) Civil 798] I have bestowed my considerations to the arguments advanced by learned counsel for the parties, perused impugned order and also scanned the record of case. Appellants-plaintiffs’ misery, in the instant appeal, is heartening inasmuch as their suit for specific performance of contract is thrown away at the threshold exercising power under Order VII Rule 11 CPC treating it to be barred by limitation. Effort made by the appellants seeking enforcement of specific performance of contract taking shelter of Section 10 of Specific Performance of Contract Act, 1963 has proved catastrophic as the learned trial Court, by invoking clause (d) of Rule 11 of Order VII CPC, rejected their plaint by accepting application laid on behalf of the respondent-defendant. A threadbare examination of factual gamut of the case in conjunction with impugned order makes it amply clear that learned trial Court has found the suit of appellants barred by limitation under Article 54 of the Act. Material question, which has cropped up for judicial scrutiny, is determination of question of limitation while exercising power under Order VII Rule 11 CPC. The whole thrust of the appellants is that limitation is a mixed question of law and fact, whereas respondent’s contention is otherwise. The respondent has made an attempt to defend the impugned order by urging that treating limitation as a mixed question of law is not a general rule and it varies from case to case. After giving my thoughtful consideration to this basic contention, on which the entire case hinges, I have no hesitation in accepting the proposition that limitation is a mixed question of law and fact, is a general rule, however, while considering application under Order VII Rule 11 CPC, I am at loss to say that it cannot be applied in abstract sense. Applicability of said Rule depends on facts of an individual case. Obviously, if the question of limitation is contentious, which cannot be resolved without taking into consideration evidence of rival parties, it would be unsafe to depart from the general rule. Applicability of said Rule depends on facts of an individual case. Obviously, if the question of limitation is contentious, which cannot be resolved without taking into consideration evidence of rival parties, it would be unsafe to depart from the general rule. On the other hand, if in a given case, on a plain reading of averments contained in the plaint, it is ex-facie clear that suit is barred by limitation, Courts’ powers are not circumscribed or loathed to nip it in the bud. With a view to ascertain the fact that the suit filed by the appellants was within the period of limitation and how the cause of action accrued to them, it has become imperative for the Court to examine the entire plaint. So far as paras 1 to 4 of the plaint are concerned, averments contained therein are concerning the execution of agreement to sale by Shri Taresh Kumar, Late husband of respondent. . In para 5 of the plaint, appellants have specifically averred that during lifetime of Late Shri Taresh Kumar, he was served with a notice by appellants to ensure specific performance of contract, however, after receipt of notice, he passed away. In that background, appellants have asserted that the respondent being wife of Late Shri Taresh Kumar is bound to adhere to the terms of contract and is under an obligation to carry out performance of the contract. In a very clever and ingenious manner, appellants have not even mentioned the date of serving notice on Late Shri Taresh Kumar, but copy of the notice has been placed on record, which bears the date as 21st June, 1996. It is also averred in the plaint that Late Shri Taresh Kumar, during his lifetime, had not acknowledged notice and furthermore he had not made any endeavour to perform his part of the contract. True it is that there is no averment mentioning the date of serving notice on Late Shri Taresh Kumar but same is part of the record and pleadings are there in the plaint, which could have been very well taken note of by the Court to ascertain cause of action. True it is that there is no averment mentioning the date of serving notice on Late Shri Taresh Kumar but same is part of the record and pleadings are there in the plaint, which could have been very well taken note of by the Court to ascertain cause of action. Now, if next para, i.e. para No.6, is examined with birds’ eye view, then it would, ipso facto, reveal that it refers to a notice dated 13th of March 2007, which was given by respondent through her counsel to the first appellant as well as one Ayub Khan. It is really a matter of surprise that appellants having paid a handsome amount to Late Shri Taresh Kumar have not initiated any action for more than a decade, more particularly, when it was within their knowledge that he breathed last after receiving notice dated 16th May, 1996. The appellants have also placed on record the said notice wherein the counsel, who has served the notice on behalf of respondent, has disclosed the date of death of Late Shri Taresh Kumar although it was within the knowledge of the appellants. Acknowledging the said notice, counsel for the first appellant has sent a reply, wherein the date of death of Late Shri Taresh Kumar has not been disputed. In the said reply/notice, first appellant has made endeavour to call upon the respondent to carry out performance of the contract by executing registered sale-deed for the suit property. The recitals contained in notice dated 13th March, 2007 are clear and unequivocal so as to terminate the tenancy of Ayub Khan with an affirmative assertion by respondent about ownership of the property. If the recitals contained in the notice dated 13th March, 2007 are properly construed then any prudent man can infer that the respondent has completely repudiated the agreement to sale executed by Late Shri Taresh Kumar and has declined to perform the contract. This sort of situation has furnished a cause of action to the appellants to initiate action for enforcement of the contract. As regards averments contained in para 7 of the plaint, suffice it to observe that pleadings are absolutely vague, cryptic and unspecific and these averments are not inspiring confidence so as to extend the period of limitation. This sort of situation has furnished a cause of action to the appellants to initiate action for enforcement of the contract. As regards averments contained in para 7 of the plaint, suffice it to observe that pleadings are absolutely vague, cryptic and unspecific and these averments are not inspiring confidence so as to extend the period of limitation. On the face of it, these averments are glaring example of clever drafting to camouflage the delay and wriggle out from the statute of limitation. Relevant law governing the province of limitation, insofar as suit for specific performance of contract is concerned, is Article 54 of the Act, which reads as under : Description of Suit Period of Limitation Time from which period begins to run For specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. Recitals contained in the above quoted provision make it crystal clear that limitation shall reckon from the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused. Therefore, under Article 54 of the Act two contingencies are prescribed, which are when date is fixed for the performance, limitation of three years to reckon from that date, and when no such date is fixed the period of three years shall reckon from the date plaintiff has noticed that performance is refused. There remains no quarrel that averments contained in the plaint are to be meaningfully construed and are taken as true at the time of considering application under Order VII Rule 11 CPC. Faithfully adhering to this trite law, if the averments of the plaint are construed then it would ipso facto reveal that cause of action accrued to the appellants in March, 2007 and as such the period of limitation for filing suit for specific performance of contract expired in March, 2010. Admittedly, present suit is filed on 12th December, 2011, i.e., after expiry of more than one and half years from the date of expiry of limitation. Admittedly, present suit is filed on 12th December, 2011, i.e., after expiry of more than one and half years from the date of expiry of limitation. Therefore, in totality, the general perception that an issue, relating to limitation is a mixed question of law and fact, cannot be pressed into service in the instant case, and from a bare perusal of the averments made in the plaint it is clearly apparent that the suit is barred by limitation. Thus, it cannot be said that the learned Court below has committed any illegality, or irregularity in departing from the general rule. A clever and crafty drafting of the plaint by appellants is nothing but a gloomy attempt to camouflage the facts and project a pseudo cause of action, which cannot be countenanced even while considering application under Order VII Rule 11 CPC. Hon’ble Apex Court, in T. Arivandandam (supra), while dealing with this aspect of the matter, has held: “We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under O. VII R.11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clear, drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage... The trial court in this case will remind itself of S. 35-A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage... The trial court in this case will remind itself of S. 35-A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.” Same views have been reiterated by the Hon’ble Apex Court in Popat & Kotecha Property (supra). In Kamlesh Babu & Ors. (supra), Hon’ble Apex Court, while examining mandate of Section 3(1) of the Act at the stage of consideration of application under Order VII Rule 11(d) CPC, held:- “...Apart from Section 3(1) of the Limitation Act, even Order 7 Rule 11(d) of the Code of Civil Procedure casts a mandate upon the court to reject a plaint where the suit appears from the statement in the plaint to be barred by any law, in this case by the law of limitation...” In Md. Akhtar Hossain (supra), Calcutta High Court examined the issue relating to limitation, more particularly when the Court has decided the same without framing issue, and while relying on the decision of Hon’ble Apex Court, held: The Supreme Court repeatedly held that a meaningless litigation should not be permitted to occupy the time of the Court. Although Mr. Roy Chowdhury, learned Counsel of the appellant/plaintiff herein referred to Paragraph 11 of the plaint of the Title Suit No. 86 of 1990 and submitted that the cause of action for the suit arose also on 27th March, 1990 but after scrutinising the pleadings of the plaint it does not appear to be so and the aforesaid date has been mentioned in the plaint with a view to overcome the difficulties under Order 7, Rule 11 of the CPC. In my view, the plaintiff sought to create confusion in respect of the cause of action by clever drafting which cannot be permitted in law. The Supreme Court in the case of ITC Limited v. Debts Recovery Appellate Tribunal reported in (1998) 2 SCC 70 : AIR 1998 SC 634 , observed as hereunder:- "16. In my view, the plaintiff sought to create confusion in respect of the cause of action by clever drafting which cannot be permitted in law. The Supreme Court in the case of ITC Limited v. Debts Recovery Appellate Tribunal reported in (1998) 2 SCC 70 : AIR 1998 SC 634 , observed as hereunder:- "16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7, Rule 11, CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint." In another decision reported in 1986 Supp SCC 315 : AIR 1986 SC 1235, Azhar Hussain v. Rajiv Gandhi, Hon'ble Supreme Court has clearly held as follows : "12. .................... In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial............... is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned Counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court..........." ... Mere mentioning of a particular date in a particular paragraph of the plaint may create confusion in the minds of the Court but by clever drafting the plaintiff cannot avoid the ultimate consequences as already held by the Supreme Court on repeated occasions. In Bhagwan Das (supra), this Court has held that if the plaint is based on documents, documents can be considered along with the plaint for deciding whether the plaint discloses cause of action or not? In Bhagwan Das (supra), this Court has held that if the plaint is based on documents, documents can be considered along with the plaint for deciding whether the plaint discloses cause of action or not? The Court also deprecated the practice of entertaining manifestly, vexatious and meritless suits, and held: Learned counsel for the opposite party may be right in urging that if the plaint is based on a document, then such a document may be considered as forming part of the plaint itself and the document can also be looked into, while considering the averments of the plaint, for the purpose of deciding the question that the plaint discloses a cause of action or not. But it has to be remembered that the averments made in the plaint as well as the contents of the document which may constitute part of the plaint, can be looked into on the face value thereof and the question relating to the validity or invalidity of the document cannot be considered at the stage of deciding an application under O. 7. R 11, C. P. C. Their Lordships of the Supreme Court in T. Arivandandam v. T. V. Salyapal. AIR 1977 SC 2421 held that (para 5) :-- "If on a meaning -not formal -reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11. C.P.C., taking care to see that the ground mentioned therein is fulfilled. And if clear (clever) drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O. X, C.P.C." The observations made by their Lordships of the Supreme Court in the aforesaid case were made in the context that mere vexatious actions should not be entertained merely because of clever drafting of the plaint or merely because of camouflage. A person who has no claim whatsoever should not be allowed to harass the opposite parties by dragging them into a fruitless litigation. In Sanjay Kaushish (supra), Delhi High Court has also held that the issue of limitation as well as disclosure of cause of action can be decided without recording evidence. A person who has no claim whatsoever should not be allowed to harass the opposite parties by dragging them into a fruitless litigation. In Sanjay Kaushish (supra), Delhi High Court has also held that the issue of limitation as well as disclosure of cause of action can be decided without recording evidence. The Court held: It is true that in case from bare reading of the plaint and the admitted documents and the facts coming out in the statement of the plaintiff under Order X of the Code of Civil Procedure, the Court could come to the conclusion that the plaint does not disclose cause of action or the suit is barred by limitation or is not maintainable, the Court can decide the said points even without recording any evidence. [See Azhar Hussain v. Rajiv Gandhi, 1986 (Supp) SCC 315: (AIR 1986 SC 1253) and Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214 : ( AIR 1972 SC 515 )]. The contention of learned counsel for the parties, in unison, that for deciding defendant’s application under Order VII Rule 11 (a) and (d) CPC, the facts germane rather the averments in the plaint are relevant and not the pleas taken in the written statement is unquestionable. Reliance, in this behalf, can profitably be made to a decision of Hon’ble Apex Court in Saleem Bhai & Ors. V/s. State of Maharashtra & Ors. [ (2003) 1 SCC 557 ]. In this verdict, Hon’ble Apex Court held: A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects. For the purpose of ascertaining issue relating to limitation, if the impugned order is examined thoroughly, then it would, ipso facto, reveal that the learned trial Court, while rejecting plaint of the appellants at the threshold by invoking clause (d) of Rule 11 of Order VII CPC, has relied on the averments contained in the plaint. The averments contained in the plaint also refer to certain documents but cleverly without narrating the dates of execution of documents. When the averments are clear and unequivocal in the plaint and the documents are also on record, which are in consonance with the averments of the plaint, in my opinion, learned trial Court has not committed any illegality in taking cognizance of those documents while deciding the question relating to limitation. The legal position is no more res-integra that a litigant cannot be allowed to camouflage delay by a clever drafting as the law of limitation is based on public policy. Moreover, Section 3 of the Act provides that bar of limitation is required to be examined by the Court in relation to every suit, appeal or application even if limitation as such has not been set up as a defence. The learned Court below has thoroughly examined the averments of the plaint in order to reject the plaint of the appellants at the threshold. In the considered opinion of this Court, the decision is a just decision and, in the backdrop of facts and circumstances of the case, the contention of the appellants that it is a mixed question of law and fact, cannot be accepted. Although Court is clear and unequivocal, so far as that aspect of the matter is concerned, but then in exercise of its appellate jurisdiction, a sincere endeavour is made by the Court to delve deep into the matter so as to consider the averments of the plaint meaningfully. Divorcing the clear drafting, as observed supra, it is a clear and unequivocal case of camouflaging the delay and an abortive attempt to wriggle out from statute of limitation. The Court is constrained to observe that while drafting the plaint, the pleadings are purposefully kept absolutely vague, cryptic and unspecific. Divorcing the clear drafting, as observed supra, it is a clear and unequivocal case of camouflaging the delay and an abortive attempt to wriggle out from statute of limitation. The Court is constrained to observe that while drafting the plaint, the pleadings are purposefully kept absolutely vague, cryptic and unspecific. Even the chain of events mentioned in the plaint are conspicuously silent about the events of more than a decade inasmuch as para 4 refers to a receipt executed by Late Shri Taresh Kumar on 18th of October 1995, whereas para 5 contains the recitals that Late Shri Taresh Kumar did not carry out his part of the contract. When Late Shri Taresh Kumar was called upon to carry out part of his contract and when he declined is also not discernible from the averments contained in para 5 of the plaint, I am aghast that in para 6 of the plaint, the plaintiffs have very cleverly switched on to a notice served by respondent on 13th of March 2007, while scrupulously avoiding the facts of the interregnum period i.e. 1995 to 2006. Even the facts averred in para 6 of the plaint on meaningful consideration clearly and unequivocally reveal that respondent has declined to perform the contract. The recitals in the notice which are very cleverly pleaded, is further indicative of the fact that appellants have made a blatant attempt to conceal the material facts as the notice is referred to and is the part of record, which was placed on record by the appellants. Therefore, the same has been rightly looked into by the learned Court below, and this Court can also take cognizance of the same. The averments contained in para 7 of the plaint are absolutely vague and cryptic, and there is no particulars as to when and how long oral extension was given to the plaintiff by the defendants. In that background, the decision of Hon’ble Apex Court in T. Arivandandam (supra) and Fatehji & Company & Anr. (supra) clearly clinches the issue in favour of respondent to persuade this Court for upholding the impugned order. In that background, the decision of Hon’ble Apex Court in T. Arivandandam (supra) and Fatehji & Company & Anr. (supra) clearly clinches the issue in favour of respondent to persuade this Court for upholding the impugned order. Learned counsel for the respondent has also canvassed vociferously, by placing heavy reliance on Section 16 of the Act, to persuade this Court that non-filing of the suit by the appellants within three years from the date of death of Late Shri Taresh Kumar itself has rendered the suit barred by limitation. Prima facie, I have no hesitation in accepting the pleas of respondent but then on meaningful consideration of the plaint if the cause of action is taken to have accrued to the appellants in March 2007 then too, the suit, which is filed after expiry of period of limitation (three years) is barred under Article 54 of the Act. The contention of the appellants that cause of action accrued to them on receipt of summons of the suit filed by the respondent in 2011 is of no avail for the simple reason that respondent has completely repudiated the agreement to sale as early as in March 2007. It is trite that limitation once started cannot stop to run by virtue of Section 9 of the Act. Therefore, the cause of action shown by appellants on receipt of summons of the suit filed by respondent is nothing but pseudo cause of action which cannot come to rescue of the appellants to wriggle out from limitation. The statute of limitation is founded on public policy. It seeks to bury all acts of the past, which have not been agitated unexplainably and by lapse of time have become stale. According to Halsbury’s Laws of England, Vol. 28, P. 266: “605. Policy of the Limitation Acts-The Courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.” In Popat & Kotecha Property (supra), Hon’ble Apex Court has thoroughly discussed the law of limitation and its objects by observing that: Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a life-span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time. (See N. Balakrishanan v. M. Krishna Murthy (1999 (1) Civil Court Cases 12 (S.C.) : 1999 (1) Apex Court Journal 52 (S.C.) : 1998 (7) SCC 123 ). Therefore, viewed from any angle, I am unable to find any infirmity in the impugned order passed by learned trial Court warranting interference of this Court. The upshot of above discussion is that the instant appeal fails and same is, hereby, dismissed.