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2018 DIGILAW 700 (RAJ)

VIJAY BHERUMAL RAMCHANDANI v. TEJBHAN

2018-03-07

ARUN BHANSALI

body2018
JUDGMENT/ORDER : Arun Bhansali, J. This revision petition is directed against order dated 03.12.2016 passed by Additional District Judge No. 1, Sri Ganganagar, whereby, the application filed by the petitioners under Order VII, Rule 11 CPC has been rejected. 2. The respondent-plaintiff filed a suit on 05.02.2010 for specific performance of contract dated 22.08.1989 and perpetual injunction with regard to land situated at Chak 4 J' Bada, Tehsil and District Sri Ganganagar ad measuring 24 Bigha 15 Biswa with the averments that after receiving advance of Rs. 50,000/- and agreeing that remaining consideration of Rs. 1,75,000/- would be received within one month of getting the permission for sale, the sale deed would be executed and registered in favour of the plaintiff. Further submissions were made that it was also agreed that possession and water of the subject land would be handed over on the date the sale deed would be executed and registered, which agreement was amended and it was provided that out of the due consideration of Rs. 1,75,000/-, Rs. 50,000/- would be paid within 15 days and Rs. 1,25,000/- would remain due as agreed. It was averred that in terms of the agreement, the entire consideration of Rs. 2,25,000/- was paid as balance consideration was paid by demand draft of Rs. 50,000/- on 08.09.1989, demand draft of Rs. 1,00,000/- on 05.12.1989 and Rs. 25,000/- in cash, regarding which, an endorsement was made on the back of the agreement. Whereafter, it was averred that the sale deed of the land in question could not be executed and registered as the Sanad by the Rehabilitation Department had not been issued in favour of Bhairu Mal, which Sanad has so far also not been issued. 3. Averments were made about readiness and willingness of the plaintiff to perform his part of the contract i.e. pay for the expenses for getting the sale deed registered. Whereafter, averments were made that litigation ensued, pertaining to the land in question, based on a prior agreement to sale, said to have been executed by Sobh Raj, grand-father of Bhairu Mal, which suit was decreed on 31.03.1998, appeal against the said decree was accepted on 10.03.2000 by the First Appellate Court and the second appeal by the High Court was dismissed on 20.12.2000, against which, the appeal was pending before Hon'ble Supreme Court as Appeal No. 6485/2001. It was then alleged that during pendency of the litigation before Hon'ble Supreme Court, on 09.08.2010 the matter was referred to the Mediation Centre, when objection was raised by the plaintiff and his brother, to which, no satisfactory answer was given and a registered envelope containing blank papers was received, to which, a response was sent indicating as to for what purpose the letter was sent. 4. Based on the said events, it was submitted that the defendants in order to frustrate the agreement to sale were attempting to compromise the matter before Hon'ble Supreme Court and were attempting to transfer the land in question to defendant No. 6 and were not giving any satisfactory response, which was indicated as the cause of action for filing the suit. 5. The petitioners filed application under Order VII, Rule 11 CPC with the averments that the requirement of getting permission for transfer of land had come to an end on 22.04.1991 and the suit could have been filed only within three years from 22.04.1991, whereas, as the suit has been filed on 05.10.2010 the same was ex facie barred by limitation and was liable to be dismissed. 6. A reply to the application was filed contesting the application. It was submitted that defendant No. 6 by filing a suit against deceased Bhairu Mal had obtained a stay order that he would not transfer the suit property and after death of Bhairu Mal, defendant Nos. 1 to 5 had executed a power of attorney in favour of respondent No. 7 brother of the plaintiff giving all rights and said defendant No. 7 had executed an agreement dated 03.11.2000 in favour of the plaintiff confirming the agreement dated 22.08.1989 and agreeing to execute the sale deed and get it registered after end of proceedings before Courts and vacation of the stay order after taking possession from Chetan Prakash; till the date of filing of the suit the matter was pending before Hon'ble Supreme Court and interim order is in currency. It was also indicated that the issue of limitation is a factual issue, which could not be decided without filing of the written statement and leading of the evidence and, therefore, the application deserves to be dismissed. 7. It was also indicated that the issue of limitation is a factual issue, which could not be decided without filing of the written statement and leading of the evidence and, therefore, the application deserves to be dismissed. 7. After hearing the parties, the trial court came to the conclusion that the issue involved in the suit was as to denial to execute the sale deed should be taken from which date i.e. either on the date when the requirement to seek permission came to an end or on 27.09.2010 when the legal representatives of Bhairu Mal wrote the letter, which was an issue of fact and, without evidence, the same could not be decided at this stage and, consequently, dismissed the application. 8. It is submitted by learned counsel for the petitioner that the trial court committed error in coming to the conclusion that the issue of limitation, in the present case, could only be determined after the issues were framed and parties led evidence. Submissions were made that it was apparent that the agreement was entered into on 22.08.1989 and the suit was filed after passage of almost 21 years on 05.02.2010, which indicated that the suit was ex facie barred by limitation. It was submitted that the plea raised in the suit pertain to getting permission for transfer of the land in question, however, the requirement of getting permission had come to an end on 22.04.1991, which clearly was the date from which the cause of action, if any, arose in favour of the plaintiff and the suit having been filed after almost 20 years, was ex facie barred by limitation and the plaint, therefore, was liable to be rejected. 9. Further submissions were made that the averments made in the plaint, pertaining to the cause of action, on its face are baseless and the plea in reply to the application regarding subsequent agreement having been entered into by defendant No. 7 cannot be relied on for seeking a specific performance and, therefore, the suit was ex facie barred by limitation and, as such, the order impugned deserves to be quashed and set aside. 10. Despite service, no one is present on behalf of the respondents. 11. I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record. 12. 10. Despite service, no one is present on behalf of the respondents. 11. I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record. 12. The limitation for filing the suit for specific performance has to be examined based on Article 54 of the Limitation Act, 1963, which provides for two contingencies in so far as time from which period of three years as prescribed begins to run (i) the date fixed for performance, (ii) if no such date is fixed, when the plaintiff has notice that performance is refused. 13. It is well settled that while considering an application under Order VII, Rule 11 CPC only the averments as contained in the plaint are required to be examined. The plea raised by the defendants is that the requirement to get permission came to an end on 22.04.1991 and, therefore, it would be deemed that the denial took place on the said date, however, there is no averment in the plaint indicating any request and/or denial based on the requirement having come to an end on 22.04.1991. Further, in the plaint the plaintiff has specifically indicated events pertaining to filing of the suit based on agreement dated 12.06.1968, the suit having been decreed on 31.03.1998, the decree having been reversed by the First Appellate Court on 10.03.2000, second appeal having been dismissed on 20.12.2000 and whereafter the matter being pending before Hon'ble Supreme Court and order for maintaining status quo regarding possession having been passed with regard to the land in question. Further, para 13 and 18 of the plaint contain specific averments indicating the trigger/cause of action, which led to filing of the suit indicating denial on part of the defendants. 14. However, as to whether the averments contained therein are correct and/or whether the said averments are sufficient to bring the suit within limitation as prescribed can only be decided after the petitioners-defendants file their written statement, parties lead evidence after issue was framed by the trial court and at this stage in absence of any written statement/denial of averments contained in the said paragraphs, it cannot be said that based on mere reading of the plaint averments, the suit is barred by limitation. 15. 15. In the above circumstances, the trial court was justified in coming to the conclusion that the application under Order VII, Rule 11 CPC cannot be accepted. The order passed by the trial court cannot be faulted. 16. Consequently, there is no substance in the revision petition and the same is, therefore, dismissed.