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2025 DIGILAW 240 (RAJ)

Suresh Chandra v. Aji Bai

2025-02-07

REKHA BORANA

body2025
Order : 1. The present first appeal has been filed against the order dated 07.01.2025 passed by the District Judge, Chittorgarh in Civil Original Suit No.44/2024 whereby the application under Order VII Rule 11, CPC as filed on behalf of defendant respondent No.1 was allowed. As a consequence, the suit in question was dismissed while holding the same to be barred by limitation. 2. The facts are that a suit for specific performance of contract was filed by the plaintiff with a submission that agreement to sell dated 29.04.2016 was executed by defendant respondent No.1 in his favour. As per the terms of the agreement, the defendant Aji Bai was under an obligation first, to get the sale deed of the land in question executed in her favour by one Dakhi Bai who was the actual owner of the land in question at that point of time. Within a period of one month of the said sale deed being got executed by the defendant Aji Bai in her favour by Dakhi Bai, the sale deed was to be executed by Aji Bai in favour of plaintiff Suresh Chandra. 3. It was submitted in the plaint that Dakhi Bai subsequently expired and it is only on 19.12.2023 that a release deed was executed in favour of Aji Bai by the legal representatives of Dakhi Bai. 4. It had further been averred that within a period of one month from 19.12.2023, on 05.01.2024, defendant No.1 Aji Bai was requested to get the sale deed executed in favour of the plaintiff but she declined. Thereafter notice dated 13.08.2024 was served on defendant No.1 and when no action was taken upon the same, the present suit was filed on 04.10.2024. 5. The learned Trial Court rejected the plaint with a finding that the limitation whatsoever available to the plaintiff to file the present suit commenced after a period of one year and one month from the date of the agreement i.e. 29.04.2016. That is to say the limitation commenced from the month of April 2017 and expired after a period of three years from the said date. The Court observed that the date of execution of the release deed in favour of Aji Bai made no difference and did not in any manner extend the period of limitation. The Court therefore held that the suit filed on 04.10.2024 was barred by limitation. 6. The Court observed that the date of execution of the release deed in favour of Aji Bai made no difference and did not in any manner extend the period of limitation. The Court therefore held that the suit filed on 04.10.2024 was barred by limitation. 6. Learned counsel for the appellant submits that the finding as recorded by the learned Trial Court is totally erroneous as in terms of clause 4 of the agreement in question, the limitation commenced only after a period of one month from the release deed dated 19.12.2023 as executed by the legal representatives of Dakhi Bai in favour of Aji Bai. Within a period of one month from 19.12.2023, a request to get the sale deed executed, was made by the plaintiff and specific averment to that effect has been made in para 6 of the plaint. Once a specific pleading to the said effect had been made by the plaintiff, the same could not have been ignored by the learned Trial Court. The plaintiff was definitely entitled to be granted an opportunity to prove the said plea by cogent evidence. By any means, the plaint could not have been rejected on the said count. 7. Per contra counsel for the respondent, while relying upon the recent Hon’ble Apex Court in Shri Mukund Bhavan Trust and Ors. V. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and Anr.; 2024 SCC OnLine SC 3844 submitted that the learned Trial Court rightly exercised its power under Order VII Rule 11, CPC in rejecting the plaint as from a bare perusal of the plaint itself it was clear that the suit was hopelessly time barred. Counsel submits that the agreement in question was of 29.04.2016 and as per the conditions of the agreement, the limitation whatsoever available to the plaintiff expired after a period of 13 months from the said date. The present suit having been filed in the year 2024 is clearly time barred and any litigation which appears to be an abuse of process, requires to be nipped at its bud. 8. Heard the counsels. Perused the material available on record. 9. The Condition Nos.1 to 5 of the agreement dated 29.04.2016 reads as under:- 10. What can be summed up from the above agreement is that, (i) Aji Bai did not have a perfect title on the date of execution of the said agreement. 8. Heard the counsels. Perused the material available on record. 9. The Condition Nos.1 to 5 of the agreement dated 29.04.2016 reads as under:- 10. What can be summed up from the above agreement is that, (i) Aji Bai did not have a perfect title on the date of execution of the said agreement. It was Dakhi Bai who was the owner of the land in question at that point of time. (ii) Aji Bai was under an obligation to get a sale deed executed in her favour by Dakhi Bai after paying the consideration amount within a period of one year from 29.04.2016. (iii) Aji Bai was to execute a sale deed in favour of the plaintiff within a period of one month from the execution of the sale deed in her favour by Dakhi Bai. (iv) If Aji Bai failed to get the sale deed executed in her favour by Dakhi Bai, she was to forego the due consideration amount qua the agreement in question. (v) If the plaintiff failed to pay the due consideration amount within a period of one month of the sale deed executed by Dakhi Bai in favour of Aji Bai, the advance consideration amount of Rs.5,00,000/- as paid by the plaintiff would be deemed to have been forfeited. (vi) If Aji Bai failed to get the sale deed executed in her favour by Dakhi Bai, she would be under an obligation to execute the sale deed in favour of the plaintiff at a consideration of amount Rs.5,00,000/- only i.e. she would not be entitled for the due consideration amount. 11. What can be concluded from the above conditions is that the limitation to the plaintiff to sue qua the agreement in question, was to commence only after a month from the date of execution of the sale deed in favour of Aji Bai by Dakhi Bai as it is only after that that Aji Bai could have derived a perfect title so as to execute sale deed in favour of the plaintiff. Admittedly, the release deed in favour of Aji Bai has been executed by the legal representatives of Dakhi Bai on 19.12.2023. Therefore, in terms of the agreement, the limitation definitely commenced after expiry of one month from 19.12.2023. Admittedly, the release deed in favour of Aji Bai has been executed by the legal representatives of Dakhi Bai on 19.12.2023. Therefore, in terms of the agreement, the limitation definitely commenced after expiry of one month from 19.12.2023. The finding as recorded by the learned Trial Court that the document of 19.12.2023 did not extend the limitation is totally a misinterpretation and deserves interference. 12. The fact whether any action was taken by the plaintiff within a period of one month from 19.12.2023 in terms of clause 4 of the agreement, whether he was ready and willing to perform his part of the contract after 19.12.2023 etc. are the disputed facts which could be proved only after the issues been framed qua them. 13. As is clear from the submissions made, a plea to the effect that an oral request was made by the plaintiff on 05.01.2024 i.e. within a period of one month from 19.12.2023, has been made in the plaint. The burden to prove the said fact would definitely be on the plaintiff and the same cannot be discharged without an opportunity to lead evidence been granted to him. 14. In view of the aforesaid facts and observations, the present appeal is allowed . The order impugned is hereby quashed and set aside. Let the suit be restored to its original number. 15. The learned Trial Court shall be under an obligation to frame an issue qua limitation too. The same shall be decided on basis of the evidence led. It is made clear that the observations made by this Court in the present order shall not come in way of the learned Trial Court while deciding the said issue. 16. Stay petition and pending applications, if any, stand disposed of.