High Court
Facts
{1} CRA 81.25.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO. 81 OF 2025Mahesh s/o. Ramkrishna Patil (Deshpande)Age 50 years, Occ. Agril.R/o. Near Ram Mandir,Samarth Nagar, Osmanabad,Tq. and Dist. Osmanabad... APPLICANT( Ori. Defendant)VERSUSSudhir S/o. Baburao Jagtap,Age 59 years, Occ. Private Money Lender,R/o. Farshi Galli, Osmanabad,Tq. and Dist. Osmanabad... RESPONDENTS (Orig. Plaintiff)Mr. Kishor J. Ghute Patil, Advocate for applicant. CORAM :S.G. CHAPALGAONKAR, J. DATE : 16th APRIL, 2025. O R D E R :-1.The applicant/defendant in Special Civil Suit No. 93 of 2011impugns the order dated 19.11.2024 passed by leaned Joint Civil Judge(S.D.), Osmanabad, below Exh. 70 thereby rejecting the applicationunder Order 7 Rule 11 of CPC seeking rejection of plaint.2.Brief facts, giving rise to present application are as under :-Respondent/original plaintiff instituted Special civil Suit No.93 of 2011 seeking relief of specific performance of contract on the basisof agreement to sale date 29.7.2006. It is contention of plaintiff that {2} CRA 81.25.odtdefendant was owner of Plot Nos. 2, 11 and 12 which are part of surveyNo. 190, situated at Osmanabad.3.Since defendant was in the need of finances, he entered intoagreement to sale dated 29.7.2006 with plaintiff and agreed to sale outsuit plot for total consideration of Rs. 6,50,000/-. An earnest amount ofRs.4 Lakhs was paid at the time of agreement and balance of Rs.2,50,000/- was to be paid at the time of execution of sale deed. Plaintiffagreed to execute the sale deed by 29.10.2007 after obtaining necessaryN.A. permission and layout. The agreement was reduced into writing onbond paper of Rs. 100/- and executed in presence of two witnesses.4.The defendant failed to act upon aforesaid agreement tosale. He protracted execution of sale deed by giving technical reasons,particularly, with NA and layout is still pending. Lastly, on 22.6.2011,plaintiff served a legal notice calling upon defendant to execute the saledeed, after accepting balance consideration amount. However, hedeclined to act upon the same.5.The defendant filed his written statement and took up a pleathat the agreement to sale dated 29.7.2006 is false and bogus document.On the basis of pleading of parties, issues were framed; evidence wasrecorded and finally, suit was decreed. The defendants filed appeal. Theappellate court set aside the decree and remanded matter back for freshdetermination on the ground that proper issues were not framed. Theorder of remand has been confirmed by this Court in A.O. No. 71 of2016. 6.At this stage, defendant filed an application below Exh. 70seeking rejection of plaint on the ground that suit is barred by limitation {3} CRA 81.25.odtin view of Article 54 of Limitation Act. The learned trial court, rejectedsaid application, holding that the issue of limitation is triable in the factsand circumstances of the case and on the basis of pleadings in plaint,there is no scope to draw inference that suit is barred by limitation.Aggrieved thereby, present revision has been filed by defendant.7,Mr. K.J Ghute Patil learned advocate appearing for applicantsubmits that suit for specific performance of contract is governed byprovisions of Article 53 of the Limitation Act. The suit needs to beinstituted within three years from the date fixed for specific performanceof contract or if no such date is fixed, when plaintiff notice thatperformance is refused. According to him, as per the agreement to saledated 29.7.2006, sale deed was to be executed within three months.Therefore, the suit filed in the year 2011 is barred by limitation.According to him, trial court misinterpreted pleadings in plaint anddocuments annexed thereto, and declined to entertain application forrejection of plaint. In support of his contentions, he relies upon thejudgment of the Supreme Court of India in the case of Nikhila Mehta vs.Hitesh P. Singhvi dated 15.4.2025 (arising out of SLP (C) No. 13459 of2024).8.Having considered submissions advanced, it is not out ofplace to mention here that suit for specific performance of contract hasbeen instituted by respondent in the year 2011. It was decreed. The Firstappellate Court remanded it back for trial. The present application forrejection of plaint is filed at a belated stage i.e. on 9.10.2024 belowExh.70, invoking jurisdiction of court under Order 7 Rule 11 of CPC.Although the plaint can be rejected at any stage of the proceeding, thebasic purpose of provision is to curb the vexatious litigation and lessen
Legal Reasoning
{4} CRA 81.25.odtthe burden of court by using drastic powers, enabling rejection of plaint.Considering the object of aforesaid provision, a belated application cannot be considered in tune with the object of the provision. However,going by plain language of Order 7 Rule 11, entitlement of defendant tofile application at any stage of proceeding can not be denied.9.The parameters for exercise of powers under Order 7 Rule11 of CPC have been summarized in catena of judgments delivered bySupreme Court of India. It is well settled that only contents of plaint anddocuments annexed thereto are relevant while deciding applicationunder Order 7 Rule 11 of CPC. The defence set up in the writtenstatement or in reply is not relevant. Perusal of the plaint in Special CivilSuit No. 93 of 2011 shows that defendant executed agreement to saledated 29.7.2006 and agreed to execute sale deed by 29.10.2007, afterobtaining necessary NA and layout. Apparently, the date for execution ofsale deed was contingent subject to getting NA and layout. The date forexecution of sale deed appears to be tentatively fixed, dependent uponcompliance of aforesaid contingencies. On prima facie consideration ofthe contents of agreement to sale, it cannot be inferred that time wasessence of contract or agreement was given quietus in case of non-execution of sale deed by a particular date. Going by pleading in plaintand contents of agreement to sale, it cannot be inferred that parties hadagreed to execute sale deed on or before a specific date and non-execution of sale deed by the date would entail cancellation ofagreement. In the circumstances, issue in that regard requires to beframed and after recording evidence, same needs to be answered.10.Although Mr. Ghute Patil learned advocate for applicant hasrelied upon judgment of the Supreme Court of India in case of Nikhila {5} CRA 81.25.odtMehta (supra), in which the suit was instituted seeking declarationagainst will and codicil to be null and void. In plaint itself, it waspleaded that cause of action arose first on 4.2.2014 when will wasregistered and secondly, on 20.9.2014 when Codicil was registered andfinally, on 21.10.2014 when the father died, whereas, suit has been filedon 21.11.2017 which was held to be ex-facie barred by limitation. Inthat case, plaintiff has specifically pleaded about the knowledge of all therelevant facts regarding execution of Will and Codicil and filed suitbeyond period of three years of last cause of action shown in the plaint.In this background, the application for rejection of plaint has beenentertained. 11.In the present case, plaintiff has specifically pleaded thatdefendant agreed to execute sale deed after obtaining NA and layout,however, giving technical reasons protracted the execution of sale deed,lastly, notice for specific performance was served in the year 2011 beforeinstitution of suit. Therefore, from the contents of plaint or merely on thebasis of date mentioned for execution of sale deed in the agreement tosale, inference cannot be drawn that it was a date fixed for performanceof contract or plaintiff was noticed about refusal of performance. Primafacie, aforesaid factual aspects need to be established during the courseof trial, after leading necessary evidence. Therefore, the trial court isjustified in refusing to entertain the application for rejection of plaint onthe ground of limitation. In the result, civil revision application sansmerit, hence, dismissed.[S.G. CHAPALGAONKAR, J] grt/-