02.09.2025 Rajinder P nder Pal Garg and another … v. Kewal Kis al Kishore and others
Case Details
Civil Revision No.5791-2022 (O & M & M) 1 IN THE HIGH COURT OF PUNJA IN TH AT CHANDIGAR UNJAB AND HARYANA IGARH 204 Civil Revision N Date of decision ion No.5791 of 2022 (O & M) cision :-02.09.2025 Rajinder P nder Pal Garg and another …..Petitioners Versus Kewal Kis al Kishore and others …..Respondents CORAM: AM:- HON'BLE MS. JUSTICE NI E NIDHI GUPTA Present:- Mr. Vivek Suri, Advocate with Mr. Dushyant Godara, Advoca for the petitioners. te with dvocate NIDHI GU HI GUPTA J. (Oral) Prayer in the present revision vision petition is for setting aside the order d rder dated 14.9.2022 (Annexure P-4) 4) passed by the learned Civil Judge (Jr. e (Jr. Divn.), Kalka in case Civil Sui vil Suit No.269 of 2021 titled as “Kewal Ki al Kishore vs. Rajinder Pal Garg Garg and others” whereby the application cation filed by the petitioners under under Order 7 Rule 11 CPC has been dismi dismissed. It is inter alia submitted by ted by learned counsel for the petitioners/
Legal Reasoning
ioners/defendants that vide impugne pugned order dated 14.9.2022 (Annexure exure P-4) the application of the peti e petitioners under Order 7 Rule 11 CPC ha PC has been dismissed without appre t appreciating the fact that in the plaint it is it is the own averment of the plainti plaintiff-respondent No.1 that the petitioner a ioner and the respondent had entered ntered into an oral Agreement to Sell dated 1 dated 15.12.2002. It is submitted that d that the suit of the plaintiff was VIJAY ASIJA 2025.09.05 09.14 I attest to the accuracy and integrity of this document Civil Revision No.5791-2022 (O & M & M) 2 clearly barr ly barred by limitation as against the st the said oral Agreement dated 15.12.2002 2.2002 the plaintiff had filed the ci the civil suit in the year 2021. However, ever, the learned trial Court has fai as failed to appreciate this fact which is ap h is apparent from a bare reading of t g of the plaint (Annexure P-1).It is accordin cordingly prayed that the impugned ord ned order 14.9.2022, be set aside. Heard. Perusal of the record shows shows that notice in the present case was is was issued by a co-ordinate Bench vi nch vide order dated 08.12.2022, whereupon eupon further proceedings before the ore the learned trial Court were also directe directed to be stayed. As per the off the office report received, notice issued to re d to respondent No.1 was received ived back served, however, none appeared o ared on his behalf. Accordingly, vide , vide last order dated 31.1.2025 fresh notic notice was issued to respondent No. nt No.1; in respect of which, the following wing office report has been received eceived “not met at the time of service of of summon. Son met and he refu refuse to receive the summon. However, a er, affixation made”. This is valid valid service. However, clearly, despite hav ite having been served twice, responde spondent No.1 is choosing not to put in appe n appearance. Therefore, the present p sent petition is being decided in bsence. his absence Brief facts of the case are that re that the plaintiff has filed civil Suit dated dated 13.9.2021 (Annexure P-1) seeki seeking specific performance of the oral oral agreement to sell dated 1 ted 15.12.2002, whereby the petitioners/ ioners/defendants no.1 and 2, are stated e stated to have sold the suit plots to the plain e plaintiff for total sale consideration eration of ₹6 lakhs out of which ₹75,000/- - is alleged to have been paid to th d to the defendant no.1 at time of entering in ing into the said oral agreement. In th In the said suit, the petitioners VIJAY ASIJA 2025.09.05 09.14 I attest to the accuracy and integrity of this document Civil Revision No.5791-2022 (O & M & M) 3 had filed a filed application dated 30.9.2021 (An 1 (Annexure P-2) under Order 7 Rule 11 CP CPC seeking rejection of the pla he plaint inter-alia on ground of limitation a ation as also that the plaint did not di not disclose any cause of action. The plainti plaintiff had filed reply dated 26.11.2 6.11.2021 (Annexure P-3), to the said applica application. Vide the impugned order order dated 14.9.2022 (Annexure P-4), the , the said application of the petitioners tioners has been dismissed by the learned tria ed trial court on the ground that only t t only the contents of plaint are to be seen; an een; and para 14 of the plaint specif specifically stated that cause of action aros n arose to the plaintiff in 2021. The . The learned trial court further observed t rved that the question as to wheth whether the suit is barred by limitation ation, is a mixed question of fact and l and law. I find the above said reasonin asoning of the learned trial court to be errone erroneous, and without application of tion of judicial mind. In the Civil Suit, the head-note note reads as follows: ‘Suit for decree of of specific performance for directing the defendan dant No.1 to execute the sale deed in favour of the p he plaintiff on the basis of oral agreement to sell date dated 15.12.2002 executed by defendant No.1 through thr their authorized representative i.e. de defendant No.3 and 4 on 15.12.2002 of two plots lots measuring……” In para 6 of the plaint (Annexu nnexure P-1) it is averred that: - “6. That due to to the guidelines of the Government, the reg registry of the land was temporarily closed duri during 2003 being small plots. However, upon mutual tual understanding among the plaintiff and defendan ndant no. 1, 3 and 4, the possession of the suit pr it property was handed over to VIJAY ASIJA 2025.09.05 09.14 I attest to the accuracy and integrity of this document Civil Revision No.5791-2022 (O & M & M) 4 the plaintiff on dated ted 10.10.2003 as the earnest money of Rs. 75,000 ,000/- was already paid to 1, defendant no. 1, through his authorized representatives/agents i nts i.e. defendant no. 3 and 4, at the time of execution tion of agreement to sell dated 15.12.2002 and the pla plaintiff thereon possessed the suit property by keepin eping his building material on the suit property. Ther Thereafter, the registry of the land reopened in the ye e year 2007, the plaintiff again requested the defendan dant no. 1, 3 and 4 to get the sale deed executed, for , for the suit property registered in the office of Sub Regi Registrar Kalka, in the name of plaintiff. However, the , the defendant no. 1, on one pretext or the other st r started avoiding his part of performance as per th er the oral agreement to sell dated 15.12.2002 and nd further told the plaintiff that the plaintiff is the d e deemed owner of the suit property and the defend efendant no. 1 will get the sale deed executed as and and when the defendant no. 1 becomes available afte after tending the affairs of the business and family. Th y. The plaintiff, in utmost good faith and close family r ily relations, left the matter of execution of the sale d le deed and registration of the sale deed of the suit pr it property upon defendant no. 1, 3 and 4.” In para 14 of the plaint, plaint, the plaintiff has again acknowledg owledged “That the cause of action tion has arisen to the plaintiff firstly in th in the year 2002 i.e. 15.12.2002, whe , when after the execution of the oral agree greement to sell, which was go got executed/agreed by the defendant ant no.1 through defendant no.3 and 4 and ₹75,000/– was received as ed as earnest money by defendant no t no.1 ………” VIJAY ASIJA 2025.09.05 09.14 I attest to the accuracy and integrity of this document Civil Revision No.5791-2022 (O & M & M) 5 It is undisputed, established ished position of law that in an application cation under Order 7 Rule 11 CPC th PC the Court is only required to peruse the se the plaint; and cannot look at any t any material beyond the plaint, not even th ven the written statement. In the pres e present case, without adverting to any othe y other material on record, only upon upon a bare reading of the above averments ments made in the plaint it is clearly learly established that the suit of the plainti plaintiff is barred by limitation. By way of the Civil suit dated13.9.2 13.9.2021, the plaintiff is seeking sp ing specific performance of the oral agreem agreement dated 15.12.2002.It is settle s settled law that limitation to file a suit is th t is three years from the date of accru f accrual of cause of action. It is the own ca wn case of the plaintiff that cause of use of action had first accrued to him on 15 on 15.12.2002. Clearly, therefore, su ore, suit is barred by limitation. Further, pla plaint does not even disclose as t as to in what manner/mode, at what place place, in the presence of which peop people, was payment of earnest money of ey of ₹75,000/– made to defendant no ant no.1. It can therefore be said, that only a only an illusion has been created by ed by the plaintiff with regard to cause of ac e of action as there is no clear right to s ght to sue. Therefore, the present revisio revision petition is allowed, and the impugn mpugned order dated 14.9.2022 (An 2 (Annexure P-4) is hereby set aside. Pending application(s), if any,
Decision
if any, shall stands disposed of. ember 02, 2025 September Vijay Asija Whether spea Whether Repo r speaking/reasoned Yes / No r Reportable Yes / No ( NIDHI GUPTA ) JUDGE VIJAY ASIJA 2025.09.05 09.14 I attest to the accuracy and integrity of this document