URVASHIBEN & ANR. versus KRISHNAKANT MANUPRASAD TRIVEDI

Citation: [2018] 13 S.C.R. 1242 · Decided: 14-12-2018 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Leave Granted & Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2018] 13  S.C.R.
URVASHIBEN & ANR.
v.
KRISHNAKANT MANUPRASAD TRIVEDI
(Civil Appeal Nos. 12070-71 of 2018)
DECEMBER 14, 2018
[UDAY UMESH LALIT AND R. SUBHASH REDDY, JJ.]
Code of Civil Procedure, 1908 – Or.VII, r.11(d) – Rejection
of plaint on the ground that suit was barred by limitation –
Respondent-plaintiff case was that the predecessor-in-title of the
appellants-defendants had agreed to sell the suit property to him
and executed agreement to sell for a sale consideration – Time was
not the essence of the contract – Total consideration amount was
paid by the respondent – Respondent visited the property after about
25 years and found that the suit property was sold to third party –
Suit filed for specific performance of agreement to sell by the
respondent – Appellant-defendant filed application u/Or.VII, r.11(d)
of CPC to reject the plaint on the ground that suit was barred by
limitation – Application allowed by the trial Court – However, order
was set aside by the High Court – On appeal, held: When rejection
of plaint is sought in an application filed u/Or.VII, r.11 same is to be
considered from the facts of each case, looking at the averments
made in the plaint, for the purpose of adjudicating such application
– In instant case, it is a matter for trial to record correctness or
otherwise of allegations made in the plaint – The merits and demerits
of the matter cannot be gone into, while deciding the application
filed u/Or.VII, r.11 of CPC – At this stage only averments in the
plaint are to be looked into and from a reading of the averments in
the plaint in case on hand, it cannot be said that suit was barred by
limitation – Furthermore, it is settled that when the time is not fixed
in the agreement, the limitation of three years to file a suit for
specific performance would begin when the plaintiff has noticed
that defendant has refused the performance of the agreement – The
issue as to when the plaintiff  had noticed refusal, is an issue which
can be adjudicated after trial – Limitation Act, 1963 – Art.54.
Dismissing the appeals, the Court
HELD: 1.  From a reading of the Article 54 of Limitation
Act, 1963, it is clear that when the date is fixed for performance,
[2018] 13  S.C.R. 1242
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limitation is three years from such date.  If no such date is fixed,
the period of three years is to be computed from the date when
the plaintiff, has notice of refusal.  When rejection of plaint is
sought in an application filed under O.VII R.11, same is to be
considered from the facts of each case, looking at the averments
made in the plaint, for the purpose of adjudicating such application.
As averred in the plaint, it is the case of the plaintiff that even
after payment of the entire consideration amount registration of
the document was not made and prolonged on some grounds and
ultimately when he had visited the site, he had come to know
that the same land was sold to third parties and appellants have
refused performance of contract. In such event, it is a matter for
trial to record correctness or otherwise of such allegation made
in the plaint.  In the suits for specific performance falling in the
second limb of the Article, period of three years is to be counted
from the date when it had come to the notice of the plaintiff that
performance is refused by the defendants.  For the purpose of
cause of action and limitation when it is pleaded that when he had
visited the site, he had come to know that the sale was made in
favour of third parties and the appellants have refused to execute
the Sale Deed in which event same is a case for adjudication after
trial but not a case for rejection of plaint under O.VII R.11(d) of
CPC. [Para 12][1249-D-G]
2. In cases falling in second limb of Article 54, finding can
be recorded only after recording evidence. Furthermore, when
the time is not fixed in the agreement, the limitation of three
years to file a suit for specific performance would begin when the
plaintiff has noticed that defendant has refused the performance
of the agreement. [Para 14][1251-E-F]
3.  In the instant case, the merits and demerits of the matter
cannot be gone into at this stage, while deciding an application
filed under O.VII R.11 of the CPC.  It is fairly well settled that at
this stage only averments in the plaint are to be looked into and
from a reading of the averments in the plaint in the case on hand,
it cannot be said that suit is barred by li

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