Gujarat High Court
Chaudhary Dahyabhai Joitram vs Chaudhary Hareshkumar Lavjibhai on 17 July, 2025
NEUTRAL CITATION
C/CRA/81/2016 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 81 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER Sd/-
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Approved for Reporting Yes No
✔
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CHAUDHARY DAHYABHAI JOITRAM
Versus
CHAUDHARY HARESHKUMAR LAVJIBHAI & ORS.
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Appearance:
MR KEYUR A VYAS(3247) for the Applicant(s) No. 1
MR. BHAUMIK DHOLARIYA(7009) for the Applicant(s) No. 1
DELETED for the Opponent(s) No. 3
MR JV VAGHELA(5809) for the Opponent(s) No. 2.1,2.2,2.3,2.4,2.6
MR KAMLESH S KOTAI(6150) for the Opponent(s) No. 1
NOTICE SERVED for the Opponent(s) No. 2.5,4
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 17/07/2025
ORAL JUDGMENT
1. With the consent of learned advocates appearing for the respective parties, matter is taken up for final disposal. Hence, Rule returnable forthwith. Mr. Kotai learned advocate waives service of notice of Rule on behalf of respondent.
2. The present Civil Revision Application has been filed challenging the order passed below Exh.41 in Regular Civil Suit No.265 of 2015 (Old Special Civil Suit No.101 of 2008) whereby by an order dated 01.02.2016, the 4th Additional Civil Judge, Kalol has rejected the application filed by Defendant no.4, under the provisions of Order VII Page 1 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025 NEUTRAL CITATION C/CRA/81/2016 JUDGMENT DATED: 17/07/2025 undefined Rule 11 of the Code of Civil Procedure, 1908.
3. For the sake of brevity, the parties herein are referred to as per their original status before the Trial Court.
4. The brief facts arising in the present petition are that the Plaintiff filed Civil Suit No.101 of 2008, for specific performance of the agreement, dated 29.11.1997 and for cancellation of sale-deed executed by Defendant no.2 in favour of Defendant no.4 on 25.07.2008. The Defendant appeared in the said suit and filed an application under the provisions of Order VII Rule 11 of the CPC and after considering the Plaint and documents annexed with the Plaint, the trial Court rejected the said application. Hence, the present Civil Revision Application.
SUBMISSIONS OF THE DEFENDANT - PETITIONER
5. Learned Advocate Mr. Bhaumik Dholaria for the Defendant No. 4 has mainly argued that the Civil Suit that has been filed by the Plaintiff is hopelessly time barred as the said suit has been filed on 22.08.2008, wherein the Plaintiff is claiming Specific Performance of an Agreement dated 29.11.1997. Moreover, it has also been argued that Plaintiff has not challenged the sale-deed executed by Defendant no.1 in favour of Defendant no. 2 dated 29.03.2008 and the Plaintiff has only challenged the sale-deed that has been executed by Defendant no.2 in favour of Defendant no.4 dated 25.07.2008 and in view of the fact that earlier sale- deed dated 29.03.2008 having not been challenged by the Plaintiff, no cause of action has arisen for the Plaint to file the suit and, therefore, it has been argued that Plaint is required to be rejected as no cause of action has arisen for the Plaintiff to file the suit.
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6. Learned advocate for the Defendant has also argued that, it is the case of the Defendant that if the agreement to sale dated 29.11.1997 is perused, the said agreement specifically states that title of the suit property is clear and marketable and that sale-deed has to be executed as and when the Plaintiff pays remaining amount of sale consideration and on perusing the Plaint, the Plaintiff has categorically stated that agreement to sale has been executed on 29.11.1997. It is not the case of the Plaintiff that remaining amount of sale consideration is also paid by the Plaintiff. The only grievance that the Plaintiff has raised in the Plaint is that as there was tenancy case with respect to suit property and, therefore, sale-deed was not executed. It is the case of the Defendant that there are no correspondences that have taken place after execution of agreement to sale dated 29.11.1997, till the time public notice is issued by the Plaintiff on 10.05.2008, therefore, it has been argued that Plaint is required to be rejected, as it is time barred.
7. It has also been argued that the trial Court has not taken into consideration that the Plaintiff has not challenged the sale-deed executed by Defendant no.1, in favour of Defendant no.2 and the fact that Plaintiff has come forward seeking specific performance of an agreement dated 29.11.1997, the suit is hopelessly time barred and by clever drafting Plaintiff has tried to show that the suit is within period of limitation and, therefore, present Civil Revision Application is required to be allowed and Plaint is required to be rejected.
SUBMISSIONS OF THE PLAINTIFF - RESPONDENT:
8. Per contra, learned advocate for Plaintiff has mainly argued that while Page 3 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025 NEUTRAL CITATION C/CRA/81/2016 JUDGMENT DATED: 17/07/2025 undefined deciding the application under Order VII Rule 11 of the CPC, the Court will only have to consider the Plaint and documents annexed with the Plaint and it is the case of the Plaintiff that, as there was tenancy case going on with respect to suit property and that the Defendant has time and again given assurances and promises, the suit has been filed in the year 2008, when the Plaintiff came to know of the suit property being sold to Defendant no.4, in the year 2008.
9. It has also been argued by learned advocate for the Plaintiff that as the Plaintiff was not aware of execution of sale-deed, executed by Defendant no.1 in favour of Defendant no.2, on 29.03.2008 and, therefore, the said sale-deed has not been challenged. Moreover, it has also been argued that in the sale deed executed by Defendant no.2, in favour of Defendant no.4, dated 25.07.2008, there is no recital of earlier sale-deed dated 29.03.2008 and, therefore, the said sale-deed was not within the knowledge of the Plaintiff and it is the case of the Plaintiff in the Plaint that Defendant no.2 had no right to execute the sale-deed dated 25.07.2008 and therefore the order that has been passed by trial Court is not required to be interfered and the present Civil Revision Application is required to be rejected.
10. It has been argued by learned advocate for the Plaintiff that no date has been fixed for the performance of the agreement to sale, dated 29.11.1997 and it is only when the Plaintiff has noticed that the performance is refused by the Defendant seller, the Plaintiff has filed the present suit and it is only on or around 10.05.2008, that the Plaintiff came to know that the Defendant does not want to execute the sale-deed in favour of the Plaintiffs and are trying to transfer and assign the suit property to third party that the present suit has been filed and, therefore, it is a matter of Page 4 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025 NEUTRAL CITATION C/CRA/81/2016 JUDGMENT DATED: 17/07/2025 undefined evidence as to date on which the performance has been refused by Defendants and in view of the said fact, the Plaint cannot be rejected under the provisions of Order VII Rule 11 of the CPC being barred under the provisions of Article 54 of the Limitation Act. Moreover, learned advocate for the Plaintiff has also argued that the Plaintiff has also challenged the sale-deed dated 27.07.2008 and in that view of the matter also the Plaint cannot be partly rejected and, therefore, the application is required to be rejected.
ANALYSIS
11. Having heard learned advocates for the parties, from the Plaint and documents annexed with the Plaint, following are admitted position:
i. The Plaintiff and the Defendant entered into agreement on 29.11.1997;
ii. No fixed date of performance has been specified in the said agreement;
iii. The Plaintiff has paid sale consideration for an amount of Rs.1,01,000/- and remaining amount of Rs.50,000/- was to be paid at a later point of time;
12. It is trite law, that for the purposes of considering an Application under Order VII Rule 11, the Court must look only at the Plaints and the documents therewith. [See: Saleem bhai v. State of Maharashtra, (2003) 5 SCC 557, etc.] Therefore, the Court considering an Application under Order VII Rule 11, is bound by the averments made in the Plaint. In other Page 5 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025 NEUTRAL CITATION C/CRA/81/2016 JUDGMENT DATED: 17/07/2025 undefined words, the averments made in the Plaint have to be taken to be true on its face value and the merits or veracity thereof cannot be gone into.
13. Undoubtedly, Order VII Rule 11 is a mandatory provision and the same must be exercised, whenever there the conditions mentioned in Clauses
(a) to (f) of Rule 11 are met with. However, it is a drastic power. It cannot be loosely exercised. Plaintiff cannot be non-suited on the drop of a hat. This power, naturally, must be exercised extremely cautiously.
14. In the present case, the Plaintiff seeking specific performance of the Agreement, will be governed by Article 54 of the Limitation Act, 1963 which reads as thus:
Article Description of Period of Time from
Suit which period
Limitation begins to run
54. For specific Three years. The date
performance of a fixed for the
Contract performance,
or, if no such
date is fixed,
when the
Plaintiff has
notice that
performance
is refused
15. Before applying the law, discussion of some relevant facts is important.
On a bare perusal of the Agreement to sale dated 29.11.1997, no date has been fixed for the performance of the agreement. Therefore, in the facts of the present case, limitation would start from the date when the Page 6 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025 NEUTRAL CITATION C/CRA/81/2016 JUDGMENT DATED: 17/07/2025 undefined Plaintiff has noticed that the performance is refused. There is nothing in the Plaint or in the documents there along to show that the Defendant had refused specific performance and thereafter suit is filed beyond limitation. Therefore, in such a case, limitation necessarily becomes a mixed question of law, i.e., a triable matter.
16. There is one more fortification of this law. In Order VII Rule (d), the language employed is that the suit appears from the statement made in the Plaint to be barred by any law. This language, as distinguished from other clauses of the same provision, makes it apparent that the scrutiny in this clause is restricted entirely to the averments in the Plaint and there cannot be an interpretative way of arriving at the same.
17. As regards Article 54 of the Limitation Act, Hon'ble Apex Court has instructively laid down as under in Gunwantbhai Mulchand Shah v. Anton Elis Farel, (2006) 3 SCC 634 "12. The question as to how long a plaintiff, even if he had performed the whole of his obligations under an agreement for sale, in which a time for performance is not fixed, could keep alive his right to specific performance and to come to court after 29 years seeking to enforce the agreement, may have also to be considered by the court especially in the context of the fact that the relief of specific performance is discretionary and is governed by the relevant provisions of the Specific Relief Act. But again, these questions cannot be decided as preliminary issues and they are not questions on the basis of which the suit could be dismissed as barred by limitation. The question of limitation has to be decided only on the basis of Article 54 of the Limitation Act and when the case is not covered by the first limb of that article, normally, the question of limitation can be dealt with only after Page 7 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025 NEUTRAL CITATION C/CRA/81/2016 JUDGMENT DATED: 17/07/2025 undefined evidence is taken and not as a preliminary issue unless, of course, it is admitted in the plaint that the plaintiffs had notice that performance was refused by the defendants and it is seen that the plaintiffs approached the court beyond three years of the date of notice. Such is not the case here."
18. Further, in Urvashiben v. Krishnakant Manuprasad Trivedi, (2019) 13 SCC 372 Hon'ble Apex Court held as under:
"19. In the judgment in Rathnavathi [Rathnavathi v. Kavita Ganashamdas, (2015) 5 SCC 223 : (2015) 2 SCC (Civ) 736] in paras 42 and 43 it was clearly held 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 the defendant has refused the performance of the agreement. In the judgment in Ahmadsahab Abdul Mulla (2) v. Bibijan [Ahmadsahab Abdul Mulla (2) v. Bibijan, (2009) 5 SCC 462 : (2009) 2 SCC (Civ) 555] while interpreting Article 54 of the Limitation Act, it is held that the words "date fixed for the performance" is a crystallised notion. The second part "time from which period begins to run" refers to a case where no such date is fixed. In Balasaria Construction (P) Ltd. v. Hanuman Seva Trust [Balasaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658] and Chhotanben [Chhotanben v.Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524] this Court clearly held that issue of limitation, being a mixed question of fact and law, is to be decided only after evidence is adduced.
20. By applying the aforesaid principles in the judgments relied on by Shri Dushyant A. Dave, learned Senior Counsel appearing for the respondent, we are of the considered view that merits and demerits of the matter cannot be gone into at Page 8 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025 NEUTRAL CITATION C/CRA/81/2016 JUDGMENT DATED: 17/07/2025 undefined this stage, while deciding an application filed under Order 7 Rule 11CPC. 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 the suit is barred by limitation. The issue as to when the plaintiff had noticed refusal, is an issue which can be adjudicated after trial. Even assuming that there is inordinate delay and laches on the part of the plaintiff, same cannot be a ground for rejection of plaint under Order 7 Rule 11(d)CPC.
19. Further it is important to be noted that wherever, upon the perusal of the Agreement (produced along with the Plaint) it appears that no date for performance thereof was fixed, in such a situation, the Court cannot enter into the realms of assumption. It is trite law that Limitation is a statute and hence, it must apply with its complete rigours. In Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 81, Hon'ble Apex Court held as under:
'12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
20. For the reasons recorded above, there is no merit in the present Revision Page 9 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025 NEUTRAL CITATION C/CRA/81/2016 JUDGMENT DATED: 17/07/2025 undefined Application and hence is dismissed accordingly. Rule is discharged.
21. The observations made in the Civil Revision Application are only based on the Plaint and the documents produced with the Plaint and, therefore, the trial Court is required to consider the issue of limitation under Article 54 of the Limitation Act after considering the Reply of the Defendant and after evidence of both parties is taken into consideration.
22. In view of the fact that present suit is pending since the year 2008 and it is at the stage of oral evidence, the Trial Court is requested to decide the suit as expeditiously as possible preferably within the period of one year from the date of receipt of copy of Writ of this Order, on its own merits and without being influenced by any of the observations made in this Order.
Sd/-
(SANJEEV J.THAKER,J) MISHRA AMIT V. Page 10 of 10 Uploaded by MISHRA AMIT V.(HC00187) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:14:56 IST 2025