Allahabad High Court
Piyush Parihar vs Manuii @ Munni Devi And Another on 8 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment Reserved on 18.09.2025
Judgment Delivered on 08.10.2025
Neutral Citation No. - 2025:AHC:177946
Court No. - 38
Case :- FIRST APPEAL No. 433 of 2017
Appellant :- Piyush Parihar
Respondent :- Manuii @ Munni Devi & Another
Counsel for Appellant :- Kedar Nath Mishra
Counsel for Respondent :- Abhishek Kumar, Ashish Kumar Gupta, Rahul Sahai
Hon'ble Sandeep Jain, J.
1. The instant appeal under section 96 CPC has been preferred by the plaintiff against impugned judgment and decree dated 17.2.2017 passed by the Additional District Judge, Court No. 14 Varanasi in O.S. no. 1112 of 2013 Piyush Parihar versus Manuii alias Munni Devi and another, whereby defendant's application under Order 7 Rule 11(d) CPC was allowed and consequently, the suit was held to be barred by limitation.
2. Factual matrix is that the plaintiff- appellant filed O.S. no. 1112 of 2013 in the lower court with the averments that an agreement to sell was executed in his favour by the defendants regarding land having area of 0.167 hectare situated in khata no.398m, 365m, 414, 232m, 436m, 411, 378 and 233, which was situated in 8 gatas, having total area of 2.671 hectare, situated in Mauja Singhpur, Pargana Shivpur, Ward Sarnath, Tehsil Sadar, District Varanasi on 13.6.2007, which was registered in the office of subregistrar 1st Varanasi in book no.1, Jild no. 1449, at pages 101/128, at serial no. 2481 on 13.6.2007. The above agreement to sell was executed for the total consideration of Rs.6.50 lakhs, out of which an earnest money of ₹ 1 lakh was given by the plaintiff to the defendants on 13.6.2007, at the time of execution of the above agreement to sell.
3. It was further averred by the plaintiff that according to the terms and conditions of the agreement to sell, the defendants were to execute the sale deed of the above land after receiving balance consideration of ₹ 5.50 lakhs. The plaintiff always remained ready and willing to fulfil the terms of the above agreement, but the defendants on false pretext, avoided to execute the sale deed in favour of the plaintiff. The plaintiff always remained in touch with the defendants. During this period, the defendants told the plaintiff that Ramroop has died as such, after his legal heirs are mutated in the revenue records, the sale deed will be executed.
4. It was further averred by the plaintiff that regarding the disputed land situated in Mauja Singhpur, Pargana Shivpur, Ward Sarnath, Tehsil Sadar, District Varanasi in khatauni of fasli year 1415-1420 in khata no. 00148, the legal heirs of deceased Ramroop were mutated by order of Revenue Inspector Shivpur, which was in existence and due to this entry, believing that Ramroop has died, the plaintiff didn't pressurise the defendants for executing the sale deed and simply requested them to receive the balance consideration and execute the sale deed in his favour. The plaintiff gave legal notice to the defendants on 18.11.2010 and 24.3.2012 which was not replied by the defendants. The defendant no.1 continuously assured the plaintiff that she will persuade her children to execute the sale deed in his favour. The plaintiff believed the above assurance of defendant no.1 but, somehow came to know through rumours that on 14.5.2013, the defendants had executed the sale deed in respect of land situated in khata no. 378.
5. The plaintiff further averred that in order to confirm the above sale transaction, he got conducted an enquiry from the office of sub-registrar, then he became aware that the defendant Ramroop had himself executed the sale deed, whereas in the khatauni, Ramroop was shown as deceased and his legal heirs were mutated. The plaintiff on 6.6.2013 got registered an FIR at Police Station Cantt. against the defendants and Dhanui. The plaintiff further averred that the defendant Ramroop moved an application before the Senior Supdt. of police Varanasi, wherein he claimed that he was alive, he had returned the earnest money to the plaintiff in the presence of witnesses, cancelled the agreement to sell and also got registered an FIR against the plaintiff, which proved that the intention of the defendants had turned malafide, who were adamant to usurp the earnest money of ₹ 1 lakh and were not willing to execute the sale deed in favour of the plaintiff.
6. The plaintiff claimed the following reliefs from the court:-
''By decree of specific performance granted in favour of the plaintiff against the defendants, the defendants be directed to execute the sale deed in respect of the agreement to sell dated 13.6.2007, after receiving the balance consideration of ₹ 5.50 lakhs and if the defendants failed to do so, then the sale deed be executed by the court.''
7. The defendants moved an application 21-C under Order 7 Rule 11(d) CPC with the averments that the plaintiff has filed the copy of registered agreement to sell dated 13.6.2007, according to which, within a period of two years upto 12.6.2009, the plaintiff was to pay balance consideration of ₹ 5.50 lakhs and only then the sale deed was to be executed by the defendants in favour of the plaintiff and if, the defendants failed to do so, then the cause of action arose to the plaintiff on 13.6.2009 for filing the instant suit. It was further averred by the defendants that as per Article 54 of the Limitation Act 1963, the suit for specific performance could have been filed within three years from the date, when the plaintiff had notice that the defendants had refused to perform. It is the specific case of the defendants that the cause of action for filing the instant suit arose on 13.6.2009 and as such, the plaintiff could have filed the suit for specific performance upto 13.6.2012 and not beyond that period. It was further averred that since the suit was filed on 5.8.2013 with delay of one year, one month and 23 days as such, it was barred by limitation and in view of this, the plaint be rejected.
8. The plaintiff filed his objections in which he submitted that he was always ready and willing to get executed the sale deed in his favour but the defendants, on one pretext or the other, continuously avoided to do so. He further submitted that in the revenue records of fasli year 1415-1420, defendant no.2 Ramroop was recorded as deceased, due to which the defendant no.1 had assured him that there was some difficulty because Ramroop had died, but the sale deed will be executed in his favour. The plaintiff submitted that he believed the above assurance of the defendant no.1, waited and continued to meet the defendants who continuously assured him, that they will execute the sale deed in his favour. The plaintiff further submitted that he also gave registered legal notice on 18.11.2010 and 24.3.2012 to the defendants for executing the sale deed, which was not replied by the defendants, but the defendant no.1 continuously assured him that the sale deed will be executed in his favour. The plaintiff further submitted that he somehow got information through rumours that on 14.5.2013, the defendants had executed the sale deed in respect of land situated in khata no. 378 to someone and as such, violated the terms and conditions of the agreement to sell. He further submitted that after getting the above information he got inspected the relevant records in the office of subregistrar and then he became aware that a sale deed has been executed by defendant Ramroop whereas, he was shown as deceased in the revenue records of fasli year 1415-1420 and in his place, the legal heir's of Ramroop were mutated and as such, he had lodged an FIR in the Cantt. police station on 6.6.2013 and after the lodging of FIR, Ramroop had claimed himself to be alive before the SSP, Varanasi and had also claimed that he had returned the earnest money in presence of witnesses to the plaintiff and cancelled the agreement to sell. The plaintiff further submitted that he then became aware that the defendants intention had turned malafide and they want to usurp Rs. one lakh earnest money. The plaintiff further submitted that the suit was not barred since the limitation started running from the date of knowledge, and was legally maintainable. It was prayed that defendants application under Order 7 Rule 11 CPC be rejected.
9. The trial court vide impugned judgment and decree dated 17.2.2017 has allowed the defendants application under Order 7 Rule 11 CPC on the reasoning that 2 years time was fixed in the agreement to sell and if, after expiry of the above period, the defendants failed to execute the sale deed, then the plaintiff could have filed the suit for specific performance of agreement to sell after the expiry of aforesaid period of 2 years. The trial court concluded that since the agreement to sell was executed on 13.6 2007, the two-year period expired on 12.6.2009 and if the sale deed was not executed till 12.6.2009, then the plaintiff had limitation of 3 years under Article 54 of the Limitation Act, 1963 for filing suit for the specific performance of agreement to sell, as such, the plaintiff could have filed the instant suit till 13.6.2012 but, the plaintiff has filed the instant suit on 5.8.2013, which was barred by limitation. With this reasoning, the trial court has allowed the defendants application and has consequently rejected the plaint, aggrieved against which, the plaintiff has filed the instant appeal under section 96 of the CPC.
10. Learned counsel for the plaintiff appellant submitted that the impugned order of the trial court is erroneous because the defendants continuously assured the plaintiff that since Ramroop had died, it will take time for his legal heirs to get themselves mutated in the revenue records and only thereafter, they could execute the sale deed in favour of the plaintiff. Learned counsel further submitted that the plaintiff was always ready and willing to get the sale deed executed in his favour by paying the balance sale consideration but, it was the defendants who were avoiding to execute the sale deed, on one pretext or the other.
11. Learned counsel further submitted that a fraud was committed by the defendants on the plaintiff, when Ramroop was shown as deceased in the revenue records and in his place, his legal heirs were mutated and this fraudulent act compelled the plaintiff to believe, that the defendants are in difficulty due to the untimely demise of Ramroop as such, he believed the false assurances of the defendants that they will execute the sale deed in his favour. Learned counsel further submitted that only on discovering the fraud committed by the defendants, plaintiff could understand that the defendants were not willing to execute the sale deed in his favour, only then the plaintiff has filed the instant suit.
12. Learned counsel further submitted that since the defendants had committed fraud on the plaintiff as such, the limitation for filing the suit for the specific performance of agreement to sell was to be calculated from the date of knowledge of the fraud. Learned counsel submitted that the plaintiff became aware of the fraud on 14.5.2013 and soon afterwards, on 5.8.2013 the instant suit was filed, within the prescribed period of limitation. With these submissions, it was prayed, that the appeal be allowed, the matter be remitted back and the defendants application be rejected. Learned counsel has relied upon the case law P. Kumarakurubaran vs. P.Narayanan and others 2025 SCC OnLine SC 975.
13. Per contra, learned counsel for the defendant-respondents submitted that the impugned order of the trial court is perfectly legal because the plaintiff could have filed the suit for specific performance of agreement to sell till 13.6.2012 but, it was filed belatedly on 5.8.2013, which was time barred. Learned counsel further submitted that even if Ramroop had died, his legal heirs were bound to execute the sale deed in favour of the plaintiff within the stipulated time, as such, the death of Ramroop does not extend the limitation period. It was further submitted that no fraud was committed by the defendants upon the plaintiff. The plaintiff was not ready and willing to fulfil his conditions of the agreement to sell. With these submissions, it was prayed that the appeal is meritless and be dismissed. The learned counsel has relied on the case law Pancharan Dhara and others versus Monmatha Nath Maity(D)by LR's & Anr. (2006) 5 SCC 340.
14. I have heard the learned counsel of both the sides and perused the record and case law submitted by them.
15. The Apex Court in the case of the P. Kumarakurubaran(supra), while considering the issue of limitation at the threshold stage under Order 7 Rule 11 CPC, held as under:-
12.1. However, we are of the considered view that the issue as to whether the appellant had prior notice or reason to be aware of the transaction at an earlier point of time, or whether the plea regarding the date of knowledge is credible, are matters that necessarily require appreciation of evidence. At this preliminary stage, the averments made in the plaint must be taken at their face value and assumed to be true. Once the date of knowledge is specifically pleaded and forms the basis of the cause of action, the issue of limitation cannot be decided summarily. It becomes a mixed question of law and fact, which cannot be adjudicated at the threshold stage under Order VII Rule 11 CPC. Therefore, rejection of the plaint on the ground of limitation without permitting the parties to lead evidence, is legally unsustainable.
12.2. In this regard, we may usefully refer to the following decisions of this Court, which have consistently held that when the question of limitation involves disputed facts or hinges on the date of knowledge, such issues cannot be decided at the stage of Order VII Rule 11 CPC:
(i) Daliben Valjibhai v. Prajapati Kodarbhai Kachrabhai (2024 SCC OnLine SC 4105)
10. The First Appellate Court came to the conclusion that the defendants made an application for correcting the revenue records only in the year 2017 and on the said application the Deputy Collector issued notice to the plaintiffs in March 2017 and that was the time when the plaintiffs came to know about the execution of the sale deed. It is under these circumstances that the suit was instituted in the year 2017. While the High Court came to the correct conclusion that under Article 59 of the Limitation Act, a suit can be instituted within 3 years of the knowledge, it proceeded to return a finding that in cases where the document is registered, the knowledge must be presumed from the date of registration.
11.***
12. Further, in Chhotanben v. Kirtibhai Jalkrushnabhai Thakkar where again a suit for cancellation of sale deed was opposed through an application under Order 7 Rule 11, on ground of limitation, this Court specifically held that limitation in all such cases will arise from date of knowledge. The relevant portion is as follows:
15. What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11(d) CPC, is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order 7 Rule 11(d). Only the averments in the plaint are germane. It is common ground that the registered sale deed is dated 18-10-1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellant-plaintiffs is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers, original Defendants 1 and 2, in favour of Jaikrishnabhai Prabhudas Thakkar or Defendants 3 to 6. They acquired that knowledge on 26-12-2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original Defendants 1 and 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half () portion of the land so designated towards their share. However, when they realised that the original Defendants 1 and 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the trial court opined that it was a triable issue and declined to accept the application filed by Respondent 1-Defendant 5 for rejection of the plaint under Order 7 Rule 11(d). That view commends to us.
19. In the present case, we find that the appellant-plaintiffs have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original Defendants 1 and 2 by keeping them in the dark about such execution and within two days from the refusal by the original Defendants 1 and 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the trial court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order 7 Rule 11(d) CPC.
13. In view of the above, there was no justification for the High Court in allowing the application under Order 7 Rule 11, on issues that were not evident from the plaint averments itself. The High Court was also not justified in holding that the limitation period commences from the date of registration itself. In this view of the matter the judgment of the High Court is unsustainable.
(ii) Salim D. Agboatwala v. Shamalji Oddhavji Thakkar (2021) 17 SCC 100
11. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy [(2015) 8 SCC 331 : (2015) 4 SCC (Civ) 100], the rejection of plaint under Order 7 Rule 11 is a drastic power conferred on the court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order 7 Rule 11.
12. Again as pointed out by a three-Judge Bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar [(2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524], the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.
14. But a defendant in a suit cannot pick up a few sentences here and there from the plaint and contend that the plaintiffs had constructive notice of the proceedings and that therefore limitation started running from the date of constructive notice. In fact, the plea of constructive notice is raised by the respondents, after asserting positively that the plaintiffs had real knowledge as well as actual notice of the proceedings. In any case, the plea of constructive notice appears to be a subsequent invention.
(iii) Shakti Bhog Food Industries Ltd. v. Central Bank of India & Another (2020) 17 SCC 260
6. The central question is : whether the plaint as filed by the appellant could have been rejected by invoking Order 7 Rule 11(d) CPC?
7. Indeed, Order 7 Rule 11 CPC gives ample power to the court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation. This position is no more res integra. We may usefully refer to the decision of this Court in Ram Prakash Gupta v. Rajiv Kumar Gupta [(2007) 10 SCC 59]. In paras 13 to 20, the Court observed as follows : (SCC pp. 65-66)
13. As per Order 7 Rule 11, the plaint is liable to be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9;
14. In Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, [(2003) 1 SCC 557] it was held with reference to Order 7 Rule 11 of the Code that:
9. the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. (SCC p. 560, para 9).
15. In ITC Ltd. v. Debts Recovery Appellate Tribunal [ITC Ltd. v. Debts Recovery Appellate Tribunal, (1998) 2 SCC 70] it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 of the Code.
16. The trial court must remember that if on a meaningfulnot formalreading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, [it has to be nipped] in the bud at the first hearing by examining the party searchingly under Order 10 CPC. (See T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], SCC p. 468.)
17. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh Gill [(1982) 3 SCC 487], only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected.
18. In Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 Order 7 was applicable.
19. In Sopan Sukhdeo Sable v. Charity Commr. [(2004) 3 SCC 137] this Court held thus : (SCC pp. 146-47, para 15)
15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities.
20. For our purpose, clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the court has to record the order to that effect with the reasons for such order.
8. On the same lines, this Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust [(2012) 8 SCC 706 : (2012) 4 SCC (Civ) 612], observed as follows : (SCC pp. 713-15, paras 10-12)
10. It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra [(2003) 1 SCC 557], in which, while considering Order 7 Rule 11 of the Code, it was held as under : (SCC p. 560, para 9)
9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.
It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property [(1998) 7 SCC 184] and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express [(2006) 3 SCC 100].
12. It is also useful to refer the judgment in T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467], wherein while considering the very same provision i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial Judges with the following observation : (SCC p. 470, para 5)
5. The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them.
It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer, J. in the abovereferred decision [T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467], it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.
14. All these events have been reiterated in Para 28 of the plaint, dealing with the cause of action for filing of the suit. Indeed, the said para opens with the expression the cause of action to file the suit accrued in favour of the plaintiff and against the defendants when the illegal recoveries were noticed and letter dated 21-7-2000 was sent to the defendants to clarify as to how the interest was being calculated. This averment cannot be read in isolation.
.
22. It is well-established position that the cause of action for filing a suit would consist of bundle of facts. Further, the factum of the suit being barred by limitation, ordinarily, would be a mixed question of fact and law. Even for that reason, invoking Order 7 Rule 11 CPC is ruled out. In the present case, the assertion in the plaint is that the appellant verily believed that its claim was being processed by the regional office and the regional office would be taking appropriate decision at the earliest. That belief was shaken after receipt of letter from the Senior Manager of the Bank, dated 8-5-2002 followed by another letter dated 19-9-2002 to the effect that the action taken by the Bank was in accordance with the rules and the appellant need not correspond with the Bank in that regard any further. This firm response from the respondent Bank could trigger the right of the appellant to sue the respondent Bank. Moreover, the fact that the appellant had eventually sent a legal notice on 28-11-2003 and again on 7-1-2005 and then filed the suit on 23-2-2005, is also invoked as giving rise to cause of action. Whether this plea taken by the appellant is genuine and legitimate, would be a mixed question of fact and law, depending on the response of the respondents.
16. The Apex Court in the case of Pancharan Dhara(supra), while analysing whether limitation for filing suit for specific performance depends upon the nature of the agreement and also the conduct of the parties, held as under :-
20. Contention of Mr Mishra as regards the applicability of the first or the second part of Article 54 of the Limitation Act will have to be judged having regard to the aforementioned findings of fact. A plea of limitation is a mixed question of law and fact. The question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also on the conduct of the parties and also as to how they understood the terms and conditions of the agreement. It is not in dispute that the suit for specific performance of contract would be governed by Article 54 of the Limitation Act, 1963. While determining the applicability of the first or the second part of the said provision, the court will firstly see as to whether any time was fixed for performance of the agreement of sale and if it was so fixed, whether the suit was filed beyond the prescribed period unless any case of extension of time for performance was pleaded and established. When, however, no time is fixed for performance of contract, the court may determine the date on which the plaintiff had notice of refusal on the part of the defendant to perform the contract and in that event the suit is required to be filed within a period of three years therefrom.
22. A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the first respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of (sic time for performance of a) contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. Performance of the said contract was refused by the Company only on 21-8-1985. The suit was filed soon thereafter. The submission of Mr Mishra that the time fixed for completion of the transaction was determinable with reference to the event of perfection of title of the second respondent cannot be accepted. The said plea had never been raised before the courts below. Had such a plea been raised, an appropriate issue could have been framed. The parties could have adduced evidence thereupon. Such a plea for the first time before this Court cannot be allowed to be raised. Even otherwise on a bare perusal of the agreement for sale dated 18-4-1971, it does not appear that it was intended by the parties that the limitation would begin to run from the date of perfection of title.
28. An almost identical question came up for consideration before a Division Bench of this Court in S. Brahmanand v. K.R. Muthugopal [(2005) 12 SCC 764] wherein this Court laid down the law: (SCC p. 777, para 34)
34. Thus, this was a situation where the original agreement of 10-3-1989 had a fixed date for performance, but by the subsequent letter of 18-6-1992 the defendants made a request for postponing the performance to a future date without fixing any further date for performance. This was accepted by the plaintiffs by their act of forbearance and not insisting on performance forthwith. There is nothing strange in time for performance being extended, even though originally the agreement had a fixed date. Section 63 of the Contract Act, 1872 provides that every promisee may extend time for the performance of the contract. Such an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or, in some cases, even by evidence of conduct including forbearance on the part of the other party. Thus, in this case there was a variation in the date of performance by express representation by the defendants, agreed to by the act of forbearance on the part of the plaintiffs. What was originally covered by the first part of Article 54, now fell within the purview of the second part of the article.
29. In R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy [(2006) 2 SCC 428 : (2006) 2 Scale 156] wherein one of us was a member, it was observed: (SCC p. 431, paras 10-11)
10. In terms of the said article, a suit for specific performance of a contract is required to be filed within three years; in the event no date is fixed for the performance, within a period of three years from the date when the plaintiff has notice that performance is refused. The notice dated 24-4-1984, thus, is required to be construed in the context of the agreement dated 13-10-1982 entered into by and between the parties.
11. There cannot be any doubt whatsoever that in respect of a contract for sale of immovable property, time is not of the essence of the contract, but the question as regards the conduct of the appellant must be considered in the backdrop of the events noticed hereinbefore.
30. The said decision has again been noticed in Gunwantbhai Mulchand Shah & others v. Anton Elis Farel & others[(2006) 3 SCC 634 : (2006) 3 Scale 82] wherein it has been held: (SCC p. 639, para 8)
8. We may straightaway say that the manner in which the question of limitation has been dealt with by the courts below is highly unsatisfactory. It was rightly noticed that the suit was governed by Article 54 of the Limitation Act, 1963. Then, the enquiry should have been, first, whether any time was fixed for performance of the agreement for sale, and if it was so fixed, to hold that a suit filed beyond three years of the date was barred by limitation unless any case of extension was pleaded and established. But in a case where no time for performance was fixed, the court had to find the date on which the plaintiff had notice that the performance was refused and on finding that date, to see whether the suit was filed within three years thereof. We have explained the position in the recent decision in R.K. Parvatharaj Gupta v. K.C. Jayadeva Reddy [(2006) 2 SCC 428 : (2006) 2 Scale 156] . In the case on hand, there is no dispute that no date for performance is fixed in the agreement and if so, the suit could be held to be barred by limitation only on a finding that the plaintiffs had notice that the defendants were refusing performance of the agreement. In a case of that nature normally, the question of limitation could be decided only after taking evidence and recording a finding as to the date on which the plaintiff had such notice. We are not unmindful of the fact that a statement appears to have been filed on behalf of the plaintiffs that they do not want to lead any evidence. The defendants, of course, took the stand that they also did not want to lead any evidence. As we see it, the trial court should have insisted on the parties leading evidence on this question or the court ought to have postponed the consideration of the issue of limitation along with the other issues arising in the suit, after a trial.
(emphasis supplied)
17. From the law laid down by the Apex Court in the case of P.Kumarakurubaran(supra) and Pancharan Dhara(supra), it is evident that while deciding application under Order 7 Rule 11 CPC, the averments made in the plaint must be taken at their face value and assumed to be true. Once the date of knowledge is specifically pleaded and forms the basis of the cause of action, the issue of limitation cannot be decided summarily. It becomes a mixed question of law and fact which cannot be adjudicated at the threshold stage under Order 7 Rule 11 CPC. Therefore, rejection of the plaint on the ground of limitation without permitting the parties to lead evidence, is legally unsustainable. It is also apparent that the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question, whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold.
18. It is also apparent that the question as to whether a suit for specific performance of contract will be barred by limitation or not would not only depend upon the nature of the agreement but also the conduct of the parties and also, as to how they understood the terms and conditions of the agreement. It is also apparent that an agreement to extend time need not necessarily be reduced to writing, but may be proved by oral evidence or, in some cases, even by evidence of conduct including forbearance on the part of the other party.
19. From the perusal of the registered agreement to sell dated 13.06.2007, it is apparent that it was executed by Ramroop and Manuii @ Munni Devi(vendor defendants) in favour of Piyush Parihar(vendee plaintiff), according to which the disputed land was agreed to be sold for a consideration of Rs.6.50 lacs, out of which Rs. 1 lakh was paid by the plaintiff as earnest money and the remaining amount was to be paid on the execution of sale deed. It was agreed between the parties that within a period of two years the plaintiff after paying the balance sale consideration will get the sale deed executed in his favour, in default the plaintiff could file a case in the court for getting the sale deed executed in his favour. It was further agreed that if plaintiff failed to pay the balance consideration within the stipulated period, then the vendors were entitled to forfeit 1/10th of the earnest money and were liable to return the remaining amount to the vendee.
20. From the copy of revenue records submitted by the plaintiff, it is evident that in Fasli year 1421-1426 in khata no.00148 of land situated in village Singhpur, Pargana Shivpur, Tehsil Sadar District Varanasi on 11.03.2011, in place of deceased Ramroop his legal heirs(sons) Ram Chander, Ram Jatan, Shyam Sunder, Shyam Kal, Ram Naresh and Chote Lal were mutated. This entry was subsequently cancelled vide order dated 30.07.2013 passed by Tehsildar Sadar, Varanasi.
21. From the plaint averments it is apparent that the agreement to sell was executed by the defendants in favour of the plaintiff, but when the plaintiff approached defendant no.1 for executing the sale deed in his favour then she disclosed that defendant no.2 Ramroop has died and as such, she needs some time for executing the sale deed in the favour of the plaintiff because the mutation proceedings were pending. This fact is confirmed by the aforesaid revenue entry which reveals that on 11.03.2011 Ramroop died and his legal heirs were mutated, which was subsequently reversed on 30.07.2013. It is evident that for almost two years and four months Ramroop remained dead in the revenue records who all of a sudden became alive and executed the sale deed of khata no.138 on 13.05.2013. It is the specific case of the plaintiff that he believed the assurances of defendant no.1 that the legal heirs of Ramroop will execute the sale deed in his favour and as such, he didnt file suit in the court. The plaintiff has specifically averred in the plaint that on rumours he became aware on 14.05.2013 that the defendants had executed the sale deed in the favour of other person, only then he became aware that the intention of the defendants had turned malafide and then he filed the suit on 05.08.2013.
22. It is apparent that since the plaintiff and the defendant no.1 were continuously in touch with one another and were having talks during which the plaintiff was assured that ultimately the sale deed would be executed in his favour, the plaintiff failed to initiate appropriate legal action in the matter. It is also apparent that in the facts and circumstances of the case the plaintiff has pleaded that the defendants extended the time for the performance of agreement to sell as such, prima facie the trial court could not have dismissed the suit at the threshold while disposing application under Order 7 Rule 11 CPC. The issues raised by the plaintiff were triable, which were mixed question of law and fact, which could only have been decided after the parties had led evidence. It is well settled that at the threshold the court is not required to examine the issue on merits and the court is bound to believe the version of the plaintiff as setup in the plaint.
23. In the instant case it is to be decided on the basis of evidence whether the time period for execution of sale deed was extended by the defendant no.1 or not, it is also to be decided whether a fraud was practiced upon the plaintiff by convincing him to believe that Ramroop has died and his legal heirs are not ready to execute the sale deed in favour of the plaintiff. It is well settled that the plaintiff can show on the basis of oral evidence and conduct of the defendants that subsequently the duration for executing the sale deed was extended by them and due to this reason, he didnt file the suit for the specific performance of the agreement to sell till 12.06.2012.
24. In view of the above facts and circumstances, the trial court has certainly erred in dismissing the plaintiffs suit at the threshold, without giving him the opportunity to lead evidence, under Order 7 Rule 11 CPC. The trial court has passed a perverse order which needs to be set aside by this Court in exercise of its appellate jurisdiction. Consequently this appeal has got merits and is liable to be allowed.
25. This appeal is hearby allowed. The impugned judgment and decree dated 17.02.2017 is set aside. The O.S. No.1112 of 2013 stands restored on its original number. The defendants application under Order 7 Rule 11 CPC stands dismissed.
26. Interim order, if any, stands vacated.
27. The trial court is directed to decide the suit preferably within a period of one year, from the date a certified copy of this order is received by it, without affording unnecessary adjournments to either party, in accordance with law, on merits.
28. Costs easy. Office is directed to prepare the decree accordingly.
Order Date:- 08.10.2025
Jitendra/Himanshu/Mayank
(Sandeep Jain, J.)
