Satyanarayan Bajaj in favour of father of plaintiff. In the year 1994, the
will deed was executed. In the year 1987, the probate of the will deed
was received and since 1984 to 2011, the proceeding for extension of
lease was pending. In the year 2011 it was extended and the entries
were recorded in revenue record. On 15.07.2014 the entries were
mutated in revenue record and said entry was reaffirmed on
23.06.2015. The dates and cause of action arose from time to time is
given by the plaintiff. He has issued notice for specific performance on
15.06.2022 and it was refused by the defendant on 17.06.2022.
Hence, according to the plaintiff, the suit is within limitation.
9) It is the contention of plaintiff that, Clause 54 of the
Limitation Act,1963 provides limitation for Specific Performance of
Contract. It starts from the date fixed for the performance, if no such
date is fixed, then it starts when the plaintiff has noticed that
performance is refused. On perusal of plaint, which is the requirement
of Order VII Rule 11 to consider the contents of the plaint, it appears
that till 2022 the plaintiff has not requested to the defendant for
execution of sale deed. Though a number of dates for cause of actions
are mentioned by the plaintiff, cannot be considered for specific
performance of execution of sale deed. Specific performance can be
made on execution of the sale deed on the basis of Isarchitthi, which
was executed in the year 1987. The other dates, which are mentioned
Kavita.
are not relevant for specific performance. The specific performance is
required to be claimed within a period of three years. The specific date
is not mentioned in Isarchitthi, the name of the plaintiff is mutated in
revenue records and he is in possession of the suit property. At the
belated stage, on the basis of Isarchitthi the specific performance
cannot be claimed.
10) The learned counsel for the applicant has relied on the
judgment of the Hon'ble Apex Court in the case of Mukund Bhavan
Trust and ors.Vs.Shrimant Chhatrapati Udayan Raje Pratapsingh
Maharaj Bhonsle and anr. reported in 2024 SCC OnLine SC 3844.
26. At this juncture, we wish to observe that we
are not unmindful of the position of law that
limitation is a mixed question of fact and law and
the question of rejecting the plaint on that score has
to be decided after weighing the evidence on
record. However, in cases like this, where it is
glaring from the plaint averments that the suit is
hopelessly barred by limitation, the Courts should
not be hesitant in granting the relief and drive the
parties back to the trial Court. We again place it on
record that this is not a case where any forgery or
fabrication is committed which had recently come
to the knowledge of the plaintiff. Rather, the
plaintiff and his predecessors did not take any steps
to assert their title and rights in time. The alleged
cause of action is also found to be creation of
fiction. However, the trial Court erroneously
dismissed the application filed by the appellants
under Order VII Rule 11(d) of CPC. The High
Court also erred in affirming the same, keeping the
question of limitation open to be considered by the
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trial Court after considering the evidence along
with other issues, without deciding the core issue
on the basis of the averments made by the
Respondent No.1 in the Plaint as mandated by
Order VII Rule 11 (d) of CPC. The spirit and
intention of Order VII Rule 11(d)of CPC is only
for the Courts to nip at its bud when any litigation
ex facie appears to be a clear abuse of process. The
Courts by being reluctant only cause more harm to
the defendants by forcing them to undergo the
ordeal of leading evidence. Therefore, we hold that
the plaint is liable to be rejected at the threshold"
11) It is also observed by Hon'ble Apex Court in the case of
T.Arvanandam V.T.V.Satyapal reported in (1977)4 SCC 467 in
paragraph No.18 as under:-
"18. Continuing further with the plea of
limitation, the Courts below have held that the
question of the suit being barred by limitation can
be decided at the time of trial as the question of
limitation is a mixed question of law and facts.
Though the question of limitation generally is
mixed question of law and facts, when upon
meaningful reading of the plaint, the court can
come to a conclusion that under the given
circumstances, after dissecting the vices of clever
drafting creating an illusion of cause of action, the
suit is hopelessly barred and the plaint can be
rejected under Order VII Rule 11. In the present
case, we have already held that 02.03.2007 is a
fictional date. It is not a case where a fraudulent
document was created by the appellant or his
predecessors. The title of the suit property as
observed by us earlier was conveyed in 1938 and
1952, and what transpired later by way of
compromise was only an affirmative assertion by
the State. While so, the prayer (a) made in the suit
relates to declaration to the effect that the
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Respondent No. 1 is the owner of the suit
properties"
12) The Limitation Act, 1963 prescribes the time limit for the
institution of suits, appeals and applications. Section 2(j) of the said
Act defines the expression, 'the period of limitation', to mean the
period of limitation prescribed in schedule for suits, appeals or
applications. Section 3 lays down that every suit instituted after the
prescribed period shall be dismissed even though limitation may not
have been set up as a defence. If a suit is not covered by any specific
Article, then it would fall within Residuary Article. It has also observed
by this Court in the case of Vinayak Shankar Bawane and ors. Vrs.
Tilakraj Indrajeet Chaddha reported in 2020(3) ALL MR 1 in
paragraph No.20 as under:-
20. Therefore, in the facts and circumstances of
this case, it becomes clear that the Court below
committed an error in refusing to accept the
contentions raised on behalf of the revision
applicants and rejecting the application filed under
Order 7 Rule 11(d) of the CPC. The Court below
erroneously held that since time was not the
essence of the contract, the issue of limitation
would necessarily be a mixed question of fact and
law, to be determined upon trial. A perusal of the
plaint in the present case and the clauses of the
agreement dated 25/12/2007, which was placed on
record along with plaint, shows that on the basis of
such pleadings and material on record, the suit was
barred by limitation on the face of it and the
application filed by the revision applicants deserved
to be granted".
Kavita.
13) Considering the above said observations made by this
Court and the Hon'ble Apex Court and the law laid down by the
Hon'ble Apex Court, the cause of action on the basis of Isarchithhi
expired after three years of its execution. The suit is barred by
limitation. The plaint is liable to be rejected at the threshold. Hence, I
pass the following order.
14) The Civil Revision Application is allowed. The order
passed below Exh.10 by 3rd Joint Civil Judge, Senior Division,
Wardha, on 25.08.2023 in Regular Civil Suit No.197/2022 is hereby
quashed and set aside.
(MRS.VRUSHALI V. JOSHI, J)
Signed by: Kavita P Tayade
Designation: PS To Honourable Judge
Date: 06/08/2025 17:15:49
Kavita.
