Punjab-Haryana High Court

Radha Rani And Another vs Ranjna Rani on 3 April, 2024

Author: Alka Sarin

Bench: Alka Sarin

                                                                                      2024:PHHC:045137

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        130                                            CR No.1946 of 2024
                                                                       Date of Decision : 03.04.2024


                        Radha Rani and Another                                             ....Petitioners

                                                            VERSUS

                        Ranjna Rani                                                       ....Respondent


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :     Mr. Namit Gautam, Advocate for the petitioners.


                        ALKA SARIN, J. (Oral)

1. The present revision petition has been filed challenging the

order dated 01.02.2024 whereby the application filed by the defendant-

petitioners under Order VII Rule 11 CPC read with Article 54 of the

Limitation Act, 1963 for rejection of the plaint has been dismissed.

2. The brief facts relevant to the present case are that the plaintiff-

respondent filed the present suit seeking specific performance of the

agreement to sell dated 04.08.2014 executed by defendant-petitioner No.1. It

is the case set up by the plaintiff-respondent that the agreement to sell was

executed by the defendant-petitioners for a sale consideration of

Rs.12,00,000/- and an amount of Rs.4,00,000/- was received by the

defendant-petitioners at the time of execution of the agreement to sell in

question. The plaintiff-respondent further claimed that at the time of

execution of the agreement to sell in question the defendant-petitioner No.2

integrity of this order/judgment

CR No.1946 of 2024 -2- 2024:PHHC:045137

was a minor and it was agreed between the parties that the defendant-

petitioner No.1 would get an order from the Guardian Court in order to sell

the property in question and accordingly the date for execution of the sale

deed was fixed as 20.02.2015. The further case set up by the plaintiff-

respondent was that the sale deed could not be executed on the date fixed as

the defendant-petitioner No.1 failed to get the requisite permission from the

Guardian Court and the date was accordingly extended. It was further the

case set up that the date was extended from 20.02.2015 to 20.05.2015.

Subsequently, on 07.11.2019 a further amount of Rs.4,00,000/- was paid by

the plaintiff-respondent to the defendant-petitioners and the date for

execution of the sale deed was extended upto 07.12.2020 and it was agreed

that the remaining amount of Rs.4,00,000/- would be paid at the time of

execution and registration of the sale deed. It was further the case that on

04.12.2020 the defendant-petitioner No.1 herein again showed her inability

to execute and register the sale deed and extended the date to 07.05.2021 and

an endorsement to this effect was also made on the backside of the stamp-

paper of the agreement to sell dated 04.08.2014. It is further the case of the

plaintiff-respondent in the plaint that the plaintiff-respondent appeared

before the concerned Sub-Registrar on 07.05.2021 and incurred all the

ancillary charges, however, the defendant-petitioner No.1 did not turn up.

The plaintiff-respondent also got her presence marked before the Sub-

Registrar. Hence, the present suit. The defendant-petitioners filed an

application under Order VII Rule 11 CPC read with Section 54 of the

Limitation Act, 1963 for rejection of the plaint. Reply was filed to the said

integrity of this order/judgment

CR No.1946 of 2024 -3- 2024:PHHC:045137

application. Vide the impugned order dated 01.02.2024 the said application

was dismissed.

3. Learned counsel for the defendant-petitioner would contend

that the agreement to sell in the present case was admittedly executed on

04.08.2014 and hence the suit ought to have been filed within a period of

three years. It is further the contention that even if the time is taken as to

have been extended to 20.05.2015, as mentioned in para 8 of the plaint, even

then the suit is barred by limitation.

4. Heard.

5. It is trite that while deciding the application under Order VII

Rule 11 CPC only the contents of the plaint are to be seen. A meaningful

reading of the plaint reveals that though it has been stated in para 8 that the

time was extended to 20.05.2015 and an endorsement was made on the

backside of the stamp-paper of the agreement to sell dated 04.08.2014 and

there was silence thereafter, however, in para 10 of the plaint it has been

stated that on 07.11.2019 another sum of Rs.4,00,000/- was paid and the date

for registration of the agreement to sell was extended upto 07.12.2020 and

thereafter was again extended to 07.05.2021. On 07.05.2021 the plaintiff-

respondent is stated to have appeared before Sub Registrar and also got her

presence marked by executing an affidavit. It would be a debatable question

as to whether there was any extension of time for execution of the sale deed

as stated in para 10 and as to whether an amount of Rs. 4,00,000/- was paid

by the plaintiff-respondent to the defendant-petitioner No.1 on 07.11.2019.

At this stage, to go into the question as to whether the suit itself would be

integrity of this order/judgment

CR No.1946 of 2024 -4- 2024:PHHC:045137

barred by limitation would not be proper inasmuch as on a bare perusal of

the plaint it cannot be said that the suit was barred by limitation keeping in

view the averments made in para 10.

6. Hon'ble Supreme Court in case of Salim D. Agboatwala &

Ors. vs. Shamalji Oddhavji Thakkar & Ors. [AIR 2021 SC 5212] has

held as under :

"10. Insofar as the rejection of plaint on the ground of

limitation is concerned, it is needless to emphasis that

limitation is a mixed question of fact and law. It is the

case of the appellants/plaintiffs that only after making

inspection of the records in connection with the suit land

available in the office of defendant No.3 (Court

Receiver) that they came across the correspondence and

documents relating to the transactions and that the

proceedings before the ALT were collusive, fraudulent

and null and void. The appellants/plaintiffs have even

questioned the authority of the Court Receiver to

represent them in the tenancy proceedings."

7. In case of Chhotanben & Anr. vs. Kiritbhai Jalkrushnabhai

Thakkar & Ors. [2018(5) RCR (Civil) 163] the Supreme Court held as

under :

"12. What is relevant for answering the matter in issue

in the context of the application under Order VII Rule

11(d), is to examine the averments in the plaint. The

integrity of this order/judgment

CR No.1946 of 2024 -5- 2024:PHHC:045137

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 VII Rule 11(d). Only the averments in the plaint

are germane. It is common ground that the registered

sale deed is dated 18th October, 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 appellants

(plaintiffs) is that until 2013 they had no knowledge

whatsoever regarding execution of such sale deed by

their brothers - original defendant Nos.1 & 2, in favour

of Jaikrishnabhai Prabhudas Thakkar or defendant

Nos.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 defendant Nos.1 & 2) calling upon them to

stop interfering with their possession and to partition

the property and provide exclusive possession of half

(1/2) portion of the land so designated towards their

integrity of this order/judgment

CR No.1946 of 2024 -6- 2024:PHHC:045137

share. However, when they realized that the original

defendant Nos.1 & 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

No.1 (defendant No.5) for rejection of the plaint under

Order VII Rule 11(d). That view commends to us."

8. Further in the case of Urvashiben & Anr. vs. Krishnakant

Manuprasad Trivedi [2019(1) RCR (Civil) 366] it has been held as under :

"15. By applying the aforesaid principles in the

judgments relied on by Sri Dushyant 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 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 limitation. The issue as to

when the plaintiff had noticed refusal, is an issue which

integrity of this order/judgment

CR No.1946 of 2024 -7- 2024:PHHC:045137

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 O.VII R.11(d) of CPC."