Shravan Lal S/O Kanaram Meena vs Mukesh Meena S/O Late Shri Sitaram ...
2023 Latest Caselaw 3852 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                S.B. Civil First Appeal No. 786/2022

Shravan Lal S/o Kanaram Meena, Aged About 60 Years, Resident
Of Kalyanpura @ Khatipura Tehsil Sanganer District Jaipur
Through General Power Of Attorney Shri Kailash Chand Meena
S/o Shri Babu Lal Meena, Aged About 40 Years, Resident Of
Budhsinghpura, Tehsil Sanganer, District Jaipur.
                                                                     ----Appellant
                                       Versus
1.     Mukesh Meena S/o Late Shri Sitaram Meena, Resident Of
       Budhsinghpura, Tehsil Sanganer, District Jaipur.
2.     Rakesh Meena S/o Late Shri Sitaram Meena, Resident Of
       Budhsinghpura, Tehsil Sanganer, District Jaipur
3.     Ramjilal Meena S/o Nanagram Meena, Aged About 39
       Years,   Resident       Of      Budhsinghpura,           Tehsil   Sanganer,
       District Jaipur.
4.     Jagdish Meena S/o Nanagram Meena, Aged About 34
       Years,   Resident       Of      Budhsinghpura,           Tehsil   Sanganer,
       District Jaipur.
5.     Laxmi Narayan Meena S/o Nanagram Meena, Resident Of
       Budhsinghpura, Tehsil Sanganer, District Jaipur.
6.     Jaipur Development Authority, Jawahar Lal Nehru Marg,
       Jaipur Through Secretary.
7.     Dy. Commissioner, Zone-6, Jaipur Development Authority,
       Jawahar Lal Nehru Marg, Jaipur.
8.     Tehsildar, Tehsil Sanganer District Jaipur Rajasthan.
9.     Dy.   Registrar        First,     Jaipur     Development          Authority
       Premises, Jawahar Lal Nehru Marg, Jaipur.
                                                                 ----Respondents

For Appellant(s)          :     Mr. S. N. Kumawat, Adv.
                                Mr. Naval Kishore Saini, Adv.
For Respondent(s)         :     Mr. L. L. Gupta, Adv.
                                Mr. Samee Khan, Adv.



     HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

                                 Judgment


                                     (2 of 6)                          [CFA-786/2022]


Date of Judgment                                                21/08/2023

The instant appeal has been filed by the appellant-plaintiff

(for short 'the plaintiff') under Section 96 Read with Order 41

Rule-1 CPC against the judgment and decree dated 12.07.2022

passed by the Additional District & Sessions Judge No.10, Jaipur

Metropolitan City-1st, (Headquarter Sanganer) in Civil Suit

No.70/2018 (CIS No.598/2020) titled as "Shravan Lal Vs. Mukesh

Meena & Ors.", whereby the application filed by the respondent-

defendantNos.1 to 5 (for short 'the defendants') under Order 7

Rule 11(D) read with Section 151 CPC has been allowed and suit

filed by the plaintiff has been rejected.

Learned counsel for the plaintiff submits that the trial court

has wrongly allowed the application filed by the defendants under

Order 7 Rule 11 (D) CPC and rejected the suit filed by the plaintiff.

Learned counsel for the plaintiff further submits that the plaintiff

had filed a suit for specific performance of the contract and

permanent injunction against the defendants in which he had

categorically mentioned that the father of the defendant Nos.1 to

2 and defendant Nos.3 to 5 had share in land bearing Khasra

No.266/1 measuring 2 air, Khasra No.274/1 measuring 16 air, and

khasra No.275 measuring 3 air total 21 air (old khasra No.266,

274, 275). The plaintiff had agreed to purchase the said land. On

14.03.2007 he gave an amount of Rs.5,11,000/- as advance

towards the total sale consideration of Rs.1,55,00,000/-. Father of

the defendant Nos.1 to 2 and defendant Nos.3 to 5 executed a

receipt in this regard. It was informed by father of the defendant

Nos.1 to 2 and defendant Nos.3 to 5 that the suit regarding the

property in question was pending before the S.D.O., Sanganer,

(3 of 6) [CFA-786/2022]

Jaipur titled as "Sitara Vs. Gulla". They assured that when the suit

would be decided, they would execute the sale deed in their

favour. On 26.12.2014, Valmiki Housing Cooperative Society

published a notice that they had purchased the land in question

from the defendants. The plaintiff again approached the

defendants on 15.09.2015 but when they did not give any

satisfactory reply. Then the plaintiff lodged an FIR No.746/2015 at

Police Station Pratapnagar, Sanganer. The defendants also applied

for residential patta in JDA in March, 2018. The suit was pending

before the S.D.O. Court, so, the agreement could not be executed.

Learned counsel for the plaintiff also submits that previously,

the trial court vide order dated 30.04.2019 rejected the

application filed by the defendants under Order 7 Rule 11 (D) CPC.

Against the said order dated 30.04.2019, the defendants filed S.

B. Civil Revision Petition No.280/2019 before this court and this

court vide order dated 09.02.2022 while setting aside the order

dated 30.04.2019, directed the trial court to decide the application

filed by the defendants afresh in accordance with law, without

being influenced by its earlier order dated 30.04.2019. Learned

counsel for the plaintiff also submits that the plaintiff had

submitted various documents in which it was clearly mentioned

that cause of action arose by refusal of the defendants dated

15.09.2015, hence the order and decree dated 12.07.2022 passed

by the trial court deserves to be quashed and set-aside. Learned

counsel for the plaintiff further submits that the point of limitation

should be decided after taking evidence of the parties because the

point of limitation is a mixed question of facts and law but the trial

court in a cursory manner wrongly allowed the application filed by

(4 of 6) [CFA-786/2022]

the defendant Nos.1 to 5. So, the order and decree dated

12.07.2022 passed by the trial court may be set-aside.

Learned counsel for the plaintiff has placed reliance upon the

following judgments:-(1) Popat and Kotecha Property Vs.

State Of India Staff Association reported in 2004(3) SCC

137; (2) Leeladhar(dead) through Legal Representatives

Vs. Vijay Kumar (Dead) through Legal Representatives

reported in (2020) 19 SCC 336 (3) Chhotanben and Anr. Vs.

Kiritbhai Jalkrushnabhai Thakkar & Ors. reported in

2018(2) WLC (SC) Civil 169; (4) Urvashiben & Anr. Vs.

Krishanakant Manuprasad Trivedi reported in (2019) SCC

372.

Learned counsel for the defendants has opposed the

arguments advanced by learned counsel for the plaintiff and

submitted that the trial court has rightly allowed the application

filed by the defendants under Order 7 Rule 11 (D) CPC because

the so-called agreement was valid upto 15.04.2007 because the

plaintiff had to pay the balance amount of sale consideration

before it. The revenue suit is not pending between the parties. So,

the cause of action arises in favour of the plaintiff on 16.04.2007.

So, he had a right to file a suit upto 15.04.2010 but he had filed

the present suit on 10.09.2018 i.e. after a lapse of about 8 years

and 5 months. Learned counsel for the defendants further submits

that from a bare perusal of the receipt, it is clear that time was

the essence in the contract. So, the trial court has not committed

any error in allowing the application filed by the defendants under

order 7 Rule 11 (D) CPC. So, the present appeal filed by the

plaintiff may be dismissed.

(5 of 6) [CFA-786/2022]

Learned counsel for the defendants has placed reliance upon

the following judgments:-(1) Raghwendra Sharan Singh Vs.

Ram Prasanna Singh(Dead) by Lrs. Reported in AIR 2019

SC 1430;(2) Dahiben Vs. Arvindbhai Kalyanji bhanusali

(Gajra) (D) Thr Lrs and Ors. reported in AIR 2020 SC 3310

and (3) C. S. Ramaswamy Vs. V. K. Senthil & Ors. in Civil

Appeal No.500/2022 decided on 30.09.2022.

I have considered the arguments advanced by learned

counsel for the plaintiff as well as learned counsel for the

defendant Nos.1 to 5 and perused the impugned order dated

12.07.2022.

It is an admitted position that the plaintiff had filed a suit for

specific performance of the contract and permanent injunction in

the year, 2018. From a bare perusal of the receipt, it is revealed

that the agreement between the plaintiff and the defendants was

valid upto 15.04.2007 and as per the said agreement, the plaintiff

had to pay the remaining amount of sale consideration till

15.04.2007. So, the trial court has rightly came to the conclusion

that the time was essence of the contact and cause of action

accrued to the plaintiff on 16.04.2007. As per provision of the

limitation act, the suit had to be filed till 15.04.2010 but the

plaintiff had filed the suit on 10.09.2018 with inordinate delay of

about 8 years and 5 months. Previously, the trial court vide order

dated 30.04.2019 rejected the application filed by the defendants

under Order 7 Rule 11 (D) CPC. Against the said order, the

defendants filed S. B. Civil Revision Petition No.280/2019 before

this court and this court vide order dated 09.02.2022 while setting

aside the order dated 30.04.2019 directed the trial court to decide

(6 of 6) [CFA-786/2022]

the application filed by the defendants afresh in accordance with

law, without being influenced by its earlier order dated

30.04.2019. So, in my considered opinion, the trial court has not

committed any error in giving the finding that the suit is time

barred. So, the present appeal being devoid of merit, is liable to

be dismissed, which stands dismissed accordingly.

Pending application(s), if any, stand(s) disposed of.

(NARENDRA SINGH DHADDHA),J

Gourav/234

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