Rule - 11 of Order VII - CPC with a prayer to reject the plaint. - The petitioner filed I.A. No.114 of 2010 under Rule - 11 of Order VII - CPC with a prayer to reject the plaint. He pleaded that even according to the 1st respondent, the date of agreement is 05-08-2003 and the suit filed in the year 2009 is clearly barred by limitation. = In the context of examining the matter with reference to Rule - 11 of Order - VII CPC, the contents of the plaint are to be taken into account. If the averment in the plaint, in the instant case, is taken into account, the suit is very much within limitation. At any rate, the dispute in this regard can certainly be a subject matter of an issue. The trial Court has taken correct view of the matter.


THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

CIVIL REVISION PETITION No.594 OF 2012    

27-09-2012

Nemuri Lakshminarayana  

K. Pushpalatha and another.

Counsel for the Petitioner:Sri Srinivas Polavarapu

Counsel for the Respondents: Sri V.V.N. Narasimham

<Gist:

>Head Note:

?Cases referred: NIL.

ORDER:

        The 1st respondent filed O.S. No.546 of 2009 in the Court of the VII
Additional Senior Civil Judge, Ranga Reddy District, for the relief of specific
performance of an oral agreement of sale said to have been made on 05-08-2003 in
respect of the suit schedule property.  The petitioner figured as defendant No.2
and the 2nd respondent as
1st defendant.  The petitioner filed I.A. No.114 of 2010 under Rule - 11 of
Order VII - CPC with a prayer to reject the plaint.  He pleaded that even
according to the 1st respondent, the date of agreement is
05-08-2003 and the suit filed in the year 2009 is clearly barred by limitation.
The application was opposed by the 1st respondent.  According to her, the
limitation started from the date on which the petitioner refused to perform his
part of contract and such refusal came be expressed when he got issued a notice,
dated 10-05-2008.  The trial Court dismissed the I.A. through order, dated 24-
10-2011  Hence, this revision.

        2.  Heard the learned counsel for the petitioner and the learned counsel
for the 1st respondent.

        3.  The suit filed by the 1st respondent is the one for specific
performance of an agreement of sale, may be oral in nature.  The petitioner, who
figured as 2nd defendant wanted the plaint to be rejected on the ground that the
suit is barred by limitation and that it does not disclose the cause of action.

        4.  Not only a defendant in a suit is entitled to file an application for
rejection of the plaint in case the averments in the plaint lead to a conclusion
that it is filed after expiry of the limitation, but also the Court is placed
under obligation to bestow its attention as provided under Section 3 of the
Limitation Act.  However, while deciding that question, the averments in the
plaint have to be taken on their face value.  The truth or otherwise of the same
be examined at that stage.

        5.  Article 54 of the Schedule - I of the Limitation Act prescribes the
period of limitation for filing of suit for specific performance, as 3 years.
The starting point for computation of this period is the date on which the
defendant refused to perform his part of the contract.

        6.  The 1st respondent pleaded that the oral agreement was entered on 05-
08-2003 for purchase of the property for Rs.1,00,000/-, a cheque for Rs.96,000/-
was issued by the petitioner and that the same was encashed in September, 2003.
The petitioner, however, pleaded that the payment was in relation to another
transaction.  The
1st respondent pleaded that the petitioner agreed to execute the sale deed
within a period of six months, but has been dodging the matter for one pretext
or the other.  The period, if any, specified in the agreement of sale
constitutes an important factor, while reckoning the period of limitation.  What
becomes essential is the date of refusal.  Such refusal, according to the 1st
respondent, emerged only when the petitioner got issued a notice on 10-05-2008.
In the context of examining the matter with reference to Rule - 11 of Order -
VII CPC, the contents of the plaint are to be taken into account.  If the
averment in the plaint, in the instant case, is taken into account, the suit is
very much within limitation.  At any rate, the dispute in this regard can
certainly be a subject matter of an issue.  The trial Court has taken correct
view of the matter.

        7.  Accordingly, the Civil Revision Petition is dismissed.  In case, the
petitioner has raised the plea of limitation, the trial Court shall frame an
issue on that.  It shall endeavour to dispose of the suit expeditiously.  There
shall be no order as to costs.

        8.  The miscellaneous petition filed in this revision petition also stands
disposed of.
_______________________  
L. NARASIMHA REDDY, J    
September 27, 2012.

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Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

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