GOPAL Vs. NINGAPPA

JUDGEMENT

(1.) The petitioner has impugned the order dated 20.07.2017 in O.S.No.58/2015 on the file of the Senior Civil Judge, Saundatti (for short, 'the Civil Court'). The Civil Court by the impugned order has rejected the petitioners-defendants' application under Order VII Rule 11 of the Code of Civil Procedure (for short, 'CPC').

(2.) The respondent-plaintiff has filed the suit in O.S.No.58/2015 for specific performance of a registered sale agreement dated 27.09.2010. The respondentplaintiff has contended that he has paid a sum of Rs.4 lakhs out of the total agreed consideration of Rs.6 lakhs and he is always ready and willing to perform his part of contract. It is agreed that the sale transaction shall be completed within a period of six months. When the respondent-plaintiff requested the petitionersdefendants, who have agreed to secure all the survey and revenue records within the agreed time, they asked for further time stating that issuance of 11E sketch for the subject property is being delayed. The respondentplaintiff has approached the petitioners-defendants multiple times including through the intervention of certain elders. When the petitioners-defendants refused to execute the sale deed in pursuance of the sale agreement dated 27.09.2010, the plaintiff issued legal notice, and because the petitioners-defendants issued an untenable reply, the present suit for specific performance is filed.

(3.) The petitioners-defendants contesting the suit have also filed an application under Order VII Rule 11 of CPC for rejection of the plaint essentially asserting that the suit is barred by limitation and as such, the plaint will have to be rejected under Order VII Rule 11 of CPC. The Civil Court has observed that in the present suit the question of limitation is a mixed question of fact and law, and in the light of settled law that when there is a mixed question of fact and law, the plaint cannot be rejected, has not considered the petitioners-defendants' application under Order VII Rule 11 of CPC favorably. Hence, the petitioners-defendants are before this Court.