BHERU CHANDANI Vs. SHIVKUMAR GUPTA

JUDGEMENT

(1.) This civil revision has been preferred by the applicants/defendants 4-5 challenging the order dtd. 13/4/2022 passed by 3rd Civil Judge Senior Division, Satna in Civil Suit No.17-A/2022 whereby learned trial Court has dismissed the defendants 4-5's application under Order 7 Rule 11 CPC.

(2.) Learned counsel for the applicants/defendants 4-5 placing reliance on the decision of Supreme Court in the case of Fatehji and Company and another vs. L.M Nagpal and others (2015) 8 SCC 390 submits that if from the allegations made in the plaint itself, suit for specific performance is barred by limitation, then the learned Court can reject the plaint under Order 7 Rule 11(d) CPC and in the present case agreement in question is said to have been executed on 24/1/2001 but the instant suit appears to have been filed on 3/1/2022, therefore, the same is clearly barred by limitation and it ought to have been rejected under Order 7 Rule 11(d) CPC. He submits that without considering this aspect of the matter learned Court below has erred in dismissing the application under Order 7 Rule 11 CPC.

(3.) Learned counsel for the respondent 1/plaintiff by placing reliance on the decision of Supreme Court in the case of Urvashiben and another vs. Krishnakant Manuprasad Trivedi (2019)13 SCC 372 submits that in the agreement of sale in question, no time has been fixed for execution of sale deed, therefore, as per decision of Supreme Court in the case of Urvashiben (supra), the plaint in the instant case cannot be rejected under Order 7 Rule 11(d) CPC and in such cases the question of limitation is a mixed question of fact and law, which is beyond the purview of order 7 Rule 11(d) CPC. As such no illegality has been committed by learned trial Court in dismissing the application of the applicants/defendants 4-5.