MEERA TOMAR Vs. ASHISH PRATAP SINGH

JUDGEMENT

(1.) This civil revision has been filed against the order dtd. 19/2/2024 passed by IX District Judge, Gwalior in Civil Suit No.RCSA/202/2023 by which application filed by applicants under Order 7 Rule 11 of CPC for dismissal of suit as barred by time has been rejected.

(2.) . It is submitted by counsel for applicant that it is well established principal of law that for deciding the application filed under Order 7 Rule 11 of CPC, only plaint averments are to be seen. It is submitted that according to the plaintiffs, an agreement to sell was executed on 7/4/2017 and 6/9/2017 was the last date for execution of sale deed. However, the last date for execution of sale deed was extended up to 5/9/2019. The suit was filed on 20/2/2023, therefore, it was not filed within a period of three years from the last date for execution of sale deed. It is submitted that since time was the essence of contract, therefore, period of limitation of three years would start from the last date for execution of sale deed.

(3.) Per contra, civil revision is vehemently opposed by counsel for respondents. It is submitted that period of limitation would start running from the date of refusal to execute the sale deed. However, it is also submitted by counsel for respondents that although applicant is claiming that according to the agreement to sell, last date for execution of sale deed was 5/9/2019 and the suit was filed on 20/2/2023, but the said ground was never raised by applicant in his application filed under Order 7 Rule 11 of CPC. Therefore, it is submitted that applicant cannot develop new case/ground which was never raised before Trial Court and was never raised in the application under Order 7 Rule 11 of CPC.