SUDARSHAN KUMAR Vs. NARBADA DEVI

JUDGEMENT

(1.) THE application of the vendor-petitioner under Order 7 Rule 11 C.P.C. has been dismissed in which prayer was made for dismissal of the suit claiming that it was barred by law having been filed beyond the period of limitation. The principal ground for dismissal of the application is that when the vendee-respondent issued a legal notice on 16.12.1985 stating that he had approached the defendant-petitioner several times to get the sale-deed executed and registered within the stipulated time then in reply, the vendor- petitioner through their counsel informed the vendee-respondent that one of their sisters Smt. Sushila Devi had filed a suit against them for partition of the property. It was further asserted that the vendee-respondents were to be informed as and when the suit for partition would be finally decided.

(2.) THE vendor-petitioner had entered into an agreement to sell dated 9.6.1984 with a stipulation that the sale-deed would be executed on 15.12.1985, the vendee-respondent filed civil suit No. 505/2000 on 7-8.2000 for specific performance of the agreement to sell dated 9.6.1984. The vendor-petitioner, who is defendant in the suit, filed an application for dismissal that the suit under Order 7 Rule 11 of the Code claiming that the suit was liable to be dismissed, as no cause of action has survived and it is barred by limitation. The application was resisted pleading that the vendor-petitioner in his reply to the legal notice dated 16.12.1985 had stated that his sister Smt. Sushila Devi had filed a suit for partition. The vendor-petitioner had promised to intimate as and when the suit was decided. It is claimed that suit filed by Smt. Sushila Devi was decided a month before the filing of suit by the vendee-respondent. The trial Court dismissed the application by observing as under :

(3.) AFTER hearing the learned counsel and in the facts and circumstances of the case, no ground is made out to interfere in the well reasoned order of the trial Court. The trial Court requires to look into the evidence of the parties before deciding the issue of limitation which is a mixed question of law and fact. The suit cannot be summarily dismissed under Order 7 Rule 11 of the Code because the vendee-respondent may by adducing evidence, be able to prove the cause of action and the fact that the suit is not barred by limitation. There is no merit in this petition. Dismissed. Petition dismissed.