Punjab-Haryana High Court
Sardar Singh vs Jaswinder Singh And Another on 23 December, 2010
Author: L. N. Mittal
Bench: L. N. Mittal
CIVIL REVISION NO.5386 OF 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CIVIL REVISION NO.5386 OF 2010
DATE OF DECISION: DECEMBER 23, 2010
Sardar Singh
.... Petitioner
VERSUS
Jaswinder Singh and Another
.... Respondents
CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.
PRESENT: Mr. O. P. Goyal, Senior Advocate with
Ms. Shilpa Sahi, Advocate for the petitioner.
Mr. K. S. Boparai, Advocate for the respondents.
****
L.N. MITTAL, J. (ORAL)
Defendant Sardar Singh aggrieved by order dated 10.06.2010 passed by learned Civil Judge (Junior Division), Ludhiana has filed the instant revision petition.
Respondents Jaswinder Singh and Jagnohan Singh (plaintiffs) filed suit against the petitioner vide plaint Annexure P-1 for possession of the suit property by specific performance of the agreement to sell dated 06.07.1994 and for direction to the defendant to get registered the sale deed dated 26.04.1995 already executed or to execute and get registered fresh sale deed of the suit property. Permanent injunction restraining the defendant from delivering possession of the suit land to anybody else and from changing its nature and from alienating it, has also been claimed.
Defendant moved application Annexure P-2 under Order 7 Rule 11 of the Code of Civil Procedure (CPC) for rejection of the plaint on the ground that the suit is time barred.
CIVIL REVISION NO.5386 OF 2010 -2-
Plaintiffs filed reply Annexure P-3 to the application controverting the same, alleging that the suit is within limitation. It was also pleaded that question of limitation is to be decided on merits after recording evidence. Various other pleas were also raised.
Learned trial court vide impugned order dated 10.06.2010 dismissed the defendant's application observing that the question limitation is a mixed question of law and facts and the same can be decided after recording evidence. Feeling aggrieved, defendant has preferred the instant revision petition invoking jurisdiction of this Court under Article 227 of the Constitution of India.
I have heard learned counsel for the parties and perused the case file.
Learned counsel for the petitioner vehemently contended that even as per averments made in the plaint, the suit is hopelessly barred by limitation as according to agreement dated 06.07.1994, sale deed was to be executed up to 30.11.1994 and the sale deed was allegedly executed on 26.04.1995 but was not got registered and the suit has been filed on 02.08.2003 and, therefore, no evidence is required to determine whether the suit is within limitation or not.
On the other hand, learned counsel for respondents relying on various judgments namely Sudarshan Kumar Versus Smt. Narbada Devi, 2005(3) RCR (Civil) 713 of Punjab and Haryana High Court; Harpal Singh and others Versus Gajan Singh, 2005(3) RCR (Civil) 690 of Punjab and Haryana High Court; Popat and Kotecha Property Versus State Bank of India Staff Association, 2005(3) RCR (Civil) 713 of Hon'ble the Supreme Court; Bajaj Electricals Ltd. Versus Electromast Industries, 1992(2) RCR CIVIL REVISION NO.5386 OF 2010 -3- 207 of Punjab and Haryana High Court; S. Bhagat Singh Versus Satnam Transport Co. Ltd. And others, AIR 1961 Punjab 278 (Vol. 48, C. 84) (1), contended that question of limitation is a mixed question of law and facts and, therefore the same can decided only after recording evidence. It was also contended that Order 7 Rule 11(d) CPC is not applicable for rejecting the plaint on the ground of the suit being barred by limitation. It was also pointed out that according to Article 54 of the Schedule to the Limitation Act, limitation period commences when the plaintiff has notice that performance of the agreement is refused and, therefore, the question whether suit is within limitation or not can be decided after recording evidence.
I have carefully considered the aforesaid contentions. If the plaint averments are taken to be correct for deciding the question of limitation, there would be no question of recording evidence for adjudicating upon the question. In that event, it cannot be said to be mixed question of law and fact, because only law has to be applied to the facts pleaded by the plaintiffs.
As regards Article 54 of the Schedule to the Limitation Act, it provides that limitation period of three years for specific performance of a contract commences to run from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused. In the instant case, it is own case of the plaintiffs that according to impugned agreement, sale deed was to be executed up to 30.11.1994 and thus date was fixed in the agreement for the performance and consequently, the limitation period started running from the said date i.e. 30.11.1994. However, even if it be assumed that limitation period started running when CIVIL REVISION NO.5386 OF 2010 -4- the plaintiff had notice that performance is refused, even then the limitation period started running from 26.04.1995 when the sale deed was allegedly executed by the defendant No.1 but not got registered. Limitation for the suit was three years only but the suit has been filed on 02.08.2003 i.e. more than eight years after the cause of action accrued either from the date fixed in the agreement for execution of the sale deed (30.11.1994) or even from the date when the sale deed was actually executed, but not got registered (26.04.1995). Thus the suit is patently barred by limitation and it would be futile to force the parties to go through the process of regular trial. Judgments cited by counsel for the respondents are completely inapplicable to the facts of the instant case. In those cases, the plaint could not be rejected on the basis of the averments made in the plaint without recording evidence on the version of the defendants. On the contrary, under Order 7 Rule 11(d) CPC, the plaint has to be rejected where the suit appears from the statement in the plaint to be barred by any law. In the instant case, from the averments made in the plaint, the suit is manifestly barred by the law of limitation. Consequently, plaint is liable to be rejected under Order 7 Rule 11(d) CPC.
Learned counsel for the respondents laid great emphasis on judgment of Hon'ble Supreme Court in the case of Popat and Kotecha Property (supra). However, even in that judgment, it was held that defendant can file application under Order 7 Rule 11 CPC for rejection of the plaint inter alia on the ground that suit was barred by limitation. It was also held that disputed questions cannot be decided at the time of considering an application under Order 7 Rule 11 CPC. It was also, however, observed that clause (d) of Order 7 Rule 11 CPC applies in those CIVIL REVISION NO.5386 OF 2010 -5- cases where the statement made by the plaintiff in the plaint, without any doubt or dispute, shows that the suit is barred by any law in force, and the trial court can exercise this power at any stage of the suit i.e. even before registering the plaint or after issuing summons to the defendant at any time before conclusion of the trial court. These observations made by Hon'ble Supreme Court clearly go against the contentions of learned counsel for respondents. In view of these observations of Hon'ble Supreme Court, in the instant case, taking in to consideration the statement made by the plaintiffs in their plaint Annexure P-1, suit is barred by the law of limitation and, therefore, Order 7 Rule 11(d) of CPC is fully applicable to the facts of the case in hand.
For the reasons aforesaid, I have no hesitation in concluding that going by the averments made in plaint Annexure P-1, suit filed by respondents/plaintiffs is hopelessly barred by limitation and, therefore, plaint is liable to rejection under Order 7 Rule 11 (d) of CPC. Impugned order of the trial court is, therefore, erroneous, illegal and unsustainable and suffers from jurisdictional error because the trial court refused to exercise jurisdiction which vested in it under Order 7 Rule 11(d) of CPC. Accordingly, instant revision petition is allowed. Impugned order passed by the trial court is set aside. Application Annexure P-2 filed by defendant under Order 7 Rule 11 CPC is allowed and plaint instituted by the respondents against the petitioner is rejected, the suit being barred by limitation.
(L. N. MITTAL) JUDGE December 23, 2010 'raj'