Case Note & Summary
The appellant, Sunil Agrawal, filed Special Civil Suit No. 510 of 2010 in the court of Civil Judge, Senior Division, Aurangabad, seeking specific performance of an agreement to sell dated 04.10.2010 (the date of filing) allegedly executed by the respondents, Jawaharlal Chittarke and Madhukar Jadhav. The respondents filed an application at Exh.21 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint on the ground that the suit was barred by limitation. The trial court allowed the application and rejected the plaint, holding that the suit was filed beyond the period of limitation prescribed under Article 54 of the Limitation Act, 1963. Aggrieved, the appellant filed the present Appeal from Order before the Bombay High Court, Aurangabad Bench. The High Court framed the issue of whether the plaint could be rejected under Order VII Rule 11 CPC on the ground of limitation when the agreement was undated. The appellant argued that the agreement was undated and that he had continuously been ready and willing to perform his part, and the question of limitation required a trial. The respondents contended that the suit was clearly barred by limitation as the agreement was executed long before the suit. The court analyzed the provisions of Order VII Rule 11 CPC and Article 54 of the Limitation Act, 1963, and held that the plaint cannot be rejected at the threshold on the ground of limitation when the agreement is undated and the plaintiff has alleged continuous readiness and willingness. The court observed that the date of the agreement and the date of refusal are questions of fact that can only be determined after evidence. The court allowed the appeal, set aside the trial court's order, and directed that the suit be restored and decided on merits. The court also disposed of the civil application.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Limitation - Suit for specific performance of an undated agreement to sell - The court held that when the agreement is undated and the plaintiff alleges continuous readiness and willingness, the question of limitation is a mixed question of law and fact which cannot be decided at the stage of rejection of plaint under Order VII Rule 11 CPC. The plaint cannot be rejected merely because the suit appears to be barred by limitation on the face of it, as the plaintiff must be given an opportunity to prove the date of the agreement and his continuous readiness and willingness. (Paras 1-10) B) Limitation - Suit for Specific Performance - Undated Agreement - Article 54 of Limitation Act, 1963 - The period of limitation for a suit for specific performance is three years from the date fixed for performance, or if no such date is fixed, from the date when the plaintiff has notice that performance is refused. In the absence of a date in the agreement, the court cannot determine the starting point of limitation at the stage of rejection of plaint. (Paras 5-8) C) Specific Relief - Readiness and Willingness - Section 16(c) of Specific Relief Act, 1963 - The plaintiff must aver and prove continuous readiness and willingness to perform his part of the contract. Such averments in the plaint are sufficient to survive a challenge under Order VII Rule 11 CPC, as the truth of those averments can only be tested at trial. (Paras 6-9)
Issue of Consideration
Whether the plaint in a suit for specific performance of an agreement to sell can be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 on the ground that it is barred by limitation when the agreement is undated and the plaintiff alleges continuous readiness and willingness.
Final Decision
The appeal is allowed. The order dated 17th June, 2011 passed by the trial court below Exh.21 in Special Civil Suit No. 510 of 2010 is set aside. The suit is restored to its original number and the trial court is directed to decide the suit on its own merits in accordance with law. The civil application is disposed of.
Law Points
- Order VII Rule 11 CPC
- Limitation Act 1963
- Specific Relief Act 1963
- Rejection of Plaint
- Undated Agreement
- Readiness and Willingness
