Case Note & Summary
The case involves a civil revision application filed by the original defendant nos. 2 and 3 (petitioners) against the rejection of their application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) in Special Civil Suit No. 11/2012. The respondent no. 1 (plaintiff) had filed a suit seeking enforcement of a right of pre-emption based on a special contract entered into at the time of partition between him and respondent no. 2. The plaintiff alleged that respondent no. 2 sold the suit plot to the petitioners on 12.05.2009 in breach of the pre-emption term. The plaintiff issued a notice to respondent no. 2 on 01.08.2011, and upon receiving no reply, made inquiries and discovered the sale deed. The suit was filed on 27.05.2012. The petitioners contended that the suit was barred by limitation under Article 97 of the Limitation Act, 1963, which provides a one-year period for enforcing a right of pre-emption, starting from when the purchaser takes physical possession or, if the property does not admit of physical possession, from the date of registration of the sale deed. The trial court held that the question of limitation was a mixed question of law and fact and could not be decided under Order 7 Rule 11 CPC or as a preliminary issue. The High Court, after hearing arguments, upheld the trial court's order, noting that the plaint disclosed that the plaintiff came to know of the sale only after the notice and inquiry, and thus the issue of limitation required evidence. The revision application was dismissed.
Headnote
A) Civil Procedure Code - Rejection of Plaint - Order 7 Rule 11 - Limitation as Mixed Question - The court held that whether the suit is barred by limitation is a mixed question of law and fact, and therefore the plaint cannot be rejected under Order 7 Rule 11 CPC without trial. The trial court's refusal to reject the plaint was upheld. (Paras 1-3)
B) Limitation Act - Pre-emption Right - Article 97 - Time from which period begins to run - For a suit to enforce a right of pre-emption based on a special contract, the period of limitation is one year from when the purchaser takes physical possession or, if the property does not admit of physical possession, from the date of registration of the sale deed. The court noted that the plaint alleged that the plaintiff came to know of the sale only upon inquiry after notice, making the question of limitation a factual issue. (Paras 2-3)
Issue of Consideration
Whether the suit for enforcement of a right of pre-emption is barred by limitation and whether the plaint can be rejected under Order 7 Rule 11 CPC on that ground.
Final Decision
The civil revision application is dismissed. The order of the trial court rejecting the application under Order 7 Rule 11 CPC is upheld.
Law Points
- Limitation is a mixed question of law and fact
- Order 7 Rule 11 CPC
- Article 97 Limitation Act
- Pre-emption right based on special contract
Case Details
2014 LawText (BOM) (01) 133
Civil Revision Application No. 59 of 2013
Shri Anand Deshpande for applicant, Shri M.G. Sarda for respondent no. 1
Janardhan Haribhau Hend (Patil) and Manoj Jagdish Modi
Jaikumar Shaligram Chandak and Vijaykumar Shaligram Chandak
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Nature of Litigation
Civil revision application against rejection of application under Order 7 Rule 11 CPC for rejection of plaint in a suit for enforcement of right of pre-emption.
Remedy Sought
Petitioners (original defendant nos. 2 and 3) sought rejection of plaint on ground of limitation.
Filing Reason
Petitioners claimed that the suit for pre-emption was barred by limitation under Article 97 of the Limitation Act as the sale deed was executed on 12.05.2009 and suit was filed on 27.05.2012, beyond one year.
Previous Decisions
Trial court rejected the application under Order 7 Rule 11 CPC holding that limitation is a mixed question of law and fact.
Issues
Whether the suit for enforcement of a right of pre-emption is barred by limitation under Article 97 of the Limitation Act, 1963?
Whether the plaint can be rejected under Order 7 Rule 11 CPC on the ground of limitation without trial?
Submissions/Arguments
Petitioners argued that from the plaint itself, the sale deed was executed on 12.05.2009 and suit was filed on 27.05.2012, beyond one year, so the suit is clearly barred by limitation and no evidence is needed.
Respondent no. 1 (plaintiff) argued that the question of limitation is a mixed question of law and fact and cannot be decided without trial.
Ratio Decidendi
Whether a suit is barred by limitation is a mixed question of law and fact, and the plaint cannot be rejected under Order 7 Rule 11 CPC on that ground unless it is clear from the plaint itself that the suit is barred. In this case, the plaint alleged that the plaintiff came to know of the sale only after notice and inquiry, making the starting point of limitation a factual issue.
Judgment Excerpts
The learned trial court held that whether the suit is barred by limitation in the present case is the mixed question of law and facts and hence neither the plaint can be rejected under Order 7 Rule 11 of the Code of Civil Procedure nor it can be decided as a preliminary issue.
The learned counsel for the petitioners Mr. Anand Deshpande vehemently submitted that the reading of the plaint as a whole would show that while the sale deed was executed on 12.5.2009, the suit is filed on 27.3.2012. This fact, thus, would show that there is no need of adducing any evidence.
Procedural History
The respondent no. 1 (plaintiff) filed Special Civil Suit No. 11/2012 for enforcement of a right of pre-emption. The petitioners (defendant nos. 2 and 3) filed an application under Order 7 Rule 11 CPC for rejection of plaint on ground of limitation. The trial court rejected the application. The petitioners filed the present civil revision application against that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 7 Rule 11
- Limitation Act, 1963: Article 97
