B. Krishnappa - Petitioner @HASH Cauvery Gruha Nirmana and Another

A.N. Venugopala Gowda, J. - The respondents have tiled O.S. No. 464/2014 in the Court of the II Addl. I Civil Judge at Mysuru against the petitioner, his wife and the two children, to pass a decree of specific performance of the agreement dated 02.09.2004 and direct the defendants to execute the sale deed and handover possession of the plaint schedule property in favour of the nominee of the plaintiff No.1 i.e., plaintiff No.2 and for grant of consequential reliefs.

The suit was filed on 11.04.2014. The cause of action for the suit as per the plaint averments has arisen with the execution of the sale agreement on 02.09.2004 and on subsequent dates and finally on 19.02.2014 when a reply to the notice dated 29.01.2014 was sent.

The defendants filed written statement on 24.02.2015. Simultaneously, they filed I.A. No.III, under Order 7, Rule 11 (d) of Civil Procedure Code, praying for rejection of the plaint on the premise that the suit is barred by law'' of limitation. The Trial Judge having passed an order dated 26.06.2015 and dismissed I.A. III, this petition was filed on 10.08.2015 to set aside the said order and for allowing of I.A. No. III filed in the suit and consequently, reject the plaint.

The learned Trial Judge by reason of the said order has opined that the validity of the agreement is a mixed question of fact and law and without trial, the Court cannot come to the conclusion, whether the suit agreement is time barred or not.

Sri K.M. Somashekara, learned advocate contended that the suit document - agreement of sale being dated 02.09.2004 and the suit having been filed on 11.04.2014, Trial Court has committed error and illegality in dismissing I.A. III. Learned counsel submitted that the Trial Court has not considered the grounds raised in the written statement and also in the affidavit filed in support of I.A. III. He contended that I.A. III having been improperly dismissed, this petition is liable to be allowed.

Perused the record and considered the submissions. The point for consideration in this appeal is, whether the Trial Court is justified in dismissing I.A.III and thereby, refusing to reject the plaint?

Order 7, Rule 11 (d) of Civil Procedure Code reads as under:

"11. Rejection of plaint.- The plaint shall be rejected in the following cases:

(a)-(c) * * *

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e)-(f) * * *

"1. Popat and Kotecha Property v. State Bank of India Staff Assn., [Para 8]

C. Natrajan v. Ashim Bai, [Para 8]

Ram Prakash Gupta v. Rajiv Kumar Gupta, [Para 8]

Hardesh Ores (P) Ltd. v. Hede and Co., [Para 8]

Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, [Para 8]

Sopan Sukhdeo Sable v. Asstt. Charity Commr., [Para 8]

Saleem Bhai v. State of Maharashtra, [Para 8]

P.V. Guru Raj Reddy v. P. Neeradha Reddy, [Para 8]

N. Triveni v. Sri GT. Shankar, [Para 8]

An application for rejection of the plaint can be filed by the defendants), if the allegations made in the plaint, even on face value taken to be correct in their entirety appear to be barred by law. The question, whether the suit is barred by limitation or not, therefore, depends upon the facts and circumstances of the case. To answer the aforesaid point, only the averments made in the plaint are relevant and the contentions raised by way of defence are have no relevance which is clear from the enunciation of law by the Apex Court vide Judgments in Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510 : [2006(1) ICC (S.C.) 390], C. Natrajan v. Ashim Bai, (2007) 14 SCC 183 : (2008(1) ICC (S.C.) 10], Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59 : [2007(2) RLR (S.C.) 722], Hardesh Ores (P) Ltd. v. Hede and Co., (2007) 5 SCC 614 : [2007(2) RLR (S.C.) 1], Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100 : [2006 (2) ICC (S.C.) 479], Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137 : [2004(1) RLR (S.C.) 453 : 2004(2) ICC (S.C.) 396] and Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557 : [2003(2) ICC (S.C.) 382], P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331 : [2015(2) ICC (S.C.) 321], (See also Smt. N. Triveni v. Sri G.T. Shankar, reported in ILR 2016 KAR 2429 : [2016(2) ICC (Karn.) 968]).

In the present case, the plaintiffs have averred that the entire sale consideration amount of Rs. 11,60,000/- was paid to defendant No.l and his brothers and mother and a continued agreement dated 21.07.2005 was executed. According to the plaintiffs, the defendant No.1 along with his brothers continued the agreement and executed an endorsement dated 27.11.2006. The plaintiffs have averred that defendant No.1 and his brothers have executed a continuation agreement on 31.01.2007 and altered the sale consideration from Rs. 10,000/- to Rs. 16,250/- per gunta. It has been further averred that the defendants received the entire sale consideration amount in respect of the plaint schedule property from plaintiff No.1 and that the Government by a Notification dated 23.06.2010 de-notified the property by specifically mentioning the purpose to be ''for distribution of sites for members of the society''. The plaintiffs have averred that the de-notification came into being on account of the efforts put in by plaintiff No.1. The plaintiffs have averred that a notice dated 29.01.2014 having been served, an untenable reply dated 19.02.2014 declining to perform the contract was received and hence, the suit was filed. The cause of action for the suit has been stated 6 in para 30 of the plaint.

In the light of the averments made in the plaint and the settled legal position in the decisions mentioned supra, Trial Court is justified in dismissing I.A. III. The impugned order is neither arbitrary nor perverse much less illegal.

In the result, the petition is rejected. The suit being pending for more than two years, Trial Court is directed to decide the case with expedition by considering all the issues.