Subhasappa vs Ujjappa

B. Manohar, J.—The petitioners are the defendants in O.S. No. 228/2009 on the file of the Principal Civil Judge, Ranebennur. Being aggrieved by the order dated 19.02.2015, made on I.A. No. IX filed under Order 7 Rule 11(d) of CPC, the petitioners have preferred this writ petition.

The respondent herein has filed a suit seeking for specific performance of agreement of sale dated 09.08.1983. The case of the plaintiff is that, pursuant to the agreement of sale, he was put in possession of the suit schedule property and he effected vast improvement. In spite of repeated request, the defendants'' have failed to execute the sale deed. The plaintiff got issued legal notice on 10.7.2009 calling upon the defendants to execute the sale deed. However, the defendants refused to execute the sale deed. Immediately thereafter, he filed the suit for specific performance of agreement of sale.

The defendants in the suit entered appearance and filed written statement. On the basis of the pleadings of the parties, trial Court framed necessary issues. The parties went for trial. During the course of the trial, the defendants filed an application - I.A. No. IX invoking Order 7 Rule 11(d) of CPC, for rejection of plaint, contending that the suit has been filed after 25 years of the alleged agreement of sale. The plaintiff filed the objections to said application contending that I.A. No. IX filed by the defendants is not maintainable, since the case was posted for the evidence of the parties and the defendants cannot file such an application.

The trial Court after considering the matter in detail held that according to Article 54 of Limitation Act, limitation counts from the date of refusal of the execution of agreement of sale. As per Article 54 of Limitation Act, the period for filing of suit for Specific Performance Contract is three years, if the date of performance is fixed. In the agreement of sale there is no mention of the specific date on which the defendants had to execute the sale deed. Accordingly, rejected the application filed by the defendants. Being aggrieved by the impugned order, the defendants have preferred this writ petition.

Sri. Laxman T. Mantagani, advocate appearing for the petitioners contended that the impugned order passed by the trial Court is contrary to law. After 25 years of execution of alleged agreement of sale, suit has been filed. Article 54 of the Limitation Act, provides that within three years'' period, a suit has to be filed for specific performance of sale. The trial Court without considering the provision of Order 7 Rule 11(d) of CPC, rejected the application. He relied upon a judgment reported in Ahmmadsahab Abdul Milla (dead) by proposed Lrs. Vs. Bibijan and Others, , and sought for setting aside the impugned order passed by the trial Court.

I have carefully considered the argument addressed by the learned counsel appearing for the petitioners and perused the impugned order and other relevant records.

The records clearly disclose that the plaintiff filed the suit seeking for specific performance of agreement of sale. The specific case of the plaintiff is that in spite of repeated requests, the defendants had not come forward to execute the sale deed. Subsequently, he got issued a legal notice calling upon the defendants to execute the sale deed. The defendants refused to execute the sale deed. Limitation starts from that date of denial of execution of sale deed and the suit filed by the plaintiff is not barred by limitation.

On the basis of the pleadings of the parties, issues have been framed. Parties have let in evidence. At the stage of recording the evidence of the parties, the defendants have filed the application -I.A. No. IX under Order 7 Rule 11(d) of CPC, for rejection of suit. The said application under Order 7 Rule 11(d) should have been filed at the earliest point of time and not in the midst of the trial, after parties went for trial, they cannot maintain such an application.

Further, though the defendants were served with the legal notice in the year 2009, they refused to execute the sale deed, immediately thereafter the plaintiff has filed the suit. Article 54 of the Limitation Act, provides for time from which limitation starts the date of which the defendant refused to execute the sale deed. The Trial Court taking into consideration all these aspects of the matter rejected the application. I find no infirmity or irregularity in the impugned order passed by the trial Court. The judgment relied upon by the petitioners is not applicable to the facts of the case since the period is not fixed in the agreement of sale. The petitioners have not made out a case for interference.

Accordingly, writ petition is dismissed.