Full Judgment
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CIVIL REVISION PETITION NO. 36 OF 2024 (IO) BETWEEN: SRI SURAPPA S/O SURAPPA, AGED ABOUT 75 YEARS, AGRICULTURIST, R/O KAGALAGERE GOLLARAHATTI VILLAGE, B DURGA HOBLI, HOLALKERE TALUK - 577 518 CHITRADURGA DIST. …PETITIONER (BY SRI. HARISH N.R, ADVOCATE) AND: SRI. SIDDAPPA S/O KARISIDDAPPA, AGRICULTURIST, AGED ABOUT 55 YEARS, Digitally signed by R/O KAGALAGERE GOLLARAHATTI VILLAGE, SHARADAVANI
B B DURGA HOBLI, Location: High HOLALKERE TALUK - 577 518 Court of CHITRADURGA DIST.,Karnataka …RESPONDENT (BY SRI. SIDDAPPA B M, ADVOCATE) THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 09.10.2023 PASSED ON I.A.NO.II IN OS.NO.100/2023 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, HOLALKERE, REJECTING THE I.A.NO.II FILED UNDER ORDER VII RULE 11(a) AND (d) OF CPC FOR REJECTION OF PLAINT. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
-2- CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Harish N. R., learned counsel for the revision petitioner and Sri.Siddappa B. M., learned counsel for the respondent.
2. Defendant in O.S.No.100/2023 is the revision petitioner challenging the dismissal of the application filed under Order VII Rule 11 of Code of Civil Procedure (hereinafter ‘CPC’ for short).
3. Facts in the nutshell which are utmost
necessary for disposal of the present revision petition are as under: 3.1. A suit for specific enforcement of an agreement to sell dated 20.05.2002 came to be filed by the plaintiff in respect of the following property (hereinafter referred to as suit scheduled property): -3-
That the land bearing Sy.No.45/4 measuring 1 acre 11 guntas out of which land to measuring 1 acre towards the eastern side, situated at Kagalagere village, B. Durga Hobli, Holalkere Taluk which is bounded by: East: Land of Jadiyappa West: Remaining land of defendant North: Land of Lakshmamam South: Land of Karisiddappa
3.2. Plaintiff contended that defendant entered into an agreement to sell for a sale consideration of Rs.75,000/- and a sum of Rs.40,000/- was paid as advance sale consideration and balance sum of Rs.35,000/- was agreed to be paid within December, 2002. 3.3. There was a total lull between the parties in between the year 2002 to 2022. 3.4. When the matter stood thus, a suit for declaration came to be filed by defendant in O.S.No.71/2022. -4- 3.5. Plaintiff after receipt of suit summons in the said suit, filed the present suit seeking specific enforcement of the agreement to sell. 3.6. Defendant who is the revision petitioner, appeared before the Court and filed written statement denying the plaint averments and also filed an application under Order VII Rule of 11(a) and (d) of CPC vide I.A.No.2. 3.7. Plaintiff opposed the said application by filing objection statement.
4. Learned trial judge after hearing the parties, dismissed the application filed by the defendant inter alia holding in paragraph Nos. 10 to 15 as under:
”10. The important aspect to be considered is that. whether plaint has to be rejected on the ground that there is no cause of action to file the suit? When the Plaintiff has pleaded that the sale agreement was entered between him and defendant with respect to suit schedule property, then the said aspect has to be adjudicated at the later stage. Only on the ground -5-
that the defendant has not executed any document infavour of the plaintiff and plaint does not disclose the cause of action the plaint cannot be rejected and the same cannot be considered that there is no cause of action for filing the suit. In order to ascertain cause of action, it is necessary to consider the entire plaint averments and the paragraph where Plaintiff has stated about cause of action. At this stage, the Plaint cannot be rejected on the ground that there is no cause of action. To decide the present IA filed by the defendant U/o VII rule 11 of CPC, the averments in the plaint are germane while deciding the said application filed for rejection of plaint, the court has to presume the facts on perusal of the mentioned in the plaint as correct. Upon plaint it is discloses that, the plaintiff has made out sufficient grounds to file this suit.
11. Further the plaintiff has stated in the plaint that
the cause of action for the suit arose when the plaintiff has demanding to effect sale deed and issued legal notice to the defendant, for which the defendant has refused and failed to perform his part of contract as per sale agreement dated:20/05/2002. On these allegations the plaintiff has claimed the relief of Specific performance of contract. On the other hand, the defendant has stated that, he has never executed any document -6-
infavour of the plaintiff and being the owner of the suit schedule property is in possession and enjoyment of the suit schedule property. Further he has contended that, as per the plaint averments and agreement of the sale dated: 20/05/2002, the suit ought to have been filed within 3 years from the date of the said execution of sale agreement. But the plaintiff has filed after expiry of 10 years. Hence the suit is barred by law of limitation. Therefore the plaintiff has no right or any interest in the suit schedule property and as such the suit is not maintainable.
12. The learned counsel for the defendant has relied
upon the decision of Hon'ble Supreme Court of India in the case of Dahilben vs Arvindbhai Kalyanji Bhanusali and the decision of Hon'ble High Court of Karnataka in the case of Smt. D. Rani Vs Sri. Krishanppa.
13. Considering the ratio laid down by the Hon'ble
Supreme Court of India and Hon'ble High Court of Karnataka and apply to the case on hand, it is noticed that, in the case on hand the plaintiff has filed this suit for Specific performance of contract based upon the sale agreement on the ground that defendant is trying to alienating, mortgaging, gift or creating any encumbrance over the suit schedule -7-
property. Moreover, the Hon'ble supreme Court and other wise High Court Karnataka has decide the above case is for declaration, The case on hand is filed for the relief of specific performance of contract. Hence, the said facts of the cases of the Hon'ble Supreme Court and Hon'ble High Court of Karnataka and the facts of the case on hand are different. Therefore, above decisions are not applicable to the case on hand.
14. Now the question arise for consideration of this
Court is whether there is a point of limitation and it is to be fit to reject the plaint on ground that, suit is barred by law of limitation in the preliminary stage of this suit. It is relevant to refer the ratio laid down by the Hon'ble High Court of Karnataka in 2017 SCC On-line KAR 6782 between Prameela N Vs. L.Mahadevaiah. Wherein it is held that,
19. It is also to be taken note of that, in view of
the above said decisions that when the limitation point cannot be treated as a pure question of law and fact. In such eventuality, the parties are to be allowed to lead evidence in
order to prove whether the suit is barred by
limitation or not? -8-
20. It is also to be borne in mind that when the
plaintiff pleads that the sale deed is not binding upon her and she continues produce the joint owner of the said property with 1" defendant, again this has to be tested whether she has to seek for cancellation or for setting aside the sale deed or simply she can seek that the sale transaction is not binding upon her. This also again requires evidence before the Court.
15. Considering the ratio laid down by the Hon'ble
High Court of Karnataka and same is applied to the case on hand. In the case on hand the plaintiff has stated that the defendant is bound to execute the registered sale deed. On the other hand defendant has contended that, he has not executed any document infavour of the plaintiff. Same has to be consider by this court after the leading of evidence by the both parties as per above ratio laid down by the Hon'ble High Court of Karnataka. Further case of the plaintiff that the defendant without knowledge of the plaintiff is trying to alienating. mortgaging, gift or creating any encumbrances over the application schedule property and while describing the cause of action, he has stated that he came to know about the said fact recently and when he has issued legal notice to defendant execute the registered sale deed at that time defendant has refuse to execute the sale -9-
deed in respect of the suit schedule property. This knowledge of the plaintiff has to be tested only after providing opportunity to the plaintiff. The question of limitation is ordinarily a mixed question of law and fact. Plea of limitation cannot be decided as an abstract principle of law divorced from facts, as in every case, the starting point of limitation has to be ascertained, which is entirely a question of fact. Therefore, it is now well settled that a plea of limitation is a mixed question of fact and law. If the plaint to be rejected on the ground of bar of limitation what has to be seen is only the plaint averments. If the plaint averments do not disclose that the suit is barred by limitation, then the question of rejecting the plaint under order VII Rule 11(d) would not arise. When the defendants raises the plea of bar of limitation, the Court is bound to frame an issue regarding limitation. As the issue regarding limitation cannot be tried as a preliminary issue, the said issue has to be decided after recording of evidence upon all the issues framed in the suit including the issue regarding limitation. Therefore, the question of the Court going into the question of bar of limitation on an application filed under Order VII Rule 11(d) CPC would not arise. - 10 -
Rejection of the plaint on the ground that the suit is barred by limitation is ex facie illegal and cannot be sustained.
At this stage, the defendant has came up with the present I.A. No.II. Even in the application also, the defendant has not stated justifiable grounds to allow the application. After considering all these aspects, this Court is of the opinion that there is no merit in the application filed by Defendant U/Order VII Rule 11(a) and (d) of CPC and the same deserves to be rejected. With these observations, this Court has answered Point No.1 in the Negative.”
5. Being aggrieved by the same, defendant is before this Court, in this revision petition.
6. Learned counsel for the revision petitioner
reiterating the grounds urged in the revision petition vehemently contented that the Trial Court misdirected itself in dismissing the application filed under Order VII Rule 11(a) and (d) of CPC, ignoring the fact that a belated suit came to be filed by the plaintiff that too after - 11 - institution of the suit filed by the defendant in O.S.No.71/2022.
7. He would also contend that the suit is per se
barred by limitation. He invited the attention of this Court to the decision rendered by Hon'ble Apex Court in the case of Khatri Hotels Private limited and Another v. Union of India and Another reported in (2011) 9 SCC 126 has held in paragraph No.30 as under which is squarely applicable to the case on hand where effect of Article 58 is discussed by the Hon'ble Apex Court at length:
“30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.” - 12 -
8. In support of his argument, he also places
reliance on yet another judgment of the Hon'ble Apex Court in the case of Raghwendra Sharan Singh v. Ram Prasanna Singh reported in (2020) 16 SCC 601 in paragraph No.9 reads as under:
“9. Now, so far as the application on behalf of the original plaintiff and even the observations made by the learned trial court as well as the High Court that the question with respect to the limitation is a mixed question of law and facts, which can be decided only after the parties lead the evidence, is concerned, as observed and held by this Court in Sham Lal [Sham Lal v. Sanjeev Kumar, (2009) 12 SCC 454 : (2009) 4 SCC (Civ) 741] ; N.V. Srinivasa Murthy [N.V. Srinivasa Murthy v. Mariyamma, (2005) 5 SCC 548 : AIR 2005 SC 2897] as well as in Ram Prakash Gupta [Ram Prakash Gupta v. Rajiv Kumar Gupta, (2007) 10 SCC 59] , considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11(d) CPC.” - 13 -
9. Per contra, learned counsel for the respondent supports the impugned order.
10. Having heard the arguments of both sides, this Court perused the material on record meticulously.
11. On such perusal of the material on record,
agreement dated 20.05.2002 is not in dispute inasmuch as the relief claimed by the revision petitioner in O.S.No.71/2022 also refers to the very same agreement.
12. Insofar as the question of limitation is
concerned, if the suit filed by the revision petitioner in the year 2022 for declaration is within the limitation, then the suit filed by the present plaintiff in the year 2023, may be after the receipt of summons in the suit filed by the revision petitioner could be per se accepted as well within the limitation.
13. In other words, whether the clause mentioned
in the agreement dated 20.05.2002 with regard to the stipulation of the time could be the essence of the contract - 14 - or not is a question of fact that needs to be decided by the Court after recording the evidence of the parties.
14. In other words, there is no cancellation of the agreement by either of the parties till the year 2022 in view of the fact that the revision petitioner filed the suit for declaration.
15. It is to be construed that it is then that the
plaintiff has understood the intention of the defendant who is the revision petitioner that he may not perform the obligations under the agreement to sell dated 20.05.2002 in respect to the suit property and therefore, filed the suit for specific enforcement in the year 2023.
16. Anyway, it is for the parties to adduce evidence as to whether the time or the essence of contract or not.
17. In other words, there is a triable issue in the
case which requires full-fledged trial. Thus, the contentions urged on behalf of the appellant that the suit is barred by limitation and should be dismissed, cannot be - 15 - countenanced in law and plaint could not have been thrown out at the threshold.
18. Now adverting to the decision of the Hon'ble
Apex Court in the case of Khatri Hotel Private Limited supra, in paragraph No.30, their Lordships were dealing with Article 58 of the Limitation Act wherein the intention of the Legislature in enacting Article 58 making a clear departure from the language in Article 120 of the Limitation Act, 1908 was considered.
19. The word ‘first’ that has been used between the
word ‘sue’ and ‘accrued’ was taken note of by the Hon'ble Apex Court and based on the facts and circumstances of the case, the Hon'ble Apex Court dealt with the matter in detail.
20. In other words, said decision is of no avail for
the revision petitioner to get the plaint rejected at the threshold inasmuch as recording of evidence is necessary in the case on hand especially when the very same - 16 - revision petitioner has chosen to file a suit against the very same plaintiff in the year 2022.
21. Learned counsel for the revision petitioner placed reliance on paragraph No.9 of the Raghwendra Sharan Singh supra.
22. In the said case, the Hon'ble Apex Court was considering the question with regard to limitation and has
held that in the facts and circumstances of the said case,
the question of limitation was not a mixed question of law and facts.
23. In the case on hand, in view of the very
revision petitioner filing a suit in O.S.No.71/2022 as referred to supra seeking declaration about the very same agreement, the facts in the present case do not warrant rejection of the plaint at the threshold.
24. Further, expressing any opinion on the merits of
the matter at the time of considering the interim application filed under Order VII Rule 11 of CPC would - 17 - hamper the rights of the parties during the trial one way or the other.
25. Suffice to say that material on record would not warrant rejection of the plaint in the case on hand and thus, impugned order does not require any interference.
26. Hence, following:
ORDER
Revision petition is dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 44