Sudarshan Kumar Vs. Smt. Narbada Devi and ors. - Court Judgment

Excerpt:
- m.m. kumar, j.1. the application of the vendor-petitioner under order 7 rule 11 c.p.c. has been dismissed in which prayer was made for dismissal of the suit claiming that it was barred by law having been filed beyond the period of limitation. the principal ground for dismissal of the application is that when the vendee-respondent issued a legal notice on 16.12.1985 stating that he had approached the defendant-petitioner several times to get the sale deed executed and registered within the stipulated time then in reply, the vendor-petitioner through their counsel informed the vendee-respondent that one of their sisters smt. sushila devi had filed a suit against them for partition of the property. it was further asserted that the vendee-respondents were to be informed as and when the suit for partition would be finally decided.2. the vendor-petitioner had entered into an agreement to sell dated 9.6.1984 with a stipulation that the sale deed would be executed on 15.12.1985. the vendee-respondent filed civil suit no. 505/2000 on 7.8.2004 for specific performance of the agreement to sell dated 9.6.1984. the vendor-petitioner, who is defendant in the suit, filed an application for dismissal that the suit under order 7 rule 11 of the code claiming that the suit was liable to be dismissed as no cause of action has survived and it is barred by limitation. the application was resisted pleading that the vendee-petitioner in his reply to the legal notice dated 16.12.1985 had stated that his sister smt. sushila devi had filed a suit for partition. the vendor-petitioner had promised to intimate as and when the suit was decided. it is claimed that suit filed by smt. sushila devi was decided a month before the filing of suit by the vendee-respondent. the trial court dismissed the application by observing as under:'i have gone through the contents of the reply to legal notice dated 27.12.1985 which reveals that the defendants have informed the plaintiffs that a suit between him and his sister is pending and court has stayed the alienation of the suit property. the plaintiff has also mentioned this fact in his plaint and has pleaded that the final cause of action arose to him when he came to know that the suit between the defendant and his sister has been finally disposed of. it is also mentioned in the plaint that the defendants never informed the plaintiff regarding the disposal of the suit pending between defendants and their sister.'3. perusal of the cause of action in the plaint and reply of legal notice dated 27.12.1985 clearly reveal that the time of limitation in this suit is a mix question of fact and law and which cannot be decided without allowing the party to produce their respective evidence. in view of the aforesaid discussion and keeping reliance of the authority cited by learned counsel for the plaintiff. i hold that at this stage, application of the defendants has no merit and is liable to be dismissed. application of defendants is hereby dismissed.4. after hearing the learned counsel and in the facts and circumstances of the case, no ground is made out to interfere in the well reasoned order of the trial court. the trial court requires to look into the evidence of the parties before deciding the issue of limitation which is a mixed question of law and fact. the suit cannot be summarily dismissed under order 7 rule 11 of the code because the vendee-respondent may by adducing evidence be able to prove the cause of action and the fact that the suit is not barred by limitation.there is no merit in this petition. dismissed.