[2025:RJ-JP:17140] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Revision Petition No. 152/2024 Phool Chand S/o Chandan Lal, R/o Mandi Bazar, Kaman At Present R/o 501, Sector-C South Nirman Nagar King Road, Jaipur ----Petitioner Versus 1. Rajkumar S/o Shri Chandan Lal, R/o Mandi Bazar, Kaman, Bharatpur (Rajasthan) 2. Sub Registrar, Sub- Registrar Office, Kaman, Deeg, Rajasthan ----Respondents For Petitioner(s) : Mr. J. P. Goyal, Senior Adv. assisted by Ms. Sakshi Tiwari, Adv. Mr. Siddharth Singh, Adv. Ms. Yashika Vijayvargiya, Adv. Ms. Meenal, Adv. For Respondent(s) : Mr. Rajeev Surana, Senior Adv. assisted by Mr. Anuj Rohila, Adv. & Mr. Umang Jain, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment Date of Judgment 25/04/2025 The present revision petition has been filed by the petitioner- defendant (for short ‘the defendant’) under Section 115 CPC against the order dated 13.03.2024 passed by the Civil Judge, Kaman (Bharatpur) (for short ‘the trial court’) in Civil Suit No.85/2023, whereby the trial court dismissed the application filed by the defendant under Order 7 Rule 11 CPC. Learned Senior Counsel for the defendant submits that respondent No.1-plaintiff (for short ‘the plaintiff’) filed a suit for permanent injunction against the defendant in which defendant [2025:RJ-JP:17140] (2 of 4) [CR-152/2024] filed an application under Order 7 Rule 11 CPC to the effect that no cause of action accrued to the plaintiff. By way of the present suit, the plaintiff wanted to execute the oral agreement dated 10.02.1996 by which he is said to have given Rs.1,06,500/-. Learned Senior Counsel for the defendant further submits that plaintiff had not filed the suit for specific performance of the contract but he had simply filed the suit for injunction. That was not maintainable. The suit was also not within limitation, but trial court vide order dated 13.03.2024 wrongly dismissed the application under Order 7 Rule 11 CPC filed by the defendant. So, order dated 13.03.2024 passed by the trial court be set aside and suit filed by the plaintiff be dismissed being barred by law and limitation. Learned Senior Counsel for the defendant has placed reliance on the following judgments:- (1) Raghwendra Sharan Singh V/s. Ram Prasanna Singh (Dead) by Legal Representatives reported in (2020) 16 SCC 601; (2) Sanjay Sharma V/s Kotak Mahindra Bank Ltd. & Ors. in Civil Appeal(@ SLP(C) No.330/2017 decided on 10.12.2024. Learned Senior Counsel for the plaintiff has opposed the arguments advanced by learned Senior Counsel for the defendant and submitted that trial court has rightly dismissed the application filed by the defendant under Order 7 Rule 11 CPC. Question of limitation as well as cause of action being mixed question of law would be decided after taking evidence of the parties. Trial court while deciding the application under Order 7 Rule 11 CPC cannot take into consideration the averments made in the plaint nor [2025:RJ-JP:17140] (3 of 4) [CR-152/2024] defence of the defendant. So, the present petition being devoid of merit, is liable to be dismissed. Learned Senior Counsel for the plaintiff has placed reliance upon the following judgments:- (1) Mr. Glen Rodrigues V/s Abhunik Metals Ltd. reported in 2014 O Supreme (Ori) 618; (2) Shyam Sunder Batra & Anr. V/s. Brahamveer reported in 2014 0 Supreme (All) 2700; (3) Sri biswanath Banik & Anr. V/s Smt. Sulanga Bose & Ors. reported in 2022 3 Supreme 705. I have considered the arguments advanced by learned Senior Counsel for the defendant as well as learned Senior Counsel for the plaintiff and perused the impugned order. It is an admitted position that disputed property which belongs to the father of the defendant as well as plaintiff was partitioned on account of Will. The contention of the plaintiff is that on account of need of money to purchase the house in Jaipur, the defendant had taken Rs.1,06,500/- on 10.02.1996 from the plaintiff and gave possession of his share in the house to the plaintiff. The plaintiff wanted to execute the so-called oral agreement entered in between the parties on 10.02.1996. The suit was filed by the plaintiff in the year 2023, which was time barred. It is also pertinent to mention that plaintiff had to file the suit for specific performance regarding so-called oral agreement but he had simply filed the suit for injunction which is not maintainable. So, in my considered opinion, trial court had committed en error in dismissing the application filed by the [2025:RJ-JP:17140] (4 of 4) [CR-152/2024] defendant under Order 7 Rule 11 CPC. So, order dated 13.03.2024 passed by the trial court deserves to be set aside. The revision petition filed by the defendant is allowed. The order dated 13.03.2024 passed by the trial court is set-aside and the suit filed by the plaintiff is dismissed on the ground of limitation. Pending application(s), if any, also stand(s), disposed of. (NARENDRA SINGH DHADDHA),J Avinash/92