[2025:RJ-JP:39418] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil First Appeal No. 780/2025 Kailash Chand S/o Shri Narayan Lal, R/o Village Manpur Dungari, Tehsil Chaksu, District Jaipur. ----Plaintiff/Appellant Versus 1. Khemraj S/o Dola, Aged About 77 Years, R/o Village Roopahedi Kala, Tehsil Kotkhvda, District Jaipur. 2. Banwari Lal Bairwa, Aged About 37 Years, S/o Madan Lal R/o Bairwa Ki Dhani, Village Jhinja, Tehsil Bassi, District Jaipur. ...Defendants-Respondents 3. Sub-Registrar/ Tehsildar Ji Kotkhvda, Jaipur. ----Defendants-Proforma-Respondents For Appellant(s) : Mr. Akash Gupta For Respondent(s) : Ms. Gunjan Sharma for No.1 Mr. Alok Chatturvedi No.2 HON'BLE MR. JUSTICE GANESH RAM MEENA Judgment Reserved on ::: September 23, 2025 Pronounced on ::: October 08, 2025 1. The instant civil first appeal has been filed by the plaintiff/ appellant under section 96 of the Code of Civil Procedure against the order dated 29.03.2025 passed by the Court of learned Addl. District & Sessions Judge, S.No.11, Jaipur Metropolitan, Jaipur [for short ‘the court below’] in Civil Suit No.45/2025, Kailash Chand v. Khemraj & Anr., whereby the court below while allowing the applications filed by defendants/respondents No.1 & 2 separately under Order [2025:RJ-JP:39418] (2 of 14) [CFA-780/2025] VII Rule 11 CPC, rejected the plaint filed by the plaintiff/ appellant for specific performance, declaration and permanent injunction. 2. The facts borne out from the pleadings are that plaintiff /appellant filed a civil suit for specific performance, declaration and permanent injunction relating to the suit property Khasra no. 1014, measuring 3.0400 hector situated at village Roopahedi Kala, Tehsil Kotkhvda, District Jaipur & fully described in para no 1 of the plaint against the defendants. It was stated that respondent No. 1 agreed to sale the disputed property to plaintiff on 27.07.2007 for the consideration of Rs 16,30,000/. On the same date, in the presence of witnesses an agreement to sale was reduced in writing and complete sale consideration was paid to the respondent no. 1 and possession was also handed over by the respondent no. 1 to appellant. It was further stated that respondent no. 1 assured the appellant that whenever appellant will ask for the registration of the sale deed then respondent no. 1 will execute the sale deed in favour of appellant. Appellant is in the possession of the disputed property and appellant is doing farming since 27.07.20027 but on 10.03.2025 respondent no. 2 came to the appellant and stated that respondent no. 2 had purchased the disputed property from the respondent no. 1 and threatened the appellant that he would dispossess the appellant from the [2025:RJ-JP:39418] (3 of 14) [CFA-780/2025] disputed property. It has been also averred that respondent no. 1 after receiving the full consideration sold the disputed property to the appellant and possession of the disputed property was also handed over to the appellant, therefore respondent no 1 had no right to sale the disputed property to respondent no. 2 and prayed that the suit for specific performance relating to the disputed agricultural land may be decreed. Injunction was also sought that defendants be restrained not to dispossess the plaintiff. It was also prayed that the sale deed dated 9.03.2025 registered on 11.03.2025 executed in favour of defendants no. 2 be declared as null & void. 3. The defendants/ respondents No. 1 & 2 moved two separate applications under Order VII Rule 11 CPC on 26/3/2025 stating therein that the suit filed by the plaintiff is barred by limitation and no cause of action arose to file the present suit and further averred that the plaintiff has not paid proper court fees and prayed to dismiss the civil suit filed by the plaintiff. 4. After hearing the arguments on the applications filed by the defendants No.1 and 2 under order VII rule 11 CPC separately, the court below allowed the same vide order dated 29.03.2025. [2025:RJ-JP:39418] (4 of 14) [CFA-780/2025] 5. Mr. Akash Gupta, counsel appearing for the plaintiff / appellant argued that the impugned order passed by the court below is against the facts as well as against the law. He submitted that the court below erred in not considering the legal position of law that while deciding the application under Order VII Rule 11 CPC, the Court has to examine the averments made in the plaint only and pleas taken by the defendants in its written statement would be irrelevant. He submitted that the court below dismissed the suit on the basis of the Power of Attorney filed by the defendants along with the application under Order VII Rule 11 CPC which is against the law and against the provision of Order VII Rule 11 CPC and thus the court below exercised the jurisdiction not vested and committed jurisdictional error. He further submitted that it is a well settled law that the averments in plaint alone have to be considered in deciding the application under Order VII Rule 11 CPC and defences and the documents of the defendant cannot be legally considered while deciding the application under Order VII Rule 11 CPC. He also submitted that it was held by the Hon’ble Apex Court that the Court has to examine from the averments made in the plaint as to whether the trial court has jurisdiction or not, no other material can be considered at the stage of deciding application under Order VII Rule 11 CPC. [2025:RJ-JP:39418] (5 of 14) [CFA-780/2025] He also submitted that the court below further erred in not considering this aspect in deciding the application under Order VII Rule 11 CPC that only averments made in the plaint are required to be examined and only pleadings/ plaint of the plaintiff should be taken into consideration. He further submitted that the court below has further erred in not considering the legal position of law that question of limitation is always mixed question of fact & law and such question can be decided after recording the evidence and such question cannot be considered in an application under Order VII Rule 11 CPC. If any question of fact is involved in the suit then the application under Order VII Rule 11 CPC cannot be legally decided and thus the court below exercised the jurisdiction not vested in it and committed jurisdictional error. He further submitted that the court below also mentioned in the impugned order that the question of limitation is always mixed question of fact & law and same cannot be decided without recording the evidence but still the court below dismissed the suit filed by the plaintiff on the point of limitation and thereby committed jurisdiction error. He also submitted that the court below has further erred in not considering the fact that there is no time limit was fixed by the defendant no. 1 while executing the [2025:RJ-JP:39418] (6 of 14) [CFA-780/2025] agreement to sale dated 27.07.2007 and full consideration was also received by the respondent no. 1 and possession was also handed over to the appellant, therefore suit filed the appellant cannot be dismissed under Order VII Rule 11 CPC as barred by limitation. He also submitted that the cause of action arose only on 10-03-2025 when the defendant came on the land of the appellant and said that the defendant no. 1 has sold the disputed property to the defendant no. 2. He further submitted that that the court below has further erred in holding that the plaint was cleverly drafted by the plaintiff and created illusion of cause of action but it is clearly stated by the plaintiff in the plaint that respondent no. 1 agreed to sale the disputed property to the plaintiff on 27.07.2007 for the consideration of Rs 16,30,000/. On the same date in the presence of witnesses an agreement to sale was reduced in writing and complete sale consideration was paid to the respondent no. 1 and possession was also handed over by the respondent no. 1 to appellant and it was further stated that on 10.03.2025 respondent no. 2 came to the appellant and stated that the respondent no. 2 had purchased the disputed property from the respondent no. 1 and threatened the appellant that he would dispossess the appellant from the disputed property. Therefore no question arises for clever drafting. He submitted that in case, the impugned order would be allowed to stand, it would cause [2025:RJ-JP:39418] (7 of 14) [CFA-780/2025] failure of justice and the appellant would suffer irreparable loss, which cannot be compensated in terms of money. 6. Counsel in support of his submissions has placed reliance upon the following judgements:- A. Sukhram & Anr. v. Pappu & Ors., reported in 2024 (4) Civil Court Cases 013 decided by the Coordinate Bench of the Principal Seat at Jodhpur; B. Shaukathussain Mohammed Patel v. Khatunben Mohammedbhai Polara, reported (2019) 4 Civil Court Cases 714 (SC), delivered by the Hon’ble Apex Court; C. Kum. Geetha v. Nanjundaswamy & Ors., reported in 2023 (4) SCC 550 (SC), delivered by Hon’ble the Apex Court; D. Shakti Bhog Foods Industries Ltd. v. The Central Bank of India & Anr., reported in 2021 (1) Civil Court Cases 001 (SC) delivered by the Hon’ble Apex Court; E. P. Kumarakurubaran v. P. Narayanan & Ors., reported in 2025(2) DNJ (SC) 608, delivered by the Hon’ble Apex Court; F. Smt. Vijay Lakshmi v. Madhav Singh Mehadu, reported in 2025 (1) Civil Court Cases 070 (Rajasthan), delivered by the Coordinate Bench of the Principal Seat at Jodhpur; G. Eldeco Housing & Industries Limited v. Ashok Vidyarthi & Ors., reported in 2024(1) Civil Court Cases 171 (SC), delivered by the Hon’ble Apex Court; H. R. Lakshmikantham v. Devaraji, reported in 2019 (3) Civil Court Cases 622 (SC), delivered by the Hon’ble Apex Court; and I. M/s. Siddamsetty Infra Projects Pvt. Ltd. v. Katta Sujatha Reddy & Ors., 2025 (1) Civil Court Cases 081 (SC), delivered by the Hon’ble Apex Court. 7. Mrs. Gunjan Sharma, counsel appearing for the defendant / respondent No.1 and Mr. Alok Chatturvedi, counsel appearing for the defendant/ respondent No.2 opposed the submissions advanced by the counsel appearing for the plaintiff/ appellant and supported the impugned order passed by the court below. [2025:RJ-JP:39418] (8 of 14) [CFA-780/2025] 8. Learned counsel for the defendants/respondents has also submitted that so far as the time limit for filing the suit is concerned, the present case falls under Part-II of Article 54 of the Limitation Act. It is also submitted that in the agreement to sale no specific date has been mentioned for performance of the contract as is required under Part-I of Article 54 of the Limitation Act, but as regards Part-II of the Article 54 is concerned, it starts when the plaintiff has noticed that the performance is refused. It is also submitted by the learned counsel for the defendants/respondents that in the plaint itself the plaintiff himself has averred in para 5 that since the time of agreement as and when plaintiff asked the defendants/respondents for executing the registered sale deed of the suit land, he always procrastinated, but since the plaintiff is said to have faith in him, he waited for execution of registered sale deed. 8. In support of submissions, both the counsels have placed reliance upon the following judgements:- A. Nikhila Divyang Mehta & Anr. v. Hitesh P. Sanghvi & Ors., reported in 2025 (4) Supreme 313, delivered by the Hon’ble Apex Court; and B. Sunil Dewan v. Kedar Dewan & Anr. (S.B. Civil First Appeal No. 269/2024) decided by this Court on 04.09.2025. 9. Considered the submissions advanced by both the counsels appearing for the respective parties and gone through the impugned order. [2025:RJ-JP:39418] (9 of 14) [CFA-780/2025] 10. As per the facts on record, an agreement to sale for the suit land is said to have been signed by the defendant/respondent-Khemraj in the name of Kailash Chand on 27.07.2007. It was agreed that the seller shall execute a registered sale deed of the suit land in favour of the purchaser as and when the purchaser will ask him to do so. The plaintiff has filed the suit on 15.03.2025 for specific performance of the contract dated 27.07.2007. Admittedly, the suit has been filed near about 18 years after the agreement to sale dated 27.07.2007. Now this Court is to consider that from which date the limitation period would start for computing the limitation for filing the suit for specific performance by the plaintiff. 11. Article 54 of Part-II of the Schedule appended to the Limitation Act, 1963, stipulates the limitation period for filing a suit for specific performance as three years from the date fixed for performance, and in the alternative when no date is fixed, three years from the date when the plaintiff has notice that the performance has been refused. 12. Article 54 of the Schedule appended to the Limitation Act is quoted as follows:- The Schedule *** Description of suit Period of limitation Time from which period begins to run 54. For specific performance of a contract. Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice [2025:RJ-JP:39418] (10 of 14) [CFA-780/2025] that the performance is refused. Section 9 of the Limitation Act, 1963 stipulates that once the limitation period has commenced, it continues to run, irrespective of any subsequent disability or inability to institute a suit or make an application. 13. On scrutiny of the facts and the provisions of law the Court finds that as far as the limitation period is concerned, the present case does not fall in Part-I of Article 54 of the Limitation Act as no specific date for performance of the contract is given in the agreement and therefore same would fall in Part-II of Article 54 of the Limitation Act. 14. Part-II of Article 54 of the Limitation Act says that limitation would start when the plaintiff has notice that the performance is refused. 15. In view of the facts of the case and the averments made in the plaint, now the Court is to consider that what would constitute the refusal of performing the contract. It is a well settled law that while dealing with the application filed under Order VII Rule 11 CPC only the averments made in the plaint are to be taken into consideration. Learned counsel for the petitioner has referred the judgments passed in the case of Sukhram & Anr.(supra), Shaukathussain Mohammed Patel (supra) and Kum. Geetha (supra). [2025:RJ-JP:39418] (11 of 14) [CFA-780/2025] 16. In this regard, this Court also agrees with the observations of the Court in the aforesaid orders that only the averments made in the plaint are to be taken into consideration for considering the application under Order VII Rule 11 CPC. Now, what would constitute the refusal of the performance of contract in the light of the averments made in the plaint. 17. In para 5 of the plaint the plaintiff has specifically stated that so many times he asked the defendants/respondents for executing the registered sale deed of the suit land in performance of the contract agreement, but he always procrastinated. The plaintiff has nowhere mentioned in the plaint that when first and last time he asked the defendants to execute the registered sale deed. The present suit has been filed after a lapse of 18 years from the date of agreement. When there is no specific date as regards the refusal, then in the light of the facts as mentioned in the plaint the refusal is to be treated from a reasonable time or period because in the plaint the plaintiff has stated that as and when he asked the defendants for execution of sale deed, he always made excuses. 18. Learned counsel for the plaintiff/appellant made reference of the judgment passed in the cases of Shakti Bhog Foods Industries Ltd. (supra) and Eldeco Housing [2025:RJ-JP:39418] (12 of 14) [CFA-780/2025] & Industries Limited (supra) while submitting that the limitation is a mixed question of facts and law, therefore, it cannot be decided at the stage of application under Order VII Rule 11 CPC without evidence of the parties. The averments in the plaint are of such a nature that it cannot be said to be of mixed question of law for the reason that the plaintiff has not mentioned any date when he said to have asked the defendants/respondents to execute the registered sale deed. The lapse of 18 years in filing the suit for specific performance is much material. In the case of M/s. Siddamsetty Infra Projects Pvt. Ltd. (supra), the Court observed that the limitation of three years starts to run when the plaintiff has notice that the performance has been refused. The plaintiff has not come out with sufficient cause or reason for filing the suit after a lapse of 18 years. 19. In the facts of the present case this Court is also required to consider and make observations as regards what would be the reasonable time from the date of agreement for asking the defendants-sellers to execute the registered sale deed in favour of the plaintiff-purchaser in a case where specific time has not been mentioned in the contract/ agreement to sale. In the present case, the agreement to sale was written down on 27.07.2007 and the suit for specific performance has been filed on 15.03.2025 i.e. after 18 years of the agreement to sale. In a case where no specific time [2025:RJ-JP:39418] (13 of 14) [CFA-780/2025] has been given in the sale agreement as regards the execution of the registered sale deed then in that case the purchaser could have asked the seller for executing the registered sale deed within a reasonable time and if the registered sale deed is not executed by the seller within a period of three years, if no specific time has been given in the sale agreement, it should be treated to be refusal by the seller and in such circumstances the suit for specific performance could be filed within a period of next three years i.e. at the most within a period of six years from the date of agreement to sale and not beyond that. No specific time clause in an agreement to sale for execution of the registered sale deed, does not create unlimited limitation period for filing the suit for specific performance. A suit for specific performance has to be filed within a reasonable time if no specific time has been given in the agreement to sale. In the present case the suit has been filed after a lapse of 18 years and in para 5 of the plaintiff, the plaintiff has mentioned that on so many occasions he has asked the defendants- sellers to execute the registered sale deed in his favour but they always made excuses. The excuses are to be treated as refusal beyond a reasonable period which in the opinion of this Court can only be three years from the date of agreement. 20. In view of the discussion made above, the Court finds no error or illegality in the order dated 29.03.2025 [2025:RJ-JP:39418] (14 of 14) [CFA-780/2025] passed by the Court of learned Addl. District & Sessions Judge, S.No.11, Jaipur Metropolitan, Jaipur in Civil Suit No.45/2025, whereby the applications filed by the defendants / respondents No.1 and 2 separately under Order VII Rule 11 CPC were allowed and the plaint filed by the plaintiff for specific performance, declaration and permanent injunction was dismissed. 21. Hence this first appeal is dismissed. 22. Since the main appeal is decided, stay application or pending application/s, if any, also stand/s dismissed. (GANESH RAM MEENA),J Sharma NK/Dy. Registrar