{FA No.25/2023} CGHC010051952023 2026:CGHC:41300-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 25 of 2023 {Arising out of order and decree dated 30-9-2022 in Civil Suit No.40A/2019 of the 6th Additional District Judge, Durg} Judgment reserved on: 18-9-2026 Judgment delivered on: 23-9-2026 Judgment (Full) uploaded on: 23-9-2026 Madhusudan Kedia (Since died) Through Legal Heirs :- (Plaintiff) 1 (a) Smt. Sharda Devi Kedia, Wd/o Late Madhusudan Kedia, aged around 69 years. 1 (b) Smt. Ambika Kedia, Wd/o Late Manoj Kedia and daughter-in- law of Late Madhusudan Kedia, aged around 45 years. 1 (c) Minor Anmol Kedia, S/o Late Manoj Kedia, aged around 14 years (Minor), through mother and natural guardian Smt. Ambika Kedia i.e. appellant No.1(b) named above. All the above are resident of G.E. Road, Near Satyam Complex, B.M.Y. Charoda, Durg (C.G.) ... Appellants versus 1. Manohar Verma, S/o Nathram Verma, aged around 41 years 2. Kartik Ram, S/o Nathuram Verma, aged around 45 years 3. Rekha Bai, D/o Nathuram Verma, aged around 44 years 4. Thagiya Bai, W/o Late Nathuram Verma, aged around 66 years, SISTA SOMAYAJULU Digitally signed by SISTA SOMAYAJULU Date: 2026.09.23 17:35:08 +0530 {FA No.25/2023} Respondent Nos.1 to 4 are R/o Opposite Atal Niwas, Hari Om Sai Housing Grocery Shop, Sondongri, Raipur, Tahsil and District Raipur, Chhattisgarh 5. State of Chhattisgarh, Through the District Collector, Durg, Tahsil and District Durg, Chhattisgarh (Defendants) ... Respondents For Appellants : Mr. Hari Agrawal, Advocate. For Respondents No.1 to 4 : Mr. Mayank Kumar & Mr. Abhishek Rai, Advocates. For Respondent No.5 : Mr. Avinash Singh, Government Advocate. Division Bench: - Hon'ble Shri Parth Prateem Sahu and Hon'ble Smt. Sushma Sawant, JJ. C.A.V. Judgment Sushma Sawant, J. 1. Invoking the appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure, 1908, the original appellant/plaintiff has preferred this appeal questioning the illegality, validity and correctness of the impugned order dated 30-09-2022 passed by the VI Additional District Judge, Durg (Presiding Officer Shri Aditya Joshi), District Durg (Chhattisgarh) in Civil Suit No. 40A/2019, Madhusudan Kedia v. Manohar Verma & Others, whereby the suit filed by the appellant/plaintiff has been rejected invoking sub-rule (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908. 2. The aforesaid challenge has been made on the following factual backdrop: - (For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the civil suit before the trial Court.) {FA No.25/2023} Factual Matrix -: Case of the Appellants/Plaintiff before the Trial Court :- 3. Before the Trial Court, the original appellant/plaintiff instituted a suit for specific performance of contract, pleading that the cause of action arose on 2-10-2019, on the ground that the defendants, being siblings and their mother and members of the same family, through two of the defendants, entered into an agreement dated 20- 9-2015 for sale of the land owned by them, Khasra Nos.1674, 1679 and 1690, area/rakba 0.11, 0.10 and 0.53, respectively, total area 0.74 Hectares, situated at Village Pahnda, P.H.No.04, R.I.Circle Bhilai-03, Tahsil Patan, District Durg (hereinafter referred to as “the suit land”), in favour of the original appellant/plaintiff for a total consideration of ₹ 15,00,000/-. 4. Further case of the appellant/plaintiff was that the defendants received a sum of ₹ 10,00,000/- by cheque and ₹ 2,50,000/- in cash, totalling ₹ 12,50,000/-, towards the consideration under the agreement to sell, and agreed to execute the sale deed within eight months. On 20th June, 2020, the defendants, stating that there had been a death in the family, again demanded payment of the remaining consideration. Upon the appellant/plaintiff making the payment as demanded, the defendants executed an acknowledgment, treating the same as forming part of the original agreement. Page 4 of 13 {FA No.25/2023} 5. Despite repeated requests, the defendants failed to execute the sale deed. Consequently, the original appellant/plaintiff served upon them a written notice dated 7-9-2017 calling upon them to perform their part of the agreement. After receipt of the said notice, the defendants again executed a document dated 3-8-2018, expressly treating the same as forming part of the original agreement and undertaking to execute the sale deed within twelve months. Even thereafter, the defendants, despite repeated requests, continued to avoid execution of the sale deed on one pretext or another. Ultimately, despite repeated requests by the appellant/plaintiff, the defendants failed to execute the sale deed even on 2nd October 2019, compelling the appellant/plaintiff to institute the present suit. -:Preliminary Objection raised by the respondents/defendants before the Trial Court:- 6. The defendants, in their written statement, have raised the preliminary objection, that the suit instituted by the appellant/ plaintiff is barred by limitation and, therefore, is not maintainable. It is also submitted that the appellant/plaintiff himself has referred in the plaint to an agreement dated 20.09.2015, whereas the present suit was instituted on 12.12.2019. Thus, the suit having been instituted beyond the prescribed period of limitation is barred by limitation and is liable to be dismissed and the suit seeking specific performance of the alleged agreement is not maintainable. Hence the suit is liable to be dismissed as not maintainable. Page 5 of 13 {FA No.25/2023} -:Reply of Plaintiff to the Preliminary Objection before the Trial Court:- 7. The appellant/plaintiff filed reply to the aforesaid preliminary objection and opposed the same. The appellant/plaintiff sought rejection of the preliminary objection, contending that the same pertains to the subject matter of the suit and requires consideration on the basis of the evidence on record. -:Written Statement of the respondents/defendants before the Trial Court:- 8. The defendants, while filing their written statement along with preliminary objections, denied the appellant/plaintiff’s entire claim and pleaded that no agreement to sell, as alleged by the appellant/plaintiff, was ever entered into between the parties. The defendants stated that they had only borrowed a sum of ₹ 10,00,000/- from the appellant/plaintiff, out of which ₹ 4,70,000/- had already been repaid. It was further pleaded that the appellant/plaintiff had instituted the suit on the basis of false and fabricated documents, which did not create any right in his favour or impose any obligation upon the defendants to execute the sale deed. The defendants, therefore, denied the alleged transaction and their liability to execute the sale deed and prayed for dismissal of the suit. 9. After hearing both the parties, the learned trial Court rejected the plaint of the appellant/plaintiff under Order VII Rule 11(d) of the Code of Civil Procedure stating that the suit is time barred. {FA No.25/2023} Aggrieved by the said order, the appellant/plaintiff filed the present appeal on the following grounds :- (i) The impugned judgment and decree of the court below are perverse and contrary to law. (ii) The learned trial Court failed to appreciate that Limitation is a mixed question of fact and law and the issue as to whether the suit is filed within a period of three years from the date of refusal, is triable issue, which can be adjudicated only after trial and the same cannot be a ground for the rejection of plaint at initial stage. (iii) The learned trial Court ought to have appreciated that in the instant facts the time for performance of the contract/ agreement to sale had been extended by the parties from time to time as such, undisputedly, time was not the essence of contract and in such a scenario, as per Article 54 of the Limitation Act, the period of Limitation would be three years from the date of refusal. (iv) The learned trial Court has miserably failed to appreciate that the agreement to sale dated 20-9-2015 was kept alive by way of subsequent written acknowledgment/receipt dated 21-6- 2016, and thereafter by an agreement (by way of acknowledgment) dated 3-8-2018 and as such, at all material points of time, the contract was subsisting. Page 7 of 13 {FA No.25/2023} (v) The question posed by the trial Court in the impugned order speaks volume about the approach of the trial Court while dealing with the matter in hand, as findings on application for rejection of plaint in such manner cannot be made. 10. We have heard learned counsel for the parties and perused the impugned order as well as the material available on record. -:Arguments of the Appellants/Plaintiff :- 11. Learned counsel for the appellants/plaintiff contended that the learned Trial Court erred in treating the question of limitation as a pure question of law. The subsequent documents executed by the defendants in continuation of the main agreement raise disputed questions of fact regarding the subsistence of the transaction and the commencement of limitation, which could be determined only upon consideration of evidence. Hence, the question of limitation ought to have been decided after framing an appropriate issue and recording evidence. 12. The counsel for appellants/plaintiff has placed reliance on the judgment of the Supreme Court in the matter of Urvashiben and Another v. Krishnakant Manuprasad Trivedi reported in (2019) 13 SCC 372, Gunwantbhai Mulchand Shah and Others v. Anton Elis Farl and Others reported in (2006) 3 SCC 634, and Panchanan Dhara and Others v. Monmatha Nath Maity (dead) LRs and Another reported in (2006) 5 SCC 340. Page 8 of 13 {FA No.25/2023} -:Arguments of the Respondents/Defendants:- 13. On the other hand, learned counsel for respondents/defendants has submitted that the learned Trial Court has rightly rejected the plaint of the appellants/plaintiff vide the impugned order which calls for no interference by this Court. He further submitted that the suit, as instituted by the appellant/plaintiff, was clearly barred by limitation. It was, therefore, contended that the learned Trial Court was justified in rejecting the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, and the impugned order does not warrant any interference in the present appeal. -:Analysis of the Appellate Court :- 14. The learned Trial Court has rejected the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, principally relying upon the preliminary objection as to limitation raised by the defendant in the written statement on the view that the scope of an enquiry under sub-rule (d) of Rule 11 of Order VII of the Code of Procedure Code is well settled and while considering whether the plaint is barred by any law, the Court is required to examine the averments contained in the plaint, taken as a whole and on the assumption that the averments therein are correct. The defence set up by the defendant in the written statement cannot ordinarily be made the foundation for rejection of the plaint. The Supreme Court has reiterated this principle in the matter of Srihari Hanumandas Totala v. Hemant Vithal Kamat , (2021) 9 SCC 99. Page 9 of 13 {FA No.25/2023} 15. However, where the question of limitation depends upon determination of disputed facts, such as the date of accrual of the cause of action, date of knowledge, acknowledgment, continuing cause of action, exclusion or computation of time, or other facts pleaded by the parties, the question assumes the character of a mixed question of law and fact and ordinarily cannot be conclusively determined at the threshold. 16. The Supreme Court in the matter of Balsaria Construction (P) Ltd. v. Hanuman Seva Trust, (2006) 5 SCC 658, has recognised that the question of limitation may constitute a mixed question of law and fact requiring determination on the basis of the facts of the particular case. 17. In the present case, a meaningful consideration of the averments in the plaint does not disclose an absolute and apparent bar of limitation. The pleadings indicate that the defendants received the consideration amount on two occasions and on each occasion, executed a fresh document in continuation with previous document. Hence the question as to whether the suit was instituted within the period of limitation depends upon determination of certain factual matters which cannot appropriately be adjudicated merely on the basis of the preliminary objection contained in the written statement. 18. It is pertinent to mention here that, in the present case, the plaint was initially registered and the suit proceeded on the footing that {FA No.25/2023} prima facie it was within limitation. Once the matter had proceeded beyond the threshold stage, and the question of limitation arising from the pleadings involved disputed questions of fact and divergent assertions of the parties, the learned Trial Court ought to have considered the issue in the manner contemplated by Order XIV Rule 2 of the Code of Civil Procedure, rather than rejecting the plaint merely by accepting the preliminary objection raised by the respondents/defendants. The Trial Court was required to frame an appropriate issue regarding limitation and adjudicate the same on the basis of the pleadings and evidence led by the parties as the case may be. Accordingly, the finding of the Trial Court on the issue of limitation cannot be sustained. 19. Although the appellant/plaintiff has sought to establish that the suit is within the period of limitation in the light of the judgments relied upon, it would not be appropriate to record a final finding on the question of limitation at this stage, as the learned Trial Court has not expressed any opinion on the other documents referred to in the plaint itself, which are stated to have been executed in continuation of the original agreement. 20.In the facts of the present case, the learned Trial Court, at the very least, ought to have afforded both sides an effective opportunity to address the Court on the nature and scope of the preliminary objection, particularly when the objection was founded upon the respondents/defendants’ version of the facts and the plaint did not {FA No.25/2023} disclose an unequivocal bar on its face. Thus, the learned Trial Court, instead of treating the objection in the written statement as conclusively establishing the bar of limitation, ought to have examined whether the issue could genuinely be decided as a pure question of law. If not, the appropriate course was to frame an issue regarding limitation and decide it in accordance with law, after affording the parties an adequate opportunity to establish their respective factual and legal contentions. The Trial Court shall also consider and record its findings, in accordance with law, with regard to all the documents referred to in the plaint, particularly those relied upon by the appellant/plaintiff in support of the alleged continuance of the original agreement. 21. Consequently, rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, in the circumstances of the present case, cannot be sustained merely on the basis of the preliminary objection raised in the written statement. -:Conclusion:- 22.The impugned order is, therefore, liable to be set aside and it is hereby set aside. The matter is remitted to the learned Trial Court for consideration of the question of limitation in accordance with law, after affording due opportunity to both parties. The Trial Court shall be at liberty to frame an appropriate issue on limitation and determine the same on the basis of the pleadings and evidence, {FA No.25/2023} without being influenced by any observation made herein on the ultimate merits of the limitation objection. 23.During the course of arguments, learned counsel for the appellants/plaintiff submitted that, in the event the present appeal is allowed and the matter is remanded to the learned Trial Court for a fresh decision, the appellants/plaintiff may be granted refund of the court fee paid on the memorandum of appeal in accordance with Section 13 of the Court-fees Act, 1870. 24.Section 13 of the Court-fees Act clearly states that, if a suit is remanded in appeal on any of the grounds mentioned in Section 351 of the erstwhile Code of Civil Procedure, for a second decision by the Trial Court, the appellant would be entitled to a certificate authorising him to receive back the full amount of the court fees paid on the appeal. The Supreme Court has, in its judgment in the matter of State of Uttar Pradesh v. Pt. Chandra Bhushan Misra, (1980) 1 SCC 198, clarified that the reference to Section 351 of the erstwhile Code of Civil Procedure would have to be construed as a reference to Order XLI Rule 23 of the present Code of Civil Procedure. Order XLI Rule 23 of the CPC envisages remand in a situation in which the suit was decreed by the Court of first instance on a preliminary point and the decree is reversed in appeal by the appellate Court. 25.In the present case, this Court has held, that the learned Trial Court erred in rejecting the plaint under sub-rule (d) of Rule 11 of Order {FA No.25/2023} VII of the Code of Civil Procedure. Therefore, in view of the aforesaid reasons, we are of the opinion that the appellants/plaintiff is entitled to a refund of the court fees deposited by it. 26.Accordingly, the prayer for refund of court fees paid in this appeal is allowed. Registry is directed to issue a certificate enabling the appellants/plaintiff to obtain a refund of the court fees deposited by it in the appeal within a period of four weeks from today. 27.Parties are directed to appear before the learned Trial Court on 16/11/2026 for further hearing and proceedings in accordance with law. Record be transmitted to the learned Trial Court forthwith. Registry is further directed to take necessary steps accordingly. 28.The appeal stands finally disposed of. Sd/- Sd/- (Parth Prateem Sahu) (Sushma Sawant) JUDGE JUDGE Soma