Dismissed

Mr. Anand Kumar Kshatriya v. Mr. Syed Sajid

Karnataka HC22 Oct 2021CRP/226/2020

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed a civil revision petition challenging a trial court order rejecting an application to reject the plaint under Order VII Rule 11 of CPC for limitation in a specific performance suit.

What did the court decide?

The civil revision petition filed under Section 115 of CPC is dismissed as misconceived as the trial court did not err in rejecting the application under Order VII Rule 11 of CPC.

Mr. Anand Kumar Kshatriya Vs Mr. Syed Sajid — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22^ND DAY OF OCTOBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE R. NATARAJ

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CIVIL REVISION PETITION NO.226 OF 2020

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BETWEEN:

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MR.ANAND KUMAR KSHATRIYA S/O LATE M.K.KISHORE @ GULU, AGED ABOUT 34 YEARS, RESIDING AT NO.52/1, SHAM KUNJ, 2ND FLOOR, KALIONGA RAO ROAD, S.R.NAGAR, BANGALORE-560027

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MRS.POOJA

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D/O LATE M.K.KISHORE @ GULU, AGED ABOUT 28 YEARS, RESIDING AT NO.52/1, SHAM KUNJ, S.R.NAGAR, BANGALORE-560027

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MRS.SONI W/O LATE M.K.KISHORE @ GULU, AGED ABOUT 54 YEARS, RESIDING AT NO.52/1, SHAM KUNJ, 2ND FLOOR, KALINGA RAO ROAD, S.R.NAGAR, BANGALORE-560 027.

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... PETITIONERS

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(BY SRI.SYED AKMAL HASAN RAZVI, ADVOCATE)

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AND:

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MR.SYED SAJID S/O SYED SIRAJ, AGED ABOUT 44 YEARS, RESIDING AT NO.10/1, GROUND FLOOR, GOLLAR LANE,

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1ST COMMERCIAL STREET, BANGALORE-560001

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MR.SYED SALMAN, S/O SYED SIRAJ, AGED ABOUT 40 YEARS, RESIDING AT NO.10/1, GROUND FLOOR, GOLLAR LANE, 1ST COMMERCIAL STREET, BANGALORE-560001

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… RESPONDENTS

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 04.11.2019 PASSED ON I.A.NO.III IN O.S.NO.25384/2018 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING THE I.A.NO.III FILED UNDER ORDER VII RULE 11 R/W SEC.151 OF CPC.

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THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This revision petition is filed challenging the order dated 04.11.2019 passed by the XXVIII Additional City Civil and Sessions Judge, Bengaluru in O.S.No.25384/2018 rejecting an application filed by the petitioners under Order VII Rule 11 (a) and (d) of CPC.

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The petitioners were defendants in O.S.No.25384/2018, which was for specific performance of an agreement of sale dated 20.05.2008, that was allegedly executed by the father of the petitioners herein and the

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husband of petitioner No.3. It is stated in the application that the father of petitioner Nos.1 and 2 and husband of petitioner No.3 died on 01.03.2014 and therefore, the suit filed in the year 2018 was barred by the law of limitation. The trial Court after considering the material on record held that there was nothing inherent in the plaint which barred filing of the suit and thus, rejected the application.

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Being aggrieved by the aforesaid order, the present Revision Petition is filed.

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Learned counsel for the petitioner submitted that the respondents ought to have filed the suit within the time prescribed and limitation being a question of law, can be urged as a threshold bar against entertaining the suit.

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The limitation prescribed for filing suits is a mixed question of fact and law and cannot be considered at the threshold, that too on an application under Order VII Rule 11 of CPC. The agreement of sale did not prescribe any time for conclusion of the sale transaction

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between the predecessor of the petitioners and the respondents. On the contrary, the time for conclusion of the transaction began on the date when the predecessor of the petitioners obtained the bifurcation of the suit property and after it was assessed to tax in his name. If that be so, the time prescribed for specific performance of the contract arises only after the petitioners refused to perform their part of the contract.

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The issue whether the agreement of sale was indeed extended, the question whether the predecessor of the petitioners had agreed to a clause/s in the agreement postponing the conclusion till the khatha was obtained etc., are pure questions of fact and therefore cannot be treated as sufficient ground to reject a plaint. Even otherwise, the averments of the plaint does not disclose anything to hold that the suit was barred by the law of limitation.

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Therefore, this revision petition is

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misconceived and the same is dismissed .

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Any observation made herein is only for the

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limited purpose of deciding the dispute in the present petition and shall not come in the way of the Trial Court deciding the suit on merits on the basis of oral and documentary evidence.

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Sd/JUDGE

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NR/-

Mr. Anand Kumar Kshatriya v. Mr. Syed Sajid

Case brief

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Mr. Anand Kumar Kshatriya v. Mr. Syed Sajid

Case brief

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