- (1.) THIS revision petition is directed against order dated 12.10.2012 passed by the Additional District Judge (Fast Track) No.3, Jodhpur Metropolitan, whereby, the application filed by the petitioners -defendants under Order VII, Rule 11 CPC read with Section 151 CPC, seeking rejection of the plaint, has been dismissed.
(2.) THE facts in brief may be noticed thus: the respondent filed a suit on 17.05.2011 seeking specific performance of an agreement dated 30.04.2002 ('the agreement') concerning sale of plot No. 17 situated at Paota, Jodhpur, which was in possession of the plaintiff as tenant; it was, inter alia, averred in the plaint that the plaintiff has performed its part of the contract and has paid entire consideration of Rs. 55,00,000/ - by December, 2007; however, the sale deed was not executed/registered and the same was avoided; despite payment of entire consideration, the plaintiff continued recovery of monthly rent @ Rs.44,000/ - per month, when in fact it was not entitled to such rent; the excess rent of Rs.16,69,232/ - was paid till January, 2011 and when the same was stopped, the defendants gave notice dated 22.02.2011 alleging default, which was replied to and on personal meeting the defendants refused performance on 15.03.2011 and, therefore, the suit seeking specific performance of the contract and recovery of sum of Rs.16,69,232/ -, the alleged excessive rent paid, was filed; alongwith plaint the plaintiff, inter alia, filed copy of the agreement, the notice dated 22.02.2011, its reply dated 28.03.2011 to the notice and cheques said to have been returned by the defendants on receipt of amount in cash as per the agreement. On being served, the petitioners -defendants filed application under Order VII, Rule 11 CPC read with Section 151 CPC, inter alia, with the averments that from the averments made in the plaint and the documents annexed with it, it is apparent that the plaintiff has not made payment in terms of the main condition and, therefore, no agreement, which could be specifically enforced, is in existence as the same has come to an end automatically, therefore, the suit is not maintainable and is barred by law; it was further contended that as per the plaint and agreement, the payment of last installment was made in December, 2007 and as per Article 54 of the Limitation Act, 1963 ('the Limitation Act') the limitation for filing suit is three years and as the suit is barred by limitation, the plaint was liable to be rejected.
(3.) A reply to the application was filed by the plaintiff disputing the contentions raised in the application; it was, inter alia, submitted that all the conditions indicated in the agreement have been fulfilled by the plaintiff and it cannot be said that the suit was barred by law; the defendants orally refused to register the sale deed on 15.03.2011 and, therefore, the suit was filed within limitation. It was prayed that the application be rejected.;