Pratap Krishna Lohra, J. - (1.) REJECTION of plaint under Order VII Rule 11, Code of Civil Procedure, 1908 (for short, 'CPC') is the genesis of this first appeal at the behest of appellants -plaintiffs.
(2.) BY the order impugned dated 18th of May 2012, learned Additional District Judge (Fast Track) No. 2, Jodhpur Metropolitan, Jodhpur (for short, 'learned trial Court'), while favourably entertaining the application of respondent -defendant under Order VII Rule 11 CPC, found that the suit for specific performance of contract and perpetual injunction laid by appellants is barred by limitation resulting in rejection of the plaint. Succinctly stated, the facts of the case are that appellants -plaintiffs instituted a civil suit against respondent -defendant for specific performance of contract and perpetual injunction. In this plaint, it is inter alia, averred by the appellants that husband of respondent Late Shri Taresh Kumar executed three agreements to sale dated 3rd of May 1995, 5th of August, 1995 and 12th of February, 1996 respectively in their favour to sell the property owned by him bearing Plot No. 383, 3rd 'C' Road, Sardarpura, Jodhpur. The dimensions and total area of the property was mentioned in the agreements to sale. As per agreement to sale dated 3rd May 1995, consideration amount for sale of the property was settled between the parties to the tune of Rs. 18,31,000/ - and a recital to this effect is also incorporated in the instrument. It is further averred in the plaint that at the threshold appellants paid earnest money of Rs. 1,00,000/ - to Late Shri Taresh Kumar and later on Rs. 4,65,000/ - were paid on 16th May 1995. Dilating on the terms of agreement to sale, it is stated in the plaint that Late Shri Taresh Kumar handed over vacant possession of two shops as well as of first floor to first appellant and further agreed to execute registered sale -deed in favour of appellants within a period of six months on receipt of entire consideration amount. Appellants set out a specific case that Late Shri Taresh Kumar had agreed to hand over vacant possession of the property to the appellants without any charge after clearing all dues and in the event of his failure to pay double the amount, which he had received by then, with suitable damages and the appellants would be free to enforce specific performance of contract against him. That apart, certain other conditions were also incorporated in the agreement to sale. the appellants pleaded in the plaint that Late Shri Taresh Kumar, in terms of agreement to sale, handed over possession of two shops measuring 17 X 10 ft. to the first appellant on 3rd May 1995 but no endeavour was made by him to comply with other terms and conditions of agreement to sale inasmuch as neither tenants were lawfully evicted from the property, nor dues were cleared by Late Shri Taresh Kumar.
(3.) ANOTHER agreement to sale dated 5th of August 1995 is referred to in the pleadings and according to first appellant in terms of the agreement a sum of Rs. 6,75,000/ -, in total, was paid by him to Smt. Panchi Bai and Raghunandan Goyal with whom Late Shri Taresh Kumar had earlier entered into agreement to sale for the property in question. The payment of requisite amount by the appellants, in fact, facilitated withdrawal of the case laid by these two incumbents against Late Shri Taresh Kumar by way of compromise. Appellants set out a case with clarity and precision that requisite amount was paid by them through demand draft.;