TASMINA BEGUM vs ABDUL KARIM MALLICK AND OTHERS

Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present : The Hon’ble Mr. Justice Sabyasachi Bhattacharyya
&
The Hon’ble Mr. Justice Md. Shabbar Rashidi

FAT 357 of 2026
with
CAN 1 of 2026
Tasmina Begum
Vs.
Abdul Karim Mallick and Ors.
For the appellant : Mr. Kushal Chatterjee,
Mr. Subhasish Mitra,
Mr. Shibjit Mitra, Advs.
For the respondents : Mr. Abhisekh Halder,
Mr. Maidul Islam Kayal,
Mr. Archisman Singh,
Mr. Noorul Amin Sardar,
Mr. Mohinur Mallick,
Mr. Abir Mondal, Advs.
Heard on : November 13, 2026.
Judgment on : November 13, 2026.

Sabyasachi Bhattacharyya , J. :

2
1. Affidavit of service filed today be kept on record.
2.
The present appeal has been preferred against a deemed
decree rejecting the plaint in a suit filed by the plaintiff/appellant for
specific performance of a contract dated December 15, 2022
whereby the predecessor-in-interest of the defendants/respondents
agreed to transfer a property belonging to the said predecessor in
favour of the plaintiff/appellant by execution of a registered sale
deed, subject to the plaintiff making payment of the balance unpaid
amount of consideration within six months from the execution of the
agreement.
3.
Learned counsel for the appellant argues that the learned Trial
Judge rejected the plaint at the outset, primarily on the premise that
it was time-barred. However, it is submitted that under normal
circumstances, the question of limitation is a mixed question of fact
and law and cannot be decided at the stage of Order VII Rule 11 of
the Code of Civil Procedure.
4. Learned counsel places reliance on the relevant clause of the
agreement-in-question which stipulates that the time limit fixed for
tendering the balance amount by the plaintiff/appellant, as per the
said agreement, was six months from the date of the agreement.
However, it is submitted that there was no time limit stipulated for

3
execution of the sale deed by the proposed vendor after the
tendering of such amount. Thus, the learned Trial Judge, it is
argued, proceeded on a fundamental misconception of law and fact
in holding that the limitation period for filing the suit commenced
with the expiry of six months from the date of the agreement.
5. Learned counsel appearing for the appellant takes the court
through several paragraphs of the plaint where it has been
categorically pleaded that after the execution of the agreement and
within a reasonable time therefrom, the plaintiff repeatedly
requested Late Abdul Rahim Mallick, the proposed vendor and
predecessor-in-interest of the present respondents, to execute and
register a formal deed of sale in respect of the suit property and that
on every such occasion, the plaintiff/appellant unequivocally
expressed his readiness and willingness to pay the balance
consideration and to complete the transaction at his own cost and
expenses.
6. It has further been averred in the plaint that upon such requests,
the predecessor-in-interest of the present respondents requested
the plaintiff/appellant to grant him some more time for completion of
the transaction without, however, ever denying the existence of the

4
agreement or disputing the receipt of the consideration already paid
by the plaintiff and/or refusing to perform his part of the contract.
7. Thus, it is submitted that on a plain reading of the plaint, it
would be evident that the limitation period never started during the
lifetime of the original proposed vendor Late Abdul Rahim Mallick,
since he never refused to perform his part of the agreement but
only went on postponing such performance.
8. As per the plaint case, it is submitted, upon the demise of the
said Abdul Rahim Mallick on September 27, 2025, the trouble
started. After such demise, as per the plaint case, there was
persistent obstruction by the defendants in the plaintiff’s lawful use
and access of the passage leading to the suit property, leading to
the plaintiff/appellant filing a writ petition bearing WPA 12349 of
2026.
9. As per the plaint case, particularly in paragraph no. 23 thereof,
finding no other alternative, the plaintiff caused a legal notice dated
June 19, 2026 to be issued, in reply to which, as per paragraph 24
of the plaint, the defendants/respondents wrongfully denied and
disputed the plaintiff’s lawful claim under the agreement for sale
and refused to execute and register any deed of sale in respect of

5
the suit property in terms of the agreement. Thus, the plaintiff was
constrained to institute the suit in the year 2026.
10.
As such, from the plaint case, it is argued, it would be evident
that the suit was filed well within limitation.
11. Furthermore, regarding the question of whether time was the
essence of contract, it is argued that the said issue could at best be
adjudicated upon a full-fledged trial on evidence, and not
conclusively decided at the premature stage of adjudication of an
application under Order VII Rule 11 of the Code of Civil Procedure.
12.
In support of his contention, learned counsel for the appellant
cites Ahmadsahab Abdul Mulla (2) (Dead) By Proposed LRS. vs.
Bibijan & Ors. , reported at (2009) 5 SCC 462 , where it was held by
the Hon’ble Supreme Court that the expression “date fixed for the
performance”, as appearing in Article 54 of the Schedule to the
Limitation Act, is a crystallised notion and is a fixed date. It was
further held by the Hon’ble Supreme Court that the date on which
the plaintiff has notice that the performance is refused, pertaining to
the second limb of Article 54, is also a specific date.
13. Learned counsel appearing for the defendants/respondents
argues that there is no specific date of first refusal mentioned
throughout the plaint. Thus, it is submitted that the learned Trial

6
Judge was justified in construing that the limitation period
commenced from the expiry of six months, which is the time
stipulated in the agreement for making the payment of the balance
consideration by the plaintiff.
14. It is contended by learned counsel for the respondents, by
placing reliance on N Asha Devi vs. R Aravind Kumar and Anr. ,
reported at 2026 SCC OnLine SC 1718 , that if it is obvious from the
pleadings that the suit is barred by law (limitation, in the said case),
the court is well within its powers to reject the plaint under Order VII
Rule 11 of the Code at the outset, without waiting for a trial.
15.
Learned counsel next contends, by placing reliance on certain
paragraphs of the plaint, that the plaintiff herself has alleged that
she filed a writ petition prior to filing of the suit. Thus, the cause of
action crystallized much prior to the filing of the suit but the suit was
filed belatedly.
16. It is further argued that from the four corners of the plaint, it
would not be found that any specific date has been enumerated
when there was a refusal on the part of the defendants to honour
the agreement.
17.
By placing reliance on paragraph no. 11 of the plaint, learned
counsel argues that even as per the said paragraph, the plaintiff

7
had repeatedly approached the predecessor-in-interest of the
present respondents for performance of the contract but such
requests were not honoured. Thus, it is submitted that it has to be
construed that the refusal to perform the agreement commenced
since then. Since no specific date has been specified in that regard,
it is argued that the court was justified in rejecting the plaint on the
ground of limitation.
18. Upon considering the arguments of the parties and the
averments in the plaint, however, we are unable to agree with the
contentions of the defendants/respondents.
19.
Throughout the plaint, it is the consistent case of the
plaintiff/appellant that after the execution of the agreement dated
December 15, 2022, the plaintiff repeatedly requested the original
signatory, that is, the predecessor-in-interest of the present
respondents Late Abdul Rahim Mallick, to execute and register a
formal deed of sale in respect of the suit property.
20. As per paragraph no. 12 of the plaint, the said predecessor
requested the plaintiff to grant him some more time for completion
of the transaction, thereby tacitly conceding to the existence of the
agreement and his liability to perform the same. In the self-same
paragraph, it has also been averred that the said predecessor-in-

8
interest never denied the existence of the agreement or disputed
the receipt of the consideration already paid by the plaintiff and,
more significantly, never refused to complete the transaction.
21. Such tenor of the pleadings continues till paragraph no. 17 of
the plaint, where it has been averred that the demise of Late Abdul
Rahim Mallick took place on September 27, 2025.
22. In the previous paragraph nos. 14 to 16, it is pleaded that upon
acceptance of substantial consideration from the plaintiff, Late
Abdul Rahim Mallick expressly permitted the plaintiff to use the suit
property as a passage and that after construction of residential
building, the plaintiff continuously used such passage and on
numerous occasions, again requested Late Abdul Rahim Mallick to
execute and register a formal conveyance, upon which the latter
acknowledged the transaction and at no point of time disputed the
agreement.
23. Only after such demise of the original proposed vendor on
September 27, 2025, as per the plaint case, friction arose between
his heirs and the present appellant.This led, according to paragraph
no. 21 of the plaint, to the plaintiff filing a writ petition before this
court in the year 2026.

9
24.
It will be evident from paragraph no. 23 of the plaint that the
plaintiff allegedly caused a legal notice dated June 19, 2026 to be
issued through his learned advocate, calling upon the defendants to
execute and register a deed of sale, upon which a reply was sent
on July 13, 2026, as per paragraph no. 24 of the plaint, whereby the
defendants/respondents for the first time clearly refused to honour
the said agreement or to specifically perform the same.
25. Thus, from a plain and meaningful reading of all the paragraphs
of the plaint, there cannot be any manner of doubt that going by the
said averments, the cause of action arose for the first time for filing
of the suit only on July 13, 2026, when the defendants/respondents
refused to perform their part of the agreement for the first time. At
the worst, it at least has to be construed as per the plaint pleadings
that before the expiry of Late Abdul Rahim Mallick on September
27, 2025, there was absolutely no denial on his part to perform the
agreement. Even so construed, the suit, being filed in the year
2026, was well within the limitation period.
26. The other facet of the matter is whether the learned Trial Judge
was justified in construing the expiry of six months after the
execution of the agreement to be the starting point of limitation. On
a plain reading of the agreement, however, it is crystal clear that the

10
stipulation of six months was for the plaintiff to tender the balance
consideration amount and not for execution of the registered sale
deed in consequence thereof. As per the second recital of the
agreement, it is the plaintiff/appellant who was to pay the balance
consideration amount within six months from the agreement, upon
which the predecessor-in-interest of the defendants/respondents
was duty-bound to execute a registered deed. However, the
agreement does not mention any time limit for execution and
registration of such sale deed.
27.
Insofar as the six months’ stipulation is concerned, there are
pleadings galore throughout the plaint that such amount was
repeatedly sought to be tendered within due time by the
plaintiff/appellant, upon which the predecessor-in-interest of the
defendants/respondents, without refusing to perform his part of the
agreement, sought a postponement of the execution of such
agreement every time.
28. Thus, going by the plaint pleadings, there cannot be any
manner of doubt that the suit is not barred by limitation.
29. Even otherwise, it is well-settled that the question of limitation,
under ordinary circumstances being a mixed question of fact and
law, is amenable to being decided on a full-fledged trial on

11
evidence, and not at the threshold stage of Order VII Rule 11 of the
Code of Civil Procedure.
30.
From the judgment cited by the respondents, we do not find any
contrary proposition being laid down. In the facts of the said case,
as narrated by the Hon’ble Supreme Court, it was observed that if it
was obvious from the pleadings themselves that the plaint is barred
by any law, the court can reject the plaint on such ground. However,
the narrative above clearly shows that the facts of the said case are
entirely different from the present one.
31.
Insofar as Ahmadsahab Abdul Mulla (supra), cited by the
appellant, is concerned, we do not find that the plaintiff/appellant is
directly aided in any manner by the proposition laid down therein, to
the effect that the date fixed for the performance of a contract as
per Article 54 of the Schedule to the Limitation Act is a fixed date.
However, even going by such principle, as per the above
discussions, the plaint ought not to, and could not, have been
rejected by the learned Trial Judge.
32. The decisions taken into consideration by the learned Trial
Judge are also distinguishable in the facts of the case. In Fatehji &
Company vs. L.M. Nagpal , reported at (2015) 8 SCC 390 , it was
observed by the Hon’ble Supreme Court, in the facts of the said

12
case, that the rejection of the plaint in a specific performance suit
was upheld where the date fixed for performance had long expired.
33.
Contrary thereto, in the present case, there is no specific date
enumerated in the agreement for completion of the performance of
the agreement by executing a registered deed of conveyance.
34. Insofar as Usha Devi vs. Ram Kumar Singh , reported at 2024
SCC OnLine SC 1915 , is concerned, it was held therein that once
the agreement fixed the time within which the sale deed was to be
executed, limitation ran from that date.
35.
As per the above discussions, the proposition laid down therein
is also not applicable to the present circumstances.
36.
Hence, we find that the impugned judgment suffers from an
erroneous interpretation of the law governing the subject as well as
errors of fact in construing the plaint on a plain and meaningful
reading of the same, which is the essential and only yardstick in
adjudicating an application for rejection of plaint.
37. In such view of the matter, the impugned judgment cannot be
sustained.
38. Accordingly, FAT 357 of 2026 is allowed on contest, thereby
setting aside the impugned judgment and deemed decree dated
September 5, 2026 passed by the learned Civil Judge (Senior

13
Division) at Chandernagore, District - Hooghly in Title Suit no. 120
of 2026.
39.The learned Trial Judge shall now take up the suit for hearing on
merits upon adduction of evidence.
40.Consequentially, CAN 1 of 2026 is also disposed of.
41. We make it abundantly clear that this Court has not
conclusively decided any of the issues raised or to be raised in the
suit and that the above findings are tentative in nature, arrived at
only for the purpose of adjudicating the present appeal, arising out
of the rejection of a plaint.
42.
It will be open to the learned Trial Judge to decide all issues
falling for consideration in the suit, including the issue of limitation, if
raised, on their own merits and in accordance with law, without
being unduly influenced in any manner by the observations made
above.
43. There will be no order as to costs.
44. A formal decree be drawn up accordingly.
I agree. ( Sabyasachi Bhattacharyya, J .)
( Md. Shabbar Rashidi, J .)

14
AD-11
Ct No.16
(SSS)