AHMEDABAD EDUCATION SOCIETY vs GARGI APARTMENTS COOPERATIVE HOUSING SOCIETY LIMITED

C/CRA/527/2017 CAV JUDGMENT DATED: 07/07/2026
Reserved On : 08/04/2026
Pronounced On : 07/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 527 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2025
In R/CIVIL REVISION APPLICATION NO. 527 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE SANJEEV J.THAKER

==========================================================
Approved for Reporting Yes No
==========================================================
AHMEDABAD EDUCATION SOCIETY & ORS.
Versus
GARGI APARTMENTS COOPERATIVE HOUSING SOCIETY LIMITED &
ANR.
==========================================================
Appearance:
MR AMAR N BHATT(160) for the Applicant(s) No. 4
MR APURVA VAKIL, SENIOR ADVOCATE WITH MR SHUSHIL R
SHUKLA(5603) for the Applicant(s) No. 1,2,3
MR MEHUL SHAH, SENIOR ADVOCATE WITH MR ADITYA A
GUPTA(7875) for the Opponent(s) No. 1
MOHIT A GUPTA(8967) for the Opponent(s) No. 1
MR AR GUPTA(1262) for the Opponent(s) No. 1
RULE UNSERVED for the Opponent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE SANJEEV J.THAKER


CAV JUDGMENT
Table of Contents
1. INTRODUCTION..........................................................................................2
2. DISPUTE IN BRIEF......................................................................................3
3. BRIEF FACTS...............................................................................................5
4. SUBMISSIONS OF THE PETITIONER - ORIG. DEFENDANT...................9
Purpose and Object of Order VII Rule 11 of CPC .........................................9
Power to be Exercised at Any Stage...........................................................10
Article 54 - The First Limb and the Fixed Date of Performance..................11
Ascertainment of Date: Section 34 Analogy................................................14
Section 53A of the TPA...............................................................................15
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5. SUBMISSIONS OF THE RESPONDENT -- ORIG. PLAINTIFF................17
Reading of the Plaint under Order VII Rule 11............................................17
Article 54 First Limb Does Not Apply...........................................................18
Article 54 Second Limb Governs – Date of Knowledge of Refusal.............19
Time is Not of the Essence and the Vendor Cannot Benefit from Own
Default.........................................................................................................20
Averments to be Assumed True; Section 53A is Mixed Question of Law and
Fact..............................................................................................................21
Part Rejection of Plaint is Impermissible.....................................................22
Section 53A, the Injunction Prayer and Distinct Causes of Action..............23
Section 53A Protection Survives the Expiry of Limitation for Specific
Performance................................................................................................24
Independent Right to Protect Settled Possession.......................................25
Rejoinder by the Claimants’ Arguments......................................................26
6. ANALYSIS..................................................................................................27
Scope and Purpose of Order VII Rule 11....................................................28
Article 54 - Question of Limitation...............................................................32
Section 53A and the Threshold of Order VII Rule 11..................................46
General Principle: Section 53A as Shield Only...........................................47
Limitation of Specific Performance and Section 53A..................................59
The Correct Principle: Three Propositions..................................................63
Sri Biswanath Banik v. Sulanga Bose, (2022) 7 SCC 731..........................66
Part Rejection of Plaint................................................................................68
7. CONCLUSION...........................................................................................69
1. INTRODUCTION
1. The present Civil Revision Application has been filed under
Section 115 of the Code of Civil Procedure, 1908 (CPC), by the
Petitioners who are the original Defendants in Special Civil Suit
No. 45 of 1997.
2. The Petition challenges the Order passed below Exhibit 416 by the
Ld. Principal Senior Civil Judge, Ahmedabad (Rural) (“ Ld. Trial
Court ” ) under Order VII Rule 11.
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3. By way of the Impugned Order, the Ld. Trial Court declined to
exercise its jurisdiction under Order VII Rule 11 of the CPC to
reject the Plaint.
4. The Defendants had sought such rejection on the ground that the
Suit for specific performance of an Agreement to Sell is ex facie
barred by limitation and that the accompanying prayer for
permanent injunction under Section 53A of the Transfer of
Property Act, 1882 (“ TPA ” ) does not give rise to an independent
cause of action. Being a consequential relief, it was prayed that the
second relief also stands barred by law and hence, the Plaint is
required to be rejected.
5. For convenience, the parties shall be referred to by their original
status in the Suit, i.e., the Petitioners as the Defendants and the
Respondent as the Plaintiff.
2. DISPUTE IN BRIEF
6. Before this Court delves into issues any further, it is required to be
noted that at the heart of this dispute, lie two broad questions.
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1. Whether the Suit for Specific Performance of the Agreement to
Sell dated 27th February 1969 is ex facie barred by limitation
under Article 54 of the Limitation Act, 1963.
2. Assuming even if the specific performance prayer were to be
held to be barred, the prayer for permanent injunction to protect
the Plaintiff's possession of over five decades can survive
independently under Section 53A of the TPA, particularly given
that the Plaintiff was placed in possession in part performance
of the agreement.
7. This Court has ventured through the arguments of the Ld. Senior
Advocates for both sides at length and has carefully considered the
Plaint, the documents annexed thereto including the two
agreements at the centre of the dispute, and the extensive body of
decisions cited by both parties.
8. The facts, the rival submissions, and the analysis are set out in
sequence hereinafter.
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3. BRIEF FACTS
9. The Plaintiff, Gargi Apartments Cooperative Housing Society
Limited, is a Society registered under the Gujarat Co-operative
Societies Act, 1961.
10. The Defendant, Ahmedabad Education Society, is a public
Charitable Trust registered under the Bombay Public Trusts Act,
1950, and is admittedly, the owner of the suit property admeasuring
47 acres and 6 gunthas situated in Ahmedabad.
11. On 27th February 1969, the parties entered into an Agreement to
Sell (“ Agreement to Sell ” ) in respect of the Suit property. As
regards the period of the said Agreement, it provided for a period
of 24 months, within which the Defendants were to complete
several pre-conditions before executing the registered sale deed.
12. According to the Plaintiff, the obligations cast upon the Defendants

within this period of 24 months inter alia included: (i) obtaining
the Charity Commissioner's permission under Section 36 of the
Bombay Public Trusts Act, 1950; (ii) obtaining permission under
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Section 63 of the Gujarat Tenancy and Agricultural Lands Act,
1948; (iii) obtaining title clearance of the property; (iv) getting
non-agricultural conversion permission; and (v) signing any
required plans before the concerned authority, etc.
13. Further, it was stipulated that the Agreement would come to an end
automatically on lapse of 24 months [pg. 7 of the Agreement]. If
despite furnishing the entire sale consideration, within this period
of 24 months the Defendants failed to obtain title clearance or
marketable title, the Plaintiff would be entitled to file a suit for
specific performance. A provision was also made that if for any
reason the sale deed was not executed, the Defendants would pay a
sum of Rs. 1,25,000 to the Plaintiff.
14. On 5th June 1971, the Defendants obtained the Charity
Commissioner's permission under Section 36 this has been
recorded in the Agreement dated 26th July 1971.

15. On 26th July 1971, the parties executed a Possession Agreement
(Exh. 3, hereinafter referred to as the Possession Agreement).
Under the Possession Agreement, physical possession of the suit
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property was handed over by the Defendants to the Plaintiff.
16. Paragraph 7 of the Possession Agreement, which is of seminal
importance in the present proceedings, stipulates that the period of
the agreement to sell is 36 months from the date of obtaining
permission of the Ld. Charity Commissioner.
17. However, by this date, the Charity Commissioner’s permission had
already been granted, and the Defendants admitted that possession
was being handed over in part performance of the contractual
obligations.
18. It is the Plaintiff’s case that since 26th July 1971, the Plaintiff has
been in continuous, open, and peaceful physical possession of the
suit property, which spans a period of over five decades.
19. The Plaintiff avers in the plaint that the Defendants continued over
the years to represent that the registered sale deed would be
executed in due course. The Plaintiff avers that it came to know of
the Defendants’ definitive refusal only upon specific events which
it has pleaded, and that the Suit was filed within the period of
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limitation computed from the date of such knowledge. Citing this,
the Suit was filed with the following prayers:
1. Decree of specific performance of the Agreement to Sell dated
27th February 1969
2. Permanent injunction restraining the Defendants from disturbing
the Plaintiff's possession; and
3. For other consequential reliefs.
20. Issues were framed in the Suit on 31st March 2003, vide Exh. 150.
Additional issues were framed on 9th May 2014.
21. Issue No. 10, as framed by the Ld. Trial Court, pertains to the
question of limitation.
22. During the pendency of the Suit, the Defendants filed an
application at Exh. 416 under Order VII Rule 11 of the CPC, which
the Trial Court dismissed by way of the impugned order.
23. Importantly, in Para 6 of the Plaint it has been averred that the
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Defendants were placed in possession of the suit property in
performance of the Agreement. This contention in the Plaint is a
foundation stone of the Section 53A argument.
4. SUBMISSIONS OF THE PETITIONER - ORIG.
DEFENDANT
24. Ld. Senior Advocate Mr. Apurva S. Vakil, with Ld. Advocate Mr.
Sushil Shukla appearing for the Petitioners, advanced submissions
under the following heads.
Purpose and Object of Order VII Rule 11 of CPC
25. It was submitted that the power under Order VII Rule 11 of the
CPC to reject a plaint is an important power that must be exercised
when the face of the plaint itself reveals that the suit is time-barred
or discloses no cause of action. The purpose of the provision is to
protect the Court's process from being abused by plainly untenable
suits and to spare the defendant the harassment of a trial on a
frivolous cause. Reliance was placed on:
1. T. Arvindandam v. T.V. Satyapal, (1977) 4 SCC 467 : the Court
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must read the plaint meaningfully; if on such a reading the suit
is patently vexatious and groundless it must be nipped in the
bud.
2. Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315 -- para 12
-- where the suit is patently time-barred the plaint must be
rejected; the provision exists to prevent vexatious litigation.
3. Dahiben v. Arvindbhai Kalyanji, (2020) 7 SCC 366 -- paras
23.2, 23.3, 23.5, 23.6, 23.8 to 23.13 and 23.15 -- a
comprehensive restatement of the principles governing Order
VII Rule 11, including the scope of the Court's inquiry and the
relevance of limitation.
Power to be Exercised at Any Stage
26. The power under Order VII Rule 11 is not restricted to the
inception of the suit and can be exercised at any stage. The Trial
Court was therefore fully empowered to entertain the application
even at the advanced stage of the proceedings. Reliance was placed
on:
1. ITC Limited v. Debt Recovery Appellate Tribunal, (1998) 2 SCC
70 -- para 13.
2. Church of Christ Charitable Trust and Educational Charitable
Society v. Ponniamman Educational Trust, (2012) 8 SCC 706 --
paras 10 and 11.
3. Dahiben v. Arvindbhai Kalyanji, (2020) 7 SCC 366 -- para
23.14.
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Article 54 - The First Limb and the Fixed Date of Performance
27. The principal limitation argument was that the Suit is governed by
the first limb of Article 54 of the Limitation Act, 1963, since a
specific date for performance was fixed in the agreements. The
submission proceeded as follows.
28. In the Agreement to Sell dated 27th February 1969, the parties
agreed that all pre-conditions including obtaining the Charity
Commissioner's permission would be completed and the sale deed
executed within a period of 24 months. The Defendants submitted
that this 24-month period was expressly agreed to be the essence of
the contract. The conditions within the Agreement to Sell
demonstrate that the parties intended 24 months as the outer limit
for completing the transaction.
29. In the Possession Agreement dated 26th July 1971 (which came
into existence after the Charity Commissioner’s permission had
already been obtained on 5th June 1971), Paragraph 7 specifically
states that the period of the agreement to sell is 36 months from the
date of the Charity Commissioner’s Order.
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30. By the time the Possession Agreement was executed, the central
pre-condition, namely the Charity Commissioner's permission, had
already been fulfilled. The 36-month period from the date of the
Possession Agreement, when read alongside the fact that the
permission had been obtained, gives a specific, ascertainable, and
definitive date for performance.
31. In this view it was submitted that its first limb of Article 54 is
therefore attracted, and limitation ran from that date, which expired
long before the Suit was filed in 1997.
32. Reliance was placed on the following decisions for the proposition
that where the date is fixed or ascertainable from the agreement,
the first limb of Article 54 applies:
1. 1964 SCC OnLine MP 31 - Sumerchand Hukamchand v.
Hukamchand Mathuradas -paras 5 to 9.
2. ILR 1981 Karnataka 819 / AIR 1982 Karnataka 93 -- K.
Kallaiah v. Ningegowda - paras 27, 28 and 29.
3. AIR 1988 Karnataka 83 -- Mahaboob Pasha v. Saiyed
Zaheruddin -- paras 4, 8 to 12.
4. Ramzan v. Hussaini, (1990) 1 SCC 104 -- paras 1 to 6.
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5. Ahmadasahab Abdul Mullah v. Bibijan, (2008) 5 SCC 361 -- the
referring judgment, paras 10 and 11.
6. Ahmadasahab Abdul Mullah v. Bibijan, (2009) 5 SCC 462 -- the
reference judgment (full judgment).
7. Fatehji and Company v. L.M. Nagpal, (2015) 8 SCC 390 -- full
judgment.
8. Urvashi Agarwal v. Kushagr Ansal, (2020) 17 SCC 774 -- paras
13 to 15.
9. Madina Begum v. Shiv Murti Prasad Pandey, (2016) 15 SCC
322 -- paras 17 to 22.
10. Katta Sujatha Reddy v. Siddamsetty Infra Projects Private
Limited, (2023) 1 SCC 355 -- paras 26 to 42.
11. Division Bench judgment of this Court in First Appeal No.
2287 of 2015 -- deceased Hanubhai Bharwad (LRs) v. LRs of
Chimanbhai Jivabhai, pages 8 to 11.
12. 2024 SCC OnLine Guj 2910 -- Vrundavan Cooperative
Housing Society Limited v. Vrundavan Development
Corporation -- paras 3.6, 3.7, 3.8, 7, 8 and 10.
33. It was also argued that the Plaint itself suffers from vague
pleadings and contains no particulars as to the date on which the
Plaintiff gained knowledge of the refusal to execute the sale deed.
The Plaintiff has not given a clear and specific date of the alleged
refusal, which is a requirement for invoking the second limb of
Article 54.
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34. Even under Appendix A Form No. 48 of the CPC, particulars as to
limitation are mandatorily required. It was also argued that the
Plaintiff, not being an agriculturist, had no competency to purchase
agricultural land, which goes to the fundamentals of the agreement.
Ascertainment of Date: Section 34 Analogy
35. As a supplemental argument on the first limb, it was submitted that
a period running from an event that has already occurred is capable
of arithmetic computation, and the resulting date is as definitive as
a calendar date expressly stated.
36. For this proposition, reliance was placed on the scheme of Section
34 of the Arbitration and Conciliation Act, 1996, under which
courts routinely ascertain the period of limitation by calculating
from the date of receipt of the award. The following decisions were
cited:
1. 2007 SCC OnLine Del 363 - Union of India v. Vishwa Mittar
Bajaj and Sons - paras 27 to 38.
2. State of Himachal Pradesh v. Himachal Techno Engineers, \
(2010) 12 SCC 210 - paras 1 to 4, 6 and 14 to 18.
3. 2020 SCC OnLine Bom 144 - Transport Corporation of India
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Limited v. Global Logistics Private Limited.
Section 53A of the TPA
37. On the question of the injunction prayer, it was submitted that this
prayer was entirely dependent on and derivative of the Plaintiff’s
rights under Section 53A of the TPA.
38. Once the primary prayer for specific performance was time-barred,
the Section 53A based prayer would fall with it. The agreement
having become unenforceable, there was no contractual foundation
upon which the Section 53A protection could stand.
39. Moreover, it was submitted that Section 53A of the TPA confers no
right of action on a transferee in possession under an unregistered
agreement to sell.
40. The right conferred by Section 53A is a right available only to the
defendant to protect his possession against the transferor who seeks
to enforce rights contrary to the contract. It is a shield available to
a defendant and is not a sword that a plaintiff can wield to
sustain a suit . The following decisions were relied upon:
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1. 1988 Mh.LJ 414 - Sheikh Nagaji v. Ashroba Pirthaji Bhoy --
Section 53A confers no right of action on a transferee in
possession; it is a right available only to the defendant to protect
his possession.
2. 1934 Report of Cases 1145 (PC) -- Pir Bux Khan Bahadur v.
Mohamad Tahar -- the equitable doctrine of part-performance
operates defensively and does not give a cause of action to the
transferee.
3. 44 CWN 145 (PC ) - Prabodh Kumar Das v. The Dantamara
Tea Company Ltd. and others -- a suit for defending possession
grounded in part-performance was dismissed; Section 53A
confers no right of action on the transferee.
4. 1951 SCC OnLine Pat 9 = AIR 1951 Pat 160 -- Hari Prasad
Agarwalla and another v. Abdul Haq and others -- paras 4, 5, 9,
11 and 14 -- follows 66 IA 293; Section 53A does not give the
transferee any right to come to court as a plaintiff to maintain or
recover possession.
5. 1968 GLR 939 -- Vora Ibrahim v. State of Gujarat -- para 16.
6. AIR 1966 SC 1438 / 1966 SCC OnLine SC 291 -- Ram Gopal
Reddy v. Additional Custodian Evacuee Property -- Section 53A
operates as a statutory bar on the transferor; it does not create an
active right in the transferee.
7. AIR 1968 SC 794 -- Delhi Motor Company and others v. U.S.
Basurkar through LRs and others - paras 6 and 7 suit by a lessee
who was in possession of leased premises; Section 53A is only
available as a defence and not as conferring a right on the basis
of which the lessee can claim rights against the lessor.
8. Patel Natwarlal Rugji v. Kondh Group Kheti Vishayak and
another, (1996) 7 SCC 690 -- follows AIR 1968 SC 794; suit by
plaintiff in possession, praying inter alia for perpetual
injunction.
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9. ILR 1998 Kant 3230 (FB) -- Narsimhasetty v. Padmasetty (On
Reference) -- paras 1, 2, 4, 5, 20 to 35 and 37 -- suit by vendor-
owner seeking declaration of title and recovery of possession;
the purchaser-defendant in possession invoked Section 53A as a
shield.
10. Shrimant Shamrao Suryavanshi and another v. Prahlad
Bhairoba and others, (2002) 3 SCC 676 -- paras 1, 5, 7, 8, 11 to
20 - Section 53A cannot be used as a sword by a plaintiff to
sustain a suit after the limitation for specific performance has
expired.
5. SUBMISSIONS OF THE RESPONDENT -- ORIG.
PLAINTIFF
41. Ld. Senior Advocate Mr. Mehul Shah for the Respondent-Plaintiff
placed the following counter-submissions before this Court.
Reading of the Plaint under Order VII Rule 11
42. It was submitted at the outset that while considering an Application
under Order VII Rule 11 of the CPC, the Court must look at the
Plaint and the documents annexed to it as a whole.
43. The Court is not to embark on a mini-trial or weigh evidence at this
stage. Every averment in the plaint must be assumed to be true.
Even if the Court were to conclude that the agreements stated a
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fixed time for completing the sale, Article 54 of the Limitation Act
has two distinct limbs, and the second limb requires examination of
evidence before it can be said that the suit is time-barred. The
question of limitation in the present case is not a matter that can be
determined on the face of the plaint alone.
Article 54 First Limb Does Not Apply
44. It was submitted that neither the Agreement to Sell nor the
Possession Agreement fixes a specific calendar date for execution
of the sale deed. The Agreement to Sell conditioned the execution
on obtaining the Charity Commissioner's permission. This event
that had not occurred when the Agreement to Sell was signed. As
per the authoritative construction by the Hon'ble Supreme Court of
the expression " date fixed for performance " a date is not " fixed "
merely because a period is expressed in the agreement. A calendar
date must be identifiable from the face of the agreement itself. The
following decisions were relied upon:
1. Madina Begum v. Shiv Murti Prasad Pandey, (2016) 15 SCC
322 -- paras 19 and 22 -- the agreement must specify a calendar
date; a period linked to a contingency does not satisfy the first
limb.
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2. Ahmadasahab Abdul Mullah v. Bibijan, (2009) 5 SCC 462 --
paras 10, 11 and 12 -- the authoritative larger bench
construction of Article 54, first limb.
3. Urvashi Ben v. Krishnakant Manuprasad Trivedi, 2018 SCC
OnLine Guj 2833 -- para 19 -- this Court applying the above
principles to a case where no calendar date was fixed.
4. VN Parameswaran v. Muhammed Musthafar, RFA No. 581 of
2007 (Kerala High Court) -- para 33 -- second limb of Article
54 applies where no calendar date is fixed for performance.
Article 54 Second Limb Governs – Date of Knowledge of Refusal
45. Alternatively, it was submitted that even the second limb of Article
54 independently provides that the period of limitation begins to
run only from the date when the Plaintiff has notice that
performance is refused.
46. The Plaintiff has specifically averred in the plaint the date on
which it came to know of the definitive refusal (18th December
2018) and that date is within three years of the filing of the Suit. At
the Order VII Rule 11 stage, this averment must be taken as true
and cannot be displaced. The following decisions were relied upon:
1. Shantibai Soma Bhai Patel v. Ranchhod Bhai Poojabhai
Padiyar, MANU/GJ/0432/2019 -- paras 23, 50 and 51 -- this
Court: limitation in such cases must be decided after evidence;
the averment as to knowledge must be assumed to be true.
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2. Urvashi Ben v. Krishnakant Manuprasad Trivedi, 2018 SCC
OnLine Guj 2833 -- paras 18, 19 and 20.
3. C. Natrajan v. Ashim Bai, ( 2007) 14 SCC 183 -- para 19 --
limitation does not commence unless there is a clear and
unequivocal refusal; a mere passing of time does not constitute
"notice of refusal."
4. Surjeet Kaur Gill v. Adarsh Kaur Gill, (2014) 16 SCC 125 --
para 10 -- the same principle; the cause of action accrues only
when the right to sue first accrues, i.e., when there is an
unequivocal threat to the right.
5. Daya Singh v. Gurudev Singh, (2010) 2 SCC 194 -- paras 11,
12, 15 and 16 -- even a suit filed 18 years from the date of the
agreement was held to be within limitation under the second
limb; the governing date is the date of notice of refusal, not the
date of the agreement.
6. Daliben Valjibhai v. Prajapati Kodarbhai Kachrabhai, 2024
SCC OnLine SC 4105 -- paras 9 and 10 -- the court cannot
impute constructive knowledge to the plaintiff at the Order VII
Rule 11 stage; the pleaded date of knowledge must be taken at
face value.
7. Salim D. Agboatwala v. Shyamal Ji Odhav Ji Thakkar, (2021)
17 SCC 100 -- paras 8, 9, 11 and 16 -- constructive notice for
limitation purposes requires evidence; it cannot be assumed at
the plaint stage.
8. P. Kumarakurubaran v. P. Narayanan, 2025 SCC OnLine SC
975 -- paras 12.1 and 12.2 -- averments as to facts going to
limitation must be assumed to be true at the Order VII Rule 11
stage.
Time is Not of the Essence and the Vendor Cannot Benefit from
Own Default
47. It was also submitted that time is not ordinarily the essence of the
contract in agreements for the sale of immovable property. Further,
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where it is the vendor who is obligated to obtain the statutory
permissions and who controls the pre-conditions to performance,
the vendor cannot invoke limitation on the basis of a date the
vendor itself prevented from being fulfilled. Reliance was placed
on:
1. Panchanand Dhara v. Monmatha Nath Maiti, (2006) 5 SCC 340
-- paras 20, 21, 22 and 27 -- time is not ordinarily of the essence
in cases of immovable property; whether a suit is barred
depends on conduct of parties and all circumstances.
2. Balasaheb Dayandeo Naik v. Appasaheb Dattatraya Panwar,
(2008) 4 SCC 464 -- paras 10 and 11 -- performance may
depend on grant of permission by a statutory authority; time is
not ordinarily the essence.
3. Hind Construction Contractors v. State of Maharashtra, (1979)
2 SCC 70 -- para 8 -- time is not of the essence unless expressly
stipulated.
4. Cevera Sehkari Avas Samiti Ltd. v. Charan Singh and Others,
2004 SCC OnLine All 1574 -- where the vendor creates
obstacles to performance or where the vendor's own acts
prevented compliance with the agreed time, the vendor cannot
take advantage of that default to defeat the plaintiff's suit.
Averments to be Assumed True; Section 53A is Mixed Question
of Law and Fact
48. It was submitted that the averments of the Plaintiff regarding the
date of knowledge must be assumed to be true at the Order VII
Rule 11 stage.
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49. Furthermore, it was submitted that Section 53A of the TPA
involves a mixed question of law and fact, which cannot be decided
at the threshold and requires evidence. The following decisions
were relied upon:
1. Salim D. Agboatwala v. Shyamal Ji Odhav Ji Thakkar, (2021)
17 SCC 100 -- para 16.
2. P. Kumarakurubaran v. P. Narayanan, 2025 SCC OnLine SC
975 -- paras 12.1 and 12.2.
3. Pratap Rai N. Kothari v. John Braganza, (1999) 4 SCC 403 --
para 11 -- the plea under Section 53A of the Transfer of
Property Act involves a mixed question of law and fact and was
allowed to be urged; it cannot be decided at the Order VII Rule
11 stage.
Part Rejection of Plaint is Impermissible
50. It was submitted that there is no power under Order VII Rule 11 of
the CPC to reject the plaint in part. The plaint must be rejected as a
whole or not at all.
51. Since the plaint contains distinct causes of action, some of which
are valid on the face of it, the application for rejection must fail in
its entirety. Reliance was placed on:
1. Madhav Prasad Aggarwal v. Axis Bank Limited, (2019) 7 SCC
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158 -- paras 10 and 12 -- the plaint must be rejected as a whole
or not at all; if any cause of action survives, the plaint cannot be
rejected.
2. Sejal Glass Ltd. v. Navilan Merchants Pvt. Ltd., (2018) 11 SCC
780 -- paras 3, 4 and 8.
3. Central Bank of India v. Prabha Jain, 2025 4 SCC 28 -- para
35.
4. Sri Biswanath Banik v. Sulanga Bose, (2022) 7 SCC 731 --
paras 1, 2.3, 6 and 7.4 -- distinct causes of action cannot lead to
total rejection of the plaint.
Section 53A, the Injunction Prayer and Distinct Causes of Action
52. On Section 53A and Prayer 12(B), it was submitted that the relief
of specific performance and the relief of permanent injunction for
protection of possession under Section 53A of the TPA are distinct
and separate causes of action. Each has its own separate factual and
legal basis and its own limitation period. One does not rise and fall
with the other. Reliance was placed on:
1. Sucha Singh Sodhi v. Baldev Raj Waliya, (2018) 6 SCC 733 --
paras 7, 8, 12, 24 to 26, 29.1 and 29.3 - a suit for specific
performance and a suit for permanent injunction to protect
possession are distinct and independent causes of action.
2. Gunwantbhai Mulchand Shah v. Anton Elis Farel, (2006) 3
SCC 634 -- paras 9 and 16 -- the questions under Article 54
cannot be decided as preliminary issues and the suit cannot be
rejected where evidence is required.
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3. Karam Singh v. Amarjeet Singh, 2025 (0) AIJEL-SC 76014 --
paras 17 to 21 -- at the Order VII Rule 11 stage, the Court is not
to embark on a mini-trial; where facts going to limitation
require evidence, rejection is impermissible.
4. Sri Biswanath Banik v. Sulanga Bose, (2022) 7 SCC 731 --
paras 1, 2.3, 6 and 7.4 -- a suit for permanent injunction by a
plaintiff in possession cannot be rejected under Order VII Rule
11.
5. Vinod Infra Developers Ltd. v. Mahaveer Luniya, 2025 SCC
OnLine SC 1208 -- paras 4.2 and 9.6.
Section 53A Protection Survives the Expiry of Limitation for
Specific Performance
53. It was further submitted that even if the period of limitation for
specific performance had expired, the protection under Section 53A
of the TPA is not thereby extinguished. Limitation bars the remedy,
not the right. A transferee in possession retains the right under
Section 53A to protect that possession even after the period for
specific performance has run. Reliance was placed on:
1. Mahadeo Nathuji Patil v. Soorja Bai Kushalchand Lakkad,
1996 96 BomLR 846 -- paras 41, 44 and 46 -- the right to invoke
Section 53A as a shield is not extinguished by the expiry of
limitation for specific performance.
2. Sadashiv Chander Bhamgare v. Eknath Pandarinath Nangude,
AIR 2004 Bom 378 - paras 6, 9, 11, 12 and 13 -- a person in
possession can use Section 53A as plaintiff or as defendant to
protect possession; the right to protect possession persists even
after limitation for specific performance has run.
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3. Shrinath Ji Cooperative Housing Society v. Legal Heirs of
Mathurji Jesangji Thakore, First Appeal No. 690 of 2017
(Division Bench, Gujarat HC) -- paras 22.9 to 24.4 -- this
Court's Division Bench applied these principles.
4. Ghanshyam Dhirubhai Barvaliya v. Rasik Dhirubhai Ambaliya,
AIR 2017 Guj 164 -- para 10 -- this Court applied the same
principle.
5. Yenugu Achayya and Another v. Eranki Venkata Subba Rao,
1956 SCC OnLine AP 67 - paras 4, 13, 14 and 20 - Andhra
Pradesh HC: a plaintiff in possession may invoke Section 53A
to protect that possession.
6. Tshering Wongdi Bhutia v. Sonam Pintso and Others, 1980
SCC OnLine Sikk 2 - paras 10 and 11.
7. Smt. Mahadevamma v. B.S. Lingaraju, (1981) 2 Kant LJ 388 --
Karnataka HC.
8. Devasia Chacko v. Venkita Krishna Iyer, 1992 SCC OnLine Ker
37 - paras 13, 14, 15 and 17 - Kerala HC.
9. M/S. RMS Estate Pvt. Ltd. v. Hari Ram, 2016 SCC OnLine P&H
18475 - paras 17, 18 and 19 - Punjab and Haryana HC.
Independent Right to Protect Settled Possession
54. Even wholly independently of Section 53A, it was submitted that a
person in long-standing settled possession has an independent right
to seek permanent injunction to protect that possession, irrespective
of the fate of the specific performance claim. The cause of action
for this relief accrues when the threat to possession arises. Reliance
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was placed on:
1. Shrinath Ji Cooperative Housing Society v. Legal Heirs of
Mathurji Jesangji Thakore, FA 690/2017 -- para 22.9 -- once a
person is sought to be illegally dispossessed, the cause of action
arises as and when the threat arises.
2. Ashwin Kumar K. Patel v. Upendra J. Patel, (1999) 3 SCC 161
- paras 3, 5, 11 and 12
3. Pratap Rai N. Kothari v. John Braganza, (1999) 4 SCC 403 --
para 11
4. Rame Gowda (D) By LRs v. Varadappa Naidu By LRs, (2004) 1
SCC 769 - paras 3, 7, 8, 9 and 10
5. Ghanshyam v. Yogendra Rathi, (2023) 7 SCC 361 -- paras 9, 10,
11, 15 and 16
Rejoinder by the Claimants’ Arguments
55. In his Rejoinder, Ld. Senior Advocate for the Defendants majorly
responded to the Plaintiff’s reliance on Sri Biswanath Banik v.
Sulanga Bose , (2022) 7 SCC 731.

56. It was submitted that this judgment was rendered per incuriam as it
failed to consider earlier binding decisions of the Hon'ble Supreme
Court, including the Constitution Bench decision in Ram Gopal
Reddy , the Privy Council decisions. Reliance was placed on:
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1. National Insurance Company Limited v. Pranay Sethi and
Others, (2017) 16 SCC 680 -- on the principle of per incuriam -
a judgment is per incuriam when it is rendered in ignorance of
or contrary to a binding precedent.
57. It was further argued in rejoinder that the Hon'ble Apex Court's
larger bench had already decided that there cannot be any
independent right arising out of an agreement which is time-barred.
The substantive relief of specific performance having been held to
be barred by limitation, the consequential relief of injunction must
equally be held to be barred, since the injunction cannot survive
independently of the right which it seeks to protect.
6. ANALYSIS
58. Having heard the Ld. Senior Advocates for both parties at length
and having carefully perused the Plaint, the documents annexed
thereto, including the two agreements which are at the centre of the
dispute, and the extensive body of decisions placed on record, this
Court now proceeds to analyse the questions arising in the present
Civil Revision Application.
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Scope and Purpose of Order VII Rule 11
59. It is necessary to begin by appreciating what the power under Order
VII Rule 11 of the CPC is, and what it is not. This is more
important because currently, this Court is considering the entire
issue only from this lens. It is quite possible that if evidence has to
be led, one may arrive at a completely different conclusion.
Therefore, all I am required to examine today is whether the
present case falls within the scope of Order VII Rule 11 and is
required to be rejected.
60. Order VII Rule 11 is a drastic power, which enables the Court to
nip a suit at the threshold by rejecting the plaint, (usually) before
the defendant files a written statement and before the parties go
through the entire process of framing issues, discovery, and trial.
Though admittedly, there is no bar that an Application under Order
VII Rule 11 cannot be filed at a given stage, because the trial has
proceeded. However, in some matters, it may become a relevant
factor.
61. While at it, it is pertinent to note that in the present case, the suit
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was filed in the year 12.03.1997. Whereas, the Application under
Order VII Rule 11 was filed only on 30.11.2016.
62. Because it operates at the threshold and deprives the plaintiff of
access to adjudication on the merits, it is a drastic power of
significant consequence and hence, must also be exercised with
caution.
63. Hon'ble Supreme Court in T. Arvindandam v. T.V. Satyapal ,
(1977) 4 SCC 467 held as follows:
64. The learned Munsif must remember that if on a meaningful-not
formal-reading of the plaint it is manifestly vexatious, and
meritless, in the sense of not disclosing a clear right to sue , be
should exercise his power under Or. VII R. 11 C.P.C. taking care
to see that the ground mentioned therein is fulfilled. And, if clever,
drafting has created the illusion of a cause of action, nip it in the
bud at the first hearing by examining the party searchingly under
Order X C.P.C. An activist Judge is the answer to irresponsible
law suits. The trial court should insist imperatively on examining
the party at the first bearing so that bogus litigation can be shot
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down at the earliest stage.
65. In Azhar Hussain v. Rajiv Gandhi , 1986 Supp SCC 315, the
Hon'ble Supreme Court reiterated that the purpose of the provision
is to protect courts and defendants from plainly meritless or time-
barred suits.
66. A relatively recent statement of the law on this issue by the
Hon’ble Apex Court is couched in Dahiben v. Arvindbhai Kalyanji ,
(2020) 7 SCC 366, at paras 23.2 to 23.15.
67. The Court set out the following principles. First , the Court must
confine itself strictly to the averments in the plaint and the
documents upon which the plaintiff relies. Second , if, taking the
plaint as a whole and accepting every averment as true, the suit is
ex facie barred on its own face, the plaint must be rejected. Third ,
evidence beyond the plaint is neither admissible nor relevant at this
stage. Fourth , and this is equally important, where the question of
limitation requires investigation of disputed or ambiguous facts, or
where the determination of limitation depends on facts that are not
definitively apparent from the plaint itself, the plaint cannot be
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rejected. The power is not to be used as an instrument of summary
adjudication of contested facts.
68. The power is available at any stage of the suit, not only at the
inception. ITC Limited v. DRAT , (1998) 2 SCC 70, and Church of
Christ Charitable Trust v. Ponniamman Educational Trust , (2012)

8 SCC 706, so confirm, and Dahiben (supra) reiterates this.
69. But the test remains: Is the plaint and documents, read as a whole,
ex facie barred by any law or does not disclose a cause of action?
70. The Hon'ble Supreme Court in Gunwantbhai Mulchand Shah v.
Anton Elis Farel , (2006) 3 SCC 634 [at para 7, 11]: speaking
specifically about Article 54 of the Limitation Act and its second
limb, the Hon’ble Court held that in most cases, questions arising
under that Article cannot be decided as preliminary issues and the
suit cannot be rejected at the threshold where those questions
require examination of evidence.
71. More recently, in Karam Singh v. Amarjeet Singh , 2025 (0) AIJEL-
SC 76014, the Court has reaffirmed that at the stage of Order VII
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Rule 11 the defense is not to be considered. Thus, whether the suit
is barred by any law or not is to be determined on the basis of
averments made in the plaint.
72. Therefore, present matter hereon will have to be examined keeping
in mind this limitation on the power of the Court exercising its
jurisdiction under Order VII Rule 11 and the aforesaid judgments
of the Hon’ble Apex Court.
Article 54 - Question of Limitation
73. This Court must now examine the two agreements closely, having
regard to the submissions made on both sides, in order to assess
whether the Suit is ex facie barred by limitation under Article 54 of
the Limitation Act, 1963. Article 54 is reproduced below for ready
reference:
Description
Article
Period of
Limitation
Time from which period
of Suit
begins to run
The date fixed for the
performance, or, if no such
For specific
performance
54.
Three years
date is fixed, when the
plaintiff has notice that
performance is refused.
of a
contract.
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74. Thus, Article 54 has two distinct and mutually exclusive limbs. The
first limb runs from the date fixed for performance. The second
limb runs from the date on which the plaintiff has notice that
performance is refused. The two limbs are alternatives: where a
date is fixed, the first limb governs, regardless of when notice of
refusal was received. Where no date is fixed, the second limb
governs.
75. The Agreement to Sell dated 27th February 1969 agreed upon a
period of 24 months within which several pre-conditions were to be
fulfilled and the sale deed executed. The Defendants were
obligated within this period to obtain the Charity Commissioner’s
permission under Section 36 of the Bombay Public Trusts Act,
1950; permission under Section 63 of the Gujarat Tenancy Act,
title clearance, Non-Agricultural land conversion permission, and
to execute the sale deed thereafter.
76. According to the Plaintiff itself [see para 5 of the Plaint], on 5th
June 1971, the Charity Commissioner's permission was obtained.
With this, one of the central pre-conditions was satisfied.
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77. On 26th July 1971, the parties then executed the Possession
Agreement. This is a separate and subsequent agreement. In this
Agreement again, the parties fix the date as 36 months from the
date of permission of Charity Commissioner, i.e., from 5th June
1971.
78. Therefore, the bone of contention really is on the term “date”. It is
the submission of the Respondent that the Agreement to Sell did
not fix a “date” for performance within the meaning of Article 54,
since the obligation was conditioned upon several future events and
permissions.
79. The Petitioner counters with the argument that the 24-month period
was agreed to be of the essence and that a period of 24 months (36
months later in the second agreement) is as definitive as a calendar
date. By this stage, the Charity Commissioner's permission had
already been granted and was no longer a future contingency.
80. Paragraph 7 of the Possession Agreement states that the period of
the agreement to sell is 36 months. The Defendants argue that
when one reads the Possession Agreement with the knowledge that
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the Charity Commissioner's permission had by then been obtained
on 5th June 1971, the 36-month period referred to in Paragraph 7
was a definitive period running from an event that had already
occurred, and the resulting date (36 months from 5th June 1971,
i.e., 5th June 1974) is a calculable and specific date.
81. On this reading, the first limb of Article 54 is triggered, and
limitation from that date would have expired long before the Suit
was filed in 1997.
82. According to this Court, this argument by the Defendants has
substance and cannot be brushed aside merely because there is no
specific date mentioned in the Agreement. If on a reading of the
Agreement, the categorical language points at a specific date
(which though date is not mentioned but is calculable without any
doubt) the same must be considered as a fixed date. There is no
doubt about it. One can understand if the starting point of the
calculation was also a contingent event, no date can be said to have
been fixed. However, when the starting point was fixed, the period
was fixed, the end date is definitely a specific date in the calendar.
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83. The Hon’ble Supreme Court in Ramzan v. Hussaini , (1990) 1 SCC
104, has authoritatively settled that the requirement of Article 54 of
the Limitation Act is not that the actual day of performance must
be ascertainable on the face of the contract. It is sufficient that the

of the calculation which would make it certain is found in the
document. The Court held: “ The requirement of Article 54 is not
that the actual day should necessarily be ascertained upon the face
of the deed, but that the basis of the calculation which was to make
it certain should be found therein. ”
84. Applying the maxim id certum est quod certum reddi potest , the
Court further held that "certainty need not be ascertained at the
time; for if, in the fluxion of time, a day will arrive which will make
it certain, that is sufficient. The case is, therefore, covered by the
first part of Article 54 (third column) and not the second part. ”
85. Once a date of performance is ascertainable by reference to an
event stipulated in the contract, the first limb is triggered and there
is simply no occasion to travel to the second limb which speaks of
notice of refusal.
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86. In the facts of the present case the position is even stronger.
Paragraph 7 of the Possession Agreement dated 26th July 1971
stipulates a specific period of 36 months for execution of the sale
deed. The Charity Commissioner’s permission, which was the
central pre-condition under the Banakhat, had already been
obtained on 5th June 1971 [See also, para 5 of the Plaint], that is,
prior to the Possession Agreement itself. There was therefore no
contingency left to be fulfilled. The date of performance was not
merely ascertainable; it was arithmetically calculable from the face
of the documents.
87. Therefore, the period of three years prescribed under Article 54
began to run upon the expiry of the 36-month period stipulated in
Paragraph 7. The Plaintiff cannot now seek refuge under the second
limb of Article 54 by pleading a date of knowledge of refusal.
88. The decisions relied upon by the Defendants on the first limb
including Ahmadasahab Abdul Mullah v. Bibijan (2009) 5 SCC
462) , Madina Begum v. Shiv Murti Prasad Pandey (2016) 15 SCC
322), and Katta Sujatha Reddy v. Siddamsetty Infra Projects
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((2023) 1 SCC 355) lay down that it has to be specific date in the
calendar. As noted above, in the present case, the date was as good
as a fixed date in the calendar on a simple arithmetic calculation
and there was no doubt regarding the same.
89. The next question therefore is whether the suit is barred by
limitation. Though, it is clear that the date is fixed in the calendar,
the issue of limitation in the present case is not such which can be
decided on basis of the Plaint alone, considering the following.
90. First, the Agreement to Sell itself contained several conditions.
One of those conditions were fulfilled (Charity Commissioner's
permission), while others (Section 63 permission, Non-Agricultural
conversion, title clearance) may or may not have been fulfilled.
Whether those conditions were met or not, and whether those
conditions were material in arriving at the period of the agreement
to sell are all questions that require examination of the agreements
as a whole and, possibly, the conduct of the parties.
91. Second, the Plaintiff has averred in the plaint that the Defendants
continued to represent that the sale deed would be executed. These
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representations, if proved, go to the question of whether the clock
under Article 54 was actually running or whether the parties
mutually understood performance to be deferred. This is a matter of
evidence. [See, S. Brahmanand v. K.R. Muthugopal , (2005) 12
SCC 764 at para 34]
92. Third, and most significantly, the Ld. Trial Court has specifically
framed Issue No. 10 to deal with limitation at the full trial.
93. Fourth, the Hon'ble Supreme Court in Daliben Valjibhai v.
Prajapati Kodarbhai Kachrabhai , 2024 SCC OnLine SC 4105,
cautioned against converting the subjective standard of “notice” in
the second limb of Article 54 into an objective one. In the present
case, the Plaintiff has pleaded a specific date of knowledge. For the
purposes of the present Application, that averment must be taken as
true. Even if this Court were to hold that the first limb applies on
the face of the Possession Agreement, the Plaintiff’s averment
about knowledge of refusal (which speaks to the second limb) and
to the question of whether the parties conducted themselves in a
manner consistent with the running of limitation is a factual matter
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which requires evidence.
94. Fifth, Whether the parties fulfilled all their obligations or whether
they created obstacles that prevented timely performance is, once
again, a question of fact.
95. Now, this Court shall turn to the decisions cited by the Petitioners
on this first limb.
96. The decisions in Sumerchand Hukamchand v. Hukamchand
Mathuradas (1964 MP), the High Court held:
Where time for performance of the contract is fixed,
limitation forthwith begins to run as from that time,
irrespective of the question of notice or refusal to
perform. Authorities are uniform on the point that
where a time is fixed for performance, the second part
of Column 3 in Article 113 can have no application.
97. In the present case however, even if we apply the first limb, there
are several questions which require answers and therefore, it cannot
be said directly that the facts of the present case is covered by the
ones arising in Sumerchand.
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98. In K. Kallaiah v. Ningegowda (AIR 1982 Karnataka 93), the High
Court held as follows:
From the above cases, two principles clearly emerge.
Firstly, where a contract relates to sale of immovable
property, the normal presumption would be that time
stipulated in the contract will not be treated as the
essence of the contract. Secondly, when a plaintiff
pleads that time is not the essence of the contract and
the defendant does not deny the same, a Court is bound
to accept the plea of the plaintiff. The second principle
is obviously based on the law of pleadings
incorporated in Rr. 3, 4 and 5 of 0. 8 of the Civil P. C.,
though there is no reference to the same.
17. As noticed earlier, no issue had been framed on the
question and the parties had not diverted their
attention to place necessary evidence on that issue.
Apart from this, the evidence had not been appreciated
in the light of the principles enunciated by the Supreme
Court. However, in this case, the defendant had not
denied the assertion of the plaintiff that time was not
the essence of the contract. The Courts below were
bound to hold that time was not the essence of the
contract and in holding to the contrary have committed
a substantial error of law.
99. Therefore, it is clear that in the said case, the High Court examined
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all the relevant factors and evidence and thereafter arrived at a
conclusion, which naturally cannot be done in the present case
when the Court is bound to look only at the Plaint and its
documents. Hence, the aforesaid judgment will also not help the
Petitioner in the present case.

100. In Mahaboob Pasha v. Saiyed Zaheruddin (AIR 1988 Karnataka
83) the High Court held that the date was considered to be fixed
when the term was specified in terms of “The said balance of sale
consideration shall be paid in full within a period of six months
from this date”. Hence, that as decided above, is applied in the
present case as well.
101. However, at the cost of reiteration, it is stated that accepting that a
period linked to an event may be treated as a fixed date once the
event occurs, the question remains whether all relevant facts to
determine that date and compute the period of limitation were
apparent on the face of the plaint. The plaint contains specific
averments as to the date of knowledge and refusal. At the Order
VII Rule 11 stage, this Court cannot override the Plaintiff’s
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pleaded case on limitation unless the same is illusory.
102. Ahmadasahab Abdul Mullah v. Bibijan (2009) 5 SCC 462, Fatehji
and Company v. L.M. Nagpal (2015) 8 SCC 390, Urvashi Agarwal
v. Kushagr Ansal (2020) 17 SCC 774, and Madina Begum v. Shiv

Murti Prasad Pandey (2016) 15 SCC 322 together establish the
correct construction of Article 54: a specific calendar date or a
period calculable from a fact already known at the time of the
agreement attracts the first limb. These decisions bind this Court
and this Court most respectfully follows them.
103. Further in Division Bench judgment of this Court in First Appeal
No. 2287 of 2015 -- deceased Hanubhai Bharwad (LRs) v. LRs of
Chimanbhai Jivabhai, and 2024 SCC OnLine Guj 2910 --
Vrundavan Cooperative Housing Society Limited v. Vrundavan
Development Corporation the question on facts was quite different.
The Agreements as in the present case, did not stipulate such
conditions which exist here. Therefore, it cannot be straightaway
made applicable.
104. However, on the facts of the present case, even applying these
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decisions, the question is whether the plaint itself, on its face,
establishes definitively that the suit is beyond the three-year period
from the relevant date in view of the specific conditions of the
Agreement and other reasons mentioned above, is a triable
issue. The plaint contains averments pointing the other way, and
those averments must be accepted as true at this stage.
105. Katta Sujatha Reddy v. Siddamsetty Infra Projects , (2023) 1 SCC
355, cited by the Defendants for the proposition that a date
ascertainable from the agreement attracts the first limb of Article
54, has since been reviewed and recalled by the Hon’ble Supreme
Court in (2024) 20 SCC 140. In any event, even before its recall,
Katta Sujatha Reddy was a decision rendered on evidence after a
full trial and did not lay down that a plaint must be rejected under
Order VII Rule 11 wherever the first limb of Article 54 arguably
applies. The same is also true of the Division Bench judgment in
FA 2287 of 2015 and 2024 SCC OnLine Guj 2910 Vrundavan ,
both of which were decisions on merits after consideration of
evidence, and neither of which has any bearing on the scope of
Order VII Rule 11.
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106. In summary, on the question of limitation, this Court holds as
follows.
1. The Defendants have raised a substantial and arguable case that
the first limb of Article 54 applies in the present case given the
36-month period in Paragraph 7 of the Possession Agreement
and Para 5 of the Plaint and the fact that the Charity
Commissioner’s permission had already been obtained by the
date of that agreement (on 5th June 1971). Moreover, this is
coupled with the fact that the Charity Commissioner’s
permission was the main condition in Clause 7 determining the
period of the Agreement to Sell.
2. This Court does not dismiss that argument. However, at the
Order VII Rule 11 stage, the plaint cannot be rejected on this
basis because: the question requires examination of the
agreements, the conditions of the agreement as a whole and the
conduct of the parties.
3. The Plaintiff has pleaded a specific date of knowledge of refusal
however, even if the case is to fall in first limb of Article 54,
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Agreement conditions are required to be looked into in the facts
of this case.
4. Moreover, this Court believes that the Ld. Trial Court has
already framed Issue No. 10 for adjudication on limitation and
the same must be allowed to be tried to bring on record all the
evidences and defenses of either sides.
107. Therefore, in my view, parties strenuously contending on the issue
of limitation will be better adjudicated by the Ld. Trial Court.
Hence, on this count, I hold that issue of limitation though apparent
from an Agreement dated 1969 and 1971, requires to be
adjudicated by the Ld. Trial Court in accordance with the law and
keeping in mind the aforesaid aspects as held hereinabove.
Section 53A and the Threshold of Order VII Rule 11
108. The Section 53A argument of the Petitioner proceeds on three
strands:
1. Section 53A confers no independent right of action and is a
shield not a sword;
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2. Once limitation for specific performance expires, the Section
53A protection is extinguished; and
3. Biswanath Banik decision of the Hon’ble Apex Court, is per
incuriam .
109. This Court examines each of the above stands hereinafter.
General Principle: Section 53A as Shield Only
110. The proposition that Section 53A of the TPA is a shield available
to a defendant and is not a sword with which a plaintiff can enforce
rights under an unregistered agreement is an established
proposition of law. There is no dispute to it. [ See , Dantmara Tea
Company v. Probodh Kumar Das 41 Calcutta Weekly Notes 54
(Calcutta HC.) affirmed by Privy Council in appeal in Probodh
Kumar Das v. Dantmara Tea Company; Reddy v. Additional
Custodian, Evacuee Property; Ranchhoddas v. Devaji; Technicians
Studio Private Ltd. v. Ma Ghosh. 21 A.I.R. 1977 SC 2425].
111. The section was inserted into the TPA in 1929, modelled on the
equitable doctrine of part-performance. Its purpose was to confer a
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statutory protection on a transferee in possession against the
transferor who seeks to enforce rights inconsistent with the
agreement. The section imposes a bar on the transferor. It does not,
in terms, give the transferee any cause of action. That is undisputed
as a proposition of law.
112. The Privy Council in Prabodh Kumar Das v. The Dantamara Tea
Company Ltd. (44 CWN 145 (PC)) and Pir Bux Khan Bahadur v.
Mohamad Tahar (1934 PC) held, in the equitable framework
preceding the 1929 amendment, that the doctrine of part-
performance operated defensively and did not give a cause of
action to the transferee.
113. Constitution Bench of the Hon’ble Supreme Court in Ram Gopal
Reddy v. Additional Custodian, Evacuee Property , AIR 1966 SC
1438, expressed the view that Section 53A cannot be taken benefit
of when “ suit has been filed to establish the right of the appellant
as owner of the property and in such a suit the appellant cannot
take the benefit of Section 53-A of the Transfer of Property Act ” .
114. The aforesaid decisions of the Hon’ble Apex Court are binding and
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I respectfully agree with the said propositions.
115. However, the proposition that Section 53A is a shield only must be
understood in the specific factual context in which it was stated in
each of the cases cited by the Defendants. When one looks at those
cases carefully, one finds that the ratio in the said cases is that 53A
cannot be used as a sword. But they are not proposing or do not
pertain to the proposition that a transferee who is already in actual,
long-standing possession of property and is seeking only to retain
and protect that possession cannot maintain a suit for permanent
injunction under 53A.
116. In fact, there are judgments which propose that if Section 53A is
not permitted to be used by the transferee to protect its possession,
then the said Section will be rendered otiose. These judgments hold
that when the Plaintiff seeks to protect his possession (and not
claim any ownership right by way of a suit under Section 53A), the
Plaintiff is in fact using the proposition only as a shield and not as a
sword [See, Sadashiv Chander Bhamgare v. Eknath Pandarinath
Nangudes AIR 2004 Bom 378; AIR 1942 Madras 125; 1956 SCC
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OnLine AP 67 at para 17 and 19; MANU/GJ/0828/2009 at para 6;
AIR 1981 Guj 243]
117. However, the Defendants rely on the following judgments to cite a
proposition that 53A cannot be used as a shield at all.
118. First, Delhi Motor Company and Others v. U.S. Basurkar through
LRs , AIR 1968 SC 794: This is the leading judgment in the chain
of cases cited by the Defendants.
119. The facts of Delhi Motor Company were as follows: The firm
(plaintiff) had entered into an agreement of sub-lease with the
defendant company. The firm alleged that it had been in possession
of two portions of the property from 1950. However, by the time
the suit was filed in 1952, the firm had been completely
dispossessed from the property. The firm sued for a decree for
delivery of possession of all three portions of the leased premises,
for damages, and for injunctions. The firm sought to rely on
Section 53A to claim possession of the property under the
unregistered agreement.
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120. In these facts, Hon'ble Supreme Court held that Section 53A cannot
be used by a lessee to claim rights against the lessor or to obtain a
decree for possession on the basis of an unregistered lease. The
section is only available as a defence.
121. This holding was squarely on the facts, where the firm was (a)
dispossessed and (b) seeking recovery of possession and
enforcement of the unregistered lease which, in the reading of this
Court, is a thoroughly offensive (as opposed to defensive) use of
Section 53A. In paragraph 7, the Court made a specific and
significant observation:
“ On the question whether a person, who sues as a plaintiff,
may still be regarded as defending the rights sought to be
conferred upon him by an unregistered deed, we need
express no opinion. ”
122. Therefore, it is clear that this question has been kept open by the
Hon’ble Apex Court in Delhi Motor Co. [See: Savarkundla
Nagarpalika V/s Maninagar Nirman Nivas Sahkari Mandli Ltd.
1981 SCC Online Guj 5: Para 18].
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123. Further, in the same paragraph, the Hon’ble Apex Court had
considered an earlier Allahabad High Court judgment in Ram
Chander v. Maharaj Kunwar where a lessee, though suing as a
plaintiff, was seeking only to prevent demolition of premises of
which the lessee was already in possession. The Allahabad High
Court had held that such a plaintiff was " in reality a defendant " and
was simply defending the rights under Section 53A.
124. The Hon'ble Supreme Court in Delhi Motor Company noted this
distinction and, without expressing disagreement with it in
principle, held that the firm's case was entirely different because
the firm was not in possession and was seeking to enforce the
lease. The Court specifically said that the Allahabad decision could
be justified “ if at all, on the basis that, though the lessee in that
case was a plaintiff, he was actually seeking protection under
Section 53A of the Transfer of Property Act by being in the real
”
position of a defendant.
125. The distinction is clear. Delhi Motor Company decided that Section
53A cannot be used offensively by a plaintiff who is out of
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possession to recover possession or to enforce an unregistered
instrument. It did not decide and expressly declined to decide the
question of whether a plaintiff already in possession and seeking to
defend it can invoke Section 53A. That question was left open.
126. The present case falls squarely within the open question left by
Delhi Motor Company .
127. Hari Prasad Agarwalla and Another v. Abdul Haq , AIR 1951 Pat
160: This was a case where the plaintiffs held an invalid lease for
extracting fire-clay from certain villages. The central finding of
fact by the court was that the plaintiffs were not in possession of
the village in suit - the very village from which they were claiming
rights.
128. Having found that the plaintiffs were not in possession, the court
went on to hold (in a passage that in the opinion of this Court is
only an obiter ) that Section 53A does not give a transferee the right
to come to court as a plaintiff to maintain possession or to recover
possession. However, this statement was made in a context where
the plaintiffs had no possession to maintain. If at all the Petitioners
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have relied on the said case to advance that finding as ratio, this
Court respectfully does not agree with said ratio of the Patna High
Court.
129. In Shrimant Shamrao Suryavanshi and Another v. Prahlad
Bhairoba , (2002) 3 SCC 676: In this case, the Hon'ble Supreme
Court held that Section 53A can be invoked by a transferee to
sustain an argument for possession or specific performance even
though the limitation for the suit for specific performance had
expired. Therefore, in fact, it advances the case of the Plaintiffs that
separates the two prayers.
130. Narsimhasetty v. Padmasetty , ILR 1998 Kant 3230 (FB): This Full
Bench of the Karnataka High Court was constituted to resolve a
conflict of opinion on questions relating to Section 53A. The
Defendants cited several paragraphs from this judgment in
particular the discussion in paras 20 to 35 to support the
proposition that Section 53A is a shield only.
131. However, the Full Bench's own conclusions in paras 35 to 41,
which are the operative and authoritative part of the judgment, are
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imperative. The Full Bench held, at para 35, that the right to
protection under Section 53A and the remedy of specific
performance are distinct; limitation extinguishes the remedy but
not the right under 53A.
132. At para 37, the Full Bench held that a transferee in possession does
not lose the right to remain in possession merely because the period
of limitation for specific performance has run. At para 40, the Full
Bench overruled the contrary Division Bench decisions. Therefore,
the decision in Narsimhasetty in fact, advances the case of the
Respondents here.
133. Patel Natwarlal Rugji v. Kondh Group Kheti Vishayak , (1996) 7
SCC 690: The Defendants cite this case as support for the
proposition that Section 53A is a shield only, noting that it follows
Delhi Motor Company. However, the facts of the said case are
telling. The following passage from the judgment is required to be
noted:
“ In view of these facts though the agreement was in
writing, the petitioner is not a genuine transferee but a
privy to the fraud. The contract is a sham and nominal
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document fraudulently brought into existence. In the
State of Gujarat by virtue of local amendment to the
Stamp Act, agreement of sale is a registerable
document but was not registered. The attachment
before judgment prevails over the agreement. That
apart it cannot be used as a title for the declaration in
the suit but the benefit of Section 53-A can be availed
of as a shield to retain possession. Instead agreement
is sought to be used as a sword to defeat the rights of
the respondents who have obtained lawful award. An
order of attachment before judgment was issued
pending making of the award. The attempt of the
petitioner is to defeat the rights of the first respondent
to proceed against the property of the debtor. Thus, it
would be clear that the petitioner has not come to the
court with clean hands. He is a party to the fraud and
his alleged possession is only a ruse to protect… ”
134. Therefore, in the said facts, the Hon’ble Supreme Court did not
deem it fit to protect the possession of the Plaintiff since the
remedy sought for by him was equitable.
135. In Vora Ibrahim v. State of Gujarat , 1968 GLR 939 (DB). This
Court has carefully considered the proposition relied upon (para
16). That decision must be read in the context of the specific facts
before the Gujarat Division Bench and does not bar that the
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transferee cannot bring a suit as a Plaintiff. In fact, the following
extract from the judgment is required to be seen:
“ We are, therefore, of the opinion that under Section
53-A of the Transfer of Property Act, the plaintiff
derives no right, title or interest in the property in the
plaint, the plaintiff has claimed to be the full owner of
the property. That claim of his must fail on the ground
that he does not prove to have any right in the property
on the date when he brought the suit. It is urged that
by bringing the suit, he is defending his possession.
We fail to see how such an argument can be
advanced on the facts of this case . By attaching the
property in execution of a money decree, all that the
attaching creditor seeks to do is to take the first step to
put the property of the judgment-debtor to sale. By
taking out an attachment, he prohibits his judgment-
debtor from transferring his right, title or interest in
the property. There is no doubt that the ownership of
the property still vests in the judgment-debtor and so
long as the ownership vests in him, his right, title and
interest in the property can be attached and sold. If a
purchaser at an auction sale in execution of the
decree were to take steps to assert any right to the
property on account of his purchase, the transferee
can then protect his possession if he can bring his
case under Section 53-A. If the auction purchaser is a
person claiming under the transferor then certainly
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the Plaintiff could protect his possession against him ,
because the auction purchaser would be equally
estopped from enforcing any right against him as the
judgment-debtor was… ”
136. Therefore, in fact, the Hon’ble Division bench specifically provides
for a situation in which the transferee may be entitled to sue as a
Plaintiff to protect their possession.
137. Sheikh Nagaji v. Ashroba Pirthaji Bhoy , 1988 Mh.LJ 414 -- the
Bombay High Court decision -- is in the same line and states the
general proposition that Section 53A confers no right of action
when the claim for specific performance has been barred. This is in
the following context:
“ I am unable to appreciate this contention also because
in those two reported decisions, the claim for specific
performance was not agitated before the Courts, and
there was, therefore, no question of considering the
fact of dismissal of suit for specific performance. So
the decisions of the Courts below are right in view of
the fact that on the date of the suit, the rights under the
agreement were enforceable, and if at all Plaintiff want
to claim on the basis of the dismissal of the suit for
specific performance, he could file a fresh suit
thereafter for possession, but the claim of the Plaintiff
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for recovery of the possession in the present suit
which is filed in the year 1971, cannot be considered
as the defendants claim for specific performance is
rejected by the Tral Court on 19th September 1977 . …
I therefore, hold that the Defendants are not entitled
for protection under Section 53A of the Transfer of
”
Property Act
138. For the aforesaid reasons articulated above in respect of the other
decisions, this general proposition does not resolve the specific
question before this Court.
139. Therefore, this Court is of the view that to protect possession, a
Plaintiff may file a suit in given circumstances – however, that
shall amount to claiming of the right under Section 53A as a shield
only and not a sword.
Limitation of Specific Performance and Section 53A
140. Having come to the aforesaid conclusion, the next question which
emerges for the consideration of this Court is whether assuming the
relief of Specific Performance was barred by limitation, will such
bar also be attached to remedy under Section 53A.
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141. This Court is aware that certain High Courts have taken a view that
bar of limitation in the remedy of specific performance may also
bar the remedy under Section 53A. However, I am not inclined to
adopt the said outlook in view of the following binding decisions
of the Hon’ble Apex Court and also decisions of coordinate bench
of this Court:
142. In Shrimant Shamrao Suryavanshi v. Prahlad Bhairoba
Suryavanshi , (2002) 3 SCC 676, the Hon’ble Apex Court held as
follows:
“ 17. We are therefore of the opinion that if the
conditions enumerated above are complied with, the
law of limitation does not come in the way of a
Defendant taking plea under Section 53A of the Act to
protect his possession of the suit property even though
a suit for specific performance of a contract is barred
”
by limitation
143. Further, this High Court in Khodaji Mangaji Thakore v.
Vikrambhai Ukabhai Bharvad, MANU/GJ/1381/2018 held as
follows:
“
55. The statutory protection under Section 53A of the
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Act to a transferee in possession to continue his
possession under a registered or unregistered or
instrument of transfer is not lost by lapse of time to file
the suit of specific performance of contract for
acquiring title if he satisfies the essential requirements
of the said Section 53A of the Act and it is not
incumbent upon him to file such a suit within time to
protect his possession after the lapse of time. ”
144. Further in Gordhanbhai Ranchodbhai Patel vs. Dineshbhai
Laxmanbhai Patel and Ors., MANU/GJ/1405/2024 this Court held
as follows:
In Shrimant Shamrao Suryavanshi and another vs.
Pralhad Bhairoba Suryavanshi by Lrs. and others
[MANU/SC/0093/2002 : 2002:INSC:40 : 2002 3 SCC
676], the Hon'ble Apex Court while tracing the
incorporation of Section 53A in the TP Act. vide Act of
1929, acting on the recommendations of the Special
Committee on the issue, had ruled that mere expiration
of the period of limitation for bringing a suit for
specific performance would not debar a person in
possession of an immovable property by way of part
performance from setting up a plea, as contemplated
therein in defence to protect his possession of the
property involved. It was however underlined that if
the conditions precedent, as enumerated, in Section
53A of the Act, are complied with, the law of limitation
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would not come in the way of the said person to avail
the benefit of the protection to his possession as
extended thereby even though a suit for specific
performance of a contract by him had gone barred by
limitation. Explicitly therefore, though mere expiry of
the period of limitation for a suit for specific
performance may not be a bar for a person in
possession of an immovable property in part
performance of a contract for transfer thereof for
consideration to assert the shield of Section 53A of
T.P. Act, it is nevertheless imperative that to avail the
benefit of such protection, all the essential pre-
requisites therefor would have to be obligatorily
complied with .
145. This Court in Kshama Infrabuild v. Govindbhai Laxmanbhai
Makwana , CRA 378 of 2024 has taken a view that when the main
relief is barred, consequential or ancillary reliefs also do not
survive. However, in the present case (i) remedy under Section
53A cannot be said to be subservient to the main relief and (ii) in
this situation specifically, view has been taken by the Hon’ble
Apex Court that it will not bar remedy of Section 53A.
146. In view of the aforesaid decisions and provision, it is clear that
even assuming if the relief of specific performance was barred in
the present case, the remedy under Section 53A cannot be said to
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be barred and in such view, in any event, it will not be open for this
Court to reject Plaint in part [See: Sejal glass (supra)].
147. This Court, while deciding the present dispute, has also taken into
consideration the fact that the dispute is pertaining to an Agreement
dated 26th July, 1971, whereby the possession of the property is
handed over by the defendant to the Plaintiff. After 2001, one is not
permitted to take plea of Section 53A pursuant to an unregistered
document. However, Amendment in the Act is applicable from
24.09.2001, therefore, in the peculiar facts of the present case, the
present document was not required to be compulsorily registered
and if the document containing contracts for any immovable
property for the purpose of Section 53A of the TPA shall be
required to be registered, if the same is on or after 24.09.2001.
The Correct Principle: Three Propositions
148. In view of the above, Court arrives at what it considers to be the
correct legal position, which rests on three propositions that operate
cumulatively.
149. First Proposition : Section 53A protection is a separate and
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independent remedy from the right to seek specific performance,
and it survives the expiry of limitation for specific performance.
150. The Hon'ble Supreme Court and several High Courts have
consistently held this. Bar of limitation on Specific Performance
relief does not have a bearing on the relief under Section 53A.
[See, (2002) 3 SCC 676 at para 17, MANU/GJ/1381/2018;
MANU/GJ/1405/2024 at para 14, 1996 96 BomLR 846, AIR 2004
Bom 378].
151. Second Proposition : When a person who has received possession
in part performance of an agreement seeks an injunction to protect
that possession from being interfered with, that person is, in
substance, using Section 53A as a shield and not as a sword.
Hence, it is not as if the Plaintiff is claiming a right which it
cannot.
152. Using 53A is a defense to protect the possession and not as an
offense to assert a right. That is the essence of exercise of Section
53A, regardless of whether the transferee happens to be described
as the “Plaintiff” or “Defendant” in the proceedings.
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153. The Bombay High Court in Sadashiv Chander Bhamgare stated the
principle precisely: a person in possession can use Section 53A as a
plaintiff or as a defendant to protect his possession. This Court,
with respect, agrees with this analysis.
154. Third Proposition : Section 53A of the TPA involves a mixed
question of law and fact and cannot be decided at the Order VII
Rule 11 stage. The Hon'ble Supreme Court in Ram Kumar Agarwal
v. Thawar Das, (1999) 7 SCC 303, held that the plea under Section
53A of the TPA involves a mixed question of law and fact and has
to be allowed to be urged rather than shut out at the threshold.
155. This is further confirmed by the Hon’ble Apex Court in Biswanath
Banik . The determination of whether the Plaintiff is using Section
53A as a shield or as a sword requires examination of the actual
facts: what the agreement says, what possession was obtained for,
whether the possession was in part performance, what the nature of
the injunction prayer is, and what conduct the parties have
exhibited over the years. These are factual questions that require
evidence. This is not a question that can be definitively answered
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on the face of the plaint.
Sri Biswanath Banik v. Sulanga Bose, (2022) 7 SCC 731
156. Most importantly, Hon'ble Supreme Court in Sri Biswanath
Banik v. Sulanga Bose, (2022) 7 SCC 731, addressed this exact
combination of circumstances at the Order VII Rule 11 stage
and held that a suit for permanent injunction by a plaintiff in
possession cannot be rejected under Order VII Rule 11.
157. The Defendants’ challenge to this decision as per incuriam does
not hold up to scrutiny. Hon’ble Apex Court in Biswanath Banik
was fully aware of the general proposition that Section 53A is a
shield and not a sword – it has been discussed in the judgment in
detail. In particular, Delhi Motor Company has been noticed by the
Hon’ble Court. Therefore, it cannot be said that the judgment is per
incuriam.
158. In fact, Biswanath Banik is the case where the Hon’ble Court
considering the facts held “Whether the plaintiffs shall be entitled
to any relief under Section 53A of the Transfer of Property Act or
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not has to be considered at the time of trial, but at this stage it
cannot be said that the suit for the relief sought under Section 53A
would not be maintainable at all and therefore the plaint is liable to
be rejected in exercise of powers under Order VII Rule 11 CPC.”
159. Therefore, the said ratio squarely applies and binds this Court as
well.
160. In Sucha Singh Sodhi v. Baldev Raj Waliya , (2018) 6 SCC 733 at
para 35, the Hon’ble Supreme Court held that the relief of specific
performance and the relief of permanent injunction to protect
possession are distinct and independent causes of action. Each has
its own juridical basis and its own limitation period. The failure of
one does not bring down the other. This principle is directly
applicable here.
161. The cause of action for such an injunction accrues when the threat
to possession arises. In the said view of the matter, the said issue is
decided accordingly.
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Part Rejection of Plaint
162. Finally, it must be noted that even if this Court were to have found,
contrary to its conclusions above, that the specific performance
prayer is ex facie barred, the Plaint could not have been rejected in
its entirety.
163. The power under Order VII Rule 11 is to reject the plaint as a
whole or not at all. There is no power to reject the plaint in part.
The Hon'ble Supreme Court in Madhav Prasad Aggarwal v. Axis
Bank Limited, (2019) 7 SCC 158, Sejal Glass Ltd. v. Navilan
Merchants Pvt. Ltd., (2018) 11 SCC 780, Central Bank of India v.
Prabha Jain , 2025 4 SCC 28, and Vinod Infra Developers Ltd. v.
Mahaveer Luniya , 2025 SCC OnLine SC 1208, have stated this
principle in clear and unambiguous terms. Since the plaint
discloses an independent cause of action for protection of
possession that is maintainable on its face, the plaint cannot be
rejected at all.
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7. CONCLUSION
164. For the reasons recorded above, this Court records the following
findings:
i. On the question of limitation, the Court notes that there exists a
cogent argument in favour of the Defendants. A reading of
Paragraph 7 of the Possession Agreement dated 26th July 1971
makes it evident that the parties themselves agreed upon a
period of 36 months for performance of the agreement to sell.
Crucially, by that date the Charity Commissioner's permission
under Section 36 had already been obtained on 5th June 1971.
The central pre-condition to performance had therefore been
fulfilled, and a definitive period for execution of the registered
sale deed had been agreed upon. On a prima facie reading, this
appears to attract the first limb of Article 54 of the Limitation
Act, and the weight of the decisions cited by the Defendants
lends considerable support to that position.
ii. However, this Court is mindful that the question of limitation is
not being decided finally in these proceedings. Issue No. 10 has
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been specifically framed by the Ld. Trial Court to adjudicate
limitation at the full trial, which itself reflects that the question
requires examination of evidence, the conduct of the parties
over the years, the representations made by the Defendants, and
the circumstances in which the Plaintiff pleads to have gained
knowledge of the definitive refusal. It would therefore not be
appropriate to finally close this question against the Plaintiff at
the Order VII Rule 11 stage, where the Court is confined to the
face of the plaint. The question is accordingly kept open for
adjudication at trial on the basis of evidence. The Defendants
will have full and fair opportunity to press this defence before
the Ld. Trial Court.
iii. The general proposition that Section 53A is a shield and not
a sword is not in dispute therefore the judgments of the Hon’ble
Supreme Court are binding on this Court. However, each of the
decisions cited by the Defendants for this proposition was
decided after full trial on evidence and dealt with a plaintiff who
was either out of possession entirely or was seeking to enforce
the agreement in an offensive manner. None of those decisions
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is authority for the proposition that a plaintiff in long-standing
settled possession, who is merely seeking to protect that
possession from interference, cannot maintain a suit for
permanent injunction. Moreover, at stage of Order VII Rule 11,
the question of Section 53A involves a mixed question of law
and fact that cannot be resolved without evidence.
iv. One important thing which is required to be noticed is the
suit is of the year 1997 whereas the Application under Order VII
Rule 11 was filed only on 30.11.2016. This also, though not
determinative (since it can be filed at any stage) but should have
some bearing on the present dispute.
v. Section 53A protection does not lapse upon the expiry of
limitation for specific performance. The right and the remedy
are different things. The Plaintiff's right to protect its possession
under Section 53A subsists independently.
vi. Even if one of the reliefs in the plaint were held untenable,
the plaint cannot be rejected in part. The power under Order VII
Rule 11 must reject the Plaint entirely or the entire Plaint must
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go to trial.
165. The present Civil Revision Application accordingly does not make
out any case for interference with the Impugned Order.
166. This Court notes, however, that the transaction in question dates
from 1969 and the Suit from 1997. The Plaintiff has alleged to
have been in possession since 1971. This dispute deserves finality
at the earliest.
167. Therefore, the Ld. Trial Court is directed to take up the Suit
expeditiously and to endeavour to dispose of the same within a
period of six months from the date of receipt of a copy of this
Order.
168. Needless to say, all observations and findings in this Civil Revision
Application are confined strictly to the question of the
maintainability of the plaint at the Order VII Rule 11 stage and do
not express any opinion on the merits of the Suit. The Ld. Trial
Court shall decide the Suit entirely on the evidence placed before
it.
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169. The Civil Revision Application is accordingly rejected. No order as
to costs.
170. In view of the above, Civil Application for direction stands
disposed of.
(SANJEEV J.THAKER,J)
SRILATHA
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