IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIRST DAY OF AUGUST TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No.5145 OF 2007 Between: Chandupatla Laxma Reddy … Petitioner/Appellant/Plaintiff AND 1 Chandupatla Rama Ranga Reddy 2 The Sub-Registrar, Manthani Post & Village, Manthani, Karimnagar Dist. … Respondents/Respondents/Defendants The Court made the following : ORDER: The revision, under Article 227 of the Constitution of India, is directed against the decree and order, dated 26.09.2007, made in C.M.A.No.12 of 2006, on the file of the learned Senior Civil Judge, Manthani, whereunder and whereby, the decreetal order and order, dated 26.10.2006, in C.F.No.966 of 2006, on the file of the Learned Junior Civil Judge, Manthani, was confirmed. When the plaintiff filed the suit for specific performance based on the oral agreement of sale, the same was dismissed under Section 12 of the Code of Civil Procedure, 1908 (for short ‘CPC’), and also under Order VII Rule 11(d) of C.P.C., 1908. On appeal, the said order was confirmed. Challenging the same, the present civil revision petition is filed. 2. Brief facts that are necessary for disposal of the present civil revision petition may be stated as follows: The petitioner herein and the first respondent (D1) are natural brothers. In family partition, the suit property was allotted to D1 as their father died intestate. D1 offered to sell the suit property to the plaintiff under an oral agreement of sale for a consideration of Rs.10,000/- on 25.10.2001. As they are brothers, the said oral agreement was not reduced into writing and the sale consideration was agreed to be paid on or before 31.12.2001. It is also averred that at the time of partition, there was an understanding between the parties that a co-owner has to first offer to sell the property to the other co-owner and when the co-owner fails to purchase the same, one co-owner is at liberty to sell the property to the third party. 3. It is not in dispute before the Court that the plaintiff, prior to the filing of the present suit in question, filed O.S.No.43 of 2001 before the Junior Civil Judge, Manthani, against the same defendant. The said suit was dismissed for default. On 05.12.2005, a petition to restore the suit which was dismissed for default was allowed with a condition of payment of costs of Rs.500/- and also filing the chief affidavit of the plaintiff. That order has not been complied with, and therefore, the suit was dismissed. On 12.10.2006, the present suit is filed for specific performance of contract and also to enforce the right of preemption. 4. Under Article 97 of the Limitation Act, 1963, “To enforce a right of preemption whether the right is founded on law or general usage or on special contract. The limitation is one year. The Time from which period begins to run is when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold, or where the subject-matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered.” In pursuance of the oral agreement of sale, the entire sale consideration had to be paid on or before 31.12.2001. That has not been done. Therefore, the right of preemption can be exercised within one year from 31.12.2001. 5. Coming to the Order VII Rule 11(d) of C.P.C., 1908, which reads as follows: “Where the suit appears from the statement in the plaint to be barred by any law, it can be rejected.” 6. Learned counsel appearing for the petitioner placed reliance on the decision reported in Kamala & Others v. K.T. Eshwara Sa & Others[1], wherein it is held that, “Order VII, Rule 11(d) of the Code has limited application. IT must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a Court can be invoked at different stages and under different provisions of the Code. Order VII, Rule 11 of the Code is one, Order XIV, Rule 2 is another.” 7. Similarly, the learned counsel appearing for the petitioner also relied on a decision reported in Ragam Yellaiah and others v. Chinta Shakaraiah[2], wherein it is held that, “At the outset I may state that the question of limitation necessarily always is not a pure question of law, but it is a mixed question of fact and law. May be that there may be certain circumstances where on the face of the allegations in the plaint a suit may be clearly barred by limitation. Here the dispute appears to be whether Article 58 of the Limitation Act or Article 65 of the Limitation Act, 1963 is applicable to the facts and circumstances of the case.” 8. Basing on the above mentioned decisions, the learned counsel appearing for the petitioner contended that the plaint need not be rejected at the threshold. On the other hand, the learned counsel appearing for the first respondent contended that the allegations in the plaint if taken as true, the suit itself is barred by limitation and it is purely a question of law, and no question of fact is involved. 9. From the above decisions, it is clear that if the allegations in the plaint would reveal that the plaint is barred by any law, then the same has to be rejected. 10. Article 54 of the Limitation Act, 1963, reads thus: “For specific performance of a contract, the period of limitation is three years. The time from which period begins to run is the date fixed for the performance, or if no such date is fixed, when the plaintiff has noticed that performance is refused.” 11. The time fixed, according to the allegation, for paying the remaining balance of sale consideration was on or before 31.12.2001. By virtue of oral agreement of sale, an amount of Rs.10,000/- was paid on 25.10.2001. As per the allegation in the plaint, the balance amount was not offered by plaintiff to the first defendant so as to execute a registered sale deed in pursuance of the oral agreement. 12. Even under general law of limitation under Article 113 of the Limitation Act, 1963, reads thus: “Any suit for which no period of limitation is provided elsewhere in this Schedule. The period of Limitation is three years and the time from which period begins to run is when the right to sue accrues.” In this case, admittedly, right to sue accrues before 31.12.2001 because before that date, the first respondent has to receive the balance sale consideration and execute the registered sale deed. So, even if the allegations of the plaint if taken as true and correct at this stage, the suit is barred by limitation. 13. Further more, Section 12 of C.P.C., 1908, reads thus: “Where a plaintiff is precluded by rules form instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.” 14. Order IX Rule 9(1) of the C.P.C., 1908, provides, “Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.” 15. Therefore, if Order IX Rule 9(1) of C.P.C., 1908, is read with Section 12 of the C.P.C., 1908, in juxta position, it is clear that the present suit filed by the plaintiff is not maintainable. Hence, the trial Court as well as the appellate Court rightly rejected the plaint and none of the finding is shown to be perverse or illegal. In the absence of any error apparent on the face of the record, the civil revision petition is devoid of merit and is liable to be dismissed. 16. Accordingly, the Civil Revision Petition is dismissed confirming the decree and order, dated 26.09.2007, made in C.M.A.No.12 of 2006, on the file of the learned Senior Civil Judge, Manthani. There shall be no order as to costs. _______________ (K.C. BHANU, J Date: 21st August, 2009 KL [1] 2008(1) Decisions Today (SC) 363 [2] 2003(5) ALT 403