1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APEAL NO.1948 OF 2009 Eknath S. Kale. ..Appellant. Vs. Kailas B. Kale. ..Respondent. Mr.S.K.Shinde for the Appellant. CORAM : R.S. MOHITE, J. DATE : 8 th January, 2010 PC : 1 This is an appeal filed by the original plaintiff impugning an order dated 7.12.2009 passed by the Civil Judge, S.D., Malegaon below Exh. 20 in Special Civil Suit No.46/2009. The plaintiff s suit was for specific performance of an agreement dated 18.11.2002. The suit for specific performance was filed on 4.4.2009 i. e. after the period of more than six years. The suit agreement clearly in unequivocal terms fixed the time for performance of agreement at six months from 18.11.2002. This being the situation, the 2 court has rightly held that the suit was required to be filed within a period of three years from the date when performance was fixed under the agreement. 2. It was sought to be contended that the question as to when the agreement was to be performed is mixed question of fact and law and that the plaint could not have been rejected because there was no statement in the plaint to indicate that the suit was barred by any law. In this context, reading of the plaint indicates that the agreement is the main basis for filing the suit. Copy of the agreement was produced before the trial court. It was not the case of the plaintiff that there was novation or parties had extended time for performance of the contract. In this background, the impugned order cannot be held be erroneous as there was no other fact required to be proved. The fact that the suit was barred by limitation has been correctly held by the trial court on merely looking at the terms of the agreement. There is no 3 substance in the first appeal and therefore, first appeal is summarily rejected. ( R.S.MOHITE, J. )