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2015 SCC OnLine Kar 8619 : ILR 2016 Kar 31 : (2015) 4 Kant LJ 616 : (2015) 3
KCCR 2754 (DB) : (2015) 4 AIR Kant R 458 : (2016) 1 ICC 20 (DB)

In the High Court of Karnataka

(BEFORE N. KUMAR AND B. SREENIVASE GOWDA , JJ.)

Mr. Jagadish Poonja

Versus
The South Canara Hotel Complex Pvt. Ltd. and Others*
R.F.A. No. 438/2009
Decided on March 12, 2015
A) CODE OF CIVIL PROCEDURE, 1908 — SUB-RULE (2) OF RULE 2 OF ORDER 14 — Issue of
law may be tried as a preliminary issue, if it relates to the jurisdiction of the Court —
Question of limitation is a mixed question of law and fact, cannot be tried as a preliminary
issue — HELD, The Trial Court had no jurisdiction to try the issue regarding limitation as a
preliminary issue. — Question of limitation is ordinarily a mixed question of law and fact.
Plea of limitation cannot be decided as an abstract principle of law divorced from facts, as
in every case, the starting point of limitation has to be ascertained, which is entirely a
question of fact. The jurisdiction to try issues of law apart from issues of fact may be
exercised only where in the opinion of the Court the whole suit may be disposed of on the
issues of law alone. But the Code confers no jurisdiction upon the Court to try mixed
issues of law and fact as preliminary issue. Therefore, the issue regarding limitation
cannot be tried as a preliminary issue.
(Paras 21, 22)

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B) CODE OF CIVIL PROCEDURE, 1908 — ORDER 7 RULE 11(d) — Application seeking to

reject the plaint as barred by law of limitation — Rejection of the plaint on the ground that
the suit is barred by limitation — Legality of — HELD, Order 7 Rule 11 of the Code requires
that a plaint shall be rejected if the allegations in the plaint appears to be barred by any
law. Hence, from the statements in the plaint the suit appears to have been instituted
after the prescribed period of limitation, ii is the duty of the Court to reject the plaint. —
When in the plaint, the plaintiff specifically avers that the suit is filed within the time of
limitation and hence the suit is in time, the Court cannot embark upon an enquiry on an
application filed by the defendant under Order 7 Rule 11(d) to find out whether the
statement is correct or not and then decide the said issue. The plaint to be rejected on the
ground of bar of limitation under Section 3 of Limitation Act, 1963 what has to be seen is
only the plaint averments. If the plaint averments do not disclose that the suit is barred
by limitation, then the question of rejecting the plaint under Order 7 Rule 11(d) would not
arise. — LIMITATION ACT, 1963 — SECTION 3 — BAR OF LIMITATION — DISCUSSED.
(Paras 24, 29)
Regular First Appeal is Allowed,

Page: 33

CASES REFERRED AT PARAS

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1. AIR 1964 SC 497, Major S.S. Khanna v. Brig.FJ. Dillon (Ref) 18

2. AIR 2006 SC 3672, Ramesh B. Desai v. Bipin Vadilal Mehta (Ref) 19

3. (2005) 7 SCC 510, Popat and Kotecha Property v. State Bank of (Ref) 25
India Staff Assn.

4. (2003) 1 SCC 557, Saleem Bhai v. State of Maharashtra (Ref) 26

5. AIR (SCW) 2014, Satti Paradesi Samadhi v. M. Sankuntala (Ref) 27

Sri K.M. Nataraj, Senior Counsel A/w

Sri Sachin B.S., Advocate for Appellant;
Sri S. Shaker Shetty, Advocate for R. 14;
R.1 & R. 6 Notice held sufficient vide paper publication dated 05.10.2012;
R.2, R. 4, R. 7-R. 13-Served;
R.3-Service held sufficient.

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The Judgment of the Court was delivered by

N. KUMAR, J.:— This is plaintiff's Regular First Appeal challenging the judgment and
decree of the Trial Court, dismissing the suit of the plaintiff as barred by law of limitation,
allowing the application filed by defendant No. 1 under Order 7 Rule 11(d) of the Civil
Procedure Code (for short hereinafter referred to as CPC).
2. The plaintiff filed a suit for a declaration that the sale deed dt. 29-06-1983 in respect
of schedule property in so far as the plaintiff's undivided 1/17th right is concerned, is
illegal, unenforceable, void ab initio, null and void and not binding on him and for a
partition and separate possession of the schedule property into 13 shares, taking into
consideration good and bad soil and allot one such share to the plaintiff.
3. The subject matter of the suit is an immovable property situated at Kodialbail Village
of Mangalore Taluk, within the limits of Mangalore City Corporation, bearing R.S. No.
385/1A, T.S. No. 218/1A measuring 1 acre 66 cents.
4. The case of the plaintiff is that the schedule property along with other properties
originally belonged to Kodialguthu family, of which, plaintiff is a member. This is a ‘bunt’
family and is governed by ‘Aliya Santhana Law of Inheritance’. Subsequently, there was a

Page: 35

partition and the schedule property along with other properties were allotted to the branch
of one Seethamma, the great grand mother of the plaintiff. Plaintiff is a member of that
branch. After the partition, the plaintiff and other members were in joint possession and
enjoyment of the same. The plaintiff is entitled to 1/17th share in the properties allotted
to the branch of late Seethamma, including the schedule property. The plaintiff was bom
on 05-07-1980.
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5. In the month of April, 2007, the plaintiff came to know, through his well wishers,
that some people were trying to change the nature of the suit schedule property. Plaintiff
is residing at Bangalore. Immediately he came down to Mangalore and made enquiries and
also obtained the latest copy of the RTC in respect of the schedule property. To his utter
surprise, he came to know that the name of the first defendant had been entered in the
RTC. After verification, he came to know that the first defendant in collusion with some
others had created some sham documents i.e. sale deed dt. 29-06-1983 registered as
document No. 189/83-84 in the Office of the Sub-Registrar, Mangalore City, Mangalore.
The defendants No. 3 to 9, 11, 13 and 14 are parties to the aforesaid alleged sale deed.
Defendants No. 2, 10 and 12 are the legal heirs of other parties to the aforesaid alleged
sale deed. The plaintiff is a minor on the date of the said sale deed. He had not sold his
share in the suit property either to the first defendant or anyone else. In the sale deed, it
is averred that the plaintiff was represented by one Hemavathi R. Shetty — grand mother
of the plaintiff, on the strength of the general power of attorney stated to have been
executed by Mrs. Suchithra Poonja, the mother

Page: 36

of the plaintiff. At no point of time either the plaintiff or his mother executed any power of
attorney empowering Hemavathi R. Shetty — grand mother to execute the alleged sale
deed in respect of the suit schedule property. The alleged sale deed was not for any legal
necessity of the plaintiff. Plaintiff did not receive any consideration under the aforesaid
void document. No permission was obtained from the Court to sell plaintiff's share in the
schedule property. No title in respect of the plaint schedule properties so far as the
undivided tight of the plaintiff is concerned has been conveyed in favour of the first
defendant. The recitals in the alleged sale deed are totally false. The sale deed is not
binding on the plaintiff and he is entitled to ignore the same to the extent of his undivided
right. The plaintiff is in joint and constructive possession and enjoyment of the suit
schedule property. At the most, the first defendant would step into the shoes of the other
co-sharers' undivided right. The schedule property is an agricultural property and even in
the revenue records and other records, it is shown as an agricultural property. The first
defendant is barred from purchasing the suit schedule property. Under the provisions of
K.L.R. Act, the first defendant is barred from acquiring agricultural property. Therefore, the
alleged sale deed is null and void, illegal, unenforceable and void. Since the alleged sale
transaction came to the knowledge of the plaintiff only during the month of April, 2007,
the suit is filed within the period of limitation and hence, the suit is within time. Therefore
he prayed for the aforesaid reliefs.

6. The first defendant after service of summons entered appearance and filed a detailed
written statement contesting the claim

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of the plaintiff. He pleaded that the suit is frivolous and vexatious, that the suit is not filed
by Jagadish Poonja, but by third person wholly unconnected with the property to try to
claim possession, if possible, only because the market value of property is rising in
Mangalore, and that apparently the other defendants are colluding with the person who
has used the name of Jagadish Poonja to tile the suit. The al leged power of attorney by
Jagadish Poonja to K. Rajaram Shelly is totally false and fabricated one. The signing of
plaint and institution of suit are both null and void. Except admitting the sale deed dated
29-06-1983 in favour of the first defendant, he did not admit any other averments in the
plaint at paras 1 to 5. There is no cause of action for the suit. The suit is hopelessly barred
by the law of limitation. Assuming, but not admitting that the plaintiff was bom on 05-07-
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1980 as alleged, he attained the age of majority on 05-07-1998. Within three years from
that date, the plaintiff did not file the suit. Hence, on the face of it, the suit is clearly
barred by law of limitation. Section 8 of the Limitation Act makes the position clear in this
regard. It is significant that the plaint does not contain any valid averment to show how
the suit is within limitation, except the bald assertion in para 5 that the suit is within time.
The plea of plaintiff that he came to know about the sale deed in April 2007 is false and
not relevant when he is shown as seller. The sale by guardian would not be void, but only
voidable. Hence, the question of knowledge is irrelevant. Further, if plaintiff had exercised
due diligence, the plaintiff would have come to know of the transaction. Declaratory decree
cannot be claimed after such long lapse of time, nor can the partition be sought. The
plaintiff had been excluded from the property ever since the date

Page: 38

of sale deed and the revenue mutation in RTC. It is denied that the plaintiff is entitled to
1/17 share or any quantum of share as claimed. The allegation that the sale deed is either
sham or collusive, is not true. The plaintiff has no right, much less undivided right in the
suit property at present. It may be that the plaintiff was minor on the date of the sale
deed, but eighth defendant — Suchithra Poonja, who is the mother of the plaintiff, took
full care of his interest and received valuable consideration for the sale. The family found it
difficult to cultivate because of non-availability of labourers and uneconomic nature of
holding and other reasons, such as family members not being wedded to agriculture any
longer. He has paid ? 6,000/- per cent of land which was the best price at that time. A
sum of Rs. 1,17,176.46 ps. was received by the eighth defendant towards the share of
property and as regards the present plaintiff who was minor, his share of Rs. 58,588.26
ps. was deposited in his name in Karnataka Bank Ltd., Bolar, Mangalore, in fixed deposit
No. 198/83, payable fifteen years later on his attaining majority. The original fixed deposit
receipt was handed over to eighth defendant as guardian of plaintiff. It is learnt that the
plaintiff has encashed the said receipt and is now estopped from disputing the correctness
of the sale or calling it by names like sham, etc. Sale was for legal necessity and binding
on the plaintiff. Plaintiff has also received the consideration. Court permission is not
required because the mother and grand mother have acted as guardian for the minor
plaintiff and this is permissible in law and therefore, he sought for dismissal of the suit.

Page: 39

7. Fourteenth defendant filed a written statement consenting for a decree. Other

defendants did not file written statement.
8. On the aforesaid pleadings, the Trial Court framed the following issues:
1. Whether the plaintiff proves that the Sale Deed dated 29-06-1983 registered as
document No. 189/83-84 in the office of the Sub-Registrar, Mangalore City,
Mangalore is a sham and void document ?
2. Whether the plaintiff proves that at no point of time either the plaintiff or his mother
has executed any power of attorney to Hemavathi R. Shetty to execute sale deed in
respect of the suit schedule property ?
3. Whether the plaintiff proves that the sale deed dated 29-06-1983 is illegal,
unenforceable and not binding on the plaintiff, as averred in para No. 3 and 4 of the
plaint ?
4. Whether the plaintiff proves the cause of action ?
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5. Whether the plaintiff proves that he is a co-sharer/co-owner of the schedule property

and he is in joint and constructive possession and enjoyment of same ?
6. Whether the defendant No. 1 proves that the signing of plaint and institution of the
suit are both null and void ?
7. Whether the defendant No. 1 proves that the suit is hopelessly barred by limitation
as averred in para No. 4 of its written statement ?
8. Whether the plaintiff is entitled for the relief as prayed for ?
9. To what order or decree ?
9. After framing the issues, the Court directed that Issue No. 7 should be tried as
preliminary’ issue. The defendant No. 1 filed an application under Order 7 Rule 11(d) of
CPC for rejection of the plaint on the ground that the suit is barred by limitation. Plaintiff
filed his objections.
10. Both the preliminary issue and the application filed under Order 7 Rule 11(d) of
CPC for rejection of the plaint were taken up

Page: 41

for consideration together. The Learned Counsel for the parties addressed their arguments
and in support of their contention, relied on several judgments which are extracted in the
judgment of the Trial Court.

11. Plaintiff filed an application for permission to lead evidence on the preliminary issue
relating to limitation. That was also taken up for consideration.
12. The Trial Court after going through the pleadings in the case, the documents
produced and talcing note of the various judgments on which reliance is placed, held that
the plaint is defective, since general power of attorney is not produced and the plaint is
not signed by the plaintiff. Further it held, looking to the plaint averments, suit is
hopelessly barred by limitation and also plaint does not disclose the cause of action.
Accordingly, it held Issue No. 7 in the affirmative and held, the suit is barred by law of
limitation and allowed the application for rejection of the plaint and dismissed the
application filed by the plaintiff for re-opening the case and further to lead evidence on the
point of limitation.
13. Aggrieved by the said order, the plaintiff is in appeal.
14. Sri. K.M. Nafaraj, Learned Senior Counsel appearing for the appellant, assailing the
impugned judgment and decree, contended that the question of limitation being purely a
mixed question of law and fact, it could not be tried as a preliminary issue at all.

Page: 42

Further he contended to consider the rejection of the plaint under Order 7 Rule 11(d), all
that has to be seen is, the averments in the plaint. In the plaint, the plaintiff has
specifically averred that the suit is filed within the period of limitation and hence, the suit
is within time and therefore the plaint could not have been rejected on the ground of bar
of limitation. Even if the Court wanted to decide the preliminary issue regarding limitation,
the same being a mixed question of law and fact, the plaintiff sought for permission to
adduce evidence, which has been erroneously rejected. Further, the suit is dismissed on
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the ground that the plaint is defective and plaintiff has not signed the plaint and general
power of attorney executed by him in favour of Power of Attorney Holder is not produced.
On those grounds, without recording evidence and without permitting the plaintiff to
adduce evidence, the plaint cannot be rejected or the suit cannot be dismissed and
therefore he submits that seen from any angle, the impugned judgment and decree
cannot be sustained. Accordingly he prayed that the judgment and decree be set-aside
and the matter be remanded back to the Trial Court for trial of the suit on all issues,
including the issue regarding limitation.

15. Though the first defendant is duly served, he has remained absent. All other
respondents have remained absent. Even in the suit, they continued to remain absent
though duly served. However, fourteenth defendant in the Trial Court is represented
herein, by a Senior Counsel Sri S. Shaker Shetty, who addressed arguments supporting
the impugned order.

Page: 43

16. In the light of the aforesaid facts and submissions made, the points that arise for
our consideration in this appeal are as under:
(a) Whether an issue regarding limitation can be tried as a preliminary issue ?
(b) Whether a suit could be dismissed as barred by time under Order 7 Rule 11(d) of
the Code of Civil Procedure ?
POINT (a)
17. Order 14 of the Code deals with ‘Settlement of Issues and Determination of Suit on
Issues of Law or on Issues Agreed upon’. Order 14 Rule (2) mandates that Court shall
pronounce judgment on all issues. It reads as under:
“2. Court to pronounce judgment on all issues.— (1) Notwithstanding that a
case may be disposed of on a preliminary issue, the Court shall, subject to the
provisions of sub-rule (2), pronounce judgment on all issues.”
(2) Where issues both of law and of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be disposed of on an issue of law only, it
may try that issue first if that issue relates to—

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(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any Saw for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues
until after that issue has been determined, and may deal with the suit in accordance
with the decision on that issue.”
18. This provision fell for consideration before the Apex Court in a number of
judgments. In the first of its judgments in the case of Major S.S. Khanna v. Brig F.J.
Dillon1 , at para 18, it was held as under:
“Under O. 14 R. 2 Code of Civil Procedure, where issues both of law and of fact arise
in the same suit, and the court is of opinion that the case or any part thereof may be
disposed of on the issues of law only, it shall try those issues first, and for that purpose
may, if it thinks fit, postpone the settlement of the issues of fact until after the issues
of law have been determined. The jurisdiction to try issues of law apart from the
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issues of fact may be exercised only where in the opinion of the Court the whole suit may
be disposed of on the issues of law alone, but the code confers no jurisdiction upon the
court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the
issues in a suit should be tried by the Court: not to do so, especially when the decision on
issues even of law depends upon the decision of issues of fact, would result in a lop-sided
trial of the suit.”

19. The Apex Court in the case of Ramesh B. Desai v. Bipin Vadilal Mehta2 , after
noticing the aforesaid judgment at para 12 have held as under:
“Though there has been a slight amendment in the language of Order XIV Rule 2
CPC by the Amending Act, 1976, but the principle enunciated in the above quoted
decision still holds good and there can be no departure from the principle that the Code
confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as a
preliminary issue and where the decision on issue of law depends upon decision of fact,
it cannot be tried as a preliminary issue.”

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At para 16 in the same judgment, they have observed as under:

“A plea of limitation cannot be decided as an abstract principle of law divorced from
facts as in every case the starting point of limitation has to be ascertained which is
entirely a question of fact. A plea of limitation is a mixed question of law and fact.”
20. Order 14 Rule 1(4) provides that issues are of two kinds: (a) issues of fact, (b)
issues of law. Order 14 Rule 2 makes it obligatory for the Court to pronounce judgment on
all issues. But, it is subject to the provisions of sub-Rule (2) which gives a discretion to
the Court to frame issues of law only if it relates to the jurisdiction of the Court or a bar to
the institution of the suit itself. The intention of the legislature as is apparent from the
wording of Order 14 Rule 2 is clear that the disposal of the suit should be expedited. It
has therefore, been left to the discretion of the Court to frame an issue of jurisdiction as a
preliminary issue if the Court thinks that the suit should be disposed of on that issue. A
perusal of sub-Rule (2) of Rule 2 of Order 14 would show that issue of law may be tried as
a preliminary issue provided it relates to the jurisdiction of the Court or to a bar to the suit
created by any law for the time being in force. Therefore, all issues of law cannot be tried
as a preliminary issue. It is only issues of law relating to jurisdiction of the Court or a bar
to the suit created by any law which shall be tried as a preliminary issue and nothing else.
However, decision on issues even of law depends upon the decision on fact, then it cannot

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be tried as a preliminary issue, as otherwise it would result in a lop-sided trial of the suit.
Order 14 Rule 1(4) does not mention about the mixed question of law and fact. Therefore,
sub-Rule (2) of Rule 2 of Order 14 is confined to only issues of law. It does not deal with a
mixed question of law and fact. A question relating to jurisdiction may be a pure question
of law or a mixed question of law and fact.

21. Question of limitation is ordinarily a mixed question of law and fact. Plea of
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limitation cannot be decided as an abstract principle of law divorced from facts, as in every
case, the starting point of limitation has to be ascertained, which is entirely a question of
fact. Therefore, it is now well settled that a plea of limitation is a mixed question of fact
and law. The jurisdiction to try issues of law apart from issues of fact may be exercised
only where in the opinion of the Court the whole suit may be disposed of on the issues of
law alone. But the Code confers no jurisdiction upon the Court to try mixed issues of law
and fact as preliminary issue. Therefore, the issue regarding limitation cannot be tried as a
preliminary issue.
22. In the instant case, in spite of the plaintiff filing an application seeking for
permission to adduce evidence on the issue regarding limitation but without granting
permission to lead evidence and deciding the issue regarding limitation only on the basis
of the averments in the plaint is illegal as held by the Apex Court. The Trial Court had no
jurisdiction to try the issue regarding limitation as a preliminary issue. Therefore, the said
finding of the Trial Court cannot be sustained and accordingly, it is hereby set-aside.

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Point No.(b) Barred by Law:

23. Section 3(1) of the Limitation Act, 1963 puts an embargo on the Court to entertain
a suit if it is found to be barred by limitation. Section 3 reads as under:—
3. Bar of limitation.—
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application made after the prescribed period shall be
dismissed, although limitation has not been set up as a defence.
24. This Section provides that a suit instituted after the prescribed period of limitation
must subject to the provisions of Section 4 to 24, be dismissed, although limitation has
not been set up as a defence. It only means that where the Court finds that a suit or other
proceeding has been instituted after the period of limitation, it must be dismissed,
although limitation has not been set up as a defence. The question of limitation is
ordinarily mixed a question of law and fact. Order VII Rule 11 of the Code requires that a
plaint shall be rejected if the allegations in the plaint appears to be barred by any law.
Hence, from the statements in the plaint the suit appears to have been instituted after the
prescribed period of limitation, it is the duty of the Court to reject the plaint. But, under
Section 3 of the Limitation Act the duty of the Court is to dismiss the suit if it has been
instituted after the period of limitation. Combining the two provisions, the result would be
that where the conclusion of the Court that the suit has been

Page: 49

instituted after the period of limitation is based on the allegations in the plaint itself, the
proper procedure is to reject the plaint and where such conclusion is based after trial, the
Court could dismiss the suit. It is a general principle that the onus of proving that a suit
has been instituted within the period of limitation is on the plaintiff. Where a suit is prima
facie barred by limitation, the onus of proving the circumstances which save the suit from
such bar is on the plaintiff. The burden of proof to show that the suit was within time and
not barred by limitation is required to be pleaded and proved by the plaintiff. These basic
rules of the Code of Civil Procedure require the plaintiff to state in his plaint the date of
cause of action as also the grounds which save the suit from limitation if at all the plaint
averments give an appearance that the suit is time barred. Thus, where the suit as framed
by the plaintiff is within time and falls within a particular Article, but the defendant sets
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up the bar of limitation under a different Article, it is for the defendant to plead and
establish the necessity to apply that Article.

25. The Apex Court in the case of Popat and Kotecha Property v. State Bank of India
Staff Assn.3 held as under:
“10. Clause (d) of Order 7 Rule 11 speaks of suit, as appears from the statement in
the plaint to be barred by any law. Disputed questions cannot be decided at the time of
considering an application filed under Order 7 Rule II CPC.

Page: 50

Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by
the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by
any law in force.”

26. In Saleem Bhai v. State of Maharashtra4 , the Apex Court has held as under:—
“the relevant facts which need to be looked into for deciding an application
thereunder are the averments in the plaint. The trial Court can exercise the power at
any stage of the suit — before registering the plaint or after issuing summons to the
defendant or at any time before the conclusion of the trial. For the purposes of deciding
an application under clauses (a) and (d) of Order 7 Rule 11 of the Code, the averments
in the plaint are germane; the pleas taken by the defendant in the written statement
would be wholly irrelevant at that stage.”
27. The Apex Court in the case of Satti Paradesi Samadhi v. M. Sankuntala5 , held as
under:

Page: 51

“13. In the case at hand, we find that unless there is determination of the fact which
would not protect the plaintiff under Section 10 of the L imitation Act the suit cannot be
dismissed on the ground of limitation. It is not a case which will come within the ambit
and sweep of Order 14, Rule 2 which would enable the Court to frame a preliminary
issue to adjudicate thereof. The learned single judge, as it appears, has remained
totally oblivious of the said facet and adjudicated the issue as if it falls under Order 14,
Rule 2. We repeat that on the scheme of section 10 of the Limitation Act we find certain
facts are to be established to throw the lis from the sphere of the said provision so that
it would come within the concept of limitation. The Division Bench has fallen into some
error without appreciating the facts in proper perspective. That apart, the Division
Bench by taking recourse of Arts. 92 to 96 without appreciating the factum that it uses
the words “transferred by the trustee for a valuable consideration” in that event the
limitation would be twelve years, but in the instant case the assertion of the plaintiff is
that the trustee had created three settlement deeds in favour of his two daughters and
a grand daughter. The issue of consideration has not yet

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emerged. This settlement made by the father was whether for a consideration or not has
to be gone into and similarly whether the property belongs to thew trust as trust is
understood within the meaning of section 10 of the Limitation Act has also to be gone into.
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Ergo, there can be no shadow of doubt that the issue No. 1 that was framed by the
learned single judge was an issue that pertained to fact and law and hence, could not have
been adjudicated as a preliminary issue. Therefore, the impugned order is wholly
unsustainable.”

28. The first defendant has filed an application under Order 7 Rule 11(d) of the Code,
requesting the Court to reject the plaint as barred by law of limitation. According to them,
plaintiff was bom on 05-07-1980. During his minority, the sale deed came to be executed
by his grand mother on 29-05-1983. The plaintiff attained majority on 05-07-1998. If he
wanted a declaration as sought for in the plaint, he should have filed the suit within three
years from the date of attaining majority. The suit having been filed in the year 2007 is
clearly barred by law of limitation. Therefore according to the first defendant, the case falls
under Order 7 Rule 11(d).
29. When in the plaint the plaintiff specifically avers that the suit is filed within the
time of limitation and hence the suit is in time, the Court cannot embark upon an enquiry
on an application filed by the

Page: 53

defendant under Order 7 Rule 11(d) to find out whether the statement is correct or not
and then decide the said issue. The plaint to be rejected on the ground of bar of limitation
under Section 3 what has to be seen is only the plaint averments. If the plaint averments
do not disclose that the suit is barred by limitation, then the question of rejecting the
plaint under Order 7 Rule 11(d) would not arise. When the defendant raises the plea of bar
of limitation, the Court is bound to frame an issue regarding limitation. As the issue
regarding limitation cannot be tried as a preliminary issue, the said issue has to be
decided after recording of evidence upon all the issues framed in the suit including the
issue regarding limitation. It is only thereafter the Court could decide the question
whether the suit is barred by the law of limitation. Therefore, the question of the Court
going into the question of bar of limitation on an application filed under Order 7 Rule 11
(d) CPC would not arise. Rejection of the plaint on the ground that the suit is barred by
limitation is ex facie illegal and cannot be sustained. In that view of the matter, the order
passed by the Trial Court cannot be sustained.

30. The Trial Court also has dismissed the suit on the ground that plaintiff has not
signed the plaint and that plaintiff has not produced the power of attorney executed in
favour of the power of attorney holder. That is not a ground to reject the plaint under
Order 7 Rule 11(d). That is a matter which should have been gone into after enquiry and
recording evidence on all issues. During that period, the plaintiff had opportunity to
produce the power of attorney to show that he had executed a valid power of attorney duly
authorizing to sign the plaint. Therefore, the entire approach of the Trial Court is wrong.

Page: 54

It is unfortunate that, the Trial Court has spent considerable time in disposing of this
application and thus wasted its judicial time. If it had recorded the evidence on all the
issues, probably the suit itself could have been disposed of on merits, including on the
issue of limitation, which in an appeal we could have gone into and passed a final order
giving a quietus to this litigation.

31. Under these circumstances, we pass the following order:

(a) Appeal is allowed.
(b) Impugned order passed by the Trial Court is hereby set-aside.
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(c) The original suit is restored to its original file.

(d) The Trial Court is directed to record evidence on all issues and then pronounce
judgment on merits, including the issue regarding limitation.
(e) The application filed under Order 7 Rule 11(d) is hereby dismissed.
Parties to bear their own costs.
———
*
R.F.A. No. 438/2009, Dated: 12th day of March, 2015.
1.
AIR 1964 SC 497
2.
AIR 2006 SC 3672
3.
(2005) 7 SCC 510
4.
(2003) 1 SCC 557
5.
AIR (SCW) 2014

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