Code of Civil Procedure, 1908:
Order VII, r.11(d) – Suit for declaration and permanent injunction – Alleging therein that the suit property was transferred by the defendants (co-owners) without knowledge of plaintiffs and by forging their signatures – Application u/O.VII, r.11(d) by defendants for rejection of plaint on the ground that suit was barred by limitation – Application was dismissed by trial court – In Revision High Court reversed the order of trial court – On appeal, held: The basis to decide an application u/O.VII, r.11(d) are the averments in the plaint (read as a whole) and defence or plea in the Written Statement cannot be the basis – In view of the averments in the plaint and relief claimed, the issue of limitation is a triable issue – Therefore, plaint cannot be rejected at the threshold, in exercise of power u/O.VII, r.11(d).
Allowing the appeal, the Court
HELD: 1. The appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriate stage. [Para 11] [431-E-F]
2. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane. [Para 12] [431-G]
3. In the present case, the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos. 1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. The issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d). [Para 16] [434-A-C] Saleem Bhai and Others v. State of Maharashtra and Others (2003) 1 SCC 557 : [2002] 5 Suppl. SCR 491; Mayar (H.K.) Ltd. and Others v. Owners & Parties, Vessel M. V. Fortune Express and Others (2006) 3 SCC
100 : [2006] 1 SCR 860; and also T. Arivandandam v. T. V. Satyapal and Another (1977) 4 SCC 467 : [1978]
1 SCR 742 – relied on.
Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706 : [2012] 6 SCR 404 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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