Case Note & Summary
The applicants (original defendants) filed a Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908, challenging the order of the Trial Court dated 30.06.2017, which rejected their application under Order 7 Rule 11(d) CPC for dismissal of the suit on the ground of limitation. The non-applicants (original plaintiffs) had filed Special Civil Suit No.1368/2010 for recovery of Rs.88,69,336/- with interest, alleging that the defendants were liable to pay profits from the sale of properties purchased with plaintiffs' funds. The defendants contended that the plaintiffs had knowledge of the sale deeds in January 2007, and the suit filed in November 2010 was beyond the three-year limitation period. The Trial Court rejected the application, holding that the question of limitation was a mixed question of fact and law. The High Court, after hearing both sides, dismissed the revision application. The Court held that for deciding an application under Order 7 Rule 11(d), only the plaint averments and documents filed by the plaintiff are to be considered. The plea of limitation is a mixed question of fact and law and cannot be decided at the threshold unless the plaint on its face is barred. In the present case, the plaint stated that the cause of action arose in November 2010 when the defendants failed to pay despite demand, and the suit was filed within three years. Therefore, the suit was not ex facie barred by limitation. The Court also noted that the defendants' contention regarding knowledge in January 2007 would require evidence and cannot be decided at this stage. The revision was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Rejection of Plaint - Order 7 Rule 11(d) CPC - Limitation - The court must consider only the plaint averments and documents filed by the plaintiff to decide if the suit is barred by limitation. The plea of limitation is a mixed question of fact and law and cannot be decided at the threshold unless the plaint on its face is barred. (Paras 7-10)
B) Limitation - Cause of Action - Suit for Recovery - The plaintiffs filed suit in November 2010 claiming that the cause of action arose in November 2010 when the defendants failed to pay despite demand. The plaint does not show that the suit is ex facie barred by limitation. (Paras 5, 11)
C) Civil Procedure - Order 7 Rule 11(d) - Scope - The power under Order 7 Rule 11(d) can be exercised only when the plaint on its face is barred by any law. The court cannot go beyond the plaint or consider the defence of the defendants. (Para 9)
Issue of Consideration
Whether the suit for recovery of money is barred by limitation and liable to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure, 1908.
Final Decision
The Civil Revision Application is dismissed. The order of the Trial Court dated 30.06.2017 rejecting the application under Order 7 Rule 11(d) CPC is upheld. No order as to costs.
Law Points
- Order 7 Rule 11(d) CPC
- Limitation Act 1963
- Rejection of plaint
- Mixed question of fact and law
- Cause of action
Case Details
2022 LawText (BOM) (07) 137
Civil Revision Application No.125/2017
Mr. R. M. Bhangde for Petitioners, Mr. R. L. Khapre, Sr. Advocate a/b Mr. M. R. Joharapurkar for Respondent No.1
Shyamkumar Lalaramji Jaiswal, Arun s/o. Lalaramji Jaiswal, Mrs. Anita w/o. Durglalji Jaiswal, Mrs. Shalini w/o. Shriram Jaiswal, Lalaramji s/o. Devideenlalji Jaiswal
Dattatraya s/o. Krishnarao Pitale, Rajeev s/o. Krishnarao Pitale
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Nature of Litigation
Civil Revision Application against rejection of application under Order 7 Rule 11(d) CPC for dismissal of suit on ground of limitation.
Remedy Sought
Applicants (defendants) sought to set aside the Trial Court order rejecting their application under Order 7 Rule 11(d) CPC and to dismiss the suit as barred by limitation.
Filing Reason
The applicants contended that the suit for recovery was filed beyond the period of limitation as the plaintiffs had knowledge of the sale deeds in January 2007, but the suit was filed in November 2010.
Previous Decisions
The Trial Court rejected the application under Order 7 Rule 11(d) on 30.06.2017, holding that the question of limitation is a mixed question of fact and law.
Issues
Whether the suit for recovery of money is barred by limitation and liable to be rejected under Order 7 Rule 11(d) CPC.
Submissions/Arguments
Applicants argued that the plaintiffs had knowledge of the sale deeds in January 2007, and the suit filed in November 2010 was beyond three years, thus barred by limitation.
Respondents argued that the cause of action arose in November 2010 when the defendants failed to pay despite demand, and the suit was within limitation.
Ratio Decidendi
For deciding an application under Order 7 Rule 11(d) CPC, only the plaint averments and documents filed by the plaintiff are to be considered. The plea of limitation is a mixed question of fact and law and cannot be decided at the threshold unless the plaint on its face is barred by limitation. In the present case, the plaint states that the cause of action arose in November 2010, and the suit was filed within three years, hence not ex facie barred.
Judgment Excerpts
The plea of limitation is a mixed question of fact and law and cannot be decided at the threshold unless the plaint on its face is barred by limitation.
For deciding an application under Order 7 Rule 11(d) of the Code of Civil Procedure, only the plaint averments and documents filed by the plaintiff are to be considered.
Procedural History
The non-applicants (plaintiffs) filed Special Civil Suit No.1368/2010 for recovery of money. The applicants (defendants) filed an application under Order 7 Rule 11(d) CPC seeking dismissal of the suit on limitation. The Trial Court rejected the application on 30.06.2017. The defendants filed Civil Revision Application No.125/2017 before the High Court challenging that order. The High Court heard the matter and dismissed the revision on 20.07.2022.
Acts & Sections
- Code of Civil Procedure, 1908: Order 7 Rule 11(d), Section 115
- Limitation Act, 1963:
