Case Note & Summary
The revision petition was filed by the defendant (Kishan Kumar Sharma) challenging the order dated 04.04.2013 passed by the XXVIII Additional Civil Judge, Mayohall, Bangalore, in O.S.No.25375/2012, dismissing the defendant's application under Order VII Rule 11(a) and (d) of CPC for rejection of plaint. The plaintiff (Premavathi S) had filed the suit for declaration that a gift deed dated 20.12.2004 executed by her in favor of the defendant was null and void, and for cancellation of the same, alleging fraud and misrepresentation. The defendant contended that the plaint disclosed no cause of action and was barred by limitation and res judicata. The trial court dismissed the application, holding that the plaint disclosed a cause of action and the question of limitation required trial. The High Court, after hearing arguments, upheld the trial court's order. It held that for the purpose of Order VII Rule 11, only the plaint averments are to be considered, and the plaint clearly alleged fraud, which constituted a cause of action. The court further held that the question of limitation was a mixed question of law and fact, as the plaintiff claimed discovery of fraud on 21.2.2012, and the suit filed on 27.7.2012 was within three years under Article 59 of the Limitation Act, 1963. The plea of res judicata or bar under Order II Rule 2 CPC could not be decided without evidence. Accordingly, the revision petition was dismissed, and the trial court was directed to proceed with the suit.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Cause of Action - The court held that for rejection of plaint under Order VII Rule 11(a), only the plaint averments are to be considered and not the defence. The plaint disclosed a cause of action based on fraud, which requires trial. (Paras 4-6) B) Limitation - Fraud - Discovery of Fraud - Article 59 of Limitation Act, 1963 - The court held that the question of limitation is a mixed question of law and fact when fraud is alleged. The plaintiff claimed discovery of fraud on 21.2.2012, and the suit filed on 27.7.2012 was within three years. The plaint cannot be rejected at the threshold. (Paras 7-9) C) Civil Procedure - Rejection of Plaint - Order VII Rule 11(d) CPC - Barred by Law - The court held that the plea of res judicata or bar under Order II Rule 2 CPC cannot be decided without evidence. The plaint cannot be rejected under Order VII Rule 11(d) as the bar is not apparent from the plaint. (Paras 10-12)
Issue of Consideration
Whether the plaint in O.S.25375/2012 is liable to be rejected under Order VII Rule 11(a) and (d) of CPC for lack of cause of action and being barred by limitation.
Final Decision
The revision petition is dismissed. The order dated 04.04.2013 passed by the XXVIII Additional Civil Judge, Mayohall, Bangalore, in O.S.No.25375/2012 is confirmed. The trial court is directed to proceed with the suit in accordance with law.
Law Points
- Order VII Rule 11 CPC
- Rejection of Plaint
- Fraud
- Limitation
- Cause of Action
