Bhagwan Singh vs Nahar Singh and Others

Pankaj Mithal, J.—The plaintiff respondent Nos. 1 and 2 on 29.5.2008 have filed a suit for specific performance of an agreement to sell dated 15.6.1983. Petitioner filed an application under Order 7 Rule 11 C.P.C. alleging that the suit is patently barred by law of limitation.. The application has been rejected by the Courts below.

The submission of the learned counsel for the petitioner is that the question of limitation is dependent upon the legal proposition and no factual aspects are involved therein and therefore the Courts below are not justified in rejecting the application.

Learned counsel for respondent Nos. 1 and 2 relies upon a decision of the Supreme Court in Balasaria Construction (P) Limited v. Hanuman Seva Trust and others, (2006) 5 SCC 658 and contends that a plaint is not liable to be rejected under Order 7 Rule 11 C.P.C. on the ground of being barred by law of limitation.

In the above-referred case the provisions of Order 7 Rule 11(d) C.P.C. were not held applicable as the Court was of the opinion that the aforesaid question cannot be decided without proper pleadings framing an issue of limitation and taking of evidence.

This was preciously laid down by the Supreme Court in Popat and Kotecha Property Vs. State Bank of India Staff Association, , that where a question of limitation has to be decided on the basis of the fact, the plaint is not liable to be rejected under Order 7 Rule 11(d) C.P.C..

The settled position otherwise is that the plaint of a suit could be rejected, if the suit on the face of the pleadings in the plaint itself appears to be barred by law of limitation.

In this regard, a reference may be had to the judgment of the Supreme Court in the case of N.V. Srinivasa Murthy and Others Vs. Mariyamma (dead) by Proposed LRs. and Others, .

Thus, in sum and substance where the question of suit being barred by limitation is a mixed question of fact and law and is dependent upon the evidence to be adduced by the parties, it is not proper to resort to Order 7 Rule 11 C.P.C. so as to reject the plaint summarily.

The non rejection of the plaint under Order 7 Rule 11 C.P.C. would only entail participation and contest of the suit by the defendant who thereupon can always raise an issue of the suit being barred by limitation. On such a plea being raised an issue regarding suit being barred by time can be framed by the Court and decided more appropriately on the basis of the evidence adduced by the parties irrespective of rejection of the plaint under Order 7 Rule 11 C.P.C.

Thus, the order impugned does not in any manner results in miscarriage of justice causing irreparable loss and injury; to the petitioner which may warrant interference by this Court in exercise of extra-ordinary writ jurisdiction.

In view of the aforesaid facts and circumstances, the petition is. disposed of with the direction to the Court below to formulate an issue regarding the suit being barred by limitation and to decide the same after allowing the parties to adduce evidence on the said issue. The writ petition is disposed of.