[1.0] Present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the petitioner herein – original defendant to quash and set aside the impugned order dated 12.04.2012 passed by the learned trial Court – learned 2nd Additional Senior Civil Judge & Additional CJM, Vadodara below Exh.9 in Special Civil Suit No.616 of 2009 by which the learned trial Court has dismissed the said application submitted by the petitioner herein – original defendant which was submitted to reject the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. [2.0] That the respondent herein – original plaintiff has instituted a Special Civil Suit No.616 of 2009 against the petitioner – original defendant in the Court of learned Civil Judge (S.D.), Vadodara for a declaration and permanent injunction and challenging the registered sale deed dated 16.02.2006 which was executed by the plaintiff on the ground that the petitioner herein – original defendant has got executed the said document by fraud and committing breach of trust. That having served with the summons/notice of the said suit, the petitioner herein – original defendant submitted the application Exh.9 to reject the plaint in exercise of powers under Order VII Rule 11(d) of the CPC submitting that the said suit is clearly barred by law of limitation. It was submitted that the plaintiff was required to file the suit challenging the registered document / sale deed within a period of three years from the date of knowledge, the suit has been preferred beyond the period of three years from the date of knowledge of the said document and therefore, considering Article 56 of the Limitation Act, the same is barred by law of limitation.
[2.1] The said application was opposed by respondent herein – original plaintiff by submitting that the issue with respect to limitation is a mixed question of law and facts and therefore, the plaint cannot be rejected on the ground that the same is barred by law of limitation as envisaged under Order VII Rule 11(d) of the CPC.
[2.2] The learned trial Court accepting the contention on behalf of the original plaintiff, by impugned order has dismissed the said application at Exh.9 and has refused to reject the plaint under Order VII Rule 11(d) of the CPC by observing that the issue with respect to the limitation is a mixed question of law and facts and unless the evidence is led, the plaint cannot be rejected under Order VII Rule 11(d) of the CPC.
[2.3] Feeling aggrieved and dissatisfied with the impugned order passed by the learned trial Court below Exh.9 application in Special Civil Suit No.616 of 2009 and in not rejecting the plaint under Order VII Rule 11(d) of the CPC on the ground that the same is barred by law of limitation, the petitioner herein – original defendant has preferred the present Civil Revision Application under Section 115 of the CPC.
[3.0] Shri Chauhan, learned advocate appearing on behalf of the petitioner has vehemently submitted that even considering the averments in the plaint as they are, the suit is clearly barred by law of limitation and therefore, the learned trial Court ought to have allowed the application Exh.9 and ought to have rejected the plaint under Order VII Rule 11(d) of the CPC by observing that the suit is barred by law of limitation.
[3.1] It is submitted that even in the plaint in cause of action, the plaintiff has specifically pleaded that the cause of action has arisen when he received the notice from the learned advocate appearing on behalf of the defendant i.e. on 07.08.2006 and therefore, as such the plaintiff had the knowledge of the registered sale deed dated 16.02.2006 atleast on 07.08.2006 and therefore, from that date within a period of three years, he was required to institute the suit. It is further submitted that as such the original plaintiff had the knowledge of the registered sale deed dated 16.02.2006 in the month of July 2006 when the plaintiff challenged the mutation entry No.5835 before the Mamlatdar, Vadodara and infact he withdrew the objections against the mutation of the name of the defendant in the revenue record on the basis of the registered sale deed dated 16.02.2006 and on the basis of which the Mamlatdar passed an order dated 17.07.2006 in RTS Case No.18 of 2006 certifying the mutation entry in favour of the defendant. It is submitted that considering Article 56 of the Limitation Act, the suit to set aside the document is required to be filed within a period of three years from the date of knowledge of the said transaction/document and as the suit has been preferred after a period of three years from the date of knowledge of the execution of the said document, the learned trial Court ought to have allowed the application Exh.9 and ought to have rejected the plaint under Order VII Rule 11(d) of the CPC. It is submitted that the learned trial Court has materially erred in not rejecting the plaint under Order VII Rule 11(d) of the CPC on the ground that the issue with respect to the limitation is a mixed question of law and facts for which the evidence is to be led.
[3.2] Relying upon the decision of the Hon'ble Supreme Court in the case of Smt. Dilboo (Dead) by LRs. & Ors. vs. Smt. Dhanraji (Dead) and Ors. reported in (2000)7 SCC 702 as well as in the case of N.V. Srinivasa Murthy and Ors. vs. Mariyamma (dead) by proposed LRs and Ors. reported in AIR 2006 SC 2897 and even the decision of this Court dated 10.04.2012 in Civil Revision Application No.186 of 2011 as well as decision of this Court dated 30.04.2012 in Civil Revision Application No.57 of 2012, it is requested to allow the present Civil Revision Application and quash and set aside the impugned order passed by the learned trial Court below Exh.9 application and consequently to allow the application Exh.9 and reject the plaint under Order VII Rule 11(d) of the CPC on the ground that the same is barred by law of limitation.
[4.0] Present Civil Revision Application is opposed by Shri Chirag Patel, learned advocate appearing on behalf of the respondent herein – original plaintiff. It is submitted that as such the learned trial Court has not committed any error and/or illegality in rejecting the application Exh.9 and in not rejecting the plaint on the ground that the same is barred by law of limitation. It is submitted that as rightly observed by the learned trial Court the issue with respect to limitation is a mixed question of law and facts and unless the evidence is led, it cannot be said that the suit is barred by law of limitation and therefore, the learned trial Court has rightly not rejected the plaint under Order VII Rule 11(d) of the CPC. It is submitted that as such Article 58 of the Limitation Act would be applicable and the period of limitation would commence on the date on which the plaintiff received the certified copy of the sale deed from the office of the SubRegistrar. It is submitted that immediately having come to know about the registered sale deed dated 16.02.2006 from the notice issued by the learned advocate appearing on behalf of the defendant dated 07.08.2006, immediately the plaintiff applied for certified copy of the sale deed from the office of SubRegistrar and as soon as he received the same, within a period of three years, he has instituted the suit and therefore, it cannot be said that suit is barred by law of limitation.
[4.1] Shri Patel, learned advocate appearing on behalf of the respondent herein – original plaintiff has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Ramesh B. Desai and Ors. vs. Bipin Vadilal Mehta & Ors. reported in (2006)5 SCC 638 (Para 19) as well as in the case of C. Natarajan vs. Ashim Bai and Anr. reported in AIR 2008 SC 263.
Making above submissions and relying upon above decisions and relying upon Article 58 of the Limitation Act, it is requested to dismiss the present Civil Revision Application.
[5.0] Heard learned advocates appearing on behalf of respective parties at length and considered the averments in the plaint. At the outset it is required to be noted that the respondent herein – original plaintiff has instituted Special Civil Suit No.616 of 2009 in the Court of learned Civil Judge (S.D.), Vadodara for a declaration to declare the registered sale deed dated 16.02.2006 as illegal and false. Therefore, as such basically the suit instituted by the respondent – original plaintiff is to set aside the sale deed dated 16.02.2006 which is executed by the original plaintiff in favour of the petitioner herein – original defendant, which is a registered sale deed. It is also not in dispute that the suit has been instituted by the plaintiff on 30.09.2009. Having served with the summons/notice of the suit the petitioner herein – original defendant has submitted the application Exh.9 to reject the plaint under Order VII Rule 11(d) of the CPC by submitting that even considering the averments made in the plaint as they are, the suit is clearly barred by law of limitation. The said application has been rejected by the learned trial Court by impugned order observing that the issue with respect to limitation is a mixed question of law and fact and therefore, the plaint cannot be rejected under Order VII Rule 11(d) of the CPC on the ground that the suit is barred by law of limitation. As held by the Hon'ble Supreme Court in the case of N.V. Srinivasa Murthy and Ors. vs. Mariyamma (dead) by proposed LRs and Ors. reported in AIR 2005 SC 2897, if considering the averments in the plaint as they are, it is found that the suit is clearly barred by law of limitation, in that case plaint can be rejected in exercise of powers under Order VII Rule 11(d) of the CPC. It is true that while considering the application under Order VII Rule 11(d) of the CPC only the averments in the plaint and the supporting documents produced along with the suit alone are required to be considered. Even similar view has been expressed in the Hon'ble Supreme Court in the case of Khatri Hotels Private Limited vs. Union of India & Anr. reported in (2011)9 SCC 126.
[5.1] Considering the above proposition of law laid down by the Hon'ble Supreme Court and considering the averments made in the plaint as they are and the supporting documents produced along with the suit, whether the suit instituted by the respondent for the relief sought in the suit is barred by law of limitation or not?
[5.2] Considering the averments in the plaint and in para 8 it appears that the cause of action has arisen when the learned advocate appearing on behalf of the defendant served the notice upon the plaintiff on 07.08.2006. Therefore, even according to the plaintiff also the cause of action has arisen when the learned advocate appearing on behalf of the defendant served the notice dated 07.08.2006 upon the plaintiff. However, it is further submitted that he has received the copy of the sale deed from the office of SubRegistrar on 11.09.2009 and from that day the cause of action has arisen. Therefore, considering the date on which the plaintiff received the copy of the sale deed from the office of Sub Registrar on 11.09.2009, it is the case on behalf of the plaintiff that from that date the suit is within the period of limitation. According to the plaintiff in that case Article 58 of the Limitation Act would be applicable. However, on the other hand it is the case on behalf of the defendant that the cause of action has arisen on 07.08.2006 (even as pleaded by the plaintiff in para 8 of the plaint) and therefore, the limitation would start from 07.08.2006 and as the suit has been preferred on 30.09.2009 i.e. after a period of three years from the date of knowledge of the sale deed the same is barred by law of limitation. Thus, considering the averments in the plaint the plaintiff atleast had a knowledge of registered sale deed dated 16.02.2006 on 07.08.2006 when he received the notice from the learned advocate appearing on behalf of the defendant and therefore, the limitation would start from the date of knowledge of the registered sale deed i.e. 07.08.2006 and therefore, as such the plaintiff was required to file the suit within the period of three years from the date of knowledge of the sale deed i.e. 07.08.2006 and as the suit has been preferred on 30.09.2009, it is clearly barred by law of limitation.
[5.3] Considering the aforesaid facts and circumstances and even considering the averments in the plaint as they are, as the suit has been preferred after a period of three years from the date of knowledge of the registered sale deed, considering Article 56 of the Limitation Act, the suit is clearly barred by law of limitation and therefore, the learned trial Court ought to have allowed the application Exh.9 and ought to have rejected the plaint under Order VII Rule 11(d) of the CPC as on the face of it and considering the averments in the plaint itself as they are, the suit is barred by law of limitation. As observed by the Hon'ble Supreme Court in the case of T. Arivandandam vs. T.V. Satyapal & Anr. reported in (1977)4 SCC 467, if clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the party searchingly under Chapter X, C.P.C. It is also held by the Hon'ble Supreme Court in the said decision that by clever drafting of the plaint, which is otherwise barred by law of limitation cannot be brought within the period of limitation. Under the circumstances, the learned trial Court has materially erred in not exercising the jurisdiction vested in it by not rejecting the plaint under Order VII Rule 11(d) of the CPC. Under the circumstances, impugned order passed by the learned trial Court deserves to be quashed and set aside and the application submitted by the CRA/166/2012 10/10 JUDGMENT petitioner herein – original defendant to reject the plaint under Order VII Rule 11(d) of the CPC deserves to be allowed and the plaint is to be rejected under Order VII Rule 11(d) of the CPC on the ground that the same is clearly barred by law of limitation.
[6.0] In view of the above and for the reasons stated above, present Civil Revision Application succeeds. Impugned order dated 12.04.2012 passed by the learned trial Court – learned 2nd Additional Senior Civil Judge, Vadodara below Exh.9 application in Special Civil Suit No.616 of 2009 is hereby quashed and set aside and consequently the said application is allowed and Special Civil Suit No.616 of 2009 is hereby ordered to be rejected under Order VII Rule 11(d) of the CPC on the ground that the same is clearly barred by law of limitation. Rule is made absolute to the aforesaid extent. No costs.
Sd/ (M.R. Shah, J.) menon