1.00. present Civil Revision Application under section 115 of the Code of Civil Procedure, has been preferred by the petitioner – original plaintiff to quash and set aside the impugned order passed by the learned Additional Senior Civil Judge, Mehsana dtd.10/8/2006 passed below application Ex.15 in Regular Summary Suit No.1 of 2005 by which the learned trial court has allowed the said application submitted by the respondent – original defendant and has rejected the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation. 2.00. That the petitioner herein – original plaintiff had instituted Regular Summary Suit No.1 of 2005 in the court of learned Senior Civil Judge, Mehsana against the respondent – original defendant for recovery of Rs.1,67,829.92 ps. in the year 2005 contending inter-alia that he has submitted first bill on 27/10/1999 for Rs.1,09789.60 ps. and final bill for the work done on 27/10/1999 for Rs.2,04,514.81 ps. in all Rs.3,14,295.41 ps. against which, a sum of Rs.2,10,888.55 ps. was paid on account and thereafter further bills were raised for Kalol Branch for an amount of Rs.1,98,504.51 ps. and for the aforesaid bills for Kalol branch, payment of Rs.1,35,081.48 ps. was made on account. Therefore, it was alleged that a sum of Rs.1,03,406.89 ps. was due and payable for Ladol Branch and Rs.64,423.03 ps. was due and payable for Kalol Branch i.e. in all Rs.1,67,829.92 was due and payable, for which notices were issued upon the defendant on 13/12/2000. It appears that thereafter the petitioner instituted Civil Suit in the court of learned Civil Judge (S.D.), Ahmedabad (Rural) along with a pauper application being Civil Miscellaneous Application No.4 of 2005 on 10/1/2005. However, as court at Ahmedabad Rural was not having jurisdiction, the suit was withdrawn on 1/4/2005 and thereafter present suit has been preferred on 23/5/2005. The defendant was of the opinion that the suit is clearly barred by law of limitation and therefore, he submitted application Ex.15 before the learned trial court requesting to reject the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure.
The said application was opposed by the petitioner - original plaintiff by submitting that the plaint cannot be rejected on the found that the same is barred by law of limitation, as the question of limitation is a mixed question of law and facts. It was further submitted that excluding the period during which plaintiff was before the the Court at Ahmedabad (Rural), the suit before the Mehsana Court is within the period of limitation. That the learned trial court by the impugned order has allowed the said application preferred by the original defendant and has rejected the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation by observing that even excluding the period during which the plaintiff was before the court at Ahmedabad (Rural) the suit on the fact of it is barred by law of limitation.
3.00. Being aggrieved by and dissatisfied with the impugned order passed by the learned trial court dismissing the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure, petitioner - original plaintiff has preferred the present Civil Revision Application under section 115 of the Code of Civil Procedure.
4.00. Mr.Parthiv Bhatt, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned trial court has materially erred in dismissing the suit / plaint under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation relying upon the decision of the Hon'ble Supreme Court in the case of Himanshu Madanlal Shah Vs. District Registrar, B.M. Poojari, reported in 2005(3) GLH 385. It it is submitted that as the question of limitation is a mixed question of law and facts, unless evidence is led, plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the same is barred by law of limitation.
4.01. The learned advocate appearing on behalf of the petitioner has also relied upon the decision of the Hon'ble Supreme Court in the case of Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust and Others, reported in (2006) 5 SCC 658, in support of his prayer to allow the present Civil Revision Application and to quash and set aside the impugned order passed by the learned trial court in dismissing the plaint/suit under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation.
Relying upon above decisions and by making above submissions it is requested to allow the present Civil Revision Application.
5.00. Present Civil Revision Application is opposed by Mr.Girish K. Patel, learned advocate appearing on behalf of the respondent – original defendant. It is submitted that on the face of it and considering the averments made in the plaint as they are, if it is found that the suit is clearly barred bylaw of limitation even excluding the period during which the plaintiff was before the court at Ahmedabad (Rural), it cannot be said that the learned trial court has committed any error and/or illegality in dismissing the plaint/suit under Order 7 Rule 11(d) of the Code of Civil Procedure.
5.01. The learned advocate appearing on behalf of the respondent has heavily relied upon the following decisions in support of his submission that if on the face of it it is found that the suit is clearly barred by law of limitation, the plaint/suit can be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure :-
(i) 2009 AIR SCW 5006 (Shyam Lal alias Kuldeep vs. Sanjeev Kumar & Others).
(ii) AIR 2005 SC 2897 (N.V. Srinivas Murthy and others vs. Mariyamma (dead) by proposed L.rs and others)
(iii) (2007) 10 SCC 59 (Ram Prakash Gupta vs. Rajiv Kumar Gupta & others)
By making above submissions and relying upon above decisions it is requested to dismiss the present Civil Revision Application.
6.00. Heard the learned advocates appearing on behalf of the respective parties at length.
7.00. At the outset, it is required to be noted that by the impugned order, the learned trial court has dismissed the plaint / suit under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the suit is barred by law of limitation. It is the contention on behalf of the petitioner - original plaintiff that the suit / plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure on the ground that the same is barred by law of limitation, as question of limitation is a mixed question of law and facts. In support of his above submission, the learned advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Balasaria Construction (P) Ltd. (supra). However, considering the averments made in the plaint as they are, if on the face of it it is found that the suit is clearly barred by law of limitation, plaint can be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure. Considering decision of the Hon'ble Supreme Court referred to hereinabove, it appears that while considering the application under Order 7 Rule 11(d) of the Code of Civil Procedure and when the suit is sought to be rejected on the ground of period of limitation, plaint/suit is clearly barred by law of limitation, a great care and caution should be taken by the Court and only the averments in the plaint/suit are required to be considered. Considering the aforesaid decisions of the the Hon'ble Supreme Court in the case of N.V. Srinivasa Murthy and others Versus V. Mariyamma (Dead) by proposed L.Rs. And others, reported in AIR 2005 SC 2897 as well as in the case of Ram Prakash Gupta Versus Rajiv Kumar Gupta and Others, reported in (2007) 10 SCC 59 (supra), plaint can be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure, if on the face of it and considering the averments in the plaint, it is found that the suit is clearly barred by law of limitation.
7.01. Considering the facts of the case on hand, it is not in dispute that the final bills were submitted on 27/10/1999 with respect to Ladol Branch and on 1/4/2000 with respect to Kalol Branch and notices for recovery of the balance amount was issued on 13/12/2000. Considering the above, the plaintiff was required to institute the suit within a period of three years at least from 13/12/2000. It appears that even recovery suit before the Ahmedabad (Rural) Court was filed on 10/1/2005 which came to be withdrawn on 1/5/2005 and thereafter the suit at Mehsana has been filed on 23/5/2005. Therefore, even excluding the period when the plaintiff was before the Court at Ahmedabad (Rural) i.e. for the period between 10/1/2005 and 1/4/2005, the suit is clearly barred by law of limitation. It appears that even when the plaintiff instituted the suit before the Ahmedabad (Rural) Court, the suit was clearly barred by law of limitation. Considering the aforesaid facts and circumstances of the case, when even considering the averments in the plaint it is found that the suit is clearly barred by law of limitation i.e. beyond the period of three years, no illegality has been committed by the learned trial court in dismissing the plaint/suit in exercise of powers under Section 7 Rule 11(d) of the Code of Civil Procedure.
8.00. In view of the above and for the reasons stated above, there is no substance in the present Civil Revision Application and the same deserves to be dismissed and is accordingly dismissed. Rule is discharged. Ad-interim relief granted earlier stands vacated forthwith. No costs.
[M.R. SHAH, J.] rafik