1.0 Present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioner herein original defendant to quash and set aside the impugned order dated 3.2.2011 passed by the learned Civil Judge (S.D), Mehmdavad passed below Exh.27 in Civil Suit No.7 of 2010, by which the learned trial Court has dismissed the said application submitted by the petitioner herein original defendant to dismiss plaint in exercise of powers under Order 7 Rule 11 D of the Code of Civil Procedure on the ground that the said suit was barred by law of limitation.
2.0 The facts leading to the present Civil Revision Application in nutshell are as under:
2.1. That the respondent hereinoriginal plaintiff has instituted Civil Suit No.7 of 2010 in the Court of learned Civil Judge (S.D), Mehamdavad for declaration and injunction declaring that the Will dated 9.2.1993 alleged to have been executed by the father of the plaintiff is not a valid Will and has been executed by his father without his wish or consent and also to quash and set aside the mutation of entry no.3932 dated 25.7.2000 which was in favour of the defendant on the basis of the aforesaid Will dated 9.2.1993.
2.2. It appears that on the basis of the Will dated 9.2.1993 executed by the father of the plaintiff which was registered before the Registrar, Mehadavad on 11.2.1993, the name of the defendant was mutated in the revenue record vide mutation entry no.3932 dated 25.7.2000. It appears from the pleadings and the material on record that the plaintiff got the copy of the aforesaid mutation entry in the month of January 2006 and the plaintiff challenged the aforesaid entry in the month of September 2005 before the Assistant Collector under the provisions of the Bombay Land Revenue Code. That thereafter, the plaintiff had instituted the impugned suit on 28.1.2010 challenging the Will dated 9.2.1993 as well as mutation entry No. 3932 dated 25.7.2000. In the said suit, the petitioner hereinoriginal defendant submitted the application Exh.27 under Order 7 Rule 11 D of the Code of Civil Procedure to dismiss the plaint/ suit on the ground that the same is barred by law of limitation and requested to dismiss the same in exercise of powers under Order 7 Rule 11 D of the Code of Civil Procedure. The learned trial Court by the impugned order dated 3.2.2011 has dismissed the said application. Hence, petitioner original defendant has preferred the present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3.0 Shri Desai, learned advocate for the petitioner original defendant has vehemently submitted that the learned trial Court has materially erred in dismissing the application Exh.27 and in not dismissing the suit on the ground that the same is barred by law of limitation. It is submitted that apart from the fact that the Will dated 9.2.1993 was a registered Will, which was registered before the Registrar. Mehamdavad on 12.2.1993, even the plaintiff had a knowledge about the execution of the Will in January 2006 when the plaintiff obtained the certified copy of the mutation entry no.3932 dated 25.7.2000, which was on the basis of the Will executed by her father. It is submitted that in any case when the original plaintiff preferred appeal before the Assistant Collector challenging the Mutation Entry No.3932 dated 25.7.2000 in the month of September 2006, she had a knowledge about the Will and not only that she was having the copy of the Will also which was produced along with appeal before the Assistant Collector.
Therefore, it is submitted that cause of action to file the suit and to challenge the Will would commence at least from September 2006 and if the period of limitation is counted from that day considering Article 113 of the Limitation Act, the suit which has been instituted on January 28, 2010 is clearly barred by law of limitation. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Shyam Lal alias Kuldeep vs. Sanjeev Kumar & Ors reported in 2009 AIR SCW 5006. It is requested to allow the present Civil Revision Application. Shri Desai, learned advocate for the petitioner has also relied upon the decision of the Hon'ble Supreme Court in the case of N.V. Srinivas Murthy and others vs. Mariyamma (dead) by proposed L.rs and others reported in AIR 2005 SC 2897 as well as in the case of Ram Prakash Gupta vs. Rajiv Kumar Gupta & others reported in (2007) 10 SCC 59 by submitting that if on the face of it and considering the averments in the plaint if it is found that the suit is clearly barred by law of limitation, the same can be dismissed in exercise of powers under Order 7 Rule 11 D of the Code of Civil Procedure. By making above submissions and relying upon the above decisions, it is requested to allow the present Civil Revision Application.
4.0 Civil Revision Application is opposed by Shri H.R. Prajapati, learned advocate for the respondent original plaintiff. It is submitted that even as per Article 133 of the Limitation Act, the period of limitation would commence from the date on which right to sue accrues. It is submitted that date of knowledge is immaterial. It is further submitted that the plaintiff got the copy of the Will dated 9.2.1993 in the month of May 2007 and therefore, the period of limitation will be commenced from May 2007 and considering the same when the suit is filed in the month of January 2010, it is within the period of three years and therefore, the suit is within the period of limitation and therefore, the learned trial Court has rightly rejected the application Exh.27. It is submitted that unless and until the plaintiff know the contents of the Will, it was not be possible for her to challenge the Will on the ground available and therefore, the period of limitation is to be counted from the date of getting of the copy of the Will. By making above submissions, it is requested to dismiss the present Civil Revision Application.
5.0 In reply, Shri Desai, learned advocate for the petitioner has pointed out from the list of document produced by the plaintiff, produced before the Assistant Collector in Appeal No. 70 of 2006 which was filed on 11.9.2006 that the plaintiff had produced the copy of the Will. Therefore, it is submitted that prior to May 2007 the plaintiff was not having the copy of Will is factually incorrect. Therefore, it is submitted that the period of limitation is to be counted at least from 11.9.2006 when she produced the copy of the Will as well as she challenged the entry before the Assistant Collector.
6.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the Will which is challenged by the plaintiff, by filing the suit in question i.e. Civil Suit No. 7 of 2010 is dated 9.2.1993 which is registered with the office of Registrar, Mehadavad on 12.2.1993. It is also required to be noted that as such the mutation entry was made in the revenue record in favour of the defendant on the basis of the Will dated 9.2.1993 registered on 12.2.1993 by mutation entry no.3932 on dated 25.7.2000. It has also come on record that the plaintiff got the certified copy of the mutation entry no.3932 dated 25.7.2000 in the month of January 2006 and the same came to be challenged by the Assistant Collector by way of Appeal No. 70 of 2006 on 11.9.2006. It has also come on record that along with Appeal No.70 of 2006, the original plaintiff produced the list of documents along with copy of the Will dated 9.2.1993. Considering the above, it cannot be disputed that the plaintiff had a knowledge about the Will and the mutation entry no.3932 dated 25/7/2000 at least in the month of January 2006 and / or at least in the month of September 2006 (11.9.2006). As stated above, the plaintiff also produced the copy of the Will along with the Appeal No.70 of 2006 on 11.9.2006. Therefore, the plaintiff had a copy of the Will on 11.9.2006 when she produced the same before the Assistant Collector in Appeal No.70 of 2006. Therefore, submission and / or contention and / or case on behalf of the plaintiff that she got the copy of the Will only on May 2007 is factually incorrect. It is also required to be noted that even in the appeal memo being Appeal No.70 of 2006 the very plaintiff has specifically mentioned that they are going to challenge the Will before the Civil Court. As stated above, the said appeal is preferred in the month of September 2006 and still the suit has been preferred in the month of January 2010, though it was declared in September 2006 that they are going to challenge the Will before the Civil Court. Considering the aforesaid undisputed facts and circumstances, which are emerging from the record, which the plaintiff is not in a position to dispute and is not disputing the same, when suit has been filed in the month of January 2010, which is clearly barred by law of limitation. As per Article 113 of the Limitation Act, the suit is required to be filed within a period of three years.
6.1. It cannot be dispute that even considering the decision of the Hon'ble Supreme Court in the case of Shyam Lal alias Kuldeep (supra) as well as in the case of N.V. Srinivas Murthy(supra), as well as in the case of Ram Prakash Gupta (supra) if considering the averment in the plaint if it is found that the plaint is barred by law of limitation, the same can be rejected in exercise of powers under Order 7 Rule 11 D of the Code of Civil Procedure. Under the circumstance, considering the aforesaid facts and circumstance, the learned trial Court has materially erred in dismissing the application Exh.27 and in not rejecting the plaint on the ground that the same is barred by law of limitation.
7.0. In view of the above and for the reasons stated above, Civil Revision Application succeeds and the impugned order dated 3.2.2011 passed by the learned Civil Judge (S.D), Mehmdavad passed below Exh.27 in Civil Suit No.7 of 2010 is hereby quashed and set aside and said application Exh. 27 submitted by the petitioneroriginal defendant is hereby allowed and it is held that civil suit filed by the respondent herein original plaintiff is barred by law of limitation and therefore, the plaint is rejected. Rule is made absolute to the aforesaid extent only.
( M. R. Shah, J. ) “kaushik”