( 1 ) HEARD. The present appeal arises from an order dated 27th August, 1998 passed in Notice of Motion No. 2436 of 1996 [since reported in 1998 (3) Mh. L. J. 797} whereby the learned Single Judge has allowed the notice of motion and rejected under Order VII, Rule 11 (a) and (d) of the Code of Civil Procedure, 1908 the plaint filed by the appellant in Suit no. 2480 of 1996 on the ground that the suit is barred by law of limitation as well as that the plaint does not disclose cause of action.

( 2 ) PLACING reliance in the decisions in the matters of Gunwantbhai mulchand Shah and ors. vs. Anton Elis Farel and ors. , reported in JT 2006 (3) SC 212, State of Maharashtra vs. Pravin Jethalal Kamdar (Dead) By Lrs. , reported in (2000) 3 SCC 460, Achal Reddi vs. Ramakrishna Reddiar and ors. , reported in air 1990 SC 553 and Niranjan Amritlal vs. Manharlal Jivanlal Parikh, reported in AIR 1984 Gujarat 24, the learned advocate for the appellant submitted that the learned Single Judge erred in rejecting the plaint on the ground of bar of limitation as well as alleged absence of cause of action when in fact the plaint on the face of it discloses that the suit was very much within the period of limitation as well as that it discloses the cause of action for filing the suit and seeking reliefs prayed for therein. He further submitted that the pleadings in the plaint sufficiently disclose that the appellant was pursuing the matter with due diligence in another civil proceeding against the husband of respondent No. 1 and even assuming that there was a delay in approaching the Court, the period spent in pursuing the other civil proceedings is to be excluded from the period of limitation. Besides the relief in the nature of restoration of possession asked for in the plaint is an independent relief and is not a consequential to any other relief asked for in the plaint.

( 3 ) THE learned advocate appearing for the respondents, on the other hand, submitted that the suit was essentially for specific performance of the agreement dated 21st November, 1984 and therefore in terms of Article 54 of the Limitation act, Schedule I thereof, a suit was required to be filed within a period of three years from the date of the agreement and having not so filed, and in spite of being fully aware that the respondents had not paid the amount in terms of the said agreement within the

specified period, the suit having not been filed within a period of three years from the date of agreement, no fault could be found with the impugned order holding that the suit has been filed beyond the period of limitation.

( 4 ) PERUSAL of the impugned order discloses that the notice of motion was made absolute in terms of prayer clause (a) thereof. The said prayer was for rejection of the plaint on the ground of bar of limitation as well as on the ground of absence of cause of action. The impugned order does not disclose that the learned Single Judge has considered the aspect about the absence of cause of action, and the reasoning in support of rejection of the plaint refers to the point of bar of limitation alone. In any case, the notice of motion which was taken out by the respondents apparently discloses that the allegation regarding absence of cause of action was made on the basis of the earlier litigation between the parties and more particularly on the basis of a judgment of the Small Causes Court dated 26th/28th February, 1996 which was sought to be produced along with the notice of motion. The said judgment did not form part of the plaint and obviously, therefore, there was no occasion for the learned Single Judge to exercise the jurisdiction under Order VII, Rule 11 of the Code in relation to the contention about non-maintainability of the plaint on the ground of failure on the part of the appellant/original plaintiff to disclose a cause of action in the plaint. Therefore, no fault can be found with the impugned order for not considering the sa