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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. SHRIRAM, RAJESH S PATIL, JJ.
Altaf Fakir Baig And Ors. – Appellants
Versus
Goel Ganga Deve.(IND) Pvt. Ltd. Through Directors A) A.J. Goel B) A.J. Goel C) J.S. Goel D) D.R. Thipse and Ors. - Respondents
First Appeal (St) No.18751 of 2021 Along–With Interim Application No.3524 of 2021
Decided on : 10-01-2023
Civil Procedure Code, 1908 – Order VII Rule 11(d) – First Appeal – Opportunity in trial to prove and establish those averments – Held, Therefore, if there are averments in plaint, that facts giving right to cause of action only arose at a particular point of time, Court has to accept evidence at stage of considering application under Order VII Rule 11 of CPC – It is settled law that it becomes a triable issue and when Court is satisfied that plaint discloses real cause of action and not merely illusory cause of action drafted by clever drafting, Court should be hesitant, and, infact, should refuse to terminate civil action at threshold – Allow First Appeal.
JUDGMENT :
Aggrieved by a judgment and order dated 31st August 2021, passed by the Civil Judge Senior Division Pune in Special Civil Suit No.794 of 2021, Appellants have preferred this First Appeal. By the impugned judgment, the trial Court rejected Appellants’ plaint under Order VII Rule 11(d) of the Code of Civil Procedure (“CPC”, for brevity), as barred by law of limitation.
2. Appeal was listed for admission today. Since the issue was short, i.e., could trial Court summarily reject the plaint under Order VII Rule 11(d) on the ground of law of limitation, since limitation is a mixed question of law and fact, with the consent of the counsel we decided to take up the Appeal for final hearing at admission stage.
3. It is Appellants’ case that they have averred in the plaint as to when the cause of action arose and Appellants should be given an opportunity in trial to prove and establish those averments, the issue of limitation being a mixed question of law and fact. It is also Appellants’ case that rejection of plaint under Order VII Rule 11 of CPC is a drastic power conferred on the Court to determine the civil action at the threshold, and, therefore, when a plaintiff claims that he came to the knowledge of certain fact or that the cause of action arose only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII Rule 11 of CPC.
4. Per contra, it is respondents’ case that the trial Court has in detail anaylised the averments in the plaint, and, has, after minute and meaningful reading of the averments made in the plaint, came to a conclusion that the cause of action as disclosed in the plaint arose in October 2012 itself, and, hence, the trial Court has correctly concluded that the suit filed was barred by law of limitation and the plaint had to be rejected under Order VII Rule 11 of CPC.
5. We list below a chronology of dates and events before we consider the rival submissions:
| No | Date | Particulars |
| 1. | 21 Jan 2006 to 17 July 2006 | Various development agreements were entered into between Defendant No.1 and Plaintiffs for development of the suit property (belonging to the Plaintiffs) |
| 2 | 21 Jan 2006 | Development Agreement between Defendant No.1 and Plaintiffs for the suit property at paragraph 2A of the plaint. |
| 3 | 17 July 2006 | Development agreement between Plaintiffs and Defendant No.1 for development of the suit property at paragraph 2B of the plaint. |
| 4 | 23 Oct 2009 | Defendant No.1 entered into two sale deeds with respect to the suit property without complying with its obligations under the development agreements. |
| 5 | 7 Aug 2010 | Supplementary Agreement entered into between Defendant No.1 and Plaintiffs for development of the suit property. |
| 6 | 9 Sep 2011 | Defendant No.1 entered into a sale deed with respect to the suit property without complying with its obligations under the development agreements. |
| 7 | 29 Nov 2011 | Supplementary Agreement executed between Defendant No.1 and the Plaintiffs for development of the suit property |
| 8 | 11 Oct 2012 - 13 Mar 2013 | Correspondence between the parties. |
| 9 | 3 May 2013 | Regular Civil Suit No. 920 of 2013 filed by Plaintiffs against Defendant No.1 before the Civil Judge, Junior Division, Pune seeking a copy of the layout plans from Defendant No.1. |
| 10 | 3 May 2013 | Special Civil Suit No. 627 of 2013 was filed by Plaintiffs against Defendant No.1 seeking payment of rent. The said suit is still pending |
| 11 | 10 Apr 2015 | Plaintiffs withdrew their application filed under Section 156 (3) of the Code of Criminal Procedure, 1973 against Defendants. |
| 12 | 13 Apr 2015 | Defendant No.1 filed Special Civil Suit No. 545 of 2015 against Plaintiffs seeking compensation for alleged breaches of the agreements b |
SupremeToday
The determination of limitation as a mixed question of law and fact necessitates trial unless the plaint is illusory.
Point of Law : Jurisdiction of the court to take action under Order 7, Rule 11(d) of the CPC can arise only in case where the pleadings in the plaint are sufficient to disclose the bar to the suit, a....
A cause of action based on an approved bill resets limitation; rejection of plaint under Rule 11 is unwarranted where factual disputes exist.
A suit can be rejected if it is barred by limitation, and the limitation period begins when the right to sue first accrues, emphasizing the need for timely legal action.
The main legal point established in the judgment is that the right to sue first accrues when the fact first comes to the knowledge of the plaintiff, and if a suit is filed beyond the limitation perio....
(1) Rejection of plaint – When a document referred to in plaint, forms basis of plaint, it should be treated as a part of plaint – Court cannot look into written statement or documents filed by defen....
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