IMPORTANT POINT
The court affirmed that the rejection of a plaint under Order 7, Rule 11 must solely consider the plaint's averments, and limitation is a mixed question of fact and law requiring evidence.

ORDER :

(Deepak Kumar Tiwari, J.) :

This Petition has been filed against the order dated 31.08.2023 passed by the Additional District Judge, Camp Court Pathalgaon of Kunkuri District, Jashpur, Chhattisgarh in Civil Suit No.03-A/2023, whereby the application preferred by the petitioners/defendant Nos.1 to 4 under Order 7, Rule 11 of C.P.C. was dismissed.

2. Brief facts of the case are that respondent No.1/plaintiff has filed a Civil Suit for declaration of the registered sale deed dated 09.11.2018 as void and for the confirmation of possession and permanent injunction by alleging that the husband of defendant No.1 in a fraudulent manner, without paying any consideration, has executed the impugned sale deed on 09.11.2018 and also got mutated his name in the Revenue Records. When the said fact came to his notice on 18.05.2022, the instant civil suit has been filed. In such suit, the petitioner/defendant No.1 to 4 had preferred an application under Order 7, Rule 11 of C.P.C. with an averment that the plaintiff/respondent No.1 was having knowledge at the time of the execution of sale deed on 09.11.2018 and for declaration of any deed is time barred. The period prescribed is three years. Hence the suit is barred by law. The said application has been dismissed by the impugned order, hence this revision petition.

3. Learned counsel for the petitioner would submit that the respondent/plaintiff No.1 was having knowledge at the time of execution of the impugned sale deed dated 09.11.2018 and the suit has been filed after three years so the suit is time barred and the Trial Court ought to have accepted the application filed by the petitioner/defendant under Order 7, Rule 11 of C.P.C. and by rejecting the said application committed material irregularity. So prays that petition be allowed and set aside the impugned order dated 31.08.2023. rejected the plaint.

4. I have heard learned counsel for the petitioner and perused the impugned order.

5. It is well settled that for determining whether the plaint discloses any cause of action or not, the Court has to see only the averments in the plaint and the accompanying document relied upon in the plaint and the fact elicited from the plaintiff by examining him under Order 10. The Court has to presume the fact stated in the plaint as correct. The Court cannot look into the de-fence set up by the defendant in their written statement or the application while deciding the application under Order 7, Rule 11 of the Code of Civil Procedure, 1908.

6. In the matter of Kuldeep Singh Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345, the following observations was made in para No.9 to 12:-

"9. Thus, for an enquiry under Order 7, Rule 11 (a), only the pleadings of the plaintiff-petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order 14, Rule 2 (2). But the entire pleadings on both sides can be looked into under Order 14, Rule 2 (2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit.

10. In the present case, the issue relates to an enquiry under Order 7, Rule 11 (a) of the Code, and hence, there is no question of a preliminary issue being tried under Order 14, Rule 2 (2) of the Code. The court exercised its jurisdiction only under Section 83(1)(a) of the Act read with Order 7, Rule 11 (a) of the Code. Since the scope of the enquiry at that stage has to be limited only to the pleadings of the plaintiff, neither the written statement nor the averments, if any, filed by the opposite party for rejection under Order 7, Rule 11 (a) of the Code or any other pleadings of the respondents can be considered for that purpose.

11. In Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100, this Court has dealt with a similar issue. To the extent relevant, para 12 reads as follows: (SCC p.115)

"12. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his wri