The court ruled that a plaint cannot be rejected summarily under Order VII Rule 11 CPC without determining if it discloses a cause of action, especially when limitation is a mixed question of law and fact.

JUDGMENT

Jyoti Singh, J. (Oral)

CM No. 13462/2021 (Exemption)

Allowed, subject to all just exceptions.

Application is disposed of.

C.R.P. 35/2021 and CM No. 13461/2021

1. Present Civil Revision Petition has been filed assailing an order dated 21.01.2021 passed by the learned Trial Court rejecting an application filed by the Defendant under Order VII Rule 11 CPC. The Petitioner herein is the Defendant and the Respondent is the Plaintiff before the Trial Court.

2. Respondent filed a suit bearing No.55/2020 for possession and permanent injunction claiming himself to be the owner of the suit property since 1994 and also claiming that possession of the property was handed over to the late husband of the Defendant in January, 2005, out of love and affection but after his death in August, 2005, Defendant has continued in possession and is refusing to vacate. Defendant filed a written statement along with an application under Order VII Rule 11 CPC for rejection of the plaint.

3. The learned Trial Court vide order dated 21.01.2021 dismissed the application under Order VII Rule 11 CPC and has listed the matter for admission/denial and framing of issues. The application was premised on two grounds, limitation and improper valuation.

4. In so far as the valuation is concerned, learned Trial Court has given liberty to the Plaintiff to pay the Court Fee at a valuation of Rs.11,00,000/- together with Court Fee payable on the quantum of damages claimed by the Plaintiff, within a period of four weeks, as the counsel for the Plaintiff had himself agreed to deposit the deficient Court Fee. In so far as the issue of limitation is concerned, the Trial Court agreed with the contention of the Plaintiff that it was a mixed question of fact and law and could not be decided at the threshold.

5. Mr. Kunal Raheja, learned counsel for the Petitioner contends that the suit is barred by limitation as according to the recitals in the plaint itself, the Plaintiff claimed that he had given possession of the suit property to the Defendant/husband in January, 2005 and that after the death of the husband of the Defendant on 06.08.2005, he allowed the Defendant and the minor children to continue in possession out of love and affection. Going by the averment in the plaint, the suit is barred by limitation under Article 65 of Schedule 1 of LIMITATION ACT , 1963, which provides a limitation of 12 years to sue for possession of immovable property.

6. It is also contended that the suit was not properly valued for the purpose of Jurisdiction and Court Fee, inasmuch as the suit was valued for the purpose of Court Fee and Jurisdiction at Rs.11 Lakhs but a fixed Court Fee has been paid.

7. I have heard the learned counsel for the Petitioner.

8. In so far as the objection of the Court Fee is concerned, the Trial Court has directed the Plaintiff to deposit the Court fee as per the valuation of Rs.11 Lakhs as also the Court Fee as leviable on the quantum of damages claimed by the Plaintiff, within four weeks from the date of the order.

9. In so far as limitation is concerned, the Trial Court has held that limitation being a mixed question of fact and law, issue to that effect will be framed at the time of framing the issues.

10. In so far as the application under Section VII Rule 11 CPC is concerned, law of rejection of Plaint under Section VII Rule 11 CPC is no longer res-integra.

11. In Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra), (2020) 7 SCC 366 it has been held by the Supreme Court as follows:

"23.2 The remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summar