Important Point:
a)The basic question to be decided while dealing with an application filed under Order 7, Rule 11 (a) CPC is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get around Order 7, Rule 11 . The trial court must remember that if on a meaningful and not formal reading of the plaint is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7, Rule 11 (a) taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. It is true that by ingenious drafting a cause of action in the nature of red herrings cannot be brought into the judicial arenab)While exercising power under Order 7, Rule 11 it has been emphasized that the defence in the written statement is not relevant

Rajesh H. Shukla, J.

The present second appeal is filed by the appellants-original plaintiffs challenging the impugned judgment and order by the Addl. District Judge, Ahmedabad (Rural) at Mirzapur in Regular Civil Appeal No. 17/2014 dated 22.4.2016 confirming the judgment and order below Exh. 17 in Special Civil Suit No. 514/2010 by the Sr. Civil Judge, Ahmedabd (Rural) dated 28.12.2014 under Order 7, Rule 11 of the Code of Civil Procedure, 1908 for rejection of the plaint on the ground of limitation posing the following substantial questions of law :

(i) Whether the plaintiffs have proved their case independently by showing that the plaint of the plaintiffs discloses the cause of action?

(ii) Whether the plaint of the plaintiffs is time barred and whether it falls within the period of limitation?

(iii) Whether is it possible for the trial court to decide the issue of concoction of power-of-attorney without adjudicating the same?

2. Heard learned counsel Shri Vijay Patel appearing for the appellants and learned advocate Ms. Trusha Patel for respondent No. 1.

3. Learned counsel Shri Patel referred to the background of facts and submitted that both the courts below have committed an error in passing the order under Order 7, Rule 11 rejecting the plaint on the ground of limitation. He emphasised that the issue of limitation is a mixed question of law and facts and therefore it would depend upon the evidence and the appellants original plaintiffs should have been allowed an opportunity to lead the evidence and therefore Order 7, Rule 11 of CPC would not be attracted. He has referred to the background of facts as well as the judgments by both the courts below and submitted that as could be seen from the judgment and order of the first appellate court, the appellants original plaintiffs had no knowledge and therefore as explained in the plaint while referring to the cause of action the cause of action arose when the power-of-attorney was misused by creating the documents which came to the notice of the appellants original plaintiffs at a later stage in the year 2007.

4. Learned counsel Shri Patel has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2005) 7 SCC 510 in the case of Popat and Kotecha Property v. State Bank of India Staff Association and submitted that the date of knowledge would be relevant. He therefore submitted that the object of Order 7, Rule 11 is to keep out of court irresponsible law suits but it should not be a ground to deprive the party to challenge such documents which are executed behind the back. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2015 SC 2485 : (2015) 8 SCC 331 in the case of P.V. Guru Raj Reddy rep. by Gpa Laxmi Narayan Reddy v. P. Neeradha Reddy & ors. He also submitted that the date of knowledge would be relevant and in the facts of the case as the other co-owners have filed the complaint and when it came to the notice in the revenue proceedings the appellants original plaintiffs filed the suit. He therefore submitted that the order passed under Order 7, Rule 11 is erroneous and it is a substantial question of law. Learned counsel Shri Patel also tried to submit that the law of limitation would be attracted which could be considered on the basis of appreciation of the material and evidence.

5. Per contra, learned advocate Ms. Trusha Patel referred to the documents and the paper-book supplied by her and submitted that the document/sale deed which is executed in the year 2001 is sought to be challenged by way of the aforesaid Special Civil Suit No. 514/2010 in the year 2010. She submitted that the suit is filed on 29.7.2010 for challenging the said sale deed executed on 10th September 2001. She also pointedly referred to the papers and submitted that the date of registration of the document would be the date for the purpose of deemed knowledge of such document as provided in section 3 of the Transfer of Prope