A suit cannot be dismissed at an early stage under Order 7 Rule 11 based solely on time limitation when material factual disputes exist.

ORDER :

J. C. DOSHI, J.

1. Present CRA filed u/s 115 of the Code of Civil Procedure, 1908 (in short “the CPC”), the petitioners challenge order dated 17.3.2017 passed by the learned Principal Senior Civil Judge, Visnagar below application Exh.14 in Special Civil Suit No.30 of 2016.

2. Assailing the impugned order, learned advocate Mr. Gandhi would submit that the learned trial Court has committed serious, factual as well as legal error in rejecting the application under Order 7 Rule 11 of the Code for rejection of the suit, which is hopelessly time barred. He would further submit that plain reading of the plaint indicates that the respondents – plaintiffs were aware of mutation entry No.5376, which is posted in 1976 to settle the partition between the parties. The respondents plaintiffs assailed said entry in revenue proceedings unsuccessfully previously and looking to this aspect, the suit filed by the respondents plaintiffs and cause of action stated therein is hopelessly time barred. Yet, the learned trial Court disbelieving such legal issue, has cmmitted serious error. He would further submit that the suit is deserved to be filed within 12 years of 1976 as in that year, the partition amongst the parties took place qua disputed property and settled since then. Thus, the suit filed with the purpose of reopening of the petition beyond 12 years is hopelsessly time barred. In view of above submission, he would submit to allow this petition by quashing and setting aside the impugned order and reject the plaint filed under Order 7 Rule 11 of the Code.

3. On the other hand, learned advocate Mr. Mehta for the respondents would support the impugned order on the ground that the learned trial Court has believed that whether partition took place pursuant to entry No.5376 amongst the parties or not is a disputed question of facts and can be decided after permitting both the parties to lead evidence. Therefore, he submits to dismiss the petition.

4. At the outset, to be noticed that the petitioners, who are defendant in the civil suit, prayed to reject the plant on the ground that the plant is hopelessly time barred. It is to be noticed that plea for a rejection of the suit under Order 7 Rule 11 of the Code is a plea of demurerr, whereby a person seeking rejection of the suit has to accept that the pleading in the plant on its face are correct, and yet the plaint is time barred. On the touchstone of this principle, if we examine the plea raised by the petitioners vis-a-vis the plaint, according to the original plaintiffs, the disputed property is ancestral property consisting of three brothers i.e. Kantibhai Morlidhar, Vishwanath Morlidhar and Laxmanbhai Morlidhar. Kantibhai has expired in 1967. It is alleged in the plaint that two other brothers were managing the disputed property and they have decided to partition the property in the year 1976, however, no written document was ever executed to partition the property. It is further alleged that in the year 1976, by mutation entry, partition was carried out, but without the consent of deceased plaintiff No.1 and deceased plaintiff No.3. It is also alleged by the original plaintiffs that some fraudulent act took place and ultimately the original plaintiffs pleaded following cause of action to file the suit. Paragraph 16 of the plaint is relevant, which reads as under:-

“In view of the facts of the above claim, the distribution of the properties of the deceased Morlidhar Jibhai Barot based on entry number-5376 is not legal nor is it an illegal distribution as stated in the above claim and accordingly, we file the present claim to declare that distribution as illegal and void and to declare