An application for rejection of a plaint under Order VII Rule 11(d) must be decided exclusively based on the plaint's averments. Limitation is a mixed question of fact and law inappropriate for threshold determination when fraud is alleged, and a plaint cannot be rejected partially if any part is maintainable.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. K. K. Mahanta, the learned Senior counsel assisted by Mr. B. D. Deka, the learned counsel appearing on behalf of the Petitioners. I have also heard Mr. S. Afridi, the learned counsel appearing on behalf of the Respondents.

2. This is an application under Article 227 of the Constitution challenging the order dated 30.10.2023 passed by the learned Court of the Civil Judge No.2, Kamrup (M) at Guwahati in Petition No.3557/2023 arising out of Title Suit No. 432/2023 whereby the application seeking rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure, 1908, (for short ‘the Code’) was rejected.

3. At the outset, this Court finds it relevant to observe that when an application seeking rejection of a plaint filed under Order VII Rule 11(d) of the Code is rejected, the Code provides a remedy in terms with Section 115 of the Code and accordingly, the exercise of the jurisdiction of this Court under Article 227 of the Constitution is not called for.

4. Be that as it may, taking into account that the impugned order was passed on 30.10.2023 and the instant application was filed on 14.11.2023 which is within the prescribed period for filing an application under Section 115 of the Code, this Court converts the instant proceedings to a proceedings under Section 115 of the Code.

5. The question which arises in the instant proceedings is as to whether the plaint filed by the Respondents herein as plaintiffs is required to be rejected in terms with Order VII Rule 11(d) of the Code or in other words whether upon a meaningful reading of the statements in the plaint, the suit appears to be barred by any law and in the instant case barred by the laws of limitation as prescribed under the Limitation Act, 1963 (for short ‘the Act of 1963’).

6. To appreciate the issue involved in the instant proceedings, it is relevant to briefly take note of the statements made in the plaint and the relief(s) so sought for. A perusal of the plaint reveals that the predecessor-in- interest of the plaintiffs namely one Shri Taranath Saikia (since deceased) was the absolute owner and possessor of a plot of land measuring 1 Bigha, 2 Kathas 4 Lechas covered by Dag No.2562 of K. P. Patta No. 579 situated at village Sahar Sarania Part-II in Mouza Ulubari in the District of Kamrup (M) Assam. The said land have been specifically described in Schedule-A to the plaint. It has been further stated in the plaint that after the death of Late Taranath Saikia, the plaintiffs have inherited the Schedule-A land except the 2 Kathas of land which was sold to one Shri Arup Chakraborty by Late Taranath Saikia during his lifetime. The said 2 Kathas of land which were sold to the said Shri Arup Chakraborty has been specifically described in Schedule-B to the plaint.

7. It has been specifically alleged in the plaint that other than Late Taranath Saikia transferring the Schedule-B land to one Shri Arup Chakraborty, neither the predecessor of the plaintiffs nor the plaintiffs have signed any other document of transfer. It has been further alleged that the plaintiffs are in possession of the entire Schedule-A land except the Schedule-B land. The plaintiffs have further alleged in the plaint that sometime in the month of