The rejection of the plaint under Order 7, Rule 11 (d) does not arise as the cause of action and limitation are mixed questions of law and facts to be decided after framing the issues and based on evidence.

Sangeet Lodha, J.

This revision petition is directed against order dated 1.4.16 of the Additional District Judge No.4, Udaipur, whereby an application preferred by the petitioner-defendant under Order 7, Rule 11 CPC, seeking rejection of the plaint, has been dismissed.

2. The respondent-plaintiff filed a suit for recovery of Rs.12,00,000/- against the petitioner-defendant with the averments that the plaintiff had given an order to the defendant for supply of two Crushers of the sizes 42"x30" and 36"x9". On the defendant demanding the advance, the plaintiff paid a sum of Rs.3,00,000/- by cheque no. 158201 and Rs.4,50,000/- by cheque no. 158202. Thereafter, on the plaintiff approaching the defendant on 1.6.11, the defendant stated that the fabrication of the Crushers shall take some time and demanded some more advance payment. Accordingly, the plaintiff paid a sum of Rs.9,00,000/- to the defendant and thus, according to the plaintiff, in total a sum of Rs.16,50,000/- was paid in advance. However, the cheque no.158202 was not presented by the defendant before the bank for encashment.

3. On 13.6.11, when the plaintiff sent his employee to find out the progress in the fabrication of the machines, the defendant apprised that it will take 7-10 days more. Finally, on 21.6.11, the defendant apprised the plaintiff that the machines shall be supplied latest by 26.6.11 at 12 p.m. and if the same are not supplied by the time specified, the order may be treated to be cancelled. The plaintiff claimed that the machines having not been supplied by the respondent, he is entitled for refund of the money paid in advance a sum of Rs.12,00,000/-. As per the averments made by the plaintiff, the cause of action accrued on the cancellation of the order on 26.6.11 and thereafter, on 11.7.11 when the defendant served the plaintiff with the notice through his counsel refusing to refund the amount.

4. During the pendency of the suit, the defendant preferred an application seeking rejection of the plaint on the ground that admittedly, the cause of action accrued on 26.6.11 on cancellation of the supply order and therefore, the suit filed by the plaintiff on 30.6.14 is barred by limitation.

5. The application has been rejected by the trial court. Hence, this petition.

6. Learned counsel appearing for the petitioner reiterating the contention raised before the trial court, submitted that a bare perusal of the plaint, reveals that it is barred by limitation and therefore, the same was liable to be rejected.

7. It is settled law that while deciding an application for rejection of the plaint under Order 7, Rule 11 (d), the court is not competent to go into correctness or otherwise of the allegations contained in the plaint. The plaint can only be rejected if the statement in the plaint without any addition or subtraction appears to be barred by law.

8. A perusal of the plaint reveals that as per the plaintiff, the supply order stood cancelled on 26.6.11 and thereafter, on the notice being served, the defendant refused to refund the amount paid in advance vide notice dated 11.7.11 and thus, the cause of action having accrued on 11.7.11, the suit filed is within limitation. In the considered opinion of this court, on the facts and in the circumstances of the case, where plaintiff claims the accrual of the cause of action as aforesaid on the basis of the definite pleadings, obviously, the question with regard to the limitation which is a mixed question of law and facts, has to be decided by the court on the basis of the evidence to be led by the parties, after framing the issues and thus, the question of rejection of the plaint as barred by law invoking the provisions of Order 7, Rule 11 CPC does not arise. In this view of the matter, the order impugned passed by the trial court does not suffer from any illegality, material irregularity or jurisdictional error warranting interference by this court in exercise of its revisional jurisdiction.

9. In the result, the rev