The question of limitation is a pure question of law when it is clear from the pleadings that the suit is barred by limitation.

Prakash Gupta, J.

1. Present first appeal is directed against the order dated 28.10.2017 passed by Additional District & Session Judge, No. 7, Jaipur Metropolitan, Jaipur whereby the trial court allowed the application filed by the defendants under Order 7 Rule 11 CPC and rejected the plaint under Order 7 Rule 11 CPC.

2. Brief facts giving rise to this appeal are that the appellant-plaintiff filed a suit for recovery of Rs. 20 lacs and interest accrued thereon. In the plaint, it is stated that defendants-respondents took a loan vide cheque dated 18.02.2013 which was encashed on 23.02.2013 with an assurance and agreement that the same would be returned after 1-2 months. It is also stated in the plaint that the defendants did not return the aforesaid loan amount within the stipulated period despite several requests made by the plaintiff. Ultimately a legal notice was sent to the defendants on 17.08.2013, asking them to pay the loan amount. The same was replied by the defendants denying the said amount to be a loan.

3. The defendants resisted the suit by filing written statement wherein they denied the plaint allegation. After filing the written statement an application under Order 7 Rule 11 CPC was filed by the defendants wherein it was stated that as per the plaintiff, loan was given on 23.02.2013 through the cheque whereas the suit was filed on 12.08.2016. Therefore, the suit is prima facie time barred in view of Article 19 & 20 of the Limitation Act, 1963. Therefore, the suit is liable to be rejected. Plaintiff resisted the application by filing reply wherein it was stated that the question of limitation is a mixed question of law and fact and the same should be decided after taking evidence of both the parties. It is also stated in the reply that at this stage question of limitation cannot be decided since in the plaint, it was stated that cause of action had arisen on 15.07.2016 when defendants refused to pay the loan amount.

4. After hearing both the parties, learned trial court allowed the application under Order 7 Rule 11 CPC and rejected the plaint.

5. Hence, this first appeal.

6. It is submitted by learned counsel for the appellant that impugned order dated 28.10.2017 is contrary to the facts and against the provisions of law. The issue of limitation in the present suit is a mixed question of law and fact and the same cannot be adjudicated without recording evidence of the parties. It is submitted that the present case does not fall under Article 19 & 20 of the Limitation Act but the same falls either under Article 113 or Article 55 of the Limitation Act. Thus, the present suit cannot be held to be barred by Limitation. It is also submitted that from the allegation of the plaint, it is clear that the present case is not a simplicitor case of granting loan by cheque but there was an agreement/contract between the parties as pleaded in the plaint. It was specifically pleaded in the plaint that the defendants assured to refund the amount within 1-2 month. These fact can only be decided after taking evidence of both the parties.

In support his contentions, learned counsel for the appellant has placed reliance on the following judgments:-

1. Surjit Kaur Gill and Another vs. Adarsh Kaur Gill and Another, (2014) 16 SCC 125

2. Balasaria Construction (P) Ltd. vs. Hanuman Seva Trust and Others, (2006) 5 SCC 658

3. Narne Rama Murthy vs. Ravula Somasundaram and Others, (2005) 6 SCC 614

4. Shatzadi Begum Saheba vs. Girdharilal Sanghi and Others, (1976) AIR (AP) 273

7. On the other hand, learned counsel for the respondents-defendants has submitted that as per the plaint allegation loan of Rs. 20 lacs was given by the plaintiff to the defendants on 23.10.2013 by cheque. In view of Article 19 & 20 of the Limitation Act, limitation starts from the date when the loan was made. The present matter clearly falls under Article