Point of Law: Power conferred under Order 7 Rule 11 CPC is a drastic one and conditions precedent to exercise such powers are stringent.

JUDGMENT :

Jyotsna Rewal Dua, J.

Almost nine years after filing of the written statement, defendant No.1 moved an application under Order 7 Rule 11 (a, c and d) of the Code of Civil Procedure (CPC in short) for rejection of the plaint. The application was dismissed by the learned trial court on 8.8.2022, hence defendant No.1 has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

Petitioner was defendant No.1 before the learned trial court. He is father of the plaintiff (present respondent No.1). Parties hereinafter are being referred to as per their status before the learned trial court.

2. Facts :

2 (i). Plaintiff/respondent No.1 filed a civil suit on 17.3.2012 praying for a decree of declaration to the effect that suit property was Joint Hindu Coparcenary Property. Plaintiff had birthright in the same being a Coparcenar. Defendant No.1 alienated the suit property by executing gift/sale deeds. Declaration was accordingly sought that three sale deeds registered on 31.3.2004, 17.3.2011 and 17.3.2011, respectively along with gift deed registered on 15.10.2005 be declared as illegal, null, void and not binding upon plaintiff’s rights. Consequential relief of possession was also prayed for.

2 (ii). Defendants No.1, 4 and 5 filed a common written statement on 10.12.2012, whereas defendant No.2 filed his separate written statement on 26.12.2012. The present petitioner (defendant No.1) in the common written statement took up various preliminary objections viz. Suit not valued properly for the purpose of jurisdiction, proper court fee not paid, plaint disclosing no cause of action and the suit have not been filed within the limitation period. On merits, it was asserted that suit land was not Joint Hindu Coparcenary Property. Rather, it was self acquired property of defendant No.1 and he was competent to deal with the same in any manner. The sale deeds and gift deed were validly executed by defendant No.1, in accordance with law.

2 (iii). On 6.10.2020, defendant No.1 moved an application under Order 7 Rule 11 (a, c and d) CPC, seeking rejection of the paint. The rejection was primarily sought on the grounds that (i) the plaint did not disclose any cause of action and (ii) plaintiff’s claim was barred by law of limitation. Plaintiff filed his reply and opposed the application. He pleaded that cause of action was amply disclosed in the plaint and that the suit filed by him was within the prescribed period of limitation in terms of Articles 109 and 110 of the Limitation Act. Learned trial court vide its order dated 8.8.2022 dismissed the application by holding that plaint disclosed cause of action to proceed further in the matter and it could not be stated at that stage that the relief claimed was barred by law of limitation. It was further observed that in the facts of the case, the question with respect to nature of suit property can be considered after appreciation of evidence.

2 (iv). Aggrieved against dismissal of his application, defendant No.1 has assailed the order dated 8.8.2022 in this petition.

Contentions :

3 (i). Learned counsel for the petitioner-defendant No.1 contended that the plaint presented by respondent No.1 does not disclose any cause of action. That as per Mutation No. 534, attested on 10.9.1958 relied upon by the plaintiff in plaint, the suit land had come to defendant No.1 in gift from S/Shri Uttam and Baru. Hence, the suit land in the hands of defendant No.1 became his self acquired property. Defendant No.1 had become exclusive owner of the suit land and was thus, competent to deal with the same in any manner in accordance with law, therefore, the sale and gift deeds questioned in the plaint were validly executed by defendant No.1 being his self acquired property. It was further submitted that limitation for challenging the sale/gift deeds of the self acquired property in terms of