Plaint against first defendant whether barred by period of limitation.

This revision is directed against the order passed by the District Munsif’s Court, Kovilpatti, dated 13. 1987. The plaintiff is the petitioner herein. The plaintiff filed a plaint under O.7, Rule 1, Civil Procedure Code to recover a sum of Rs.1,455.76 with future interest at the rate of 12.5 per cent per annum and for costs. This plaint was returned with the direction to State as to how the suit is not barred by limitation. The plaintiff complied with the returns. The plaint was admitted only against the 2nd defendant and not aganist the 1st defendant. For necessary amendment the plaint was returned. As against that order, the present revision has been preferred by the plaintiff. In the revision the defendants were shown as respondents. The first defendant is the principal debtor and the second defendant is the surety. According to the learned counsel appearing for the petitioner/plaintiff, the suit filed is within time because the debt was acknowledged by the 2nd defendant on 19. 1983 and on 9. 1986. The suit was filed on 29. 1986. In order to support this contention, reliance was placed upon an agreement executed by both the defendants in favour of the plaintiff bank. In the said agreement it is stated as under:

"Further in the matter of making payment towards this debt or acknowledging this debt or any part thereof as and when called upon by the Bank to do so for the specific purpose of saving limitation. I/We declare that the payment of acknowledgement made or given by any one or more of us shall be binding on all of us jointly and or severally and that the said payment and the acknowledgement so made or given by one or more of us shall save limitation against all of us jointly and/or severally for the purpose of Law of Limitation, "After having executed on agreement to the aforesaid effect the defendants cannot say that the acknowledgment of debt by the second defendant is not binding upon the first defendant. This agreement was filed as document along with the plaint. In this context it is significant to note that while considering the provisions contained in O.7, Rule 11 (d), C.P.C., the Delhi High Court in Arjun Singh v. Union of India, A.I.R. 1987 Del. 165, held that normally, a plaint has to be rejected not by taking evidence, or reading the written statement, but by finding out that is contained in the plaint itself. It remains to be seen that for the purpose of verifying whether the plaint is within time or not the allegations contained in the plaint has to be looked into. If the plaint itself shows that the claim is barred by Imitation then the plaint can be rejected. If the real question of limitation is connected with the merits of the claim in the suit than it has to be tried along with the other issues."

2. While considering a similar question a Division Bench of this Court in the caseof The Food Corporation of India v. M/s.Mayavaram Financial Syndicate, etc., (1993)2 L. W. 453 at 457, held as under:

"The question of limitation is invariably a mixed question of fact and law. The court can reject a plaint under O.7, Rule 11, C.P.C., where it does not disclose a cause of action, where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so (this clause is substituted by High Court Amendment) and where the suit appears from the statement in the plaint to be barred by any law, which in a given situation may include a bar as to the limitation, but this has to be found only on the basis of the statements in the plaint. When such a bar is pleaded in the written statement, it is obvious certain facts are required to be traversed and unless such preliminary