The rejection of a plaint under Order 7 Rule 11 cannot stand where a credible cause of action is presented, especially when fraud is alleged, which can reset the limitation period.

JUDGMENT:

R.K. PATTANAIK, J.

1. Instant appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter refer to as ‘the C.P.C.’) is filed by the appellant assailing the correctness of the judgment dated 26th April, 2007 promulgated in RFA No.2/117 of 2005/2004, whereby, order dated 19^th July, 2004 passed in C.S. No.376 of 2003 by the learned Civil Judge (Senior Division), Puri in rejecting the plaint in terms of Order 7 Rule 11 C.P.C was confirmed.

2. The appellant instituted the suit in C.S. No.376 of 2003 against the respondents for a declaration that the sale deeds executed on 11^th October, 1965 and 25^th March, 1970 in favour of respondent No.1 to be illegal and void and not binding to her and for permanent injunction. The respondents challenged the suit and claimed for rejection of plaint as per Order 7 Rule 11 C.P.C. on the ground of absence of any cause of action and limitation to challenge the sale deeds. The learned Civil Judge (Senor Division), Puri examined the plaint and considered objection of the respondents and found the claim of the appellant to be false and also the relief to declare the sale deeds as void to be grossly barred by limitation. With the above findings, the plaint was rejected under Order 7 Rule 11(a) C.P.C. Being aggrieved of, the appellant filed an appeal which was disposed of and dismissed by judgment dated 26^th April, 2007 in RFA No. 2/117 of 2005/2004 with the same conclusion that there is falsity in the claim of the appellant so also the relief to be barred by limitation. As against the dismissal of appeal, the appellant approached this Court in second appeal primarily on the ground, such as, the plaint when disclosed a cause of action could not have been rejected under Order 7 Rule 11(a) C.P.C.

3. This Court by order dated 14^th January, 2008 formulated the following substantial questions of law, such as:

(i) Whether the learned courts below were justified in rejecting the plaint on the finding of false cause of action on the basis of death certificate filed by defendant No.2 without any opportunity to the plaintiff to rebut the presumption attached to it?

(ii) Whether the learned Lower Appellate Court was justified in rejecting the plaint as barred by limitation when fraud was alleged with reference to the date of knowledge of execution of the impugned sale deeds and particularly, when such a point is a mixed question of fact and law?

4. Heard Mr. Mishra, learned counsel for the appellant and Mr. Rath, learned Senior Advocate appearing for respondent No.1.

5. Mr. Mishra, learned counsel for the appellant submits that at the initial stage, the plaint which disclosed a cause of action to institute a suit not to be rejected under Order 7 Rule 11(a) C.P.C. morefully when the Civil Court issued summons on being satisfied about the same. In support of such an argument, Mr. Mishra referred to a decision in the case of Jyotsnarani Padhi and others Vs. Smt. Susila Padhi and others 2008(II) OLR 243.

6. On the other hand, Mr. Rath, learned Senior Advocate for respondent No.1 justifies the impugned judgment in appeal confirming order dated 19th July, 2004 passed in C.S. No.376 of 2003. It is submitted that on a bare reading of the plaint, falsehood is revealed since defendant No.1 had expired much before the date of cause of action and furthermore, the appellant could not have challenged the sale deeds which she herself executed after having obtained permission in connection with Misc. Case No.25 of 1969 and when it was after a gap of more than 30 years to declare it void. Against the aforesaid backdrop, when the suit was instituted, considering the plaint and o