The rejection of the plaint on the ground of limitation is a mixed question of fact and law, and the application under Order VII Rule 11 CPC is to be decided based on the averments in the plaint.

ORDER

Alka Sarin, J. - The present civil revision under Article 227 of the Constitution of India has been filed impugning the order dated 17.02.2022 (Annexure P-7) vide which the application preferred by the defendant no. 1-petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') has been dismissed.

2. Brief facts relevant to the present lis are that the plaintiffrespondent no.l filed a suit for declaration to the effect that the plaintiff is absolute owner and in possession of the House No.B-I 37, as described in the plaint, and further for permanent injunction restraining the defendants from alienating the above mentioned property. Defendant no.l-petitioner herein filed an application (Annexure P-4) under Order VII Rule 11 CPC for rejection of the plaint on the grounds; firstly, that the same is barred by limitation; secondly, that the suit is barred by the provisions of the Prohibition of Benami Property Transactions Act, 1988; and thirdly, that it is under-valued. It was stated in the application that the sale deed in question was executed on 18.05.1999, which was within the knowledge of plaintiff respondent no.l, and that the plaintiff-respondent no.l and defendant no.l-petitioner have a family dispute since 2013. It was further stated that in 2016 the defendants were dispossessed by the plaintiff. However, the plaintiff had not filed any civil suit at that point of time. It was further averred that the suit was under-valued. A reply (Annexure P-5) was filed contesting the application. The Trial Court vide the impugned order dated 17.02.2022 (Annexure P-7) dismissed the application. It has been noticed in the impugned order that the question of affixing the court fees was given up and not pressed. Qua the question of limitation, the Trial Court held that the same was a mixed question of law and facts. Qua the question of the suit being barred by the provisions of the Prohibition of Benami Property Transactions Act, 1988, the Trial Court came to the conclusion that the same can be gone into only after appreciating the evidence.

3. Learned counsel for the defendant no.l-petitioner has vehemently contended that the plaintiff-respondent no.l in the present case has turned his back on his wife and children and that he was prompted by some individuals to do so. It is further the contention that the plaintiffrespondent no.l had earlier filed a civil suit for permanent injunction restraining the defendants therein from interfering in the peaceful possession of House Nos.B-VIII/343 and B-VIII/348, situated in Sethia Mohalla, Faridkot, which suit was eventually withdrawn on the basis of a compromise. Learned counsel for the defendant no.l-petitioner would contend that the present suit is barred by the provisions of Order II Rule 2 CPC inasmuch as in the earlier suit, which was filed against the wife and son by the plaintiff-respondent no.l, no plea qua the present property was raised.

4. It is further the contention that the sale deed dated 18.05.1999 sought to be challenged was within the knowledge of plaintiff-respondent no.l and hence, the suit was clearly barred by limitation.

5. I have heard learned counsel for the defendant no.l-petitioner.

6. On a pointed query by this Court as to whether the facts as narrated by the counsel for the defendant no.l-petitioner were apparent from a meaningful reading of the plaint, learned counsel has stated that the said facts were clearly mentioned in the application (Annexure P-4) filed under Order VII Rule 11 CPC. At the time of arguments, learned counsel for the defendant no.l-petitioner has pressed two arguments primarily that the suit is barred on the ground of limitation and secondly that the suit is barred under Order II Rule 2 CPC. Taking up the second argument of learned counsel for the defendant no.l-petitioner, a perusal of the impugned order clearly reveals that the said argument was not raised before the Trial Court. There were three ar