The limitation for cancellation suits begins from the time the plaintiff becomes aware of the grounds for cancellation, not from the date of the instrument's execution.

JUDGMENT :

MANISH KUMAR NIGAM, J.

1. Heard Shri Anuruddh Chaturvedi, learned counsel for the petitioner, Shri Adya Prasad Tewari, learned counsel for the respondents and perused the record.

2. This petition has been filed challenging the order dated 19.05.2023 passed by the Additional Civil Judge (Senior Division), Court No. 1, Gorakhpur in Original Suit No. 574 of 2022, rejecting the application moved by the defendant under Order VII Rule 11 C.P.C. The order dated 31.07.2024 passed by the revisional court dismissing the revision filed by the petitioner against the order dated 19.05.2023, is also under challenge.

3. Brief facts of the case are that the Original Suit No. 574 of 2022 was instituted by the plaintiff/respondents against defendant/petitioners for cancellation of sale deed dated 21.10.1992 executed by Smt. Bhagwanta in favour of Ranjit Singh son of Rajendra Singh. The plaintiff also claimed cancellation of another sale deed executed by Smt. Bhagwanta in favour of one Shashi Prabha. The relief of mandatory injunction was also claimed by the plaintiff restraining the defendants not to interfere with the possession of the plaintiff over the land in dispute. After being noticed, defendants/respondents filed an application under Order VII Rule 11 C.P.C. on 28.02.2023 for rejection of the plaint on the ground that the suit was barred by Section 3 read with Article 59 of the Limitation Act, 1963. Plaintiffs/respondents filed their objections to the application filed by the petitioner under Order VII Rule 11 C.P.C. on 15.03.2023. The trial court by judgment and order dated 19.05.2023, rejected the application filed by the defendants/petitioners. Against the judgment and order dated 19.05.2023, Civil Revision No. 123 of 2023 was filed by the petitioner which was also dismissed by the revisional court i.e. Additional District Judge, Court No. 3, Gorakhpur by judgment and order dated 31.07.2024, hence, the present writ petition.

4. Contention of the learned counsel for the petitioner is that limitation as provided under Article 59 of the Limitation Act, 1963 for filing a suit for cancellation of an instrument is three years from the date of execution of the instrument. In the present case, the instrument i.e. sale deed which is sought to be canceled is of the year 1992 and the suit itself has been filed on 18.07.2022 and as such, the suit is barred by limitation and the courts below have erroneously rejected the application filed by the petitioner under Order VII Rule 11 C.P.C. It has been further contended by learned counsel for the petitioner that the present case is an example of a clever drafting and learned counsel for the petitioner relied upon the judgment of Apex Court in case of Ramisetty Venkatanna & Anr. v. Nasyam Jamal Saheb & Ors.; 2023 0 Supreme (SC) 435.

5. Per contra, learned counsel for the respondent submitted that for considering an application under Order VII Rule 11 C.P.C. only the plaint averment has to be seen and from the perusal of the plaint it is apparent that the suit is not barred by limitation. It has been further submitted by learned counsel for the respondent that Article 59 of the Limitation Act provides that limitation for filing a suit for cancellation or setting aside an instrument or decree or for recession of a contract is three years but the limitation start running only when the plaintiff comes to know about the facts, entitling the plaintiff to have the instrument cancelled or set-aside. The date of knowledge of instrument is the material date for the start of period of limitation and not the date of instrument. It has also b