The determination of limitation as a mixed question of law and fact necessitates trial unless the plaint is illusory.

1. Aggrieved by a judgment and order dated 31st August 2021, passed by the Civil Judge Senior Division Pune in Special Civil Suit No.794 of 2021, Appellants have preferred this First Appeal. By the impugned judgment, the trial Court rejected Appellants' plaint under Order VII , R.11(d) of the Code of Civil Procedure ("CPC", for brevity), as barred by law of limitation.

2. Appeal was listed for admission today. Since the issue was short, i.e., could trial Court summarily reject the plaint under Order VII , R.11(d) on the ground of law of limitation, since limitation is a mixed question of law and fact, with the consent of the counsel we decided to take up the Appeal for final hearing at admission stage.

3. It is Appellants' case that they have averred in the plaint as to when the cause of action arose and Appellants should be given an opportunity in trial to prove and establish those averments, the issue of limitation being a mixed question of law and fact. It is also Appellants' case that rejection of plaint under Order VII , R.11 of CPC is a drastic power conferred on the Court to determine the civil action at the threshold, and, therefore, when a plaintiff claims that he came to the knowledge of certain fact or that the cause of action arose only at a particular point of time, the same has to be accepted at the stage of considering the application under Order VII , R.11 of CPC.

4. Per contra, it is respondents' case that the trial Court has in detail anaylised the averments in the plaint, and, has, after minute and meaningful reading of the averments made in the plaint, came to a conclusion that the cause of action as disclosed in the plaint arose in October 2012 itself, and, hence, the trial Court has correctly concluded that the suit filed was barred by law of limitation and the plaint had to be rejected under Order VII , R.11 of CPC.

5. We list below a chronology of dates and events before we consider the rival submissions:
(Editor's note: Tabular matter omitted)

6. Dr. Chandrachud for Appellants submitted:
(a) That a developer's obligation is a continuing obligation, and, therefore, the cause of action was a continuing cause of action;
(b) It is a construction contract and in a construction contract, time is not an essence, and, therefore, performance should be within a reasonable time. What is a reasonable time is a question of fact, and, therefore, trial Court should have permitted Appellants to lead evidence to prove when the cause of action infact arose;
(c) Order VII R.11 of CPC is a drastic power conferred on the Court, the conditions precedent to the exercise of power are stringent especially when rejection of plaint is also on the ground of limitation. Therefore, when a plaintiff claims that the cause of action arose only at particular point of time, the same has to be accepted at the stage of considering the application under Order VII R.11 of CPC.

7. Dr.Chandrachud further submitted that whether the suit is barred by limitation or not is a triable issue, and, hence, the suit cannot be thrown out at the threshold. He relied upon the Judgment of the Apex Court in Salim D. Agboatwala v. Shamalji Oddhavji Thakkar and Others 2021 SCC 735 : (AIR 2021 SC 5212) He also relied upon Art.59 of the Limitation Act to submit that the period of limitation is three years when a suit to cancel or set aside a judgment or decree or for dissolution of a contract is filed and the time would begin when the facts entitling the plaintiff to have the instrument or the contract rescinded first become known to him. Dr.Chandrachud submitted that as averred in the plaint in paragraphs 55, 57 and 65, the cause of action arose only on or about 23rd October 2019 and agai