The court ruled that a suit filed after a significant delay can be dismissed under Order 7 Rule 11(d) if the cause of action is deemed illusory.

ORAL ORDER

The petitioners challenge the impugned order passed by the Trial Court, wherein, the application filed by the defendants No.9 to 13 under Order 7 Rule 11(a) & (d) r/w Section 151of CPC came to be rejected.

2. Plaintiffs filed a suit for partition and separate possession of their legitimate share in the suit schedule property and also to declare that the sale deed dated 08.12.1961, executed by the mother of the plaintiffs and husband of the defendant No.1 in favour of the husband of the defendant No.4 and also the sale deed dated 8.7.1980 executed by the husband of the defendant No.4 in favour of husband of defendant No.9 are not binding on the plaintiffs.

3. The defendants No.9 to 13 entered appearance and filed an application to reject the plaint stating that the suit is barred by limitation as stated under Article 59 of the Limitation Act . The Trial Court rejected the application stating that the limitation is a mixed question of law and fact and therefore, the application for rejection of the plaint is not maintainable.

4. The learned counsel for the petitioner argues that the plaint averments clearly indicated that the subject property was conveyed through a registered sale deed dated 8.12.1961 by the mother of the plaintiffs and husband of the defendant No.1, and therefore the cause of action to file the suit arose on the date of execution of the sale deed and the cause of action appears illusory and seems to have shown solely to circumvent the provisions of Order 7 Rule 11(d) CPC. Therefore, the Trial Court has committed an error in rejecting the application instead of dismissing the suit as per the Limitation Act .

5. In response, the learned counsel for the respondents argues that plaintiffs have clearly averred that the execution of the sale deed came to their knowledge on 18.12.2015 when the defendants No.1 to 3 rejected to join their hands to partition, and subsequently, they obtained revenue documents in respect of the suit schedule property to file suit for the partition, therefore the question of limitation is a mixed question of law and facts, and at this stage, the plaint cannot be rejected under Order VII Rule 11(a) and (d) of CPC, therefore the impugned order passed by the Trial Court does not warrant any interference.

6. After carefully examining the arguments addressed by the learned counsel for the parties, and perusal of the plaint averments, it is noted as follows:

7. Plaintiffs are the sons of late Gulam Hussain Sab and who is the brother of the deceased husband of defendant No.1, and during their lifetime, husband of the defendant No.1 and mother of the plaintiffs conveyed the suit schedule property in favour of the husband of the defendant No.4 through a registered sale deed dated 8.12.1961 and subsequently, suit schedule property was conveyed by husband of defendants No.4 to 8 to the husband of defendant No.9.

8. The Apex Court in the case of Eldeco Housing and Industries Ltd. -vs- Ashok Vidhyarthi and Ors., 2023 INSC 1043 : 2023 SCC OnLine SC 1612 ruled that the remedy under Order 7 Rule 11 CPC is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence and conducting a trial on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any one of the grounds contained in Order 7 Rule 11. The underlying object of Order 7 Rule 11 is that if a suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit.

In such a case, it would be necessary to put an end to the sham litigation, so that judicial time is not further wasted.

9. It was further ruled the power conferred on the Court to terminate a civil action is,