A court must reject a plaint under Order VII Rule 11(d) of the CPC if it is clearly barred by limitation, regardless of allegations of fraud, where the cause of action is established by prior litigation admissions and registered documents.

ORAL ORDER

Challenging order dated 25.03.2023 passed in OS.no.326/2015 on I.A.no.XIII by II Additional Senior Civil Judge and JMFC, Dharwad (‘Trial Court’, for short), this revision petition is filed.

2. Sri S.S. Bawakhan, learned counsel for petitioners submitted that CRP.no.100111/2023 was by defendants no.2 and 3 in OS.no.326/2015 filed by plaintiffs - respondents no.1 and 2 herein seeking for decree of partition and separate possession of their 1/3rd share in suit schedule properties; declare bogus relinquishment deed got executed by defendants as not binding on plaintiffs and for permanent injunction restraining defendants from preventing plaintiffs’ possession and enjoyment of suit schedule properties etc.

3. In said suit, defendants entered appearance and filed written statement and filed I.A.no.XIII for rejection of plaint under Order VII Rule 11 of Code of Civil Procedure, 1908 (‘IPC’, for short). In affidavit filed in support of application, it was stated that plaintiffs had relinquished their right, title and interest over suit schedule properties in favour of defendant no.1 under registered relinquishment deed dated 07.07.2001 and thereby foreclosed their claims over suit properties. Having executed relinquishment deed, plaintiffs could not claim to have continued as coparceners to maintain suit for partition.

4. It was also contented, without challenging registered relinquishment deed, plaintiffs could not seek for partition. It was further stated even if as per plaintiffs, relinquishment deed were fraudulent, said fact had come to knowledge of plaintiffs when they filed OS.no.76/2011 earlier which came to be dismissed for non-prosecution. Misc.P.no.45/2012 filed for its restoration was dismissed at stage of hearing. Subsequent, Misc.P.no.40/2015 though filed, was got dismissed as withdrawn as it suffered inherent defects. Said assertion would imply knowledge of relinquishment deed and present suit filed on 02.07.2015 would be clearly barred by limitation under Article 58 of Limitation Act, 1963. Even, if date of accrual of cause of action is taken as date of said suit, instead of date of registration of relinquishment deed as per law.

5. However under impugned order, trial Court rejected application mainly on ground that plaintiffs had alleged fraud with necessary particulars and same would require full-fledged trial. It was submitted, rejection of application on said ground would amount to refusal to exercise jurisdiction vested in Court as well as improper exercise. Therefore, sought for allowing revision petition.

6. In CRP.no.100009/2024, Sri P.G. Mogali, learned counsel for petitioners would submit that this revision petition was by legal representatives of deceased defendant no.1, who had challenge order dated 31.10.2023 passed by trial Court in OS.no.326/2015 on I.A.no.XVII filed by them under Order VII Rule 11 (a) and (d) of CPC. It was submitted, application under Order VII Rule 11 of CPC could be filed at any stage. It was submitted, I.A.no.XIII was earlier filed by defendants no. 2 and 3 and defendant no.1 had not joined them in that application and there was no bar for defendant no.1 filing an independent application.

7. It was submitted, legal representatives of defendant no.1 were also seeking for rejection of plaint on similar grounds/contentions as urged in I.A.no.XIII. Rejection of application on ground that an earlier application filed was rejected would amount to abdication of jurisdiction vested and call for interference. On said ground sought for allowing revision petition.

8. There is no representation on behalf of responden