JUDGMENT 1. Defendant Nos.1 to 3 in O.S.No.830/2007 on the file of Fast Track Court, Devanahalli, have come up in this petition impugning the order dated 03.01.2013 passed on I.A.No.10 filed under Order 7, Rule 11 of CPC seeking rejection of the plaint. 2. In this proceedings for the sake of convenience, parties are referred to by their rank in the Original Suit. Plaintiff in the Court below is admittedly elder brother of defendant Nos.1 and 2. Admitted facts are that the plaintiff purchased suit schedule property under a registered Sale Deed dated 11.03.1992. The said Sale Deed was executed in his favour with first defendant representing him as his Power of Attorney Holder representing in the said transaction. According to plaintiff, suit schedule property was under supervision of his younger brother, 1st defendant. It is only in the year 2004 he came to know that some fraud is committed by 1st defendant in clandestinely conveying the same from his name to the name of his another brother, namely second defendant in the Court below. The said transaction has taken place in collusion with defendant Nos.1 and 2. In this behalf, a notice was sent by him through his counsel from his native place Barmer, Rajasthan. The said notice is duly replied by first and second defendants. 3. According to plaintiff, he came to know about the sale transaction dated 26.03.1994 in conveying the suit schedule property by 1st defendant as his Power of Attorney Holder in favour of 2nd defendant has come to his knowledge only after receiving reply from the 1st and 2nd defendants. It is stated that subsequently there were negotiations between himself and 1st and 2nd defendants through their well wishers for negotiated settlement of dispute between themselves. In the meanwhile, another document came to be executed by 2nd defendant in favour of his son, 3rd defendant, in the form of a Gift Deed conveying suit schedule property in favour of 3rd defendant. 4. Admittedly in the suit which is filed, the prayer is for declaration on the ground that the Sale Deed dated 26.03.1994 and Gift Deed dated 22.06.2005 have come into place fraudulently with the connivance of defendants without the knowledge of the plaintiff. Hence a declaration is sought. 5. In the said proceedings, defendants entered appearance, filed their Written Statement denying the plaint averments. Issues are framed on 02.04.2012. Hence a declaration is sought. 5. In the said proceedings, defendants entered appearance, filed their Written Statement denying the plaint averments. Issues are framed on 02.04.2012. Subsequently when the matter was posted for evidence of plaintiff, he filed his examination-in-chief in the form of affidavit on 18.03.2010 pursuant to which oral evidence was also adduced for marking the said affidavit and other documents on 02.07.2012. Thereafter the suit was set down for cross examination of P.W.1, i.e., plaintiff. At that stage the present application in I.A.No.10 is filed by defendant Nos.1 to 3 under Order 7, Rule 11(d) of CPC seeking rejection of the plaint on the ground that prima facie the suit filed by the plaintiff is barred by limitation in as much as the averments in Para 6 and the contents of legal notice dated 16.08.2004 indicate that the plaintiff had knowledge of this transaction way back in July, 2004. In that view of the matter, the suit which is filed on 20.08.2007 is prima facie barred by law of limitation, therefore no purpose would be served in trying the time barred suit, question of adducing evidence therein and deciding the issues other than the one which is framed regarding limitation would be an exercise in futility. 6. To the said application in I.A.No.10, plaintiff filed objections. After hearing both parties, the said application came to be dismissed by the Court below by its order dated 03.01.2013, which is impugned in this revision petition on the ground that there is error on the part of the Court below in not appreciating the pleadings in right perspective, not looking into the admission which are there in Para 6 of the plaint and not looking specifically at Para 10 of the plaint, which is not properly appreciated by the Court below, which would otherwise indicate that the suit is not maintainable in law. 7. This revision petition coming up for admission is taken up for final disposal with consent of the counsel for the revision petitioner and as well as contesting respondents; 8. The fact that the plaintiff and defendant Nos.1 to 3 are members of the same family, plaintiff is elder brother, defendant Nos.1 and 2 are his younger brothers and defendant No.3 is the son of defendant No.2 is not in dispute. The fact that the plaintiff and defendant Nos.1 to 3 are members of the same family, plaintiff is elder brother, defendant Nos.1 and 2 are his younger brothers and defendant No.3 is the son of defendant No.2 is not in dispute. It is also not in dispute that the suit property was initially purchased by the plaintiff under registered Sale Deed dated 26.03.1994 and the entire sale transaction was done by him through the 1st defendant with the help of Power of Attorney, a copy of which is produced and marked as Annexure - "R-1" to Statement of Objections filed for vacating of interim stay granted to the petitioners in this proceeding. It is also stated that the said document is marked as Ex.P-6 in the Court below. It is further not in dispute that the Sale Deed which has come into place subsequently on 26.03.1994 is executed by 1st defendant based on the very same Ex.P-6 in favour of 2nd defendant and it is further not in dispute that based on the said Sale Deed dated 26.03.1994, Gift Deed dated 22.06.2005 has come into place. 9. Learned counsel, Sri. R.V.S. Naik appearing for petitioners vehemently argued that the entire plaint if it is read with reference to legal notice dated 16.08.2004, reply dated 26.08.2004 and also the plaint averments at Para 6 and 10 would conclusively disclose that the plaintiff was very much aware of the sale transaction that has taken place between 1st and 2nd defendant way back in the year 1994 and that the averments in the plaint also further disclose that even as on July, 2004 he was aware of the same. When that being the case, the suit which is filed on 20.08.2007 is hopelessly barred by law of limitation and the same cannot be cured. In support of that statement, he relied upon the decision in the matter of Hardesh Ores (P) Ltd. Vs. Hede and Company reported in [(2007) 5 Supreme Court Cases 614] wherein at Paragraph 25 the Apex Court has held as under: "25. The language of Order 7, Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. The language of Order 7, Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool & London S.P & I Assn. Ltd. Vs. M.V. Sea Success and Popat and Kotecha Property v. State Bank of India Staff Assn." 10. Per contra, learned senior counsel, Sri. Ashok Haranahalli appearing for 1st respondent, plaintiff in the original suit tried to substantiate that the suit filed is well within the time for the reason that firstly there is fraud committed by two brothers, i.e., defendant Nos.1 and 2 in misusing the trust that is placed in them and in tampering Ex.P-6 which is Power of Attorney under which Sale Deed dated 11.03.1992, was executed in favour of plaintiff with 1st defendant representing him as his P.A. Holder, by its erstwhile owner Smt. K.P. Ambujakshi. The said Power of Attorney was not meant to be utilised for any purpose other than representing plaintiff in the sale transaction dated 11.03.1992. The said Power of Attorney was not meant to be utilised for any purpose other than representing plaintiff in the sale transaction dated 11.03.1992. It is stated that 1st defendant by tampering the same, utilizing the said document, completed sale of suit land behind plaintiff's back in the year 1994 and he was kept in dark about the same till 2006. Though he came to know about some fraud being committed, after the reply dated 26.08.2004 received by him, he came to know about the exact nature of fraud. It is further stated that fraud has been further perpetuated in executing the Gift Deed by 2nd defendant in favour of his son 3rd defendant. Therefore the suit which is filed by him on 20.08.2007 seeking declaration with reference to the Sale Deed dated 26.03.1994 and the copy of reply dated 26.08.2004 are looked into in the background of fraud, the suit is well within the time and the question of rejection of the same does not arise. In support of that, he relied upon the decision of the Apex Court in the matter of Ramesh B. Desai and others Vs. Bipin Vadilal Mehta and others reported in [(2006) 5 Supreme Court Cases 638], wherein at Para 19, it is held as under: "19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan J.,) in Balasaria Construction (P) Ltd., Vs. Hanuman Seva Trust, it was held: (SCC p.661, para 8)." "8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial Court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time." This principle would be equally applicable to a company petition. Therefore, unless it becomes apparent from the reading of the company petition that the same is barred by limitation the petition cannot be rejected under Order 7 Rule 11(d) CPC." 11. He also relied upon another Judgment rendered in the matter of Balasaria Construction (P) Ltd., Vs. Hanuman Seva Trust and others reported in [(2006) 5 Supreme Court Cases 658] which is followed in the Judgment rendered in the matter of Ramesh B.Desai and also relied upon the decision rendered in the matter of Pallav Sheth Vs. Custodian and others reported in [(2001) 7 Supreme Court Cases 549] where at Paragraph 47 in cases where fraud is played, how Section 17 of the law of limitation will have to be looked into is discussed as under: "47. Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent [Section 17(1)(b)] or where any document necessary to establish the right of the plaintiff or the applicant has been fraudulently concealed from him [Section 17(1)(d)], the period of limitation shall not begin to run until the plaintiff or the applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity viz., that a party should not be penalized for failing to adopt legal proceedings when the facts or material necessary for him to do so have been willfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favour by virtue of such fraud." 12. He further relies on the decision of the Apex Court in the matter of Santosh Vs. He further relies on the decision of the Apex Court in the matter of Santosh Vs. Jagat Ram and Another reported in [(2010) 3 Supreme Court Cases 251] wherein at Paragraph 26 similar view as is taken in the case of Pallav Sheth is followed, and the same reads as under: "26. A fraud puts an end to everything. It is a settled position in law that such a decree is nothing, but a nullity. It has come in the evidence that when the respondents herein started disturbing the possession of the appellant and also started bragging about a decree having been obtained by them, the appellant chose to file a suit. In that view, her suit filed in 1990 would be absolutely within time. The casual observation made by the High Court that her suit would be barred by limitation, is also wholly incorrect." 13. Further he rely upon the decision in the matter of Ram Prakash Gupta Vs. Rajiv Kumar Gupta and others reported in [(2007) 10 Supreme Court Cases 59], wherein at Paragraph 22 it is held under what circumstances, the relevant provision of Order 7, Rule 11 of CPC can be pressed into service: "22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross- examined, thereafter before conclusion of the trial, the application under Order 7, Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation." 14. On appreciation of the order impugned, in the background of the aforesaid Judgment and also facts as narrated above, it is clearly seen that in the instant case, the suit which is filed by the plaintiff is at the stage of cross examination of P.W.1. Assuming for a moment, it was the intention of defendant Nos.1 to 3 to take the plea of limitation, nothing prevented them to press into service the present application along with the written statement which was filed by them. Assuming for a moment, it was the intention of defendant Nos.1 to 3 to take the plea of limitation, nothing prevented them to press into service the present application along with the written statement which was filed by them. In the instant case, though the written statement was filed much prior to 2010 and the issues being framed on 10.06.2011 and evidence commenced in the month of July, 2012, there was absolutely no reason for the defendant Nos.1 to 3 to file the application under Order 7, Rule 11(d) of CPC seeking rejection of the plaint on the ground of limitation much later in July, 2012. 15. In the instant case, though much is said about the dates regarding the knowledge of the plaintiff as stated in Para 6 of the plaint and reference to notice dated 16.08.2004 and the reply dated 26.08.2004, it is clearly seen that in the background of relationship of parties between the plaintiff and defendant Nos.1 to 3 and also their conduct in execution of Gift Deed by 2nd defendant in favour of 3rd defendant after issue of legal notice gives rise to doubt the conduct of parties inasmuch as looking into document at Ex.P-6. On going through the entire contents of the Ex.P-6 and last sentence in clause 9 of the said document gives scope to support the contention urged by the plaintiff in the said suit. 16. However, no conclusion could be arrived at, at this juncture unless detailed evidence is recorded and based on that if the pleadings and evidence is analyzed, the Trial Court would be in a position to understand whether any fraud is committed by defendant Nos.1 to 3 against the plaintiff. As rightly contended by the learned senior counsel appearing for 1st respondent fraud unravels everything. Even assuming for a moment that there is fraud as contended by the plaintiff which is required to be established in the trial, which is pending on the file of the Court below, the documents and other things prima facie suggest the possibility of the same cannot be over ruled and which is required to be disapproved by defendant Nos.1 to 3 by leading evidence on this aspect. Giving them benefit of deciding the matter on the ground that the suit is barred by limitation would scuttle the entire exercise on the part of the plaintiff to establish and demonstrate that indeed fraud is committed by his younger brother. 17. Therefore at this juncture, the finding of the Court below on I.A.No.10 in stating that the law of limitation cannot be construed as contended in I.A.No.10 appears to be just and proper. In that view of the matter, this Court feel that question of rejecting the plaint at this juncture when the matter has raised to the stage of recording of evidence does not stand to reason in the light of the finding of the Apex Court in the aforesaid decisions. In that view of the matter, this Court is of the opinion that the order impugned in this revision petition neither suffers from illegality or irregularity, which calls for interference in this revision petition. 18. In that view of the matter, the revision petition filed by the defendant Nos.1 to 3 in O.S.No.830/2007 on the file of Fast Track Court, Devanahalli, is rejected. The order dated 03.01.2013 passed by the Court below is confirmed.