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2016 DIGILAW 821 (KAR)

Shankar v. Nagendra

2016-11-05

B.V.NAGARATHNA

body2016
ORDER : Mrs. B.V. Nagarathna, J. The petitioner herein is the defendant in O.S.No.396/2015. He filed an application under Order 7, Rule 11 (d) of the Code of Civil Procedure, 1908 (CPC) seeking rejection of plaint on the premise that the suit was barred by limitation i.e. in the context of Article 58 of the Limitation Act, 1963. The trial court by the impugned order dated 11.08.2016, has rejected that application. Being aggrieved by the said rejection, defendant has preferred this revision petition. 2. I have heard learned counsel for petitioner. Learned counsel drew my attention to the plaint filed in O.S.No.346/2015 by the respondent herein and particularly to paragraph Nos. 12 and 13. According to him a reading of the said paragraphs prove that the cause of action arose for plaintiff almost a decade ago, but the declaratory suit has been filed by respondent herein only in the year 2015. He contended that the initial cause of action must be taken into consideration, which was some time in the year 2005-06. Therefore, the declaratory suit could not have been sought in the year 2015. He further submitted that trial court was not right in holding that the question of limitation is not a mixed question of law and facts. That it has to be considered by purely on contents and averments in the plaint and if the plaint averments are noted and it is found that cause of action arose long time ago, then, on that ground the suit may be held to be barred in law and accordingly the application under Order 7, Rule 11 (d) of CPC ought to have been allowed by the trial court. Learned counsel submitted that the trial court was not right in holding that the question of limitation is one of mixed question of law and fact and that the same cannot be tried as a preliminary issue also. He submitted that the impugned order of the trial court is erroneous and therefore, the revision petition may be entertained. 3. Having heard learned counsel for petitioner and on perusal of the material on record, it is noted that respondent who is plaintiff in O.S.No.396/2015 has sought the following reliefs. (i). He submitted that the impugned order of the trial court is erroneous and therefore, the revision petition may be entertained. 3. Having heard learned counsel for petitioner and on perusal of the material on record, it is noted that respondent who is plaintiff in O.S.No.396/2015 has sought the following reliefs. (i). A decree for declaration may kindly be granted declaring that the plaintiff is the owner and in possession of House bearing Corporation No.3-673 towards Southern side situated at Gazipura, Kalaburagi, more particularly shown in para No.2 of the plaint, in the interest of justice. (ii). A decree for declaration may kindly be granted declaring that the alleged sale deed executed by the plaintiff in favour of defendant in respect of portion of H.No.3-673 towards Southern portion situated at Gazipura, Kalaburagi vide document No.4701/2005-06 dated 14-11-2005 is only name sake and nominal one and defendant has not acquired any right, title and interest over the portion of H.No.3-673 situated at Gazipura, Kalaburagi in the interest of justice. (iii). A decree for cancellation of alleged sale deed may kindly be ordered and directing the defendant to cancel the alleged sale deed document No.4701/05-06 on dated 14.11.2005 executed by the plaintiff in favour of defendant in respect of portion of H.No.3-673 situated at Gazipura, Kalaburagi, if he fails and say may be kindly cancelled through due process of law, in the interest of justice. (iv). A perpetual injunction may kindly be granted restraining the defendant for alienating the suit house to others, in the interest of justice. (v). A injunction may kindly be granted for restraining the defendant for evicting the plaintiff till evicted from the due course of law, in respect of house No.3-673, in the interest of justice. (vi). Cost of the suit may kindly be awarded. (vii). Any other relief which the plaintiffs is entitle may kindly be awarded. 4. According to the petitioner, the cause of action arose way back in the year 2006. Of course the plaint narrates the facts even prior to that and ultimately at paragraphs 24-25, plaintiff has stated that the cause of action arose to file the suit when the defendant i.e. petitioner issued legal notice to him on 30.11.2014 and thereafter when he received summons in O.S.No.288/2015 on 20.07.2015 latter being a suit filed by the petitioner herein. 5. 5. In the circumstances, on a bare reading of the plaint, it is noted that what petitioner avers as the starting point of cause of action is not the same which has been stated in paragraph Nos.24-25 of the plaint. Therefore, on bare reading of the plaint, it cannot be held that the suit filed by respondent - plaintiff is barred by limitation. The trial court was right in holding the issue on limitation is one, which is a mixed question of law and fact. In the circumstances, the trial court was justified in rejecting the application under Order 7, Rule 11 (d) of CPC sought by petitioner herein, which is one for rejection of the plaint on the ground that the suit filed by respondent was belated being contrary to what is stated in Article 58 of the Limitation Act, 1963. However, the trial court has also stated that the issue regarding limitation cannot be tried as preliminary issue. That may not be so in certain cases. Having regard to the averments made in the plaint and the issues and the prayers sought the limitation issue could be tried as preliminary issue in the instant case. 6. In the circumstances, there being no merit in the civil revision petition, the same is dismissed. However, petitioner is at liberty to seek the issue regarding limitation being considered as preliminary issue, if so advised. In case, such a request is made to the trial court, the said court to consider the said request in accordance with law. It is clarified that any observation made during the course of this order regarding the contents of the plaint is only for the purpose of this revision petition and the same would not come in the way of the trial court considering the same on. the issue of limitation.