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2024 DIGILAW 62 (RAJ)

Sukhram v. Pappu

2024-01-09

MADAN GOPAL VYAS

body2024
JUDGMENT : Madan Gopal Vyas, J. The instant civil revision petition under section 115 of the CPC has been filed by the petitioners-defendants against the order dated 29.11.2022 passed by learned Civil Judge, Suratgarh, District Sri Ganganagar (hereinafter referred to as the learned Trial Court) in Civil Misc. Case No. 33/2018 whereby the learned Trial Court dismissed the application filed by the petitioner-respondent no. 2 under Order 7, Rule 11 read with section 151 of the CPC. 2. Learned counsel for the petitioner submits that the learned Trial Court has failed to consider the material available on record and the legal question raised by the petitioners-defendants while passing the impugned order. 3. It is submitted that the learned Trial Court while passing the impugned order has failed to consider that the suit was filed by the respondent-plaintiff in the year 2018, in which respondent-plaintiff challenged the sale deed dated 05.06.1953 after a delay of about 69 years. Thus, it is ex-facie clear that the suit is barred by limitation and the same should have been rejected at the threshold. 4. Learned counsel also submits that the plaintiff challenged the sale deed by way of seeking an amendment in the plaint even though the existence of the sale deed was in the knowledge of plaintiff at the time of filing the suit. Thus, learned counsel prays that the impugned order may be quashed and set aside and the application filed by the petitioners-defendants under Order 7, Rule 11 read with section 151 CPC may be allowed. 5. Heard learned counsel for the petitioner and perused the impugned judgment. 6. On a perusal of the impugned order, it is noticed that the rejection of plaint was sought by the defendants on two grounds- (i) that the alleged sale-deed has not been challenged by the plaintiff in the suit and (ii) that the aforesaid challenge to the sale deed is barred by law of limitation. It is alleged by the plaintiff that he had no knowledge of the sale-deed. It is also alleged that the plaintiff came to know about the existence of sale-deed when the defendant supplied a copy of the aforesaid sale-deed to him while filing his written statement. 7. It is a settled law that the question of limitation is a mixed question of law and fact. The facts averred by the plaintiff may or may not be true. 7. It is a settled law that the question of limitation is a mixed question of law and fact. The facts averred by the plaintiff may or may not be true. The plea of plaintiff that he got the knowledge of the existence of sale-deed at a later date is an essential fact which could not be decided at the stage of deciding the application under Order 7, Rule 11 , CPC, as the same can only be decided after evidence is led by respective parties in support of their contentions. It is also a settled law that while deciding an application under Order 7, Rule 11 , CPC, only the averments contained in the plaint are to be considered. The Hon'ble Apex Court, in Salim D. Agboatwala v. Shamalji Oddhavji Thakkar reported in (2021) 17 SCC 100 , while considering the observations made in earlier cases, has held that: "11. As observed by this Court in P.V. Guru Raj Reddy v. P. Neeradha Reddy (2015) 8 SCC 331 : (2015) 4 SCC (Civ) 100], the rejection of plaint under Order 7, Rule 11 is a drastic power conferred on the court to terminate a civil action at the threshold. Therefore, the conditions precedent to the exercise of the power are stringent and it is especially so when rejection of plaint is sought on the ground of limitation. When a plaintiff claims that he gained knowledge of the essential facts giving rise to the cause of action only at a particular point of time, the same has to be accepted at the stage of considering the application under Order 7, Rule 11 . 12. Again as pointed out by a three-Judge Bench of this Court in Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar [Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 : (2018) 3 SCC (Civ) 524], the plea regarding the date on which the plaintiffs gained knowledge of the essential facts, is crucial for deciding the question whether the suit is barred by limitation or not. It becomes a triable issue and hence the suit cannot be thrown out at the threshold." (emphasis supplied) 8. The learned Trial Court, in the facts and circumstances of the case, has not committed any illegality in dismissing the application of the petitioner-defendant under Order 7, Rule 11 CPC. It becomes a triable issue and hence the suit cannot be thrown out at the threshold." (emphasis supplied) 8. The learned Trial Court, in the facts and circumstances of the case, has not committed any illegality in dismissing the application of the petitioner-defendant under Order 7, Rule 11 CPC. The findings of the learned trial court are based upon the ratio laid down by the Hon'ble Apex Court in Salim D. Agboatwala's case (supra). Thus, the impugned order passed by the learned Trial Court is well reasoned and does not call for any interference. 9. Consequently, the instant revision petition preferred by the petitioners-defendants is rejected. 10. No order as to costs.