ORDER VII RULE 11(d)
"if it appears from the Averments of the Plaint, that Plaint is barred by any law, then the plaint shall be rejected"
In the case of Salim D. Agboatwala vs Shamalji Oddhavji Thakkar, (CIVIL APPEAL NO. 5641 OF 2021(@ Special Leave Petition (C) No.26441 of 2014)) the Hon’ble Supreme court was pleased to observe as under:-
10. Insofar as the rejection of plaint on the ground of limitation is concerned, it is needless to emphasise that limitation is a mixed question of fact and law. It is the case of the appellants/plaintiffs that only after making inspection of the records in connection with the suit land available in the office of defendant No.3 (Court Receiver) that they came across the correspondence and documents relating to the transactions and that the proceedings before the ALT were collusive, fraudulent, and null and void. The appellants/plaintiffs have even questioned the authority of the Court Receiver to represent them in the tenancy proceedings.
11. The above averments may or may not be true. But if the plaintiffs succeed in establishing the above averments, the issue of limitation cannot be put against the plaintiffs. Generally, a party, who never had any notice of a particular proceeding before a quasi¬-judicial authority, is entitled to approach the Court upon gaining knowledge of the proceedings. Limitation cannot be put against such a party.
12. We are not dealing here with a case where notices were ordered be issued, but were not or could not, be served on necessary and proper parties. We are dealing with a case where the plaintiffs assert in no uncertain terms that notices were never ordered to them nor served on them. Therefore, the answer to the issue regarding limitation, will depend upon the evidence with regard to the issuance and service of notice and the knowledge of the plaintiffs. Hence, the Trial Court as well as the High Court were not right in rejecting the plaint on the ground of limitation, especially in the facts and circumstances of this case.
13. As observed by this Court in P.V. Guru Raj Reddy vs. P. Neeradha Reddy And Others (2015) 8 SCC 331, ......
14. Again as pointed out by a three-member bench of this Court in Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar, 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.
In the case of Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar (CIVIL APPEAL NO. 3500 OF 2018(Arising out of SLP (Civil) No.26401 of 2017),the hon’ble Supreme court was pleased to observe and opine as under:-
12. What is relevant for answering the matter in issue in the context of the application under Order VII Rule 11(d), is to examine the averments in the plaint. The plaint is required to be read as a whole. The defence available to the defendants or the plea taken by them in the written statement or any application filed by them, cannot be the basis to decide the application under Order VII Rule 11(d). Only the averments in the plaint are germane.
CLEVER DRAFTING : -
IN THE CASE OF Ramisetty Venkatanna vs Nasyam Jamal Saheb,(CIVIL APPEAL NO. 2717 OF 2023):-the Hon’ble Supreme court held that :-
The trial court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code……. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.
Bishundeo Narain And Another vs Seogeni Rai And Jagernath, 1951 AIR 280, 1951 SCR 548 ,
Srihari Hanumandas Totala V/S. Hemant Vithal Kamat & Ors., Civil Appeal No 4665 2021 Arising out of SLP (C) No.3899 of 2021
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