M/S Ultimate Resorts Private vs Shri Uttam Chand (Deceased) Through
2024 Latest Caselaw 20 HP

Himachal Pradesh High Court

M/S Ultimate Resorts Private vs Shri Uttam Chand (Deceased) Through on 1 January, 2024

Author: Ajay Mohan Goel

Bench: Ajay Mohan Goel

                                                                           .
         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA





                                             CMPMO No.589 of 2019
                                             Reserved on:21.11.2023
                                             Decided on: 01.01.2024





    M/s Ultimate Resorts Private
    Limited                                                            ... Petitioner.
                     Versus
    Shri Uttam Chand (deceased) through





    LRs. Smt. Bhiki Devi & others                                      ... Respondents.

    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge.

    Whether approved for reporting? Yes
    _____________________________________________________

    For the petitioner:     Mr. Neeraj Gupta, Senior Advocate, with
                            Mr.Vedant Ranta, Advocate.
    For the respondents:    Mr. Mukul Sood, Advocate, for respondents
                            No.1 (a) to 1(g) and 2.


                            None for respondents No.3 to 5.
                            Respondent No.4 ex parte.

    Ajay Mohan Goel, Judge (Oral)

By way of this petition, filed under Article 227 of the

Constitution of India, the petitioner/ defendant No.4 has challenged

the order passed by learned Civil Judge, Manali, District Kullu, H.P.

in Civil Suit No.170 of 2018, in terms whereof, an application filed

by the petitioner under Order 7, Rule 11 of the Civil Procedure Code

for rejection of the plaint has been dismissed, but with the

observation that the plaintiffs was to affix appropriate Court fee over

the file as per Rules.

2. Brief facts necessary for the adjudication of this petition

Whether reporters of the local papers may be allowed to see the judgment?

.

are that respondents No.1 and 2/ plaintiffs (hereinafter referred to

as the 'plaintiffs') have filed suit against the petitioner as well as

other proforma respondents herein, which is pending adjudication

before the learned Civil Judge at Manali. As per the plaintiffs, the

suit land measuring 7­16 bighas, situated in Phati Burva Kothi,

Tehsil Manali, District Kullu, H.P. was earlier owned and possessed

by Shri Manglu, father of plaintiff No.1 and grand­father of plaintiff

No.2. Manglu was an illiterate person who had two sons i.e. plaintiff

No.1 and Likhat Ram, father of plaintiff No.2. After the death of

Likhat Ram he was succeeded by his son i.e. plaintiff No.2. After the

death of Manglu, the plaintiffs were enjoying and using the suit land

as its absolute owners. Defendant No.1 was a mischievous and

influential person who used to visit Manglu. He allured Manglu that

he would help Manglu in raising loan from a Bank so that a hotel

could be constructed over part of the suit land. As Manglu was old

and was not in a position to visit the Bank, therefore, defendant

No.1 stated that he would get everything done at his house. One day

defendant No.1 brought some stamp papers and got the same

signed from Manglu. He took plaintiff No.1 with him to Tehsil

Complex, Kullu and got certain documents signed from him there.

The same were signed by plaintiff No.1 as he believed that the

.

documents were for raising loan for the construction of a Hotel.

Defendant No.1 again came to the house of the plaintiffs in August,

1991 and stated that certain more documents were required to

obtain the loan and on this plea he again got certain documents

signed from plaintiff No.1 in­connivance with the scribe and

witnesses of the said documents. Thereafter, defendant No.1

alongwith some Lumberdar went to the Tehsil Office and kept

plaintiff No.1 standing outside the Tehsil Office. After some time,

defendant No.1 asked plaintiff No.1 to come into the Tehsil Office

where the signatures of plaintiff No.1 were obtained by a Clerk and

the plaintiff was informed that the entire documentation was

complete and the loan would be released in a few months time.

According to the plaintiffs, Manglu never sold the suit land through

Sale Deed, dated 24.08.1991 on the basis of a General Power of

Attorney executed in his favour and the Sale Deed was illegal, null

and void and so was mutation attested on 07.09.1992. It is further

the case of the plaintiffs that in the 1 st week of November, 2018,

defendant No.4 i.e. the present petitioner, through its agents came to

the plaintiffs and proclaimed that they were the owners of the suit

land as the same stood sold to them by defendant No.1. On this, the

plaintiffs inquired from the Revenue Authorities and came to know

.

that the property stood sold by defendant No.1 to defendant No.4 in

the year 2011, which fraud came to their knowledge only in the 1 st

week of November, 2018. It is in this background that the suit has

been filed by the plaintiffs seeking the declaration that the Sale Deed

dated 24.08.1991 was null and void with further declaration that the

sale of the suit land by defendant No.1 to defendant No.4 vide

mutation No.3698, dated 08.11.2021 be also declared as illegal, null

and void.

3. By way of application filed under Order 7, Rule 11 of the

Code of Civil Procedure, the petitioner prayed for the dismissal of the

suit on the ground that the plaint was without any cause and was

time barred. It was averred in the application that the suit land

which was sold by Manglu through General Power of Attorney Uttam

Chand, i.e. plaintiff No.1, in favour of Bishan Dass, i.e. defendant

No.1, on 24.08.1991. Thereafter, applicant/ defendant No.1 applied

for requisite permission under the provisions of H.P. Tenancy and

Land Reforms Act to the Government of Himachal Pradesh and after

obtaining the permission purchased the suit land from defendant

No.1 vide Sale Deed dated 13.06.2002, which was duly executed and

registered with Sub­Registrar, Manali as document No.164 on

14.06.2002. As per the applicant, the filing of the suit was an act of

.

malafide to harass the defendants. Therefore, rejection of the plaint

was sought under Order 7, Rule 11 of the Code of Civil Procedure. It

was the case of the plaintiffs that the suit was not properly valued

for the purpose of affixation of the Court fee.

4. The application was resisted by the plaintiffs, as per

whom there was a cause duly disclosed in the plaint, the suit was

within limitation as from the date of their acquiring knowledge about

the fraud and appropriate Court fee stood appended with the plaint.

5. In terms of the impugned order, learned Trial Court held

that the issue of limitation raised by the applicant was a mixed

question of facts and law which could not be decided at said stage. It

observed that it was mentioned in the plaint that the cause of action

accrued in favour of the plaintiffs in November, 2018 when they

obtained relevant papers relating to the suit land and got to know

about the sale of the suit property by defendant No.1 to defendant

No.4. Learned Trial Court held that as it was the case of the

plaintiffs that cause of action accrued in their favour when they felt

aggrieved by the entries made in the revenue record which were

against them as they were not earlier aware of the same, therefore, it

could be safely stated that the cause of action would arise when the

plaintiffs felt aggrieved by the entries and came to know about them.

.

It also held that the plaintiffs should affix the appropriate Court fee

as per rules within one month as they were required to affix the

Court fee to the tune of Rs.9,664.60 Paise.

6. Learned Senior Counsel appearing for the petitioner has

argued that the order passed by the learned Trial Court rejecting the

application is bad. He argued that a perusal of the plaint would

demonstrate that a false case was filed by the plaintiffs against the

defendants. Same was time barred and bad for non­ affixation of

requisite Court fee, filed without any cause. Learned Senior Counsel

submitted that as the plaintiffs were laying challenge to two Sale

Deeds, therefore, appropriate Court fee ought to have been affixed

thereupon by the plaintiffs in terms of the value of the sale

transaction subject matter of the Sale Deed. Learned Senior Counsel

also argued that the findings returned by the learned Trial Court

that cause of action accrued in favour of the plaintiffs as on the date

when they came to know about adverse revenue entries against

them in the revenue record were not sustainable, for the reason that

by returning these findings, learned Trial Court in fact was

concurring with the submissions made by the plaintiffs. Learned

Senior Counsel also argued that as plaintiff No.1 happened to the

General Power of Attorney of Manglu and it was he who had

.

executed the Sale Deed in favour of defendant No.1 in the year 1991

on behalf of Manglu, therefore, the suit was prima facie hit by

limitation and the same could not be said to be a mixed question of

facts and law, for the reason that the subsequent Sale Deed entered

into between the petitioner and defendant No.1 cannot be set aside

without getting rid of the earlier Sale Deed executed in the year

1991, qua which the suit admittedly was out of limitation. Learned

Senior Counsel also submitted that even if it was to be believed that

the plaintiffs were not aware about the sale transaction that took

place between defendant No.1 and the petitioner, then also learned

Trial Court ought to have had applied judicial mind on the issue as

to whether the contention of the plaintiffs about the Sale Deed which

was executed in the year 1991 were worth credit. Accordingly, he

prayed that the petition be allowed and the order in issue be

quashed and set aside.

7. Learned counsel for the contesting respondents/

plaintiffs argued that learned Trial Court correctly dismissed the

application filed under Order 7, Rule 11 of the Code of Civil

Procedure, for the reason that when the cause of action had accrued

in favour of the plaintiffs only in the year 2018 when they came to

know about the sale of land by defendant No.1 to defendant No.4,

.

learned Trial Court right held that there was cause in favour of the

plaintiff to maintain the suit and further the issue of limitation was

a mixed question of facts and law. Learned counsel also argued that

appropriate Court fee stood affixed on the plaint as per law and

besides this as the application filed under Order 7, Rule 11 of the

Code of Civil Procedure did not meet the parameters laid down in

Order 7, Rule 11 of the Code of Civil Procedure, therefore also the

same was rightly dismissed by the learned Trial Court. Accordingly,

he prayed that the petition being without merit be dismissed.

8. I have heard learned counsel for the parties and I have

also gone through the impugned order as well as other documents

placed on record by the parties.

9. Order 7, Rule 11 of the Code of Civil Procedure provides

as under:­

" 11. Rejection of plaint.

The plaint shall be rejected in the following cases­

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and

.

the plaintiff, on being required by the Court to supply the

requisite stamp­paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law:

Provided that the time fixed by the Court for the

correction of the valuation or supplying of the requisite stamp­paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was

prevented by any cause of an exceptional nature form

correcting the valuation or supplying the requisite stamp­ paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause

grave injustice to the plaintiff."

10. It is settled law that while deciding the application filed

under Order 7, Rule 11 of the Code of Civil Procedure, a Court only

has to peruse the averments made in the plaint and material which

is not part of the plaint cannot be gone into.

11. Hon'ble Supreme Court in Dahiben vs. Arvindbhai

Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives and

Others, (2020) 7 Supreme Court Cases 366, has reiterated the law

laid down by it while deciding an application under Order 7, Rule 11

of the Code of Civil Procedure. The same reads as under:

.

" 23.1 We will first briefly touch upon the law

applicable for deciding an application under Order 7 Rule 11 CPC, which reads as under:

"11. Rejection of plaint.- The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed in undervalued, and the

plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued but the

plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp­paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9 Provided that the time fixed by the Court for the correction of the valuation or supplying of the

requisite stamp­paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevent by any cause of exceptional nature for correction the valuation or supplying the requisite stamp­paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."

(emphasis supplied)

23.2 The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the Court is

.

empowered to summarily dismiss a suit at the

threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be

terminated on any of the grounds contained in this provision.

23.3 The underlying object of Order 7 Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is

barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be

necessary to put an end to the sham litigation, so that

further judicial time is not wasted.

23.4 In Azhar Hussain v. Rajiv Gandhi 1 this Court held that the whole purpose of conferment of powers under this provision is to ensure that a litigation which

is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words : (SCC p. 324, para 12)

"12. ...The whole purpose of conferment of such power

is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of

the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action."

23.5 The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.

23.6 Under Order 7 Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of

.

action by scrutinizing the averments in the plaint2, read

in conjunction with the documents relied upon, or whether the suit is barred by any law.

23.7 Order 7 Rule 14(1) provides for production of

documents, on which the plaintiff places reliance in his suit, which reads as under :

"14: Production of document on which plaintiff sues or

relies.- (1)Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver

the document and a copy thereof, to be filed with the

plaint.

(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state

in whose possession or power it is.

(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be

entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not,

without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory." (emphasis supplied)

23.8 Having regard to Order 7 Rule 14 CPC, the documents filed alongwith the plaint, are required to be taken into consideration for deciding the application under Order 7 Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

.

23.9 In exercise of power under this provision, the

Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the

threshold is made out.

23.10 At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and

cannot be adverted to, or taken into consideration.

23.11 The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are

taken in entirety, in conjunction with the documents

relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & 1 Assn. Ltd. vs. M.V.Sea Success 1 4 which reads as : (SCC p. 562, para 139)

"139. Whether a plaint discloses a cause of action or not 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 as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree

would be passed."

23.12 In Hardesh Ores (P.) Ltd. vs. Hede & Co. 5 the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry

.

whether the allegations are true in fact. D.

Ramachandran v. R.V. Janakiraman.

23.13 If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without

any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.

23.14 The power under Order 7 Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as

held by this Court in the judgment of Saleem Bhai vs.

State of Maharashtra. The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain (supra).

23.15 The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint "shall" be rejected if any of the grounds specified in clause (a) to (e) are made

out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law,

the Court has no option, but to reject the plaint.

24. "Cause of action" means every fact which would be

necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

24.1. In Swamy Atmananda v. Sri Ramakrishna Tapovanam this Court held: (SCC p. 60, para 24)

"24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the

.

court. In other words, it is a bundle of facts, which

taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It

is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded" (emphasis supplied)

24.2 in T. Arivandandam v. T.V. Satpapal this Court

held that while considering an application under Order 7 Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words : ­

(SCC p. 470, para 5)

"5. ...The learned Munsiff must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his

power under O. 7, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action,

nip it in the bud at the first hearing ..." (emphasis supplied)

24.3 Subsequently, in ITC Ltd. v. Debts Recovery Appellate Tribunal this Court held that law cannot permit clever drafting which creates illusions of a cause

of action. What is required is that a clear right must be made out in the plaint.

24.4 If, however, by clever drafting of the plaint, it has created the illusion of a cause of action, this Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal held that it should be nipped in the bud, so that bogus litigation will end at the earliest stage.The Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.

.

25. The Limitation Act, 1963 prescribes a time­limit for

the institution of all suits, appeals, and applications. Section 2 (j) defines the expression "period of limitation"

to mean the period of limitation prescribed in the

Schedule for suits, appeals or applications. Section 3 lays down that every suit instituted after the prescribed period, shall be dismissed even though limitation may not have been set up as a defence. If a suit is not

covered by any specific article, then it would fall within the residuary article.

26. Articles 58 and 59 of the Schedule to the 1963 Act,

prescribe the period of limitation for filing a suit where

a declaration is sought, or cancellation of an instrument, or rescission of a contract, which reads as under :

Description of Period of Time from which limitation period suit limitation begins to run

58. To obtain Three years When the right to sue first

any other accrues.

declaration.

59. To cancel or Three years When the facts set aside an entitling the plaintiff

instrument to have the instrument or or decree or for decree the cancelled or set rescission of or the contract a rescinded first contract. become known to him.

The period of limitation prescribed under Articles 58 and 59 of the 1963 Act is three years, which commences from the date when the right to sue first accrues.

.

27. In Khatri Hotels (P) Ltd. v. Union of India, this Court

held that the use of the word 'first' between the words 'sue' and 'accrued', would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue

first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date

when the right to sue first accrued.

28. A three­Judge Bench of this Court in State of Punjab vs. Gurdev Singh, 13 held that the Court must

examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the

assumed facts, the plaint is within time. The words "right to sue" means the right to seek relief by means of legal proceedings. The right to sue accrues only

when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal

threat to infringe such right by the defendant against whom the suit is instituted.

Order 7 Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any

law, the plaint shall be rejected."

12. As can be culled from the law laid down by Hon'ble

Supreme Court, the underlying object of Order 7, Rule 11 of the

Code of Civil Procedure inter alia is that if in a suit no cause of

action is disclosed or the suit is barred by limitation, the Court

would not permit the plaintiff to unnecessarily protract the

proceedings in the suit. However, the caution put by Hon'ble

.

Supreme Court that the power conferred on a Court to terminate

the civil action is a drastic one and the condition enumerated in

Order 7, Rule 11 of the Code of Civil Procedure is required to be

strictly adhered to. Hon'ble High Court has held that under Order

7, Rule 11 of the Code of Civil Procedure, a duty is cast on the

Court to determine whether the plaint discloses a cause of action

by scrutinizing the averments in the plaint read in conjunction

with the documents relied upon or whether the suit is barred by

any law. The Court would determine if the assertions made in the

plaint are contrary to statutory law or judicial dicta for deciding

whether a case for rejecting the plaint at the threshold is made

out, but the pleas taken by the defendant in the written statement

and application for rejection of the plaint on merit would be

irrelevant and cannot be adhered to for taken into consideration. A

plaint has to be construed as it stands without addition or

subtraction of words and if the allegations in the plaint prima facie

show a cause of action, the Court cannot embark upon an inquiry

whether the allegations are true in fact.

13. Coming to the facts of this case, the allegation made

in the plaint is that that the Sale Deed was got executed by

defendant No.1 from late Shri Manglu in his favour through

.

General Power of Attorney (plaintiff No.1) by misleading Manglu

and plaintiff No.1, which Sale Deed was a sham and thus was

illegal, null and void and the subsequent Sale Deed of the suit

land by defendant No.1 to defendant No.4 was also thus illegal,

null and void.

14. In the considered view of this Court, these facts do

disclose a cause of action. Whether this cause is justiciable or not

is not an issue which the Court has to embark for adjudication at

the stage of deciding an application under Order 7, Rule 11 of the

Code of Civil Procedure. However, it cannot be said that the plaint

does not discloses any cause of action. Further the averment made

in the plaint is that the cause of action accrued in favour of the

plaintiffs when defendant No.4 in the first week of November, 2018

disclosed to them that the suit land stood purchased by them from

defendant No.1 and since when according to the plaintiffs,

defendant No.4 was went upon to dispossess the plaintiffs from

the suit land forcibly. These facts as alleged besides disclosing a

cause also for the purpose of Order 7, Rule 11 of the Code of Civil

Procedure prima facie lead the Court to hold that the suit cannot

be dismissed on the ground of being barred by limitation, because

as from the date the cause of action accrued as per plaintiffs,

.

whether or not it is barred by limitation obviously is a mixed

question of fact and law taking into consideration the date on

which the suit was filed.

15. In fact, Hon'ble Supreme Court of Andhra Pradesh in

Khaja Quthubullah vs. Government of Andhra Pradesh and others,

AIR 1995 andhra Pradesh 43, has held that the bar of limitation

has so many ingredients. If a party to a litigation sets up

contention that the suit is barred by limitation, the Court first of

all to examine (1) the cause of action in the suit, (2) when the

cause of action commences, (3) when the parties act in a

particular fashion as to fix the cause of action and (4) ultimately

what is the result flowing from such cause of action.

16. Hon'ble High Court of Rajasthan in Mohan Lal

Sukhadia University, Udaipur vs. Miss. Priya soloman, AIR 1999

Rajasthan 102, was pleased to hold that it is common knowledge

that parties may make such interpretation of law as they may be

advised and in matter relating to limitation, the plaintiff may

assert that the period of limitation should be counted from a

particular date. The defendant may or may not agree with such a

view. If a controversy arises, the trial Court has to decide this

controversy in accordance with law after hearing both the parties

.

and taking such evidence regarding the disputed question of fact,

as may be necessary. Such disputed questions cannot be decided

at the time of considering an application filed under Order 7 Rule

11, C.P.C. Clause (d) of Rule 11 of Order 7, C.P.C. applies to those

cases only where the statement made by the plaintiff in the plaint,

without any doubt or dispute shows that the suit is barred by any

law in the force.

17. Learned Trial Court while rejecting the application

filed by the petitioner held that a perusal of the plaint

demonstrated that the plaintiffs had taken cause of action from

November, 2018 when they obtained relevant papers and

therefore, their cause of action would arise when the facts in issue

came to their knowledge.

18. This Court is of the considered view that taking into

consideration the pleadings as are mentioned in the plaint,

interest of justice demands that the suit should be tried on merit

after framing the issues and further as dismissal of the application

filed under Order 7, Rule 11 of the Code of Civil Procedure does

not precludes the petitioners from raising all the pleas that stood

raised in this application on merit also, therefore, the issue of

cause of action, limitation as well as affixation of appropriate

.

Court fee in the peculiar facts of the case are best left to be

adjudicated on the basis of the pleadings of the parties as well as

evidence led by them in support thereto.

19. Accordingly, in view of the findings returned

hereinabove, this petition is dismissed without interfering with the

orders passed by the learned Trial Court, but with the observation

that the issues raised in the application can be raised by the

petitioner in the written statement and effect thereof in the course

of the adjudication of the suit shall be gone into by the learned Trial

Court without being influenced by the findings returned by the

learned Trial Court in the application filed under Order 7, Rule 11 of

the Code of Civil Procedure Code or by this Court in the course of

adjudication of this petition. Pending miscellaneous applications, if

any, stand disposed of.

(Ajay Mohan Goel)

Judge January 01, 2024 (Rishi)