Gujarat High Court–style Civil Revision Application order

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/Civil Revision Application No. ___ of 20__

[Applicant – Original Plaintiff]
Versus
[Respondent – Original Defendant]

CORAM: HON’BLE MR./MS. JUSTICE ________
Date: //20__

Rule. Learned advocate for the respondent waives service of Rule. With consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.
The present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated __ passed below Exh.__ in Regular Civil Suit No.__ of 20__, whereby the learned Trial Court rejected the plaint under Order VII Rule 11(d) CPC on the ground of limitation.

The applicant–original plaintiff instituted the suit seeking declaration and permanent injunction in respect of the suit property. The defendant preferred an application under Order VII Rule 11(d) contending that the suit is barred by limitation.
The learned Trial Court allowed the application holding that the cause of action arose in the year __ and the suit filed in the year __ is beyond limitation.

Learned advocate for the applicant submitted that:
- The plaint specifically pleads knowledge of fraud in the year __.
- The question of limitation is a mixed question of law and fact.
- The Trial Court has improperly relied upon defence contentions.
Learned advocate for the respondent supported the impugned order.

It is well settled that while deciding an application under Order VII Rule 11(d), the Court must confine itself strictly to the averments made in the plaint and assume them to be correct.
The Hon’ble Supreme Court in
Saleem Bhai v. State of Maharashtra
has held that the written statement and defence cannot be considered at this stage.
Further, in
Dahiben v. Arvindbhai Kalyanji Bhanusali,
it is reiterated that the bar must be apparent from the plaint itself.
On meaningful reading of the plaint in the present case, it appears that the plaintiff has pleaded that the alleged fraudulent transaction came to his knowledge only on //__. Whether such plea is correct or not requires adjudication upon evidence.
The issue of limitation in the present case cannot be said to be apparent ex facie from the plaint. It involves determination of disputed questions of fact.
The learned Trial Court has travelled beyond the plaint averments and has considered aspects which would fall within the domain of trial. Such an approach is contrary to the settled principles governing Order VII Rule 11(d).

The impugned order suffers from material irregularity and jurisdictional error in exercise of powers under Order VII Rule 11(d) CPC.

The Civil Revision Application is allowed.
The impugned order dated __ passed below Exh.__ in Regular Civil Suit No.__ of 20__ is hereby quashed and set aside.
The suit is restored to file and shall proceed in accordance with law.
Rule is made absolute to the aforesaid extent.

No order as to costs.