SHANKAR Vs. NAGENDRA

JUDGEMENT

(1.) 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 Art. 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 Civil Procedure Code 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.