RAM KUMAR Vs. CHELU RAM

JUDGEMENT

(1.) RAM Kumar Defendant -Appellant mortgaged with possession a two and a half storeyed pucca Haveli with the Plaintiff -Respondent on 20th August, 1953 for a consideration of Rs. 1,000/ -. The Plaintiff filed a suit on 25th January, 1985 wherein reference to the mortgage deed dated 20th August, 1953 was made and it is not disputed at the Bar that a copy of the same was also appended with the plaint. It was, however, averred therein that the Defendant -mortgagor had not redeemed the property within 30 years and as a result the Plaintiff had become its owner by efflux of time. A decree for declaration to this effect was prayed for in the suit. The Defendant opposed the suit by filing a written statement wherein, inter -alia, it was alleged that a day earlier to the institution of the suit by the Plaintiff, he had filed a suit for redemption of the mortgage which was pending in the court of Shri P.L. Khandooja, Sub -Judge, 1st Class, Panipat. It was also contended that he had the right to redeem the property within 5 years from the date of the mortgage by payment of the mortgage money, i.e., up to 20th August, 1958. Therefore, the prescribed period of 30 years of limitation for filing a suit for redemption by him was to start on 20th August, 1958, which had not expired. The suit was, therefore, pre -mature and it did not disclose any cause of action.

(2.) ON the pleadings of the parties, the learned trial Court framed the following preliminary issue:

(3.) THE learned Additional District Judge placing reliance on some authorities held that under Order VII, Rule 11, Code of Civil Procedure (hereinafter called 'the Code') the plaint could not be rejected if the same disclosed a cause of action. To find out as to whether a plaint discloses a cause of action or not, the Court has to look only into the averments made in the plaint assuming them to be correct for the time being. It cannot depend on the averment made in the written statement or any other evidence produced, before it reached at a conclusion that the averments made in the plaint is not correct and thus conclude that the plaint does not disclose a cause of action and reject the same under the aforesaid provisions of the Code. In my view, this position of law is unassailable.