TMI Blog2005 (11) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Civil Procedure Code. The interim stay granted by this Court staying the further proceedings of the trial court is vacated. The parties are relegated to cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was also alleged that a fraud had been committed. An application was filed under Order 39 Rules 1 and 2 of the Civil Procedure Code seeking injunction restraining Defendants 13 to 18 from changing the nature and character of Schedule 'D' property by alienating or transferring the same in any manner whatsoever and also from undertaking any construction thereon. Defendant 18 in the suit, the appellant herein, instead of filing the written statement filed an application under Order 7 Rule 11 read with Section 151 of the Civil Procedure Code seeking rejection of the plaint which was termed as dismissal of the suit. The trial court dismissed the application, aggrieved against which the appellant filed CO No. 1512 of 2002 which has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Govt. of A.P., AIR 1995 Andhra Pradesh 43, Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana, (1980)1 An LT 488 : (1980)1 APLJ (HC) 173, Arjan Singh v. Union of India, AIR 1987 Delhi 165, wherein it has been held that the plaint under Order 7 Rule 11(d) cannot be rejected on the ground that it is barred by limitation. According to these judgments the suit has to be barred by a provision of law to come within the meaning of Order 7 Rule 11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd., AIR 1985 Calcutta 193, National Insurance Co. Ltd. v. Navrom Constantza, AIR 1988 Calcutta 155, J. Patel Co. v. National Federation of Industrial Coop. Ltd., AIR 1996 Calcutta 253 and State Bank of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law for consideration to a larger Bench : Whether the words 'barred by law' under Order 7 Rule 11 (d) would also include the ground that it is barred by the law of limitation. 5. Before the three-Judge Bench, counsel for both the parties stated as follows : ...It is not the case of either side that as an absolute proposition an application under Order 7 and Rule 11(d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 Rule 11(d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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