IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE ELEVENTH (11TH) DAY OF OCTOBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRP Nos.1219 & 1340 of 2010 CRP No.1219 of 2010: Between: Faza Foundation trust, Visakhapatnam … Petitioner And: Shaheda H Mehdi & others … Respondents CRP No.1340 of 2010: Between: Zia S Mehdi … Petitioner And: Shaheda H Mehdi & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition Nos.1219 & 1340 of 2010 COMMON ORDER: i) CRP No.1219 of 2010 is directed against the common order dated 19.01.2010 in IA No.1321 of 2009 in OS No.199 of 2007 on the file of the VII Additional District Judge (FTC), Visakhapatnam, wherein the said application filed by the petitioner herein-first defendant under Order 7 Rule 11(b) & (a) of CPC, was dismissed. ii) CRP No.1340 of 2010 is directed against the common order in IA No.598 of 2007 in the same suit, wherein the said application filed by the petitioner-2nd defendant for the same relief of rejection of plaint, was dismissed. 2. Heard both sides. As the two revision petitions arise out of the common order, between the same parties, they are heard together and are being disposed of by this common order. Perused the record. 3. The respondents 1 to 3 herein filed suit against the petitioners and 5th respondent, for declaration that the settlement deed dated 10.10.2003 executed by the first defendant in favour of the 2nd defendant purporting to settle the suit schedule property on 2nd defendant is void and illegal. According to the plaintiffs, first defendant was the owner of the plaint schedule property of 746.826 sq. mts. situated in Dwaraka Nagar, Visakhapatnam having acquired the same under registered sale deed dated 23.11.1992 from one C.Mohana Rao and that the first defendant gifted the property in favour of plaintiffs in the proportion of 60:20:20: ratio. The gift was confirmed on 14.03.2002 expressing the intention to give the property and all three donees accepted the same and possession was also delivered to the plaintiffs in the presence of Sri C.R.Hemanth Kumar, Chartered Accountant. It is further pleaded that on 06.05.2002, the said Hemanthkumar, confirmed the same by execution of notarized affidavit in the presence of Sri S.Muralikrishna, Advocate and Notary. On 07.06.2002, first defendant confirmed the gift by addressing a letter to the plaintiffs and also acknowledging their possession. She also addressed a letter dated 14.06.2002 to the Municipal Corporation for change of mutation in favour of the plaintiffs and on the same day, plaintiffs addressed a similar letter to the Commissioner enclosing the confirmatory letters. Thus, on more than one occasion, first defendant confirmed the gift of the suit property in favour of the plaintiffs and also delivery of possession to the plaintiffs. The plaintiffs’ husbands are the owners of Mohsin Company, including Mohsin Engineering Company. The first plaintiff is the daughter and plaintiffs 2 and 3 are elder daughters- in-law of Mohsin group. The first defendant expressed his intention to effect settlement of other properties belonging to the family and in that process, in December 2006, sent a memo to be filed in Lok Adalath for effecting settlement and on seeing the memo, first plaintiff was shocked to notice that the first defendant mentioned therein that the suit property was gifted to 2nd defendant. The first plaintiff immediately questioned the first defendant about the same but latter gave evasive reply. The plaintiffs got issued registered notice on 27.03.2007 calling upon the first defendant to revoke the settlement deed dated 10.10.2003 executed in favour of the 2nd defendant. The first defendant received notice, but did not issue any reply. The plaintiffs got issued reminder on 05.06.2007. The first defendant got issued a reply with false allegations. The first defendant’s relations wielded influence over the first defendant and prevailed upon her to execute the settlement deed in favour of the 2nd defendant and also a Trust Deed, creating 2nd defendant-trust. Hence, the suit. 4. The defendants 1 and 2 filed written statement, contesting the suit. They also filed IA No.598 of 2007 and IA No.1321 of 2009 under Order 7 Rule 11 CPC seeking rejection of the plaint on the ground that the suit is barred by limitation. According to the defendants 1 and 2, the settlement deed was executed on 10.10.2003 and the limitation prescribed under Article 58 of the Limitation Act is only three years and therefore, the suit is barred by limitation. 5. The respondents/plaintiffs filed counter contending that the present applications are filed only to drag on the proceedings in spite of direction by this court to dispose of the suit within six months and the question of limitation is a mixed question of fact and law and the same has to be considered only after evidence is adduced during the course of trial, but not at this stage. The respondents/plaintiffs further pleaded that the plaint thus in fact disclosed a cause of action for filing the suit. 6. By impugned common order, the learned Additional District Judge dismissed the applications. Assailing the same, defendants 1 and 2 filed the present revision petitions. 7. The plaintiffs filed suit for the relief of declaration that the settlement deed dated 10.10.2003 executed by the first defendant in favour of 2nd defendant in respect of the plaint schedule property is void, illegal and inoperative. According to the plaintiffs, the schedule property was gifted in their favour by first defendant and the said gift was accepted by the plaintiffs and was acted upon and possession was also delivered to the plaintiffs in pursuance of the said gift and first defendant also acknowledged the same in writing. The plaintiffs alleges that subsequently, they came to know that the first defendant has created the trust in the name of 2nd defendant on 10.10.2003 and executed settlement deed in favour of the 2nd defendant in respect of the suit property. The plaintiffs further allege that the first defendant’s relations on the mother side exercised undue influence over the first defendant and made her to execute the said document. The plaintiffs therefore filed suit for the above relief. The defendants denies gifting of the suit property by first defendant in favour of the plaintiffs and seek to justify the documents executed by first defendant in favour of the 2nd defendant. 8. A perusal of the plaint would disclose that necessary averments have in fact been made by the plaintiffs in the plaint pertaining to the cause of action for filing the suit. The truth or otherwise of the said averments is a matter to be adjudicated upon during the course of trial. The question as to whether or not the plaintiffs had any cause of action at all for filing the suit does not also arise for consideration at this stage in the present revision petitions under Order 7 Rule 11 CPC, one of the grounds on which the plaint can be rejected is, when the plaint does not disclose cause of action. When the averments in the plaint read as a whole in a meaningful manner, discloses cause of action for filing the suit, the plaint is not liable for rejection irrespective of the question as to whether or not the cause of action alleged is true. The plaint is therefore not liable to be rejected on the ground that the plaint does not disclose cause of action, inasmuch as the said ground does not in fact exist in the present case. 9. The other ground on which the petitioners-D.1 and D.2 are seeking rejection of the plaint is that the suit is barred by limitation. According to the petitioners, the registered settlement deed by first defendant in favour of the 2nd defendant having been executed on 10.10.2003, the suit filed in 2007 is clearly barred under Article 58 of the Limitation Act, which prescribes period of limitation as three yeas. The respondents/plaintiffs on the other hand would contend that the suit is filed for declaratory relief and the plaintiffs came to know of the settlement deed only in the year December 2006 from the memo filed by the first defendant before the Lok Adalath and from the date of knowledge, the suit is within time. 10. In ‘Ramesh B.Desai v. Bipin Vadilal Mehta[1]’, the apex Court held that ‘a plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact.’ 11. The above decision refers to the decision in ‘Popat & Kotecha Property v. State of Bank of India Staff Association[2]’ wherein it was held that ‘Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of rule 11 of Order 7 applies in 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 force.’ 12. According to the plaintiffs, their right to issue has accrued only when they came to know of the execution of the disputed deed by first defendant in favour of 2nd defendant and that was in February 2007. The said claim of the plaintiffs has to be necessarily tested only on evidence. The question as to when the right to issue has accrued to the plaintiffs can be answered only on the basis of the evidence that may be adduced at the time of trial and not at this stage. Consequently, the question as to whether or not the suit is barred by limitation becomes a mixed question of fact and law. In view of the principles laid down in the above decisions by the apex Court, such mixed questions of fact and law do not arise for consideration in the present proceedings filed under Order 7 Rule 11 CPC. If the suit is ultimately found to be barred by limitation, it may be a valid ground for dismissal of the suit. But such a finding can be recorded only on proper appreciation of the evidence that may be adduced pertaining to the said mixed questions of fact and law, but not at this stage. 13. In the circumstances, it is held that there are no valid or justifiable grounds for rejection of the plaint in terms of Order 7 Rule 11 CPC. The impugned orders, dismissing both the applications filed by the petitioners–Defendants 1 and 2, do not therefore call for any interference. Admittedly, this court directed that the suit be expeditiously disposed of within six months in CRP No.5581 of 2008. However, the said direction has not been complied with. The trial Court is therefore directed to dispose of the suit within a period of six months from the date of receipt of the copy of this order and both the parties are directed to extend their cooperation in that regard. 14. In the result, both the civil revision petitions are dismissed. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 11.10.2011 bss [1] AIR 2006 SC 3672 [2] (2005) 7 SCC 510