1 CRA 204/2010 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO.204 OF 2010 M/s. Bhama Consturctions & Ors. ...Applicants. v. Subhash D. Ombale & Ors. ...Respondents. Mr. S.S.Kanetkar, adv. For the Applicants. Mr. S.V.Sadavarte, adv. For the Respondent Nos.1 to 6. CORAM : J.H. BHATIA, J. DATED : AUGUST 25, 2010 P.C. 1 Heard the learned counsel for the parties. The original defendants/applicants have filed this revision application against the rejection of their application whereby they had prayed for rejection of the plaint as barred by the limitation. 2 To state in brief, the plaintiff nos.1 and 6 are the son and daughter of the deceased Dagdoba Ombale; plaintiff nos.3 and 4 are sons , plaintiff no.5 is daughter of Pandharinath. They are grand children of Dagdoba while plaintiff no.2 is widow of Pandharinath. According to the plaintiffs, suit property was purchased in the name of Pandharinath from the joint family funds on 7.2.1940. As Pandharinath was minor, name of his father Dagdoba was recorded in the City Survey record. Said 2 CRA 204/2010 Dagdoba had also mortgaged the property. Dagdoba died in 1984. His son Pandharinath and two other sons have died during the lifetime of Dagdoba. Plaintiffs claimed that the suit property being joint family property, they had shares in the same. In February, 2006, public notice was issued for mutation of the suit property in favour of the defendant nos.2 to 5. Then it was revealed that Pandharinath had executed release deed of the suit property in 1972 and that Dagdoba had executed a sale deed of the suit property in favour of the defendant nos. 2 to 5 on 20.12.1979. Plaintiffs filed the suit for declaration that release deed of 1972 as well as sale deed of 1979 were illegal and void ab-initio. They also sought perpetual injunction against any transaction between the defendant no.1 on one hand and the defendant nos.2 to 8 on the other in respect of the suit property. They also sought perpetual injunction restraining them from creating any third party interest in the suit property. 3 Defendants filed an application for rejection of the plaint under Order 7 Rule 11(d) of the C.P.C., on the ground that suit is barred by the limitation as the release deed is of 1972 and sale deed is of 1979, while the suit was filed on 10.2.2009. The trial Court rejected the application on the ground that even though the plaintiff nos.1 and 6 were 3 CRA 204/2010 parties to the release deed, plaintiff nos.2 to 5 were not parties either to the release deed or sale deed and, therefore, though in respect of the claim of the plaintiff nos.1 and 6, suit may be barred by the limitation, in respect of plaintiff nos.2 to 5 on the basis of plaint, it cannot be said that suit is barred by the limitation. Whether they had really knowledge of the said transaction earlier than February, 2006 and whether the suit in respect of plaintiff nos.2 to 5 is barred by the limitation or not will have to be decided at the time of trial after taking evidence of both the parties. That order is challenged in the present revision by the original defendants. 4 It is now well settled that the plaint shall be rejected if the suit is barred by any law as provided in Order 7 Rule 11. For the purpose of rejection of the plaint, Court has to look into the pleadings in the plaint and such other documents, which may be filed by the plaintiffs alongwith the plaint in support of his claim. The Court cannot look into defence at that stage. In the present case, according to the plaintiffs, suit property was purchased from the joint family funds in the name of Pandharinath and it was joint family property. According to them, Pandharinath or the plaintiff nos.1 and 6 had no reason to execute any release deed in favour of their father Dagdoba nor said Dagdoba had any 4 CRA 204/2010 right to dispose off that property by executing the sale deed because property was joint family property and other members of the joint family had certain shares in the same. From the pleadings and the documents filed in the plaint, it is clear that plaintiff nos.2 to 5 were not parties either to the release deed or sale deed. According to them, they came to know about alleged sale deed for the first time when a public notice was issued in respect of mutation of the property in February, 2006 and the suit was filed within three years from that date. Thus, as far as plaintiff nos.2 to 5 are concerned, prima-facie the suit appears to be within limitation. Whether they had knowledge of the said transaction prior to February, 2006 or not will have to be decided only when the evidence is led by both the parties and that can be done during the trial. Therefore, an issue can be framed as to whether suit is barred by limitation and if it is decided against the plaintiffs, suit can be dismissed on that ground but from the pleadings in the plaint it can not be said that the suit was barred by the limitation, atleast in respect of plaintiff nos.2 to 5. 5 Application was not for dismissal of the suit in respect of plaintiff nos.1 and 6. Application was only for rejection of the plaint. As atleast in respect of plaintiff nos.2 to 5, plaint cannot be rejected under Order 7 Rule 11(d), it cannot rejected even in respect of plaintiff nos.1 5 CRA 204/2010 and 6. Therefore, I find no illegality or irregularity in rejection of the application filed by the defendants for rejection of the plaint. . 6 For the aforesaid reasons, revision application stands dismissed. (J.H. BHATIA,J.)