M.M.DAS, J. CRP NO.28 OF 2010 (Decided on 04.02.2011) MUNICIPAL COMMISSIONER,C.M.C. CTC. …. …..Petitioner. .Vrs. HAREKRUSHNA NAYAK & ANR. ……… Opp.Parties. CIVIL PROCEDURE CODE, 1908 (ACT NO.5 OF 1908) – ORDER 7, RULE 11 (d) r/w Sec. 14 & 18 of the Limitation Act, 1963. For Petitioner - M/s. Niranjan Panda, S.K.Acharya, M.K.Panda & Miss. S. Mazumdar. For Opp.Parties - M/s. Ramakanta Mohanty, D.Mohanty, S.Mohanty, D.Varadwaj, P.Jena & S.K.Mohanty (for O.P.2). M.M. DAS, J. This civil revision has been filed by the defendant no. 1 in C.S. (III) No. 3 of 2004 against an order rejecting an application under Order 7 Rule 11 C.P.C. where a prayer was made by the said defendant to reject the plaint on the ground that the suit was barred by law of limitation. Clause (d) of Order 7 Rule 11 C.P.C. provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. In the present case, the suit has been filed for recovery of the dues of the plaintiff from the defendant-Cuttack Municipal Corporation, which, according to the plaintiff, has not been paid to him, and was on account of the certain departmental works executed by him. Initially, the plaintiff filed OJC No. 804 of 2001 before this Court on 25.1.2001. By order dated 5.12.2002, the writ petition was disposed of observing that the petitioner should file a civil suit for recovery of the amount and further observing that the period for which the writ petition has been kept pending should be taken into account while calculating the period of limitation. Thereafter, the plaintiff filed the suit claiming recovery of an amount of Rs. 5,13,520/- with compound interest at the rate of 15% per annum for the delay period till the date of final payment along with other ancillary reliefs. The plaintiff averred in the plaint with regard to the works executed by him that the last work was executed on 28.10.1997. The plaintiff in paragraphs- 4 and 5 of the plaint has stated that in spite of several requests for making payment, the Cuttack Municipal Corporation was silent over the matter for which he also moved the Urban Development Department, Government of Orissa by various letters in the year, 2000 before approaching this Court in the writ petition. He gave a notice on 28.3.2003 and 29.10.2003 to the Cuttack Municipal Corporation. He has also referred to a letter dated 18.8.2000 of the Municipal Engineer in paragraph-7 of the plaint. It is averred that part payment was made to him. The plaintiff has also referred to certain letters showing that some amount due to him was wrongly paid to Shri A.C. Pradhan who was directed to refund the said amount to the plaintiff. The plaintiff has also mentioned the documents in the plaint on which he relied upon. 2. Mr. Panda, learned counsel for the petitioner relying upon the judgment in the case of Kamala and others –v- K.T. Eshwara Sa and others, AIR 2003 SC 3174 submits that while deciding the application under Order 7 Rule 11 C.P.C., the Supreme Court has laid down that the court shall only look into the plaint and should not enter into the questions of evidence. He also relies upon the decision in the case of Hardesh Ores (P) Ltd. –v- Hede and Company, 2007 (II) OLR (SC) 613 in support of his contention that whether the plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. The Supreme Court in the said case has further laid down that the averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or substraction of words or change of its apparent grammatical sense. 3. Mr. Mohanty, learned counsel appearing for the opp. party, however, submits that in the present case, Clause (d) of Order 7 Rule 11 C.P.C. is not attracted at all, as a plain reading of the plaint would go to show that there is a cause of action for the plaintiff to file the suit and in view of the various correspondences referred to in the plaint, acceptability of which can be gone into during hearing of the suit, the suit cannot be held to be barred by law of limitation. The court below in the impugned order considering all these aspects and relying upon Sections 18 and 14 of the Limitation Act came to the conclusion that the application under Order 7 Rule 11 C.P.C. cannot be allowed and the same has been accordingly rejected. 4. Mr. Panda, learned counsel appearing for the petitioner vehemently urged that Section 18 of the Limitation Act will not apply to the facts of the present case as the letter which is stated to be an acknowledgement of debt as provided under Section 18 of the Limitation Act is in fact not an acknowledgement of any liability. However, this question should be gone into while hearing the suit on merit and the same cannot be adjudicated at the threshold. 5. Rejection of a plaint as contemplated under Clause (d) of Rule 11 under Order 7 C.P.C. is where the suit appears from the statement in the plaint to be barred by any law. This inevitably would mean, as has been fairly settled in law, that to consider an application for rejection of the plaint under the above provisions of the Code, the court can come to a finding on a bare reading of the plaint only that the suit is barred by any law. The corollary, therefore, would mean that parties are not at issue in such a case and indeed the question merely is of law and no investigation into any fact is necessary. If the “law” by which exclusion of Civil Court’s jurisdiction is contemplated and rejection of the plaint is sought for, but the plaint on its face discloses the requirement of investigation into any fact, then there would be no scope for passing an order under Clause (d) of Rule 11 under Order 7 C.P.C. No leap-frog procedure can be adopted by the trial court to efface or obliterate the right contemplated under Order 14 C.P.C. under which parties can raise issues. More specifically Rule 2 of Order 14 in terms contemplates that where issues both law and fact arise in the same suit and unless the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, shall pronounce the judgment on all issues. This impliedly mandates that an issue which is not a pure question of law, but requires appreciation of facts cannot be decided as a preliminary issue. 6. Normally, a plaint cannot be rejected under Order 7 Rule 11(d) C.P.C. by taking evidence or reading the written statement, but by finding out what is contained in the 2 plaint itself. For the purpose of seeing whether the plaint is within time or not the court has to assume all the averments made in the plaint as correct. If the plaint itself shows that the claim is barred by time, then only it can be rejected. However, if the question of limitation is connected with the merits of the claim in the suit, then it has to be tried along with other issues. At this juncture, it would be apt to refer to Order 7 Rule 6 C.P.C., which is as follows: “O. VII R. 6 Grounds of exemption from limitation of law—Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.” 7. Reading of the above provision would show that the court has discretion to grant liberty to the plaintiff to amend the plaint for claiming exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. The intention of the above provision is, therefore, clear that the plaint should not be thrown out at the threshold under Clause (d) of Order 7 Rule 11 C.P.C. on the ground that it is barred by time, if amendments can be brought into the plaint to exempt the plaintiff from the law of limitation but such amendment should be of such nature, which is not inconsistent with the averments already made in the plaint. 8. Applying the above principle to the facts of the present case, where the plaintiff has pleaded extension of limitation under Section 18 of the Limitation Act and exclusion of certain period under Section 14 of the said Act, the question of rejecting the plaint under Order 7 Rule 11 (d) C.P.C. did not arise. The learned trial court, therefore, though on different grounds has arrived at the right conclusion in passing the impugned order and rejecting the prayer of defendant no. 1 made under Order 7 Rule 11 (d) C.P.C. to reject the plaint. This, however, will not preclude the defendant no. 1 to raise the issue as to whether the suit is barred by law of limitation and such issue, if raised, shall be tried by the learned trial court along with all other issues, which may be raised in the case, without being influenced by any observations made herein above. 9. With the aforesaid observations, this civil revision is, accordingly, dismissed but in the circumstances, without cost. Revision dismissed. 3