1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 334 OF 2008 Shri Mohan Masu Bhosale ..... Petitioner Versus Shri. Balraj Krishna Dhajal and Ors. ......Respondents Shri. T.D. Deshmukh, adv.for petitioner. Shri.N.V. Walawalkar i/by. Mr.Surel Shah, adv.for respondents. Coram : Smt.R.P.SondurBaldota, J. Dated : 29 th July, 2008. P.C. : 1. The petitioner who is original defendant no.1 takes exception to the order dated 23rd January, 2008 passed by the trial court dismissing the application under Order 7 Rule 11 of CPC seeking rejection of the plaint on the ground that the same is barred by the law of limitation. Respondents no.1 to 3 are the original plaintiffs. Respondents no.4 to 7 who are the other defendants to the suit, are not contesting the petition. Respondents no.1 to 3 filed Special Civil Suit No. 45 of 2005 inter-alia for a declaration that the registered sale deed dated 22nd April, 1999 is null and void. They 2 alleged in the plaint, that the petitioner who is working as a Circle Inspector in the Revenue Department took advantage of the acquaintance of respondent no.3 and of addiction of respondent no.3 to alchol to obtain his signature on blank papers. These blanked signed papers, were,allegedly use to prepare, initially a power of attorney and later a sale deed to sell the suit property, which is jointly owned by respondents no.1 to 3. According to these respondents, the suit property is their ancestral property. The other relief sought in the plaint is to seek deletion of revenue entry made pursuant to order dated 30th August, 2003 effected by revenue authorities. 2. The petitioner contends that the instant suit filed in the year 2005 to challenge the registered sale deed dated 22nd April, 1999 is ex-facie barred by the law of limitation and hence the plaint is liable to be rejected under Order 7 Rule 11(d) of CPC. Mr.Deshmukh, learned counsel for the petitioner submits that respondents no.1 to 3 have attempted, in the plaint, to take help of certification of mutation entry in the revenue records made on 30th August, 2003 to save the suit from the bar of limitation. This cannot be supported by law as certification of mutation entries by revenue authorities, do not furnish any fresh cause of action to file a suit. In this connection, he relies upon a decision of the apex court in the case of N.V. 3 Srinivasa Murthy and Ors. Versus Mariyamma (dead) by proposed L.R.s and Ors. Reported in (2005) 5 SCC page 548. Mr.Walawalkar, learned counsel for respondents no.1 to 3 does not dispute the above legal proposition and rightly so. He however submits that the second relief sought in the plaint is only by way of consequential relief and not as a camouflage to get over the law of limitation. He asserts that it is not the case of respondents no.1 to 3 in the plaint that they learnt about the instrument under challenge for the first time because of certification of mutation entry dated 30th August, 2003 or that the period of limitation would start running from that date. In view of these statements made, it can be seen that there is no need to deal with the second submission advanced by Mr.Deshmukh. 3. Reverting to the first submission as regards the rejection of the plaint under Order 7 Rule 11(d) of CPC, Mr.Deshmukh relies upon the decision of the apex court in the case of Hardesh Ores (P) Ltd Versus. Hede and Company reported in (2007) 5 SCC page 614, whereas, Mr.Walawalkar relies upon another decision of the apex court in the case of Balasaria Construction (P) Ltd Versus. Hanuman Seva Trust and Ors reported in (2006) 5 SCC page 658. I have carefully gone into both the decisions. There is no conflict as such in the two decisions cited. Mr.Deshmukh has cited the 4 decision of the apex court to establish that the plaint can be rejected on the ground of limitation, only where the suit appears from the statement in the plaint to be barred by any law and the expression “law” within the meaning of Clause (d) of Order 7 Rule 11 does include the law of limitation as well. Mr.Walawalkar, on the other hand seeks from the decision cited by him, support for his submission, that while applying clause (d) of Rule 11 Order 7 C.P.C. the averments made in the plaint are required to be seen as a whole. The question of limitation being a mixed question of law and fact, unless on the reading of the plaint, it can be ex-facie held that the suit is barred by time, it is necessary to differ the question to the stage of framing of issue of limitation and taking of evidence. Both the propositions being valid propositions, the facts of the instant case are required to be seen in the light of the same. For that purpose, the plaint alone is to be read on the whole without any addition or subtraction to it. The learned Trial Judge has very appropriately discussed this aspect at paras 7, 8 and 9 of the impugned order. Summarizing the allegations in the plaint, it is seen that respondents no.1 to 3 allege that the impugned instrument was got executed by the appellant by playing fraud upon respondent no.3, inasmuch as, his signatures were obtained on blank papers, which papers were subsequently used for the purpose of preparing the sale deed. These respondents have 5 also given history of litigation between the parties from the grass root revenue court upto the office of commissioner, which proceedings had resulted in favour of respondents no.1 to 3. The appellant then commenced another round of the proceedings before the revenue authorities, when the order concerning the mutation entry certified on 30th August, 2003 came to be passed. It is the case of the respondents no.1 to 3 that at the time of presentation of the impugned sale deed for registration, the description of the property was not included therein, as could be seen from the certified copy of the sale deed obtained on 16th December, 2000. When these respondents obtained a subsequent copy of the sale deed dated 17th November, 2001, they found marathi script recitals concerning material portion of the suit property inserted therein. It is also the case of these respondents, that the description of the suit property as described in the sale deed was not anywhere in existence on the revenue record at the time of registration of the sale deed. The same has been brought on the revenue record by filing proceedings before the revenue authorities by the appellant. With these allegations in the plaint, the learned trial judge has observed “while challenging the sale deed in dispute, it is to be decided whether the limitation shall start from the date of execution or from the date of knowledge of fraud or from the date of certification of disputed entry 6 against the interest of respondents no.1 to 3”. The three successive incidents having taken place disturbing the title of the plaintiffs, according to the learned Trial judge, triable issues are involved in the suit on the point of limitation. It appears that a submission was advanced on behalf of the applicant before the trial court, that a statement made by respondent no.3 before the revenue authorities on 16th June, 2001 nonsuits him as regards the question of limitation. The learned Trial Judge has rightly held that admissibility of the previous statement is a question of full fledged trial and can be considered only after recording of evidence. 4. From the above it is clear that it cannot be said ex-facie from the plaint that the suit is barred by the law of limitation. Considering several questions of facts raised as regards the execution of the document, the contents of the document, the proceedings filed by the parties before the revenue authorities and the contention as regards the knowledge of respondents no.1 to 3 of the impugned instrument, it is patent that the question of limitation in the instant case is a mixed question of law and fact, for which evidence is required to be recorded. Further as rightly held by the learned Trial Judge, it is not the case which should be thrown away at the threshold. Rejection under Order 7 Rule 11 of CPC being an 7 exceptional remedy, the power of rejection of the plaint is to be exercised with utmost caution. 5. Therefore, it must be held that the learned Trial Judge was right in rejecting the application under Order 7 Rule 11 of C.P.C. There is no need whatsoever to interfere with the impugned order. Civil Revision Application is therefore dismissed. Parties to bear their own costs. [Smt.R.P.SondurBaldota,J ]