IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL REVISION NO.368 OF 2008 DATE OF DECISION: JANUARY 22, 2008 Mohan Lal Jhanji .....Petitioner VERSUS Parkash Chand and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sumeet Mahajan, Sr.Advocate with Mr. Sham Lal Bhalla,Advocate, for the petitioner. **** RANJIT SINGH, J. Prayer of the petitioner for rejection of plaint under Order 7 Rule 11 CPC has been declined. He has accordingly filed the present revision. The dispute is between the family and relates to a declaration sought for declaring a land to be joint Hindu family coparcenary property. Respondent No.1 has filed a suit, seeking declaration that the suit land is a result of the income from the land measuring 58 kanals 4 marlas described in head note (b) and land measuring 39 kanals 6 marlas described in head note © and to declare the suit property to be a joint Hindu family coparcenary property. It is claimed that respondent No.1-plaintiff is a coparcener with defendants for a property measuring 551 Kanals 13 Marlas situated in Village Virk and Swaddi, Tehsil Jagraon and petitioner-defendant No.1 is a Karta of the family and has earned the property from the funds of the land as afore-mentioned in the names CIVIL REVISION NO.368 OF 2008 :{ 2 }: of defendant No.1 and other defendants. On a notice being issued, petitioner appeared and filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that suit is barred by limitation and also on the ground of wrong valuation of the suit for fixing the court fee. It is pleaded that the petitioner never gave any income to respondent No.1 and other defendants since 1975 despite repeated demands. This has been taken as reasons to say that the suit is barred under Article 110 of the Limitation Act, 1963. Submission is that respondent No.1-plaintiff himself has alleged that the petitioner and defendant and two other co-defendants had never given any income since 1975. Suit in this regard could be filed within a period of 12 years from 1975, which expired in 1987 whereas the present suit is filed in the year 2007. It is accordingly pleaded that it is hopelessly time barred. It is further urged that the suit for the purpose of court fee and jurisdiction has been evaluated at Rs.195/-, paying a court fee of Rs.19.50P whereas value of the suit for the purpose of court fee and jurisdiction was required to be fixed under Section 7 Clause (5) of the Court Fees Act, 1987, according to which it should be the market value of the suit property. Dealing with the submission of limitation, the trial Court found that plea of limitation is not a pure question of law but is a mixed question of law and fact. It is observed that plea of limitation can not be decided as an abstract principle of law divorced from the facts. It is held that suit or a plaint can not be rejected as barred by CIVIL REVISION NO.368 OF 2008 :{ 3 }: limitation while exercising powers under Order 7 Rule 11 CPC without proper pleadings and framing an issue of limitation and it could be done by taking evidence. In this regard, reliance is placed on Ramesh B.Desai and others Vs. Vipin Vadilal Mehta & Ors., 2006 (3) Civil Court Cases 576 (SC). Learned counsel for the petitioner would find fault with this approach adopted by the trial Court. His contention is that once it is claimed in the plaint itself that the accounts have not been given since the year 1975, the cause of action arose then only, for which no evidence was required to be taken. To me, it appears that the counsel is reading the pleadings in parts and not as a whole. Though, it is averred that the accounts since 1975 have not been given but respondent No.1-plaintiff has clearly averred in the suit that the cause of action arose for him again two days prior to the institution of the suit when the petitioner refused to admit the claim of the plaintiff and accordingly he filed the present suit. In view of the totality of pleadings, it can be said that the plea of limitation could have been determined only on the basis of pleadings. The counsel could not dispute that plea of limitation is a mixed question of fact and law, which would call for some evidence. Reliance is placed on the case of Hardesh Ores (P) Ltd. Vs. Hede and Company, (2007) 5 Supreme Court Cases 614. The counsel refers to the observations made in this case 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 CIVIL REVISION NO.368 OF 2008 :{ 4 }: that `law' within meaning of Order 7 Rule 11 (d) must include the law of limitation as well. The counsel has not only read the pleadings in parts and in isolation but is reading the head note to so urge where the ratio laid down in the judgment would not support the submission of the counsel. It is held by the Hon'ble Supreme Court in the case of Hardesh Ores (P) Ltd. (supra) that:- “It is well settled that whether a 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. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. 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 subtraction of words or change of its apparent grammatical sense.” Thus, averment made in the plaint as a whole has to be seen to find out if clause (d) of Rule 11 of Order 7 is applicable. Not only this, it is observed that it is not permissible to cull out a sentence or a passage and to read it out of context in isolation. This is what is CIVIL REVISION NO.368 OF 2008 :{ 5 }: being done by the counsel for the petitioner. He is wanting to read a portion of the plaint where it is stated that petitioner never gave income from 1975 and is leaving the portion of the plaint that cause of action arose two days prior to filing of suit when the petitioner refused to admit the claim of the plaintiff. The observation read out of context from the judgment can not help the cause of the petitioner. In any case, the trial Court has observed that it is a mixed question of fact and law and would require to be determined by leading evidence. I do not find any fault in the approach adopted by the trial Court and am not inclined to interfere with the impugned order. Similarly, the second ground to attack the impugned order would not find favour with me. The trial Court has rightly observed that if at any stage of the suit, it is found that the Court fee as appended on the plaint is improper, then the Court can always pass direction to the plaintiff in the suit to make the court fee good before passing any judgment. This is what is provided in the proviso to Order 7 Rule 11 CPC, and is permissible under the statute and as such, would not call for any interference. The present revision is accordingly dismissed. January 22 ,2008 ( RANJIT SINGH ) khurmi JUDGE