1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 813 OF 2009 Shri Prabhakar Dattatray Bhanse ... Appellant v/s Smt.Anusaya Keshavrao Kalbhor & anr. ... Respondents Mr.N.B.Shah i/by Piyush Shah for the appellant. Mr.S.V.Sadavarte for respondent Nos.1. Mr.K.V.Saste for the respondent No.2. CORAM: SMT.NISHITA MHATRE, J. DATED: 7TH SEPTEMBER, 2009 P.C.: 1. The first appeal has been filed against the rejection of the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure. The plaintiff i.e. the appellant herein had filed the suit for specific performance of the contract i.e. the agreement for sale allegedly executed by the defendant No.1 in favour of the plaintiff in the year 1986. The plaint proceeds on the footing that the defendants i.e. respondent 2 1 had not executed the conveyance despite the appellant being ready and willing to perform his part of the contract. The plaintiff has contended that, by virtue of the agreement of sale which was executed in the year 1986, he had been put in possession of the suit property. He has pleaded that he became aware only in 2008 that defendant No.1 was attempting to sell the suit land to other developers and therefore he had filed the suit on 17.3.2009. 2. An application was filed by the defendant No.1 before the trial Court seeking rejection of the plaint on the ground that it was barred by limitation. The application was allowed. The trial Court has rejected the plaint on the ground that the averments in the plaint indicate that the suit was barred by limitation. 3. Order 7 Rule 11(d) of the Code of Civil Procedure reads as under :- “11. Rejection of plaint.- The plaint shall be rejected in the following cases: (a) – (c) .......... (d) where the suit appears from the statement in the plaint to be barred by any law.” 3 4. It is now well settled that when the plaint is to be rejected on the footing that the averments therein disclose that it is barred by any law for the time being in force, the Trial Court is not expected to consider the averments or pleadings in the written statement; what is to be considered is only the plaint and annexures thereto. The Supreme Court in the case of C. Natrajan. v/s Ashim Bai & anr., reported in (2007) 14 SCC 183, has held that,- “8. An application for rejection of the plaint can be filed if the allegations in the plaint even if given face value and taken to be corrected in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the Court would not be entitled to consider the case of the defence. 9. Applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the other article contained in the Schedule appended to the Limitation Act.” 4 Thus, whether the suit would be barred by the law of limitation as prescribed under Article 54 is an issue which would have to be determined when the suit is tried. Whether the suit is governed by the latter part of Article 54 of the Limitation Act is something which can be decided only on the basis of evidence led by the Court. 5. A perusal of the plaint does not in any manner indicate that the plaint was required to be rejected before framing an issue with respect to the limitation. It is possible that after the evidence is led, the Trial Court would find that the suit is barred by limitation. However, from a plain reading of the plaint it appears that the plaint ought not to have been rejected under Order 7 Article 11(d) of the Code of Civil Procedure. 6. Thus, the appeal is allowed. The impugned judgment and order is set aside. The trial in Special Civil Suit No.526 of 2009 to proceed in accordance with law. 7. Since the appeal has been disposed of, Civil Application No. 2322 of 2009 also stands disposed of. ..... 5