1 fa1590­91­10 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 1590 OF 2010 WITH FIRST APPEAL NO.1591 OF 2010 Mrs. Aruna Ajitrao Rasal & Anr. .. Appellants V/s. Smt. Kumudini Kamalakar Sapale & Others .. Respondents ..... Mr. S. S. Patwardhan for the appellants. Mr. N. V. Walawalkar, senior advocate i/b. Mr. Amit Borkar for respondent No.3. Mr. Anand Patil for respondent No.6. ..... CORAM : A.S.OKA, J. DATE : JULY 28, 2011. ORAL JUDGMENT : Notice for final disposal in this Appeals was issued on 18th March, 2011. 2. Both the Appeals are preferred by the original plaintiffs. By the impugned Judgment and decree, the plaint has been rejected by exercising power under Clause (d) of Rule 11 of Order VII of the Code of Civil Procedure, 1908 (hereinafter referred to as “the said Act”) on the ground of suit is barred by limitation. 3. In the suit subject matter of First Appeal No.1590 of 2010, 2 fa1590­91­10 the prayer is for injunction restraining the first and second respondents from transferring the property set out in paragraph No.(1) of the plaint. In paragraph (1) of the plaint, description of shares of certain limited companies has been incorporated. During the pendency of the suit, an amendment was carried out by which it was contended that the transfer of the suit shares in favour of the respondent Nos.3 to 6 was illegal and void. Therefore a relief of declaration as well as a relief of mandatory injunction for re­transferring the shares in the name of the appellants was prayed for. 4. In the suit subject matter of First Appeal No.1591 of 2010. The prayers are identical. Even in this case, the amendment was carried out to the plaint for challenging the alienations. 5. An application was taken out by the respondents praying for rejection of the plaint on the ground of bar of limitation. By the impugned Judgments and decrees, the trial Court has held that the suits were barred by limitation. Therefore, the Court proceeded to reject the plaint under Rule 11 of Order VII of the said Code. 6. The submission of the learned counsel appearing for the appellants is that for the purposes of considering the prayer for rejection of the plaint only the averments made in the plaint are 3 fa1590­91­10 required to be looked into and not the defence of the defendants or any other documents. He pointed out that there is no finding recorded by the trial Court that averments made in the plaint show that the suit was barred by limitation. He submitted that the trial had commenced and therefore, the prayer for rejection of the plaint could not have been entertained. 7. The learned senior counsel appearing for the third respondent submitted that even assuming that the impugned order is not happily worded, if the plaint is read as a whole, it is apparent that the suit was barred by limitation. He submitted that the amendment made in the plaint seeking prayers for declaration and mandatory injunction was certainly barred by limitation. His submission is that there is no reason to interfere with the impugned judgment and decrees. Both the parties relied upon certain decisions to which a reference is made at the later stage. The learned counsel appearing for the sixth respondent also supported the impugned Judgments and decrees. 8. The Apex Court in the case of Ram Prakash Gupta V/s. Rajiv Kumar Gupta & Ors. [(2007) 10 SCC 59] dealt with the issue of rejection of the plaint under Rule 11 of Order VII of the said Code. It is necessary to make a reference to what is held in the said decision. In paragraph No.20 of the decision, the Apex Court 4 fa1590­91­10 held thus: “20. For our purposes, Clause (d) is relevant. It makes it clear that if the plaint does not contain necessary averments relating to limitation, the same is liable to be rejected. For the said purpose, it is the duty of the person who files such an application to satisfy the court that the plaint does not disclose how the same is in time. In order to answer the said question, it is incumbent on the part of the Court to verify the entire plaint. Order 7 Rule 12 mandates where a plaint is rejected, the Court has to record the order to that effect with the reasons for such order....” 9. In paragraph No.22, the Apex Court observed thus: “22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross­ examined, thereafter before conclusion of the trial, the application under Order 7 Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant­ plaintiff to the effect that the suit filed by him is barred by limitation.” In the case of Saleem Bhai & Ors. V/s. State ofMaharashtra & Ors. [(2003) 1 SCC 557], the Apex Court reiterated that the prayer of rejection of the plaint has to be considered only on the basis of the averments made in the plaint and not on the basis of the plea taken in the written statement. In paragraph No.9, the Apex Court held thus: “9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments 5 fa1590­91­10 in the plaint. The trial Court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (b) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at the stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. The order, therefore, suffers from non­exercising of the jurisdiction vested in the Court as well as procedural irregularity....” (underline supplied) 10. Lastly, the learned counsel appearing for the appellants placed reliance on the decision of the Apex Court in the case of Ramesh B. Desai & Ors. V/s. Bipin Vadilal Mehta & Ors. [2006(5) SCC 638]. Even in the said decision, the Apex has reiterated that for determining whether power under Clause (d) of Rule 11 of Order VII of the said Code can be exercised, the averments made in the plaint alone have to be seen and and they have to be assumed to be correct. In paragraph No.16, the Apex Court held thus: “16.... The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by clause (d) of Order 7 Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting 6 fa1590­91­10 respondents that the company petition was barred by limitation has to be examined by looking into the averments made in the company petition alone and any affidavit filed in reply to the company petition or the contents of the affidavit filed in support of Company Application No.113 of 1995 filed by the respondents seeking dismissal of the company petition cannot be at all be looked into.” (underline supplied) 11. The learned counsel appearing for the appellants submitted that the application for rejection of the plaint has been entertained at the stage of recording of evidence and, therefore, in view of what is held by the Apex Court in the case of Ram Prakash Gupta (Supra) the application could not have been entertained. 12. Before dealing with the said submission, a reference will have to be made to the findings recorded by the trial Court in the impugned Judgments. Perusal of the impugned Judgments show that till paragraph No. 7 thereof, the learned Judge has reproduced the submissions. The finding is only in paragraph No. 9. The trial Court has held that the appellants have failed to appropriately deal with the contention of the defendants that the suit was barred by limitation. It is further observed that the appellants could not disprove the contention of the defendants that the suit was barred by limitation. There is absolutely no finding recorded based on consideration of averments made in the plaint. The learned trial Judge perhaps proceeded under an 7 fa1590­91­10 erroneous assumption that he was deciding the issue of limitation. As held by the Apex Court, the learned trial Judge ought to have recorded the findings only on the basis of averments made in the plaint on the assumption that the said averments are true. This exercise has not been done. Moreover, there is a paragraph in the plaint which contains averments regarding limitation. Therefore, the impugned orders will have to be quashed and set aside. 13. The decision of the Apex Court in the case of Ram Prakash Gupta (Supra), does not lay down as a proportion of law that at the stage of recording of the evidence, the prayer for rejection of the plaint on the ground of bar of limitation cannot be considered. On this aspect the law is laid down in the case of Saleem Bhai and Others (Supra). The law is that the application for rejection of the plaint can be considered at any stage till the conclusion of trial. 14. Considering the fact that the impugned judgment are vitiated by non application of mind, the suits will have to be send back for reconsideration of the applications for rejection of the plaint. Hence, I pass the following order: :: O R D E R :: i. The impugned Judgments and decrees are quashed and set aside and the suits are restored to the 8 fa1590­91­10 file of the trial Court. ii. The learned Trial Judge will decide the applications for rejection of the plaints in accordance of law. iii. It is made clear that for deciding the question whether the plaint deserves to be rejected, the learned Judge can only look in to the averments made in the plaint and not in the defence in the written statements of the respondents. iv. The Trial Court shall decide the said issue expeditionary on its own merits. vi. All contentions on merits are kept open. vii. Appeals are partly allowed on the above terms. (A.S.OKA, J.)