1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.475 OF 2008 Hasanali Hasambhoy Jetha & anr. ..Appellants -versus Ameera Rafiq Wahedna & ors .. Respondents Mr. Pradeep Sancheti a/w Usha Rahi i/b Narendra & Co. for the appellant. Mr Aspi Chinoy, senior advocate a/w Ms Rubia Taneka for the respondent Nos l to 8. Mr V. Y.Sanglikar, for the respondent No.9 CORAM: DR. D. Y. CHANDRACHUD, & R. G. KETKAR JJ DATED: 3rd April, 2009 P.C. 1. The learned Single Judge dismissed the Notice of Motion taken out for the rejection of the plaint under Order VII, Rule 11 (d) of the Code of Civil Procedure, 1908. The suit has been instituted by the original Plaintiffs - Respondent Nos l to 8 2 to these proceedings for redemption of a mortgage executed on 18th May,1939. The Notice of Motion was dismissed by the learned Single Judge. The Learned Single Judge has gone into the question as to whether the suit appeared to be barred by the Law of Limitation and has entered a finding to the effect that the suit is not so barred. 2. It is, in our view, not necessary to determine the question of limitation at this stage. The question of limitation is not a pure question of Law, but a mixed question of law and fact. Under Order VII, Rule 11(d) of the Code of Civil Procedure, the plaint is liable to be rejected where the suit appears from the statements made in the plaint to be barred by any law. We have with the assistance of the learned counsel, perused the averments made in the plaint particularly those in sub paras (a) to (d) of para 26. On the basis of those averments, it cannot be concluded at this stage that the suit is barred by the Law of Limitation. Whether as a matter of fact the plaintiffs have established the averments will have 3 to be determined after the parties lead evidence at the trial of the suit. It is a well settled position of law, in view of the judgment of the Supreme Court, in Popat and Kotecha Property V State Bank of India Staff Association 2005 (SC3) 0556, that clause (d) of Rule 11 of Order VII speaks of the suit as appears from the statements in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 of CPC. Rule 11 of Order VII, applies only in those cases where the statements made by the Plaintiff in the plaint, without any doubt or dispute show that the suit is barred by any law in force. It is not possible to conclude on the basis of the statements contained in the plaint as they stand that the suit is barred by limitation without any doubt or dispute. The observations contained in the impugned order of the Learned Single Judge, it is clarified, are to be confined to the disposal of the Application under Order VII, Rule 11 (d) and will not come in the way of the trial of the suit 4 on all issues including on the question of limitation. Subject to this clarification, we do not find any reason to interfere with the order of the learned Single Judge. However, having regard to the circumstances of the case, the trial of the Suit is expedited. Learned Counsel appearing on behalf of the parties have agreed that in view of the amended provisions of the Civil Procedure Code, the parties would be agreeable to evidence in the suit being recorded on commission. It would be open to the appellant to seek suitable directions in regard to the time schedule for early disposal of the suit including the framing of the issue of limitation as a preliminary issue. All rights and contentions in that regard are kept open for the parties. 3. The appeal is accordingly disposed of. (DR. D.Y. CHANDRACHUD,J) (R.G. KETKAR, J)