THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3868 of 2011 Date:30th December, 2011 Between: Dr.A.Dharma Rakshak S/o.Late A.Naagoji Rao ..... Petitioner AND G.Yella Reddy S/o.late G.Ramachandra Reddy & Ors. .....Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3868 of 2011 ORDER: This Civil Revision Petition is directed against the order, dated 01.08.2011, passed in I.A.No.529 of 2011 in O.S.No.593 of 2008 on the file of the Principal Senior Civil Judge, Kurnool, whereby and whereunder, the learned Senior Civil Judge dismissed the application filed by the defendants under Order 7, Rule 11(d) CPC to reject the plaint on the ground of limitation. 2. The petitioner is the 3rd defendant and whereas, the respondents 1 to 4 are the plaintiffs in O.S.No.593 of 2008. The respondents 5 to 8 are the co-defendants in the said suit. The plaintiff filed the suit for specific performance of agreement of sale, dated 21.07.1993. The defendants 1 to 5 entered appearance in the suit and filed written statement. The trial Court settled the issues, including the issue on limitation aspect. The plaintiff placed on record affidavit in lieu of chief- examination. The defendants filed I.A.No.529 of 2011 under Order 7, Rule 11 (d) CPC to reject the plaint as barred by limitation. It is pleaded in the affidavit filed in support of the application that the suit for specific performance of the agreement of sale, dated 21.07.1993, is barred by limitation and one of the executants of the agreement of sale, died on 23.04.1998. The plaintiff filed counter resisting the petition. The learned Principal Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that since the evidence has been commenced, it is not desirable to adjudicate the issue of limitation before conclusion of trial and thereby proceeded to dismiss the petition, by order, dated 01.08.2011. For better appreciation, I may refer paras.20 to 22 of the impugned order, which read as hereunder: “20. On my careful scrutiny of pleadings of both parties, I do not think that merely basing on the recitals in the document, it cannot be said at this stage the suit claim is barred by limitation. Let an opportunity may be given to the plaintiffs to prove their case. In case, they failed to establish the period of limitation naturally the claim will go. 21. Since the suit is commenced trial and the matter is coming up for cross-examination of P.W.1 after marking of documents let trial may be go on accordingly the point is answered against petitioners. 22. Keeping in view of the facts and circumstances, the proposition of law relied upon by the counsel for the plaintiffs are applicable to the present set of facts on hand. The learned counsel for the plaintiffs further relied upon two more decisions, which are not relevant, hence, not referred.” Hence, this revision. 3. Heard Sri Vedula Srinivas, learned counsel appearing for the petitioner and Sri V.L.G.K.Murthy, learned Counsel appearing for the respondents 1 to 4/plaintiffs 1 to 4. 4. Learned counsel appearing for the petitioner submits that though the revision has been filed by the 3rd defendant, it is to be treated as revision filed on behalf of all the defendants as the defendants 1, 2, 4 and 5 could not join with the 3rd defendant because of their non- availability at Hyderabad. A further submission has been made that when an application under Order 7, Rule 11 has been moved, the trial Court is bound to adjudicate the same. He would also contend that the agreement is dated 21.07.1993 and whereas, the suit has been filed on 15.12.2008 that itself is sufficient to conclude that the suit is barred by limitation. In support of his submissions, reliance has been placed on the decision of the Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Association[1]. Much emphasis has been laid on para.23 of the cited judgment, which reads as hereunder: “Rule 11 of Order 7 lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say in express terms about the filing of a written statement. Instead, the word “shall” is used clearly implying thereby that it casts a duty on the court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.” By referring the above decision, it is contended that the application under Order 7, Rule 11 CPC can be maintainable at any stage of the suit. 5. Per contra, learned counsel appearing for the respondents 1 to 4/plaintiffs 1 to 4 submits that the trial Court has gone through the plaint pleadings and came to the conclusion that it is not a case to reject the plaint on the ground of limitation and thereby proceeded to dismiss the application and no exceptional ground has been made out by the petitioner to interfere with the order impugned in the revision. 6. Order 7, Rule 11 CPC reads as hereunder: “11. Rejection of plaint.-- The plaint shall be rejected in the following cases:— (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of Rule 9; Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.” 7. 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 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 (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendants in the written statement would be wholly irrelevant at that stage. 8. The trial Court has gone through the plaint averments and came to a conclusion that it cannot be said that the claim is barred by limitation. It is also to be noted that issue with regard to limitation has been framed and evidence has been commenced. This aspect has been weighed with the trial Court in observing that the plaintiffs can be permitted to prove their case on the aspect of limitation. In that view of the matter, I do not see any illegality or irregularly in the order impugned in the revision warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. Since the suit is of the year 2008, I deem it appropriate to direct the Principal Senior Civil Judge, Kurnool, to dispose of the suit as expeditiously as possible, preferably within four months from the date of receipt of a copy of this Order. 9. Accordingly, the Civil Revision Petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:30th December, 2011. cs THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.3868 of 2011 Date:30th December, 2011 [1] (2005) 7 SCC 510