MANJULA CHELLUR,CJ. - (1.) This appeal is directed against order dated 29.6.2016 where in an application under Order 7 Rule 11 of the Code of Civil Procedure came to be filed, seeking rejection of the plaint but the same came to be disposed of opining that since the matter requires consideration of facts and law, an opportunity must be granted to the plaintiff to establish its case. Aggrieved by the same, the appellant before us contends that the Trial Judge was not justified in not rejecting the plaint when the same is hit by one of the four clauses of Rule 11 of Order 7 of CPC, on the issue of limitation. It is further contended on behalf of the appellant that in order to decide an application filed under Order 7 Rule 11, averments in the plaint alone are germane and the same cannot be improved by adducing evidence. The real object of Order 7 Rule 11 is defeated by the impugned order of the learned Trial Judge since it ignores basic and cardinal Rule that pleadings alone could be looked into in order to opine whether the suit is barred by limitation or not. In other words, without addition or subtraction of words one has to look at the pleadings and then decide whether the suit is barred by any law including limitation. Therefore, keeping the issue of limitation open to be decided at the trial of the suit is incorrect. Without appreciating the averments and the arguments disposal of the application mechanically was unwarranted is the stand of the appellant. According to the appellant's Counsel, the Court ought to have seen whether the suit was filed within three years from the year in which the so called running account came to be closed that is the last item admitted or proved entered in the account or within three years from the last of the supply made. The appellant relies upon (2005) 7 SCC 510 in the case of Popat and Kotecha Property Vs. State Bank of India Staff Association. The Division Bench of the High Court opined that the suit was barred by limitation and appellant/defendant was entitled to order of rejection of plaint in terms of Order 7 Rule 11. In an appeal before the Apex Court, Their Lordships opined that Division Bench was wrong in opining that the suit for execution of sale deed was barred by limitation since the bar of limitation cannot be pleaded so as to obstruct execution of sale deed since limitation bars only remedy. The statements contained in the plaint did not indicate that the suit was barred by limitation. Therefore, Their Lordship opined that the Division Bench of the High Court was wrong. Ultimately, at paragraphs 23, 24 and 25 opined as under: - "23. 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. 24. The above position was highlighted in Sopan Sukhdeo Sable and Ors. V. Assistant Charity Commissioner 25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case the inevitable conclusion is that the division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non - execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case."
(2.) Per contra, learned Advocate for the respondent/plaintiff contends that the law declared by the Supreme Court is otherwise and according to him if facts also are required to be looked into while deciding objection that the suit is barred by limitation, it would not be proper to reject the plaint under Order 7 Rule 11. According to him, since there were talks of settlement/reconciliation between the parties, the suit has to be filed in terms of Article 56 of the Limitation Act. In support of his contention, he refers to (2006)5 SCC 662 in the case of Balasaria Construction (P) Ltd. Vs. Hanuman Seva Trust and Others.
(3.) In this case rejection of plaint on the ground of bar of limitation was not approved since there was conflicting opinion of different Benches and if the question has to be decided on the basis of the fact that the suit was barred by limitation, then Order 7 Rule 11(d) is not applicable.;