CHHOTANBEN AND ANR.versusKIRITBHAI JALKRUSHNABHAI THAKKAR AND ORS.

422                      [2018]REPORTS
               SUPREME COURT    3 S.C.R. 422               [2018] 3 S.C.R.


A                          CHHOTANBEN AND ANR.
                                        v.
         KIRITBHAI JALKRUSHNABHAI THAKKAR AND ORS.
                        (Civil Appeal No. 3500 of 2018)
B                                APRIL 10, 2018
            [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                   DR. D. Y. CHANDRACHUD, JJ.]
            Code of Civil Procedure, 1908:
C            Order VII, r.11(d) – Suit for declaration and permanent
      injunction – Alleging therein that the suit property was transferred
      by the defendants (co-owners) without knowledge of plaintiffs and
      by forging their signatures – Application u/O.VII, r.11(d) by
      defendants for rejection of plaint on the ground that suit was barred
      by limitation – Application was dismissed by trial court – In Revision
D
      High Court reversed the order of trial court – On appeal, held: The
      basis to decide an application u/O.VII, r.11(d) are the averments in
      the plaint (read as a whole) and defence or plea in the Written
      Statement cannot be the basis – In view of the averments in the
      plaint and relief claimed, the issue of limitation is a triable issue –
E     Therefore, plaint cannot be rejected at the threshold, in exercise of
      power u/O.VII, r.11(d).
            Allowing the appeal, the Court
            HELD: 1. The appellants (plaintiffs) have asserted that until
      2013 they had no knowledge whatsoever about the execution of
F     the registered sale deed concerning their ancestral property.
      Further, they have denied the thumb impressions on the
      registered sale deed as belonging to them and have alleged forgery
      and impersonation. In the context of totality of averments in the
      plaint and the reliefs claimed, which of the Articles from amongst
G     Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation
      Act will apply to the facts of the present case, may have to be
      considered at the appropriate stage. [Para 11] [431-E-F]
           2. What is relevant for answering the matter in issue in the
      context of the application under Order VII Rule 11(d), is to
H
                                     422
CHHOTANBEN AND ANR. v. KIRITBHAI JALKRUSHNABHAI 423
              THAKKAR AND ORS.

examine the averments in the plaint. The plaint is required to be     A
read as a whole. The defence available to the defendants or the
plea taken by them in the written statement or any application
filed by them, cannot be the basis to decide the application under
Order VII Rule 11(d). Only the averments in the plaint are
germane. [Para 12] [431-G]
                                                                      B
      3. In the present case, the appellants (plaintiffs) have
asserted that the suit was filed immediately after getting
knowledge about the fraudulent sale deed executed by original
defendant Nos. 1 & 2 by keeping them in the dark about such
execution and within two days from the refusal by the original
defendant Nos.1 & 2 to refrain from obstructing the peaceful          C
enjoyment of use and possession of the ancestral property of the
appellants. The issue regarding the suit being barred by limitation
in the facts of the present case, is a triable issue and for which
reason the plaint cannot be rejected at the threshold in exercise
of the power under Order VII Rule 11(d). [Para 16] [434-A-C]          D
      Saleem Bhai and Others v. State of Maharashtra and
      Others (2003) 1 SCC 557 : [2002] 5 Suppl. SCR 491;
      Mayar (H.K.) Ltd. and Others v. Owners & Parties,
      Vessel M. V. Fortune Express and Others (2006) 3 SCC
      100 : [2006] 1 SCR 860; and also T. Arivandandam v.             E
      T. V. Satyapal and Another (1977) 4 SCC 467 : [1978]
      1 SCR 742 – relied on.
      Church of Christ Charitable Trust and Educational
      Charitable Society v. Ponniamman Educational Trust
      (2012) 8 SCC 706 : [2012] 6 SCR 404 – referred to.              F
                      Case Law Reference
[2002] 5 Suppl. SCR 491       relied on               Para 13
[2006] 1 SCR 860              relied on               Para 13
[1978] 1 SCR 742              relied on               Para 13         G
[2012] 6 SCR 404              referred to             Para 14
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3500
of 2018.

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424            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A           From the Judgment and Order dated 13.01.2017 of the High Court
      of Gujarat at Ahmedabad in Civil Revision Application No. 76 of 2016.
            Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Ms. Deepa
      Gorasia, Bhaskar Singh, Ms. Rumi Chander, Advs. for the Appellants.
            Gaurav Agrawal, Adv. for the Respondents.
B
            The Judgment of the Court was delivered by
            A. M. KHANWILKAR, J. 1. This appeal, by special leave,
      takes exception to the judgment and order dated 13th January, 2017 of
      the High Court of Gujarat at Ahmedabad in Civil Revision Application
C     No.76 of 2016.
              2. The appellants filed a suit for declaration and permanent
      injunction on 18th October, 2013, against the respondents before the
      Principal Senior Civil Court, Anand, being Regular Civil Suit No.166 of
      2015 (Old No. Special Civil Suit No.193 of 2013). The frame of the
D     subject suit is on the assertion that the appellants and original defendant
      Nos.1 & 2 were in joint ownership and possession of an ancestral property
      inherited by them from their predecessor (father), deceased Bawamiya
      Kamaluddin Saiyed, bearing Survey No.113/1+2, area H.1-37-59 Ara,
      Akar Rs.15-81 paise. That land is old tenure agricultural land situated at
      Mouje Village, Hadgud Taluka and District Anand. The said ancestral,
E     joint, undivided land was jointly possessed and used and enjoyed by the
      appellants (plaintiffs) and original defendant Nos.1 & 2 (predecessors
      of respondent Nos.2 to 15), after the demise of their father Bawamiya
      Kamaluddin Saiyed, being in his straight line of heirs. The names of
      Jahangirmiya Bawamiya Kamaluddin Saiyed and Hussainmiya
F     Bawamiya Kamaluddin Saiyed (original defendant Nos.1 & 2
      respectively) came to be recorded in the record of rights along with the
      names of the appellants and since that time, all of them were jointly in
      possession and usage of the undivided land. The appellants assert that
      they have half (1/2) share, rights, powers, possession and usage rights in
      the property. It is their case that without their knowledge the original
G     defendant Nos.1 & 2 transferred the said land after forging their
      (appellants) signatures. The appellants were not aware about the said
      transaction effected vide registered sale deed No.4425 dated 18th October,
      1996, which they came to know from their community members,
      immediately whereafter they made enquiry in the office of Sub Registrar
      at Anand. It was revealed to them that the land has already been
H
CHHOTANBEN AND ANR. v. KIRITBHAI JALKRUSHNABHAI 425
    THAKKAR AND ORS. [A. M. KHANWILKAR, J.]

transferred by a registered sale deed dated 18th October, 1996 in favour       A
of defendant Nos.4, 5 and 6 (Anilbhai Jaikrishnabhai Jerajani, Kiritbhai
Jaikrishnabhai Thakkar and Kekanbhai Jaikrishnabhai Thakkar,
respectively). They promptly applied for a certified copy of the registered
sale deed. They were also informed that Jaikrishnabhai Prabhudas
Thakkar had expired and, therefore, the defendant Nos.3 to 6 received
                                                                               B
the land as heirs. It is then asserted that from the registered sale deed,
they came to know that their thumb impressions were obtained as
witnesses in the presence of Bhikhansha Pirasha Divan. They asserted
that they had never signed or gave their thumb impressions upon any
such deed, in any manner, in front of any witness. It is then stated that
some person has been fraudulently involved for putting thumb impressions       C
on the sale deed. They have asserted that the thumb impressions on the
sale deed did not belong to them and that they were ready and willing to
prove that fact by providing their genuine thumb impressions in front of
officers. It may be relevant to reproduce paragraph 4 of the plaint which
reads thus:
                                                                               D
      “4. The paragraph no.1 property is jointly owned, co-shared, jointly
      used and possessed by the applicants and respondents nos.1 and
      2. The respondents nos.1 and 2 do not have any rights to sell the
      property on their own. In case if the respondents nos.1 and 2
      have the willingness to sell the property, they are required to obtain
      our consent. This was very well in the knowledge of the                  E
      respondents nos.1 and 2 yet they have entered into a sale deed
      for the property in an illegal manner. But the actual possession
      and usage of the suit property is jointly undertaken by us. Before
      two days, the applicants meet the respondents and asked them
      not to hinder, harass, etc. as to these rights on the land. We asked     F
      the respondents to partition our half part, provide actual possession
      of the land, yet the respondents did not consider this request. On
      the contrary it was stated by them that the respondents nos.2 to 6
      shall sell the property to someone else, the courts are open and
      we can take steps whatever we can.”
                                                                               G
      3. In paragraph 6 of the plaint, the appellants have stated about
the cause of action for filing the suit in the following words:
      “6. The cause as to the filing of the suit, as mentioned under the
      above mentioned paragraph pertains to the fact that the
      respondents nos.1 and 2 without the knowledge of the applicants,         H
426            SUPREME COURT REPORTS                            [2018] 3 S.C.R.


A           while keeping the applicant in dark, removed the name of the
            applicants from the record of rights and entered into a registered
            sale deed no.4425 dated 18.10.1996 without the knowledge of the
            applicants. Upon getting the above mentioned knowledge, the
            applicants meet the respondents personally before two days and
            requested them to cancel the sale deed and hand over the clear,
B
            marketable and actual vacant possession of the property to the
            applicants. Yet the respondents did not consider the request and
            mentioned that the courts are open for us thereby asking us the
            applicants to do whatever we wished to do. Therefore the present
            issue has arise at the village Hadgud without the jurisdiction of
C           the honourable court.”
            4. As mentioned above, the suit came to be filed for declaration
      and permanent injunction and for the following reliefs:
            “a) The honourable court be pleased to declare that the property
            mentioned under the paragraph no.1 being situated at Mouje village
D           Hadgud, Taluka and district Anand, survey no.113/1+2, area
            heacter 1-37-59 Ara, Akar Rs. 15-81 paisa old tenure agricultural
            land is ancestral property of the applicants and thereby the
            applicants have undivided ½ (half) part, share, interest and right
            in the property and a partition of the land be undertaken in a judicial
E           manner and the actual possession, usage, etc. be provided to the
            applicants in the interest of justice.
            b) The honourable court be pleased to declare that the Mouje
            village Hadgud, Taluka and district Anand, survey no. 113/1+2,
            area Heacter 1-37-59 Ara, akar Rs. 15-81 Paise old tenure
F           agricultural land is ancestral, joint, undivided, jointly possessed and
            used property of the applicants and the respondents nos.1 and 2
            and thereby the respondents nos.1 and 2 solely do not have the
            rights and powers to sell or interference in the title of the property
            and further declare that the registered sale deed no.4425 dated
            18.10.1996 in the favour of the respondents nos.4 and 6 is null
G           and void, void ab-initio, cancelled, false and frivolous and thereby
            the honourable court be kind enough to declare in the interest of
            justice that the respondents nos.3 to 6 do not receive any kind of
            rights-powers as to the land on the basis of this particular sale
            deed.
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CHHOTANBEN AND ANR. v. KIRITBHAI JALKRUSHNABHAI 427
    THAKKAR AND ORS. [A. M. KHANWILKAR, J.]

       c) The honourable court be pleased to pass a permanent injunction          A
       order against the respondents and in the favour of the applicants
       such that, neither the respondents nor through their agents,
       servants, persons, etc. sell, mortgage, charge, lien, etc. the or
       construct, etc. upon the property mentioned under the paragraph
       no.1 and situated at the Mouje village Hadgud, Taluka and district
                                                                                  B
       Anand, survey no. 113/1+2, area Heacter 1-37-59 Ara, akar Rs.
       15-81 Paise old tenure agricultural.
       d) The honourable court be pleased to pass a permanent injunction
       order against the respondents and in the favour of the applicants
       such that, neither the respondents nor through their agents,
       servants, persons, etc. interfere, obstruct, hinder, etc. the ancestral,   C
       joint, undivided possession, usage, etc. of the applicants upon the
       property mentioned under the paragraph no.1 and situated at the
       Mouje village Hadgud, Taluka and district Anand, survey no. 113/
       1+2, area Heacter 1-37-59 Ara, Akar Rs.15-81 Paise old tenure
       agricultural.                                                              D
       e) The honourable court be pleased to pass a permanent injunction
       order against the respondents and in the favour of the applicants
       such that, neither the respondents nor through their agents,
       servants, persons, etc. would alter the record of rights entries for
       the property mentioned under the paragraph no.1 and situated at            E
       the Mouje village Hadgud, Taluka and district Anand, survey no.
       113/1+2, area Heacter 1-37-59 Ara, Akar Rs.15-81 Paise old tenure
       agricultural.
       f) The honourable court be pleased to pass an appropriate order
       found proper and efficacious by the honourable court.                      F
       g) The honourable court be pleased to order the respondents to
       provide for the cost as the suit.”
       5. After filing of the suit, an application was filed on 19th November,
2014 under Orders XIII and XVI of the Code of Civil Procedure, 1908
(for short “CPC”) read with Sections 67 and 71 of the Evidence Act for            G
directions to defendant Nos.3 to 6 to produce before the Court, the original
deed executed by the original defendant Nos.1 & 2 in respect of the suit
land and to obtain the admitted thumb impressions of the appellants and
send it for scientific examination and comparison of the thumb
impressions by a Handwriting Expert to unravel the truth. The original
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428            SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A     defendant Nos.4 to 6 filed reply to the said application on 3rd February,
      2015, to oppose the same. Thereafter, the defendant No.5 (respondent
      No.1) on 17th April, 2015 filed an application under Order VII Rule 11(d)
      for rejection of the plaint on the ground that the suit was barred by
      limitation having been filed after 17 years. The appellants filed reply to
      the said application. Both the applications under Order XIII Rule 16 and
B
      under Order VII Rule 11(d), were disposed of by the 4th Additional
      District Judge, Anand on 20th January, 2016 by separate orders. As
      regards the application filed by the plaintiffs (appellants), the Court
      allowed the same by passing the following order:
                                    “O R D E R
C
            The application is hereby allowed.
            The defendants are directed to produce registered sale deed
            no.4425 dt.18/10/1996 in the court and further the register civil
            court is directed to take specimen thumb impression of the plaintiffs
D           as per rules and further such sale deed along with the specimen
            of thumb impressions of the plaintiffs be sent to thumb impression
            of the witnesses in such sale deed are of the plaintiffs or not.
            Further the thumb impression expert is directed to submit his report
            within period of 30 days after receiving the documents.”
E            6. As regards the application filed by defendant No.5 (respondent
      No.1) for rejection of the plaint, the said application was dismissed by
      the Trial Court on the same day i.e. 20th January, 2016. The Trial Court
      opined that the contention urged by defendant No.5 (respondent No.1)
      for rejection of the plaint was not tenable as the factum of suit being
F     barred by limitation was a triable issue, considering the averments in the
      plaint. The Trial Court observed thus:
            “3. I have given my thoughtful consideration to the submission
            made by the learned advocate for both the parties. The plaintiffs
            have filed this suit to set aside in registered sale deed no.4425 dt.
            18/10/1996. And this suit has been filed on 18/10/2013. And the
G
            contention of the Ld. Advocate for defendant no.5 that the suit
            has been filed after delay of almost 17 years and hence the suit is
            prima faciely barred by law of limitation and other submissions of
            the Ld. Advocate of defendant no. 5 that the plaintiffs do not

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CHHOTANBEN AND ANR. v. KIRITBHAI JALKRUSHNABHAI 429
    THAKKAR AND ORS. [A. M. KHANWILKAR, J.]

      have prima facie case, it cannot be considered at this stage because       A
      whether there is delay of almost 17 years in filling this suit or not
      and whether it is barred by law of limitation or not, it is subject
      matter of trial and moreover, the other submissions of Ld. Advocate
      for defendant no.5 regarding no prima facie case in favour of
      plaintiff also cannot be considered as these are also the subject
                                                                                 B
      matter of trial which can be decided only after taking the evidence.
      Moreover, at the time of deciding the application under order 7
      rule 11 the Court has to just look into the averments made in plaint
      only and the plea or defense raised by defendant cannot be taken
      into account at the stage of deciding the application under Order
      7 Rule 11 and here in this case merely looking to the pleading in          C
      the plaint it does not come out that the suit barred by law of
      limitation. Moreover, I am of humble view the case law cited by
      Ld. Advocate for plaintiffs reported as 2015 (1) GLH 1, fully
      support to the case in hand. Moreover, I am of humble view that,
      the case cited by Ld. Advocate for defendant reported in 2015(2)
                                                                                 D
      GLH 355 and 2013 (1) GLR 398, does not support in the present
      case as the factual position of these cases and present case are
      different.”
       7. Respondent No.1 carried the matter before the High Court by
way of a Civil Revision Application No.76/2016 against the order passed
by the Trial Court dismissing his application under Order VII Rule 11(d)         E
of CPC for rejection of the plaint. The High Court allowed the application
under Order VII Rule 11(d) of CPC filed by respondent No.1 (defendant
No.5) and reversed the decision of the Trial Court on the finding that the
suit was barred by limitation. For so holding, the High Court in the
impugned judgment observed thus:                                                 F
      “18. This Court notices that the plaintiffs are the sisters and
      defendants No.1 and 2 in the suit of the year 2013 have chosen
      not to file written statement. Thereby the original defendants No.1
      and 2 who are sellers have not made their stand clear. Strong
      possibility cannot be ruled out that the plaintiffs after about 20         G
      years of the registered sale deed has chosen to bring a collusive
      suit. It is true that only detail of the plaint shall be examined at the
      stage of considering application under Order VII Rule 11 of CPC.
      From a bare reading of the plaint, it is clearly indicative that the

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430             SUPREME COURT REPORTS                            [2018] 3 S.C.R.


A            registered sale deed has been effected in the year 1996 where
             the plaintiffs have affixed their thumb impression as witnesses in
             the very document and the same came to be challenged in the
             year 2013. The reason is not very far to fetch. With the phenomenal
             increase in the land price in the State of Gujarat, such litigations
             by some of the family members are sponsored litigations by other
B
             unscrupulous elements are so often initiated. It is not at all difficult
             to engineer the same and upset many equations of the purchasers
             who have enjoyed the title and peaceful possession for many years.
             Attempt is made to question the registered sale deed on the ground
             that these were the ancestral property and 7/12 Form reflected
C            the name of the revisionist and other defendants. Revenue entry
             has also been mutated soon after the registered sale deed in favour
             of the revisionist and other defendants in the year 1997. The
             mutation order of village form has been effected on the basis of
             such registered sale deed on 21st January, 1997. Copy of which
             has been issued on 31st March, 1997. For such inexplicable delay
D
             plaintiffs ought to have brought on record substantiating the
             documents. However, the documents which have been brought
             also point out that the plaintiffs’ suit is barred by law of limitation
             for having been preferred after expiry of three years period. It is
             to be noted that even during the course, when revenue authority
E            mutated the names of present revisionist and other respondents,
             no objection came to be raised and it is almost after 18 years,
             such objections have surfaced.”
             8. The aforementioned decision of the High Court is the subject
      matter of this appeal at the instance of the appellants (plaintiffs).
F     According to the appellants, the High Court committed manifest error in
      being swayed away by the fact that the suit was filed after about 17
      years. It has proceeded on the basis of assumptions and surmises and
      not in consonance with the limited sphere of consideration at the threshold
      stage for examining the application for rejection of the plaint in terms of
      Order VII Rule 11(d) of CPC. It has not even bothered to analyse the
G     relevant averments in the plaint which, it is well settled, has to be read as
      a whole and has also not adverted to the reasons recorded by the Trial
      Court that the factum of suit being barred by limitation was a triable
      issue in the facts of the present case.
             9. The respondents, on the other hand, would contend that there
H     is no infirmity in the view expressed by the High Court and being a
CHHOTANBEN AND ANR. v. KIRITBHAI JALKRUSHNABHAI 431
    THAKKAR AND ORS. [A. M. KHANWILKAR, J.]

possible view coupled with the fact that the suit instituted by the appellants   A
appears to be a collusive suit, no interference in exercise of jurisdiction
under Article 136 of the Constitution, is warranted. According to the
contesting respondents, it is unlikely that the appellants who are sisters
of original defendant Nos.1 & 2, would not have any knowledge about
the transaction effected vide registered sale deed and especially, when
                                                                                 B
defendant Nos.3 to 6 were in possession of the land for such a long time,
which fact is reinforced from the mutation entries recorded in 1997 and
including the conversion of the land from agricultural to non-agricultural
use. According to the contesting respondents, this appeal ought to be
dismissed.
      10. We have heard Mr. Purvish Jitendra Malkan, learned counsel             C
for the appellants and Mr. Gaurav Agrawal, learned counsel for the
contesting respondents.
       11. After having cogitated over the averments in the plaint and
the reasons recorded by the Trial Court as well as the High Court, we
have no manner of doubt that the High Court committed manifest error             D
in reversing the view taken by the Trial Court that the factum of suit
being barred by limitation, was a triable issue in the fact situation of the
present case. We say so because the appellants (plaintiffs) have asserted
that until 2013 they had no knowledge whatsoever about the execution
of the registered sale deed concerning their ancestral property. Further,        E
they have denied the thumb impressions on the registered sale deed as
belonging to them and have alleged forgery and impersonation. In the
context of totality of averments in the plaint and the reliefs claimed,
which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any
other Article of the Limitation Act will apply to the facts of the present
case, may have to be considered at the appropriate stage.                        F

        12. What is relevant for answering the matter in issue in the context
of the application under Order VII Rule 11(d), is to examine the averments
in the plaint. The plaint is required to be read as a whole. The defence
available to the defendants or the plea taken by them in the written
statement or any application filed by them, cannot be the basis to decide        G
the application under Order VII Rule 11(d). Only the averments in the
plaint are germane. It is common ground that the registered sale deed is
dated 18th October, 1996. The limitation to challenge the registered sale
deed ordinarily would start running from the date on which the sale deed
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432             SUPREME COURT REPORTS                          [2018] 3 S.C.R.


A     was registered. However, the specific case of the appellants (plaintiffs)
      is that until 2013 they had no knowledge whatsoever regarding execution
      of such sale deed by their brothers - original defendant Nos.1 & 2, in
      favour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6.
      They acquired that knowledge on 26.12.2012 and immediately took steps
      to obtain a certified copy of the registered sale deed and on receipt
B
      thereof they realised the fraud played on them by their brothers
      concerning the ancestral property and two days prior to the filing of the
      suit, had approached their brothers (original defendant Nos.1 & 2) calling
      upon them to stop interfering with their possession and to partition the
      property and provide exclusive possession of half (1/2) portion of the
C     land so designated towards their share. However, when they realized
      that the original defendant Nos.1 & 2 would not pay any heed to their
      request, they had no other option but to approach the court of law and
      filed the subject suit within two days therefrom. According to the
      appellants, the suit has been filed within time after acquiring the
      knowledge about the execution of the registered sale deed. In this context,
D
      the Trial Court opined that it was a triable issue and declined to accept
      the application filed by respondent No.1 (defendant No.5) for rejection
      of the plaint under Order VII Rule 11(d). That view commends to us.

             13. The High Court on the other hand, has considered the matter
E     on the basis of conjectures and surmises and not even bothered to analyse
      the averments in the plaint, although it has passed a speaking order running
      into 19 paragraphs. It has attempted to answer the issue in one paragraph
      which has been reproduced hitherto (in paragraph 7). The approach of
      the Trial Court, on the other hand, was consistent with the settled legal
      position expounded in Saleem Bhai and Others Vs. State of
F     Maharashtra and Others 1 , Mayar (H.K.) Ltd. and Others Vs.
      Owners & Parties, Vessel M.V. Fortune Express and Others2 and
      also T. Arivandandam Vs. T.V. Satyapal and Another3.
            14. These decisions have been noted in the case of Church of
      Christ Charitable Trust and Educational Charitable Society Vs.
G
      Ponniamman Educational Trust,4 where this Court, in paragraph 11,
      observed thus:
      1
        (2003) 1 SCC 557
      2
        (2006) 3 SCC 100
      3
        (1977) 4 SCC 467
      4
H       (2012) 8 SCC 706
CHHOTANBEN AND ANR. v. KIRITBHAI JALKRUSHNABHAI 433
    THAKKAR AND ORS. [A. M. KHANWILKAR, J.]

      “11. This position was explained by this Court in Saleem Bhai v.           A
      State of Maharashtra, in which, while considering Order 7 Rule
      11 of the Code, it was held as under: (SCC p. 560, para 9)
          “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 in the plaint. The            B
          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          C
          by the defendant in the written statement would be wholly
          irrelevant at that 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.”                          D
      It is clear that in order to consider Order 7 Rule 11, the court has
      to look into the averments in the plaint and the same can be
      exercised by the trial court at any stage of the suit. It is also clear
      that the averments in the written statement are immaterial and it
      is the duty of the Court to scrutinise the averments/pleas in the          E
      plaint. In other words, what needs to be looked into in deciding
      such an application are the averments in the plaint. At that stage,
      the pleas taken by the defendant in the written statement are
      wholly irrelevant and the matter is to be decided only on the plaint
      averments. These principles have been reiterated in Raptakos
      Brett & Co. Ltd. v. Ganesh Property and Mayar (H.K.) Ltd. v.               F
      Vessel M.V. Fortune Express.”
       15. The High Court has adverted to the case of Church of Christ
Charitable Trust and Educational Charitable Society (supra), which
had occasion to consider the correctness of the view taken by the High
Court in ordering rejection of the plaint in part, against one defendant, on     G
the ground that it did not disclose any cause of action qua that defendant.
The High Court has also noted the decision relied upon by the contesting
respondents in the case of Mayur (H.K.) Ltd. and Ors. (supra), which
has restated the settled legal position about the scope of power of the
Court to reject the plaint under Order VII Rule 11(d) of CPC.                    H
434             SUPREME COURT REPORTS                         [2018] 3 S.C.R.


A            16. In the present case, we find that the appellants (plaintiffs)
      have asserted that the suit was filed immediately after getting knowledge
      about the fraudulent sale deed executed by original defendant Nos.1 &
      2 by keeping them in the dark about such execution and within two
      days from the refusal by the original defendant Nos.1 & 2 to refrain
      from obstructing the peaceful enjoyment of use and possession of the
B
      ancestral property of the appellants. We affirm the view taken by the
      Trial Court that the issue regarding the suit being barred by limitation in
      the facts of the present case, is a triable issue and for which reason the
      plaint cannot be rejected at the threshold in exercise of the power under
      Order VII Rule 11(d).
C             17. In the above conspectus, we have no hesitation in reversing
      the view taken by the High Court and restoring the order of the Trial
      Court rejecting the application (Exh.21) filed by respondent No.1
      (defendant No.5) under Order VII Rule 11(d). Consequently, the plaint
      will get restored to its original number on the file of the IVth Additional
D     Civil Judge, Anand, for being proceeded further in accordance with law.
      We may additionally clarify that the Trial Court shall give effect to the
      order passed below Exh.17 dated 20th January, 2016, reproduced in
      paragraph 5 above, and take it to its logical end, if the same has remained
      unchallenged at the instance of any one of the defendants. Subject to
      that, the said order must be taken to its logical end in accordance with
E     law.
            18. Accordingly, this appeal succeeds and is allowed in the above
      terms, with no order as to costs.


F     Kalpana K. Tripathy                                           Appeal allowed.




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