Question: In his written statement filed by the defendant in a civil suit filed by me, he has claimed that my suit is barred by limitation. He has also filed an application under Order 7 Rule 11 of the CPC for rejection of the plaint on the ground of limitation. In my plaint, I have given sufficient grounds to show that the plaint is within the period of limitation. My question is whether my plaint can be rejected at threshold (without conducting trial) on the ground of limitation on the basis of written statement of the defendant?
Answer: The relevant provision in Order 7 Rule 11 of the Civil Procedure Code (CPC) relating to rejection of plaint on the ground of limitation is contained in clause (d) thereof, which is as under:
“11. Rejection of plaint.— The plaint shall be rejected in the following cases:—
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(d) where the suit appears from the statement in the plaint to be barred by any law;”
What this rule states is that where the suit appears be barred by any law from the statement in the plaint. Therefore, at the threshold (i.e., before the regular trial is conducted in the suit), what is to be seen is the plaint itself. Written statement of the defendant may not be relevant at such early stage.
In this regard, in the case of Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, the Supreme Court had held that:
“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 defendant in the written statement would be wholly irrelevant at that stage…”.
Thus, it should be clear that for the purpose of deciding an application under Order 7 Rule 11 for rejection of the plaint on the ground of limitation, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
In a recent judgment in the case of Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422 : AIR 2018 SC 2447, the Supreme Court reiterated this legal position and has held that:
“What is relevant for answering the matter in issue in the context of the application under Order 7 Rule 11(d) CPC, 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 the application under Order 7 Rule 11(d). Only the averments in the plaint are germane.”
In this case, the Supreme Court held that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case and that 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 would apply to the facts of the present case, may have to be considered at the appropriate stage.
So, the legal position is clear that for deciding the application under Order 7 Rule 11 for rejection of the plaint on the ground of limitation, the averments in the plaint are required to be seen and the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.
