In the recent case Salim D.Agboatwala and others vs. Shamalji Thakkar and others, the apex court held that the plaint cannot be rejected under O.7 R.11 if the suit contains an issue of limitation which is a mixed question of fact and law.
The suit was filed in 1987 to set aside the order passed by the Agricultural Land Tribunal in 1963 under Maharashtra Tenancy and Agricultural lands act, 1948.
The defendant contended before the court that the order was passed in 1963 by the Agricultural Land Tribunal in 1963 under Maharashtra Tenancy and Agricultural lands act, 1948 and the suit filed by the plaintiff in 1987 which was barred by the limitation act. They also raised a plea for rejection of plaint before the trial court.
The trial court accepted the contention of the defendant and passed the order for rejection of the plaint under O.7 R.11 CPC. Bombay High court also upheld the decision of the trial court in this case.
Plaintiff appealed before the apex court and contended that their suit was filed within the limitation period as they got information regarding the order of the Agricultural Land Tribunal in 1987 they filed the suit before the court for setting aside such order.
The bench of Justice Hemant Gupta and Justice V Ramasubramaniam heard the case. The bench observed that whether the contention of the plaintiff is true or not is a triable issue, it should not be rejected at the beginning itself.
The court said that under O.7 R.11 a crucial power conferred on the court to reject the plaint or to terminate the suit at the threshold. Therefore the condition required to pass such an order should be strict especially when the plaint is rejected on the ground of limitation.
The contention of the plaintiff should be heard at the stage when the application under O 7 R11 CPC is considered by the court.
The evidence has shown that the plaintiff neither received any notice regarding the order of the Agricultural Land Tribunal nor any notice served on them. When he got the knowledge of order at that particular point in time the cause of action aroused.
The apex court held that suit is not barred by the limitation. The judgments of Bombay high court and the trial court are liable to be set aside.