CHHOTANBEN AND ANR. versus KIRITBHAI JALKRUSHNABHAI THAKKAR AND ORS.

Citation: [2018] 3 S.C.R. 422 · Decided: 10-04-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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422
SUPREME COURT REPORTS
[2018]  3 S.C.R.
       CHHOTANBEN AND ANR.
v.
KIRITBHAI JALKRUSHNABHAI THAKKAR AND ORS.
    (Civil Appeal No. 3500 of  2018)
APRIL 10, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Code of Civil Procedure, 1908:
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
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 –
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
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
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
[2018] 3  S.C.R. 422
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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 VII Rule 11(d). Only the averments in the plaint are
germane. [Para 12] [431-G]
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
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]
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.
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.
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
[2012] 6 SCR 404
referred to
Para 14
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3500
of 2018.
CHHOTANBEN AND ANR. v. KIRITBHAI JALKRUSHNABHAI
THAKKAR AND ORS.
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SUPREME COURT REPORTS
[2018]  3 S.C.R.
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.
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
No.76 of 2016.
2. The appellants filed a suit for declaration and permanent
injunction on 18th October, 2013, against the respondents before the
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