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AJAY MOHAN GOEL, J. (ORAL) –

By way of this petition, the petitioner has challenged the order passed by the learned Court below, in terms whereof, an application filed by the petitioner under Order VII, Rule 11 of the Civil Procedure Code (hereinafter referred to as ‘CPC’), has been dismissed.

2. Brief facts necessary for the adjudication of this petition are that the respondent has filed a suit for recovery of Rs. 19,9,424/- against the present petitioner, which is pending adjudication before the learned Court below.

3. Learned counsel for the petitioner has stated in the Court that in the said Civil Suit, the right of the petitioner to file written statement has been struck off.

4. Be that as it may, the petitioner preferred an application under Order VII, Rule 11 of CPC, for rejection of the plaint, inter alia, on the ground that in terms of the averments made in the plaint, the alleged cause of action accrued in the year 1993-94 and as the plaintiff did not approach the Court, within three years from the cause of action, the suit was barred by limitation. This application has been rejected by the learned Trial Court, in terms of order dated 17.04.2018, by returning the following findings:-

“7. Thus, as per the pleadings of the plaintiff/nonapplicant, the cause of action arose in its favour in the year 1991-1992 to 1993-1994, thereafter, on 16.5.1995, 25.5.1995, 29.09.1997, 30.4.2010, 11.12.2013, 28.2.2011, 12.10.2015 and on 11.1.2016 and thus, the alleged cause of action in the present case appears to be a mixed question of facts and law which can be adjudicated on the basis of some evidence and therefore, at this stage, without any evidence on record, it cannot be concluded that the cause of action a rose in favour of the plaintiff/non-applicant only during the year 1991-1992 to 1993-1994 and the suit should have been filed before the year 1997 and thus when the plaintiff/nonapplicant has pleaded several dates and occasions about arising cause of action in its favour, then, the plea of the defendant/applicant seeking rejection of the plaint cannot be held to be acceptable and it can be not be concluded a this stage that the plaintiff/non-applicant has not cause of action.

8. Thus, keeping in view the aforesaid reasons and discussions and the facts and circumstances of the present case, the present application cannot be held to be maintainable and it merits dismissal and it is accordingly dismissed with no orders as to costs. The application stands disposed off. It be tagged with the main case file.”

5. Learned counsel for the petitioner has argued that the impugned order is not sustainable in the eyes of law, as the learned Court below erred in not appreciating that because in terms of the averments made in the plaint, the cause of action initially accrued in between 1991-92 to 1993-94, the suit ought to have been filed within a period of three years from the said date and, therefore, as the suit was barred by law, it was hit by the provisions of Order VII, Rule 11 (D) of CPC. Accordingly, he argued that as the impugned order is not sustainable in the eyes of law, the same be dismissed.

6. I have heard learned counsel for the petitioner and have also gone through the impugned order as well as other documents appended with the petition.

7. In terms of Order VII, Rule 11 of the CPC, a plaint can be rejected if it does not disclose a cause of action, if the relief claimed is under-valued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so, where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and plaintiff on being required by Court to supply the requisite stamp paper within a time fixed by the Court, fails to do so, where the suit appears from the statement in the plaint to be barred by any law etc.

8. It is settled law that in order to adjudicate an application in filed under Order VII, Rule 11 of the CPC, the Court is not to step out of the pleadings as are contained in the plaint and the documents appended therewith. The defence of the other party is not to be taken into consideration at the time of deciding the application filed under Order VII, Rule 11 of the CPC.

9. In terms of the order passed by the learned Trial Court, the application was dismissed, inter alia, on the ground that in terms of the averments made in the plaint, the cause of action was stated to have initially accrued in between 1991-92 to 1993-94, however, it was mentioned therein that it again accrued on other dates including on 11.01.2016. Learned Court observed that in the facts of the case, the issue of cause of action appeared to be a mix question of facts and law, which could be adjudicated on the basis of some evidence and, therefore, at this stage, without any evidence on record it cannot be concluded whether the cause of action arose in favour of the plaintiff only in the year 1991-92 to 1993-94 or thereafter also.

10. This Court concurs with the findings returned by the Learned Trial Court. In terms of the averments made in the plaint, as per the plaintiff, the cause of action firstly accrued in the year 1991-92 to 1993-94 when the defendant was posted at Sikandarabad and he misappropriated the amount which came to the knowledge of the plaintiff when one Dinesh Kumar, Junior Accountant/Regional Manager, submitted the report of embezzlement and thereafter on 16.05.1995 when Surender Mohan Sharma, Regional Manager, Chennai, registered an FIR for misappropriation of funds against Amar Dutt Sharma i.e. the present petitioner. It is further averrred in the plaint that the cause of action accrued thereafter on 25.05.1995 when Departmental proceedings were initiated and were later on dropped on the request of defendant on 29.09.1997 and thereafter also on 30.04.2010 when defendant retired and preferred CWP, which was decided on 11.12.2013. According to the plaintiff, the cause of action again accrued when the criminal case was decided on 28.02.2011 as well as on 12.10.2015, when the Letters Patent Appeal was decided by this Court and the Court directed the release of service benefits to the defendant. In terms of the averments made in the plaint, it lastly accrued, on 11.01.2016, when the entire benefits were released in favour of the defendant.

11. Now this Court is not even remotely suggesting that the cause of action actually accrued on these dates or not. This obviously, the plaintiff will have to demonstrate in the course of the trial of the Suit. But in light of the fact that in terms of the averments made in the plaint, the cause of action is stated to have lastly accrued on 11.01.2016 and the suit was filed in the year 2016 itself, prima facie, it can not be said from the perusal of the plaint that the suit is barred by limitation. That being the case, as already observed hereinabove, the reasonings returned by the learned Trial Court while dismissing the application filed under Order VII, Rule 11 of the CPC, call for no interference.

12. Accordingly, as this Court finds no merit in the present petition, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.

Petition dismissed.

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