The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 865 of 2023 An application under Article 227 of the Constitution of India. --------------- Gajendra Behera .... Petitioner -Versus- Smt. Parbati Rout and Others .... Opp. Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. T.K. Mishra & P. Bastia Advocates For Opp. Parties : Mr. S.P. Mishra, Sr. Advocate M/s. A. Das, M.R. Das A.K. Mohanty & S. Samal Advocates _______________________________________________________ CORAM: [For O.P. Nos. 1 to 4] JUSTICE SASHIKANTA MISHRA JUDGMENT 11.11. 2025 SASHIKANTA MISHRA, J. The Petitioner, who is Defendant No.2 in C.S. No. 264 of 2019 pending in the Court of learned Civil Page 1 of 13 Judge (Senior Division), Chandikhole has filed this writ petition challenging the order dated 15.07.2023 passed by the learned District Judge, Jajpur in Civil Revision No.1 of
Facts
2022 confirming the order dated 05.03.2022 passed by the trial Court. 2. For convenience, the parties are referred to as per their respective status before the trial Court. 3. The facts of the case are that the present Opposite Party Nos.1 to 7 being the Plaintiffs have filed the suit against the present Petitioner and Opposite Party No.8 seeking a direction to them to execute a sale deed in their favour in respect of the suit land as per agreements dated 09.02.2009 and 16.02.2009 with further declaration of their right, title, interest and possession and for a declaration that the sale deed dated 16.11.2012 is illegal, void and not acted upon. 4. The case of the Plaintiffs is that they are the successors of one Kelu Rout, in whose favour an agreement was executed by Rasananda Rout, who had ‰ share over the ancestral properties. Rasananda executed Page 2 of 13 two unregistered agreements for sale on 09.02.2009 and 16.02.2009 with Kelu Rout to meet the expenses of his daughter’s marriage and received consideration of Rs.4,80,000/- and delivered possession. However, Rasananda executed a sale deed on 16.11.2012 in favour of Defendant No.2 (Petitioner) without consideration and delivery of possession behind the back of the Plaintiffs. The Plaintiffs came to know about this when they received summons in C.S. No.515 of 2015 in the year 2015. They asked Defendant No.1 for execution of sale deed, who assured them that he would do so after cancellation of the sale deed dated 16.11.2012 and after obtaining permission under Section 34 of the OCH & PFL Act. Again, Defendant No.1 was requested in January, 2018 and ultimately, he refused to execute the sale deed on 21.10.2019. Hence, the suit. 5. After appearing in the suit upon receiving summons, Defendant No.2 filed his written statement, inter alia, questioning its maintainability. He also filed an application under Oder-VII Rule 11 of CPC for rejection of the plaint on the ground of limitation inasmuch as the Page 3 of 13 plaintiffs having had knowledge of execution of the sale deed by Defendant No.1 in favour of Defendant No.2 in the year 2015, filed the suit in 2019. 6. After hearing the parties, the trial Court held that limitation is a mixed question of fact and law which is to be determination during trial. As such, the petition was rejected. The Plaintiffs filed revision against the order before the learned District Judge. Learned District Judge, who, by the order impugned, also rejected the same, more or less on the same ground as the trial Court. 7.
Legal Reasoning
simple reason that the position of law being well settled in this context, the enquiry ought to have been confined to examination of the plaint. Nevertheless, learned District Judge after devoting several paragraphs of the judgment to cite the judgments has ultimately focused his attention to the plaint averments (in two paragraphs out of 12) and held that the question of limitation in the present case is a mixed question of law and fact, for which the plaint Page 12 of 13 cannot be rejected under Order-VII Rule 11 of CPC. Nevertheless, \for the reasons already stated cited, this Court is not persuaded to interfere with the impugned order. 14. Resultantly, the CMP is found to be devoid of merit and is therefore, dismissed. ……..………………….. (Sashikanta Mishra) Judge Orissa High Court, Cuttack, The 11th Nov., 2025/ B.C. Tudu, Sr.Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 12-Nov-2025 10:35:04 Page 13 of 13
Arguments
Heard Mr. T.K. Mishra, learned counsel for the Plaintiffs and Mr. S.P. Mishra, learned Senior Counsel with Mr. M.R. Dash, learned counsel for Defendant No.2- petitioner. 8. Mr. T.K. Mishra would argue that a suit which is clearly barred by limitation cannot be entertained and therefore the plaint can be rejected under Order VII Rule 11(d) of CPC. In the plaint itself, the Plaintiffs have admitted that they came to know about the sale deed dated 16.11.2012 executed by Rasananda in favour of Page 4 of 13 Defendant No.2 in the year 2015 when they received summons in C.S. No.515 of 2015. The suit having been filed in October, 2019 is therefore clearly barred by limitation. Even otherwise, accepting the plea taken by the Plaintiffs that they requested Defendant No.1 to execute sale deed in terms of agreements dated 09.02.2009 and 16.02.2009, which he refused in January 2016, the suit ought to have been filed by January 2019. But the suit having been filed in October 2019 is therefore, barred by limitation. He further argues that the Plaintiffs cannot take advantage of clever drafting of the plaint. As per Article- 54 of the Limitation Act, the suit should have been filed within three years from the date fixed for performance or if no such date is fixed, from the date when the Plaintiffs had notice that performance was refused. No date is fixed for performance of the agreements in question and therefore, receipt of summons in C.S. No.515 of 2015 must be deemed to be the date on which the Plaintiffs came to know about execution of the sale deed dated 16.11.2012. Page 5 of 13 Mr. Mishra further argues that permission under Section 34 of the OCH & PFL Act having not been obtained, and the agreements being unregistered and not properly stamped, they are void ab initio and not enforceable. In support of his contentions, Mr. Mishra relies upon the following judgments- i. Ahmadsahab Abdul Mulla (2) v. Bibijan, reported in (2009) 5 SCC 462, ii. Fatehji & Co. v. L.M. Nagpal, reported in (2015) 8 SCC 390, iii. Suresh Kumar Dagla v. Sarwan and Anr., reported in 2016 (II) CLR (SC) 549 iv. 2007 Vol. (II) OLR (SC) 613, v. Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Lr.s,2019 (I) CLR (SC) 881, vi. Hardesh Ores Pvt. Ltd. v. Hede & Co., reported in 2007 (II) OLR (SC) 613, vii. Dahiben v. Arvindbhai Kalyanji Bhanusali, reported in (2020) 7 SCC 366, viii. A. Valliammai vs. K.P. Murali and Others), reported in 2023 INSC 823, ix. Sri Mukund Bhavan Trust and Others vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj and another, reported in 2024 INSC 1025, Bhonsle Page 6 of 13 x. Indian Evangelical Lutheran Church Trust Association vs. Sri Bala and Co., reported in 2025 INSC 42. 9. Per contra, Mr. S.P. Mishra, learned Senior Counsel would argue that both the Courts below have rightly held that limitation is a mixed question of fact and law. In view of the specific stand taken by the Plaintiffs in their plaint under paragraphs-4 and 5, the onus is on them to adduce evidence in support thereof. This is therefore, not a case where the suit can be held to be barred by limitation on the face of it. Elaborating his argument, Mr. Mishra, would submit that the Plaintiffs have clearly explained as to why, despite having knowledge of execution of the sale deed in question in the year 2015, the suit was filed in the year 2019. These are facts that need to be proved by way of evidence. The Plaintiffs cannot be non-suited on the ground of limitation as have been rightly held by the Courts below. Mr. Mishra cites the following judgment in support of his contentions: Karam Singh v. Amarjit Singh & Or., SLP (C) No.-3560-3561/2023 Page 7 of 13 10. Before delving into the merits of the rival contentions, it would be proper to refer to the provision under Order VII Rule-11 of CPC, which is reproduced below:- “11. Rejection of plaint.- The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, 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; (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law: (e) where it is not filed in duplicate; (f) Where the plaintiff fails to comply with the provisions of rule-9 [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an Page 8 of 13 exceptional nature form correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]” 11. It is evident that as per Clause-(d) of Rule-11, a plaint can be rejected if the suit is barred by limitation. It is well settled that limitation is a mixed question of fact and law and requires evidence for its determination. Of course, where a plaint is barred by limitation on the face of it and no evidence is required to establish it, the matter would be different. But where a specific plea has been taken, the same has to be considered in the backdrop of evidence adduced by the parties. It is also well settled that in deciding an application under Order-VII Rule 11 of CPC, the averments of the plaint only are to be looked into and the defence of the Defendants is of no consequence. 12. Viewed in light of the above position of law, this Court finds that in paragraphs-4 and 5, the Plaintiffs have averred as follows:- “4) That Rasananda Rout executed one nominal, illegal and void sale deed dated 16.11.2012 in Page 9 of 13 favour of the Defendant No.2. Gajendra Behera without any consideration money and without any delivery of possession and without the knowledge of the plaintiffs and without performing contract as per previous said agreement on his part. This fact came to the knowledge of the plaintiffs from the summons of C.S. No. 815 of 2015 in the year 2015 and thereafter asked the Defendant No.1 for execution of sale deed but the defendant No.1 gave assurance to execute sale deed in favour of the plaintiffs after cancellation of the RSD No. 3411 dated 16.11.2012 executed in favour of the defendant No.2 after obtaining the permission from the Tahasildar u/s. 34 of OCH & PFL Act afresh. It will take time. 5) That further the plaintiff asked the defendant No.1 for execution of sale deed on January 2016 but the defendant No.1 takes further time. Similarly again the plaintiff asked the defendant for execution of sale deed and also he further took time for an year. Thereafter the plaintiffs asked the defendant on January, 2018 but the defendant No.1 took further time for another one year. Therefore, the plaintiff asked the defendant No.1 on 21.10.2019, but he straight refused to execute the sale deed as the defendant No.2 did not agree to cancel his sale deed. Hence the Page 10 of 13 plaintiffs are forced to file this suit for specific performance of contract with a direction to the defendant No.1 to execute and register a sale deed in favour of the plaintiffs in respect of suit lands and to declare the RSD dated 16.11.2012 as wrong, illegal and null and void and further declaration of right, title and interest and possession of the plaintiffs in the suit land.” 13. A bare reading of the quoted pleadings would suggest that certain dates have been mentioned when the Plaintiffs supposedly asked Defendant No.1 to execute the sale deed. It is stated that Defendant No.1 requested for time. The Plaintiffs again requested and finally on 21.10.2019, the Defendant No.1 refused to execute the sale deed, whereupon the suit was filed. This pleading cannot be rejected outright as being false on the face of it in any manner whatsoever. True, it is for the Plaintiffs to prove their assertion as such, by adducing evidence and if they fail to do so, the trial Court would be justified in dismissing the suit on the ground of limitation. But the plaint cannot be rejected at the threshold, assuming that such an eventuality could arise. A mere possible outcome Page 11 of 13 based on evidence cannot be pre-supposed to reject the plaint at the threshold. Though the parties have cited several judgments, there being no quarrel with regard to the settled position of law, this Court does not deem it necessary to refer to each of the said judgments, more so as the facts of the case as narrated are enough to persuade this Court that the Courts below committed no illegality in rejecting the contentions of the Plaintiffs by refusing to reject the plaint under Order-VII Rule 11 (d) of CPC. Learned District Judge has passed an elaborate order, which this Court has perused carefully. Though several judgments have been cited in the judgment, this Court finds the same practically unnecessary for the