2005 (11) TMI 510

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....7 was illegal and void having been executed without any title of ownership therein with the predetermined object of depriving the plaintiffs of the said property without any authority of law. It was also alleged that a fraud had been committed. An application was filed under Order 39 Rules 1 and 2 of the Civil Procedure Code seeking injunction restraining Defendants 13 to 18 from changing the nature and character of Schedule 'D' property by alienating or transferring the same in any manner whatsoever and also from undertaking any construction thereon. Defendant 18 in the suit, the appellant herein, instead of filing the written statement filed an application under Order 7 Rule 11 read with Section 151 of the Civil Procedure Code see....

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.... two judgments, cited above. But this point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman, AIR 1999 Rajasthan 102, Khaja Quthubullah v. Govt. of A.P., AIR 1995 Andhra Pradesh 43, Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana, (1980)1 An LT 488 : (1980)1 APLJ (HC) 173, Arjan Singh v. Union of India, AIR 1987 Delhi 165, wherein it has been held that the plaint under Order 7 Rule 11(d) cannot be rejected on the ground that it is barred by limitation. According to these judgments the suit has to be barred by a provision of law to come within the meaning of Order 7 Rule 11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd., ....

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....s High Courts and the apparent conflict of opinion expressed by this Court in N.V. Srinivasa Murthy v. Mariyammat and Popat and Kotecha Property v. State Bank of India Staff Assn., the Bench referred to the following question of law for consideration to a larger Bench :   "Whether the words 'barred by law' under Order 7 Rule 11 (d) would also include the ground that it is barred by the law of limitation." 5. Before the three-Judge Bench, counsel for both the parties stated as follows :   "...It is not the case of either side that as an absolute proposition an application under Order 7 and Rule 11(d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the....