Order VII Rule 11 rejection is impermissible where limitation and property status involve mixed questions of fact.

The first respondent (Plaintiff) instituted O.S. No. 48 of 2019 seeking partition and a declaration that a 2008 decree in O.S. No. 48 of 2008 and subsequent sale deeds dated 2009 and 2019 were null and void.

The Petitioner (6th Defendant) filed I.A. No. 2 of 2022 under Order VII Rule 11 of the CPC for rejection of the plaint.

The Petitioner contended that the suit property was the absolute property of the 2nd Defendant (inherited from his mother under Section 15 of the Hindu Succession Act) and not joint family property.

He further argued that the suit was barred by limitation and Order II Rule 2 of the CPC because a previous partition suit (O.S. No. 222 of 2008) filed by the Plaintiff had been dismissed for default in 2015.

The Trial Court dismissed the I.A. on August 12, 2022.

1. Whether the plaint could be rejected under Order VII Rule 11 CPC based on the Petitioner’s claim that the property was absolute and not ancestral?

2. Whether the suit was barred by limitation or by the provisions of Order II Rule 2 CPC at the stage of rejection of the plaint?

The Court applied Order VII Rule 11 of the CPC, which mandates that only the averments in the plaint and the documents filed therewith are to be considered for the rejection of a plaint.

It referred to Section 15 of the Hindu Succession Act, 1956, regarding the nature of property inherited by a male from his mother.

The Court relied on the principle that the cause of action in a partition suit is recurring in nature.

Additionally, it applied the established legal position that limitation is generally a mixed question of law and fact.

and that a bar under Order II Rule 2 CPC cannot be decided without examining the pleadings and judgments of the previous suit.

The Court reasoned that at the Order VII Rule 11 stage, it cannot look into the defense or written statements.

While the Petitioner argued the property was absolute, the Plaintiff’s documents suggested the property might have been treated as joint family property after inheritance, making its character a question of fact to be decided at trial.

On the issue of limitation, the Court held that the Plaintiff's knowledge of the 2008 decree is a factual determination, rendering it a mixed question of law and fact.

Regarding the bar under Order II Rule 2, the Court observed that since the cause of action for partition is recurring, a dismissal for default of a prior suit does not automatically bar a subsequent suit.

Furthermore, an Order II Rule 2 objection requires a comparison of pleadings from both suits, which is beyond the scope of a summary rejection application.

The Court held that the issues of property nature, limitation, and procedural bars under Order II Rule 2 CPC are matters for trial.

The Trial Court was directed to frame specific issues regarding limitation and the Order II Rule 2 bar and decide them on merits based on evidence.

No costs were awarded.