1. The plaintiff - respondents, hereinafter referred to as the respondents, filed a suit for a declaration that the acquisition of Schedule 'B' property in LA Case No. XI/16 of 1965 - 66 was illegal and void. Another prayer made by them in the suit was that the sale deed dated 11-9-1975 in respect of Schedule 'D' property executed by Defendant 5 in favour of Arjun Singh, predecessor in interest of Defendants 13 to 17 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 O.39 R.1 and 2 of the Code of Civil Procedure 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 O.7 R.11 read with S.151 of the Code of Civil Procedure seeking rejection of the plaint which was termed as dismissal of the suit.

2. The trial court dismissed the application, aggrieved against which the appellant filed CO No. 1512 of 2002 which has been decided by the impugned order. The learned Single Judge, although did not agree with the reasoning given by the trial court, but upheld the conclusions arrived at by the trial court on different grounds. The learned Single Judge went on the merits of the dispute and dismissed the revision application.

3. Aggrieved against the aforesaid order of the High Court the present appeal by way of special leave has been filed.

4. This case was argued at length on 30-8-2005. Counsel appearing for the appellant had relied upon a judgment of this Court in N. V. Srinivasa Murthy v. Mariyamma (2005 (5) SCC 548) [LQ/SC/2005/673] for the proposition that a plaint could be rejected if the suit is ex facie barred by limitation. As against this, counsel for the respondents relied upon a later judgment of this Court in Popat and Kotecha Property v. State Bank of India Staff Assn. (2005 (7) SCC 510) [LQ/SC/2005/854] in respect of the proposition that O.7 R.11(d) was not applicable in a case where a question has to be decided on the basis of fact that the suit was barred by limitation. The point as to whether the words "barred by law" occurring in O.7 R.11(d) CPC would include the suit being "barred by limitation" was not specifically dealt with in either of these 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 Raj 102) [LQ/RajHC/1999/1] , Khaja Quthubullah v. Govt. of A.P. (AIR 1995 AP 43 [LQ/TelHC/1994/216] ), Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana (1980 (1) An LT 488), Arjan Singh v. Union of India (AIR 1987 Del 165) [LQ/DelHC/1986/149] wherein it has been held that the plaint under O.7 R.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 O.7 R.11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd. (AIR 1985 Cal 193) [LQ/CalHC/1984/265] , National Insurance Co. Ltd. v. Navrom Constantza (AIR 1988 Cal 155) [LQ/CalHC/1987/182] , J. Patel & Co. v. National Federation of Industrial Coop. Ltd. (AIR 1996 Cal 253) [LQ/CalHC/1995/324] and State Bank of India Staff Assn. v. Popat & Kotecha Property (2001 (2) Cal LT 34). The last judgment was the subject matter of challenge in Popat and Kotecha Property v. State Bank of India Staff Assn. (2005 (7) SCC 510) [LQ/SC/2005/854] This Court set aside the judgment and held in para 25 as under:

"25. When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case (Sopan Sukhdeo Sable v. Asstt. Charity Commr., 2004 (3) SCC 137) [LQ/SC/2004/107] the inevitable conclusion is that the Division Bench was not right in holding that O.7 R.11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of O.7 R.11. This is not so in the present case."

5. Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by this Court in N. V. Srinivasa Murthy v. Mariyamma1 and Popat and Kotecha Property v. State Bank of India Staff Assn.2 the Bench referred the following question of law for consideration to a larger Bench:

"Whether the words 'barred by law' under O.7 R.11(d) would also include the ground that it is barred by the law of limitation."

6. 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 O.7 and R.11(d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under O.7 R.11(d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case."

7. In view of the statement made by the counsel for the parties, the Bench held that the question referred to the larger Bench was academic so far as this case is concerned and accordingly declined to decide the question. The case was sent back to the Bench for disposal on merits based on the facts of the case.

8. After hearing counsel for the parties, going through the plaint, application under O.7 R.11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under O.7 R.11(d) of the Code of Civil Procedure.

9. The interim stay granted by this Court staying the further proceedings of the trial court is vacated. The parties are relegated to contest the suit. The appellant is permitted to file the written statement within thirty days from today. It shall be open to the appellant to raise any plea available to it under the law including the plea of limitation, maintainability of the suit, etc. The plaintiff - respondents would also be at liberty to file the replication to the written statement, if any, within fifteen days of receipt of the copy of the written statement. The trial court shall decide the points/issues raised in the suit without being influenced by any of the observations made in this order or that of the High Court or the, trial court. Since the suit is pending for the last four years, the trial court is directed to dispose of the suit expeditiously, preferably within a period of one year from today. 10. The appeal is disposed of accordingly. No costs.