CRP/3868/2011 of Dr.A.Dharma Rakshak Vs G.Yella Reddy on 30 December 2011

ORDER:

This Civil Revision Petition is directed against the order, dated01.08.2011, passed in I.A.No.529 of 2011 in O.S.No.593 of 2008 onthe file of the Principal Senior Civil Judge, Kurnool, whereby andwhereunder, the learned Senior Civil Judge dismissed the applicationfiled by the defendants under Order 7, Rule 11(d) CPC to reject theplaint on the ground of limitation.

2. The petitioner is the 3[rd] defendant and whereas, the respondents1 to 4 are the plaintiffs in O.S.No.593 of 2008. The respondents 5 to 8are the co-defendants in the said suit. The plaintiff filed the suit forspecific performance of agreement of sale, dated 21.07.1993. Thedefendants 1 to 5 entered appearance in the suit and filed writtenstatement. The trial Court settled the issues, including the issue on limitation aspect. The plaintiff placed on record affidavit in lieu of chief-examination. The defendants filed I.A.No.529 of 2011 under Order 7,Rule 11 (d) CPC to reject the plaint as barred by limitation. It ispleaded in the affidavit filed in support of the application that the suitfor specific performance of the agreement of sale, dated 21.07.1993, isbarred by limitation and one of the executants of the agreement of sale,died on 23.04.1998. The plaintiff filed counter resisting the petition. The learned Principal Senior Civil Judge, on considering the materialbrought on record and on hearing the counsel appearing for theparties, came to the conclusion that since the evidence has beencommenced, it is not desirable to adjudicate the issue of limitationbefore conclusion of trial and thereby proceeded to dismiss thepetition, by order, dated 01.08.2011. For better appreciation, I may refer paras.20 to 22 of the impugned order, which read as hereunder:

“20. On my careful scrutiny of pleadings of both parties, I donot think that merely basing on the recitals in the document, it cannotbe said at this stage the suit claim is barred by limitation. Let anopportunity may be given to the plaintiffs to prove their case. Incase, they failed to establish the period of limitation naturally theclaim will go.

21. Since the suit is commenced trial and the matter iscoming up for cross-examination of P.W.1 after marking ofdocuments let trial may be go on accordingly the point is answeredagainst petitioners.

22. Keeping in view of the facts and circumstances, theproposition of law relied upon by the counsel for the plaintiffs areapplicable to the present set of facts on hand. The learned counselfor the plaintiffs further relied upon two more decisions, which are notrelevant, hence, not referred.”

Hence, this revision.

3. Heard Sri Vedula Srinivas, learned counsel appearing for thepetitioner and Sri V.L.G.K.Murthy, learned Counsel appearing for therespondents 1 to 4/plaintiffs 1 to 4.

4. Learned counsel appearing for the petitioner submits that thoughthe revision has been filed by the 3[rd] defendant, it is to be treated asrevision filed on behalf of all the defendants as the defendants 1, 2, 4

and 5 could not join with the 3[rd] defendant because of their non-availability at Hyderabad. A further submission has been made thatwhen an application under Order 7, Rule 11 has been moved, the trialCourt is bound to adjudicate the same. He would also contend that theagreement is dated 21.07.1993 and whereas, the suit has been filedon 15.12.2008 that itself is sufficient to conclude that the suit is barredby limitation. In support of his submissions, reliance has been placedon the decision of the Supreme Court in Popat and KotechaProperty v. State Bank of India Staff Association[[1]].Muchemphasis has been laid on para.23 of the cited judgment, which readsas hereunder:

“Rule 11 of Order 7 lays down an independent remedy madeavailable to the defendant to challenge the maintainability of the suititself, irrespective of his right to contest the same on merits. The lawostensibly does not contemplate at any stage when the objectionscan be raised, and also does not say in express terms about thefiling of a written statement. Instead, the word “shall” is used clearlyimplying thereby that it casts a duty on the court to perform itsobligations in rejecting the plaint when the same is hit by any of theinfirmities provided in the four clauses of Rule 11, even withoutintervention of the defendant. In any event, rejection of the plaintunder Rule 11 does not preclude the plaintiffs from presenting a freshplaint in terms of Rule 13.”

By referring the above decision, it is contended that the applicationunder Order 7, Rule 11 CPC can be maintainable at any stage of thesuit.

5. Per contra, learned counsel appearing for the respondents 1 to4/plaintiffs 1 to 4 submits that the trial Court has gone through theplaint pleadings and came to the conclusion that it is not a case toreject the plaint on the ground of limitation and thereby proceeded todismiss the application and no exceptional ground has been made outby the petitioner to interfere with the order impugned in the revision.

6. Order 7, Rule 11 CPC reads as hereunder:“11. Rejection of plaint.-- The plaint shall be rejected in thefollowing 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 valuationwithin a time to be fixed by the Court, fails to do so;on being required by the Court to correct the valuationwithin a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaintis written upon paper insufficiently stamped, and theplaintiff, on being required by the Court to supply therequisite stamp-paper within a time to be fixed by theCourt, fails to do so;is written upon paper insufficiently stamped, and theplaintiff, on being required by the Court to supply therequisite stamp-paper within a time to be fixed by theCourt, fails to do so; (d)where the suit appears from the statement in the plaint tobe barred by any law;be barred by any law; (e)where it is not filed in duplicate; (f)where the plaintiff fails to comply with the provisions ofRule 9;Rule 9;

Provided that the time fixed by the Court for the correction ofthe valuation or supplying of the requisite stamp-paper shall not beextended unless the Court, for reasons to be recorded, is satisfiedthat the plaintiff was prevented by any cause of an exceptional naturefrom correcting the valuation or supplying the requisite stamp-papers,as the case may be, within the time fixed by the Court and thatrefusal to extend such time would cause grave injustice to theplaintiff.”

7. A perusal of Order 7, Rule 11 CPC makes it clear that the relevantfacts, which need to be looked into for deciding an applicationthereunder, are the averments in the plaint. The trial Court canexercise the power under Order 7, Rule 11 CPC at any stage of thesuit – before registering the plaint or after issuing summons to thedefendant at any time before the conclusion of the trial. For thepurposes of deciding an application under clauses (a) and (d) of Rule11 of Order 7 CPC, the averments in the plaint are germane; the pleastaken by the defendants in the written statement would be whollyirrelevant at that stage.

8. The trial Court has gone through the plaint averments and cameto a conclusion that it cannot be said that the claim is barred bylimitation. It is also to be noted that issue with regard to limitation hasbeen framed and evidence has been commenced. This aspect hasbeen weighed with the trial Court in observing that the plaintiffs can bepermitted to prove their case on the aspect of limitation. In that view ofthe matter, I do not see any illegality or irregularly in the order impugned in the revision warranting interference of this Court inexercise of powers under Article 227 of the Constitution of India. Sincethe suit is of the year 2008, I deem it appropriate to direct the PrincipalSenior Civil Judge, Kurnool, to dispose of the suit as expeditiously aspossible, preferably within four months from the date of receipt of acopy of this Order.

9. Accordingly, the Civil Revision Petition is dismissed. No costs.

______________________

B.SESHASAYANA REDDY, J.

Date:30[th] December, 2011.

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THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY

Date:30th December, 2011

[1](2005) 7 SCC 510