Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 706 (ORI)

BAISHNAB CHARAN DAS v. BASANTI SWAIN

2008-08-18

S.PANDA

body2008
JUDGMENT : S. Panda, J. - In this civil revision, the Petitioner has challenged the order dated 16.2.2008 passed by the learned Civil Judge (Senior Judge), 1st Court, Cuttack, in Civil Suit (III) No. 48 of 2006 rejecting an application filed by the Petitioner under Order 7, Rule 11(d), Code of Civil Procedure 2. The facts of the case as narrated in record are as follows: The, Defendant is the Petitioner. The opposite party as the Plaintiff filed a money suit on 28.6.2006 against the present Petitioner for recovery of Rs. 1,46,000/- on the ground that on 28th of January, 2002 she advanced Rs. 40,000/- towards the value of the property in part on the ground that there was an agreement between the parties for sale of immovable property by the Petitioner in favour of the opposite party and since the agreement to sell the immovable property failed, she claimed sixty per cent interest per annum on Rs. 40,000/-, the principal amount, and the total claim for decree was Rs. l,46,000/- with pendente lite and future interest. The opposite party-plaintiff specifically stated that she filed an application before the Chairman of the Orissa State Bar Council praying for necessary legal action against the Defendant for malfeasance and cheating and fraudulent activities of the Defendant. Said application was registered as D.E.C. No. 8 of 2005 and is now pending subjudice for final disposal. In the meantime, the State Bar Council has passed order on 25.2.2007 and in view of such specific assertions made in the plaint, the Defendant-petitioner after getting notice appeared in the suit and filed an application under Order 7, Rule l1(d), CPC to reject the plaint as.on the face of the plaint it appears that the Plaintiffs suit is barred by limitation since it has been filed on 28.6.2006 after a period of four years, and five months from the date when the alleged money was advanced, i.e. 28th January, 2002. Said application of the Petitioner was rejected by the court below on the ground that the question of limitation is a mixed question of fact and law and as the suit had already commenced for hearing, said question cannot be taken up as a preliminary issue. 3. Said application of the Petitioner was rejected by the court below on the ground that the question of limitation is a mixed question of fact and law and as the suit had already commenced for hearing, said question cannot be taken up as a preliminary issue. 3. Learned Counsel for the Petitioner submitted that the fending of the trial court is not sustainable as on the face of the plaint the suit was barred by limitation and since the Plaintiff filed the suit after four years and five months, the court can decide the said issue, if it reveals on the face of the plaint, without any evidence and in the present case, as per the pleadings of the Plaintiff, the court can come to such a conclusion: He further submitted that the trial court did not exercise the jurisdiction vested in it and rejected the Petitioner's application filed under Order 7, Rule 11, CPC Therefore, interference of this Court with the impugned order is warranted. 4. Learned Counsel for the Plaintiff-opposite party submitted that the Plaintiff explained the delay. She made a complaint before the Orissa State Bar Council and filed suit thereafter and as such the suit is within the period of limitation. Therefore, the impugned order need not be interfered with by this Court in exercise of its jurisdiction u/s 115 of the Code of Civil Procedure. He further,submitted that this civil revision is not maintainable, the impugned order being an interlocutory one. 5. After considering the rival submissions made by the learned Counsel for the parties, this Court first takes up the question of maintainability of the civil revision. Though the revision is directed against an interlocutory order, the impugned order comes under the Proviso to Section 115, CPC In the case of Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others it has been held by the apex Court that if the application of the Petitioner is allowed and by such disposal, the suit reaches its finality then the revision is maintainable on behalf of the said party. Here, the Petitioner filed the application under Order 7, Rule ll(d),. CPC Had his application been allowed, the suit would have reached its finality. Therefore, this revision on his behalf is maintainable as per the first Proviso to Section 115, Code of Civil Procedure 6. Here, the Petitioner filed the application under Order 7, Rule ll(d),. CPC Had his application been allowed, the suit would have reached its finality. Therefore, this revision on his behalf is maintainable as per the first Proviso to Section 115, Code of Civil Procedure 6. So far as the second contention whether the court will decide the question as to whether the suit is barred by any law as provided under Order 7, Rule 11(d), CPC is concerned, the court has to examine the plaint. A plain reading of the plaint reveals that if the suit is barred by any law, the court can pass an order. It has been held by the apex Court in the case of Saleem Bhai and Others Vs. State of Maharashtra and Others that a perusal of Order 7, Rule 11, CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7, Rule 11, CPC at any stage of the suit before registering the plaint or after issuing summons to the Defendant at any time before conclusion of the trial. For the purpose of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7, Code of Civil Procedure, the averments in the plaint are germane: pleas taken by the Defendant in the written-statement would be wholly irrelevant at that stage. (Emphasis Added) 7. In view of the aforesaid decision of the apex Court, this Court finds that in the present case the trial court has not considered the application of the Petitioner as per the decision of the apex Court in Saleem Bhai's case (supra) and it has not exercised the jurisdiction vested in it and therefore, the impugned order is set aside and the matter is remanded to the trial court for a fresh consideration of the application flied by the Petitioner under Order 7, Rule 11, CPC and passing necessary orders in accordance with law as early as possible keeping in mind the principle laid down by the apex Court in Saleem Bhai's case (supra). 8. The civil revision is accordingly disposed of. No costs.