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2009 DIGILAW 13 (JK)

Altaf Ahmad Hakim v. State Of J. &K.

2009-01-21

MUZAFFAR HUSSAIN ATTAR

body2009
1. This revision petition calls in question order passed by ld. Addl. District Judge Baramulla dated 08/2007 in case titled Altaf Ah. Hakim plaintiff vs. State of J&K & Ors defendants, wherein and whereunder plaint has been rejected under Order 7 Rule 11 Code of Civil Procedure (CPC). The plaint has been rejected on the sole ground that the suit has been filed beyond the period prescribed by the Limitation Act. The order of rejection of plaint under Order 7 Rule 11(d) by a court of law constitutes decree in terms of section 2 (2) of CPC. A decree can be challenged by filing an appeal u/s 96 CPC read with Order 41 of CPC. In the present case, the petitioner however has challenged the said order by filing revision petition. Section 2 (2) of CPC is reproduced as under: - 1. ******* 2. "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within 1(***) section 144, but shall not include- a. any adjudication from which an appeal lies as an appeal from an order, or b. any order of dismissal for default. Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; Section 96 of CPC is reproduced as under: - 1. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to her appeals from the decision of such Court. 2. An appeal may lie from an original decree passed ex-parte. 3. No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees. 2. 2. An appeal may lie from an original decree passed ex-parte. 3. No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees. 2. Section 115 of the CPC confers powers on the High Court to call for the record of any case and confers further powers on the High Court to make such orders as it thinks fit. The record of the trial court reveals that after passing of the order of rejecting the plaint under Order 7 Rule 11 CPC, no decree sheet has been framed. 3. As nobody has appeared for the respondent and no objection has been taken about the maintainability of the revision petition, the question is left open for being considered and decided in an appropriate case where the said issue is raised and debated. 4. The case of the petitioner is that he has instituted a suit for recovery of Rs. 9,23,855/- (nine lacs, twenty three thousand eight hundred fifty five). The suit was instituted initially before this court on 1st April 1996 and was numbered as COS 87/1996. The suit however, was transferred to ld. District Judge Baramulla vide order dated 3rd of May 1996 where from it appears to have been transferred to the files of Ld. Addl. District Judge Baramulla. The plaintiff prayed for passing of decree in the amount of Rs. 9,23,855/- (nine lacs, twenty three thousand eight hundred fifty five) in his favour and against the defendants jointly and severely with interest pendelite @ 22% and also till the liability is satisfied. Plaintiff has pleaded in the suit that he is an A-Class contractor registered with the Public Works Department of the state of J&K, defendants 3 & 4 allotted work to him, details whereof are given in the Para 2 of the plaint. In Para 3 of the plaint, the plaintiff has pleaded that in the year 1998, plaintiff was allotted some more works. The plaintiff claims that all the works have been executed by him. The plaintiff further claims that construction was completed within prescribed time, and possession was handed over to defendant no.3 on 22nd of October 1988 and plaintiff had also submitted the bill in the amount of Rs. The plaintiff claims that all the works have been executed by him. The plaintiff further claims that construction was completed within prescribed time, and possession was handed over to defendant no.3 on 22nd of October 1988 and plaintiff had also submitted the bill in the amount of Rs. 79,191/- (seventy nine thousand, one hundred ninety one) which was approved and payment was directed to be made. The plaintiffs further case is that after completion of the construction of lavatory block possession was taken over by defendant no. 3 on 17th of October 1988 and plaintiff had submitted bill in the amount of Rs. 2,26,272/- (two lacs twenty six thousand, two hundred and seventy two). It is further case of the plaintiff that as the money was not paid to the plaintiff, he made persistent and regular requests for disbursement thereof. The plaintiff submits that defendant no.1 released an amount of Rs. 13.90 lacs in favour of the defendant no.3 to liquidate the liabilities which inter alia included the liability of the plaintiff. The plaintiff submits that only 40,000/- (forty thousand) were paid to him in the year 1990 and balance amount was not paid to him. The plaintiff has further pleaded at Para-7 of his plaint that in view of the conduct of the defendants, he was constrained to approach this Court by filing writ petition no. 186/1991, which writ petition was disposed of by this court vide its order dated 9th of November 1992 with direction that payment of amount indicated be made to plaintiff as expeditiously as possible. It is further case of the plaintiff that he served copies of the judgment on respondent no. 3 before 20th of November 1992, payment was not made to him which forced him to file contempt petition before this court which was registered as Civil Miscellaneous Petition no. 289/1992. It is further case of the plaintiff that this Court vide its order dated 18th of April 1994 directed defendants to make payment of the amounts within two weeks from the time copy of the order received by them. It is further, case of the plaintiff that the said order was also served on defendant no.3 but no payment was paid to him on the pretext of non-availability of the funds. The plaintiff claims that he was promised that payment will be paid soon. It is further, case of the plaintiff that the said order was also served on defendant no.3 but no payment was paid to him on the pretext of non-availability of the funds. The plaintiff claims that he was promised that payment will be paid soon. At para 8 of the plaint, the plaintiff has given further details about the disposal of the contempt petition and direction to defendants to make payment within a period of 6 months to the plaintiff from the date certified copy of the order is served on the defendants with written request for the payment. Para 9 of the plaint reveals that plaintiff was aggrieved of the above said order which had provided further six months to the defendants for making the payments and challenged same by filing LPA which was registered as LPA(w) no. 252/1994. This Court vide its order date 22nd of February 1995 directed the defendants to make the payment of the outstanding amount to the plaintiff. The plaintiff has further submitted that it was on December 2/3 1995 that the defendant no.3 told him that under law defendants were not obliged to make any payment to the plaintiff which constrained him to serve notice on respondents u/s 80 CPC. The claim of the petitioner in para 12 of the plaint is that despite expiry of notice period, payments were not made to him and he was constrained to institute the suit for recovery thereof. At para 15 of the plaint, the plaintiff has stated that cause of action has accrued to him on 2/3 December 1995 when the defendants refused to make payment of the said amount and claims that suit is within time. 5. The record reveals that the defendants filed their written statement and pleaded that defendants have paid Rs. 40,000/- (forty thousand) to the plaintiff for the work executed by him. It is further pleaded that he is not entitled to any further amount. The defendants in their written statement have neither denied the filing of writ petition, contempt petition and letters patent appeal on the same subject matter before this Court nor they have stated anywhere that the suit is barred by limitation and merits its rejection. 6. It is further pleaded that he is not entitled to any further amount. The defendants in their written statement have neither denied the filing of writ petition, contempt petition and letters patent appeal on the same subject matter before this Court nor they have stated anywhere that the suit is barred by limitation and merits its rejection. 6. The record further reveals that an application seeking condonation of delay in filing the suit was also filed by the plaintiff on the same grounds which have been pleaded in para 7 to 9 of the plaint. The application filed was supported by an affidavit. The record further reveals that the defendants filed objections to the application for condonation of delay. Objection was taken that there is no provision for condoning the period of delay for filing of the suit. It was further submitted in the objections that section 5 of the Limitation Act is not applicable to the suits. 7. The trial court record reveals that issues were framed on 8th of August 2002 and issue no. 6 provided, whether the suit in the present form is not maintainable and onus of proving the same was on defendants. Vide the same order, it was directed that the counsel for the parties shall address arguments on issue no.6 which was treated to be preliminary issue. 8. The learned trial judge after hearing the arguments on the preliminary issue ordered for rejection of the plaint on 10th of August 2007. The impugned order has been passed mainly on the ground that the plaintiff has failed to state the grounds of exemption from law of limitation in the plaint itself which would entitle him to institute the suit alter the expiry of period prescribed by law of limitation as ordained by Order 7 Rule 6 CPC. The learned trial judge has relied upon judgment of the privy counsel reported in AIR 1934 PC page 208, which provided that if no ground of exemption from the law of limitation is shown in the plaint, it is liable to be rejected under Order 7 Rule 11(d) CPC. 9. The learned trial judge has relied upon judgment of the privy counsel reported in AIR 1934 PC page 208, which provided that if no ground of exemption from the law of limitation is shown in the plaint, it is liable to be rejected under Order 7 Rule 11(d) CPC. 9. This order is in challenge by filing the revision petition on the ground that the trial court has rejected the plaint under Order 7 Rule 11 CPC as the trial court has considered the case u/s 5 of the Limitation Act and has further failed to take cognizance of the fact that in the plaint the petitioner had stated full facts with regard to earlier proceedings which the plaintiff had initiated by filing of writ petition and contempt petition. The petitioner has further stated that his case was required to be considered by the trial court for exclusion of time u/s 14 of the Limitation Act and other enabling provisions. It is further contended that the petitioner has been enforcing his earlier claim seeking recovery of the amount due in good faith and bonafide. 10. Heard learned counsel for the petitioner and considered the matter. Mr. Zaffar Ahmad Shah, ld. Sr. Advocate while arguing the case reiterated the grounds taken in the revision petition and submitted that the order impugned in the revision petition is rendered bad in law. Learned Sr. Advocate extensively read the impugned order while arguing the case and submitted that the order suffers from material irregularity and illegality as the basis on which the order is passed by the trial court, viz the grounds of exemption from law of limitation having not been taken in the plaint, being factually incorrect, knocks the bottom out of the impugned order, as all the facts which constitute ground of exemption from law of limitation as required by Order 7 Rule 6 CPC have been pleaded in the plaint, the learned counsel in support of his argument has referred to the relevant paras of the plaint. 11. 11. Order 7 Rule 11 CPC casts an onerous duty on the courts to reject the plaint if it is hit by any of the clauses a-d. Order 7 Rule 11 CPC has to be followed faithfully by all the courts and has to be given effect with full force so as to ensure that the suits which on the grounds provided in Order 7 Rule 11 CPC will entail dismissal even after trial of the suit, shall be dismissed at the threshold stage so as to save the precious time of the court and allow the bonafide, genuine and lawful litigations to occupy the public time. The plaints can be rejected under Order 7 Rule 11 CPC at the time of presentation of plaint, registration of plaint and any time during the trial of the suit. In order to reject the plaint, it is only the averments made in the plaint which are to be looked into and considered by the trial court. The Honble Supreme Court in case titled Sopan Sukhdeo Sable and Ors appellants v. Assistant Charity Commissioner and Another respondent reported in (2004) 3 SCC page 137 has laid the principal of law in this behalf as under: - 10. In Saleem Bhai v. State of Maharashtra it was held with reference to Order 7 Rule 11 of the Code 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 at any stage of the suit-before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order 7 Rule II of the Code, the averments in the plaint are germane: the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. 11. In I.T.C. Ltd vs. Debts Recovery Appellate Tribunal it was held that the basic question to be decided while dealing with an application filed under Order 7 Rule II of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to gel out of Order 7 Rule 11 of the Code. 12. 12. The trial court must remember that if on a meaningful and not format reading of the plaint it is manifestly vexatious and merit less in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule II of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order 10 of the Code. (See T. Arivandandam v. T.V. Satyapal) 13. It is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi v. Nachhattar Singh dill only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. 14. In Raptakos Brett & Co. Ltd. vs. Ganesh Property it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule II of Order 7 was applicable. 17. Keeping in view the aforesaid principles, the reliefs sought for in the suit as quoted supra have to be considered The real object of Order 7 Rule 11 of the Code is to keep out of courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by a searching examination of the party, in case the court is prima facie of the view that the suit is an abuse of the process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule II of the Code can be exercised. 12. This Court in case M/s Three Star Enterprises Vs. State of J&K & Ors in Civil Revision no. 118/2007 decided on 22.12.2008 has after noticing the provisions of law and the judgments on the point, issued directions to the subordinate courts for considering the impact of Order 7 Rule 11 CPC on the suits instituted at the threshold stage itself. 13. State of J&K & Ors in Civil Revision no. 118/2007 decided on 22.12.2008 has after noticing the provisions of law and the judgments on the point, issued directions to the subordinate courts for considering the impact of Order 7 Rule 11 CPC on the suits instituted at the threshold stage itself. 13. The question of maintainability of the suit can be considered by the courts of law at different stages by invoking the powers conferred thereon under Order 7 Rule 11 CPC and Order 14 Rule 2 CPC. 14. The order impugned in this revision petition suffers not only from illegality and material irregularity but has also caused failure of justice for the following reasons: - a. The trial court had treated issue no. 6 as preliminary issue under Order 14 Rule 2 CPC which (sic) order is reproduced as under: - 2. Court to pronounce judgment on all (sic) issues (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) When issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to,- (a) the jurisdiction of the Court, or (b) a bar to the suit, created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. The Order 14 Rule 2 confers powers on the court to dispose of suit on an issue of law. The trial court can dispose of suit on issue of law when facts are not in dispute and issue is not to be decided after recording of evidence, otherwise, the issue cannot be treated as preliminary issue but has to be tried with other issues. However, the suit can be disposed of on an issue of law only, which issue can be tried as preliminary issue if it relates to jurisdiction of the Court or relates to bar to the suit which is attracted by any law for the time being in force. However, the suit can be disposed of on an issue of law only, which issue can be tried as preliminary issue if it relates to jurisdiction of the Court or relates to bar to the suit which is attracted by any law for the time being in force. In this case, issue no.6 was framed about the non-maintainability of the suit without spelling out as to how the suit was not maintainable. The trial court in this hazy and vague scenario has ultimately rejected the plaint under Order 7 Rule 11 CPC though suit could be disposed of if permitted, under Order 14 Rule 2 as well. Perusal of the written statement reveals that no such objection was raised by the respondents which could become a ground in law for dismissal of the suit at the threshold stage. It appears even issue no.6 has not been properly framed. b. The foundation of the impugned order is based on the assertion that the petitioner has not set up case in the plaint which is required for seeking exemption from limitation law. Para 7-9 of the plaint demonstratively show that the grounds for seeking exemption from law of limitation have been clearly set out by the petitioner in his plaint. The impugned order is rendered bad in law on this score also and merits being set aside. c. The application filed by the petitioner seeking condonation of delay admittedly could not have filed u/s 5 of the Limitation Act as section is not applicable to the suits. The said application could be also treated to be an application under Order 7 Rule 6 CPC which is reproduced as under: - 6. Ground of exemption from limitation law -- Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such is claimed: Provided that the court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint) Provided that the court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. Order 7 Rule 6 provides that the plaintiff can seek exemption from law of limitation on the grounds which are set out in the plaint. It further provides that the court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. The exemption from law of limitation can be sought by a plaintiff by setting out the grounds in the plaint itself and court has to consider the grounds and pass orders in the facts and circumstances of the particular case. In the present case, the petitioner has set out the grounds in the plaint wherein he has given details as to how he was prosecuting his claim before this Court by filing of writ petition, contempt petition and letters patent appeal. The trial court is duty bound to consider the grounds so set out and to pass orders in accordance with law. The trial court will decide as to whether grounds so set out in the plaint do make out a case in terms of law for extending exemption from law of limitation to the petitioner. Section 3 of the Limitation Act, Svt. 1995 (1938 AD) mandates that every suit instituted, appeal preferred, application made, after the period of limitation prescribed thereof by the first schedule shall be dismissed, although limitation has not been set up as a defence. The order however u/s 3 of the Limitation Act has to be passed after considering the impact of Sections 4 to 25 Limitation Act on such proceedings. d. A plaint cannot be rejected under Order 7 Rule 11 CPC and suit cannot be dismissed under Order 14 Rule 2 CPC if the issue requires investigation of facts at trial. The Honble Supreme Court in case Kamala and Ors vs. K.T. Eshwara Sa and Ors reported in AIR 2008 Supreme Court Cases 3174 at para 15, 16 has ruled as under: - Order VII, Rule 11(d) of the Code has limited application. It must he shown that the suit is barred under any law. Such a conclusion must he drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not he mixed up. It must he shown that the suit is barred under any law. Such a conclusion must he drawn from the averments made in the plaint. Different clauses in Order VII, Rule 11, in our opinion, should not he mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must he arrived at. What would he relevant for invoking clause (d) of Order VII, Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order VII, Rule II of the Code is one, Order XIV, Rule 2 is another. For the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provisions. The principles of res indicate, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other, evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law. The decision rendered by this court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled, out there from is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. The decision rendered by this court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled, out there from is that the court at that stage would not consider any evidence or enter into a disputed question of fact of law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for registration of plaint should be entertained. In view of the above discussion, it becomes demonstratively clear that the petitioner has set out grounds in his plaint as required under Order 7 Rule 6 of CPC as such the finding recorded by the trial court that no ground has been taken in the plaint is not factually correct. Petitioner has set out the grounds in the plaint and it is in the discretion of the trial court, which discretion is to be exercised judicially and judiciously as to whether on the basis of said pleadings the petitioner is entitled to seek exemptions from law of limitation in instituting the suit. For what has been stated above, this revision petition succeeds. The order impugned is set aside. The trial court is directed to consider matter afresh in the light of what has been stated in this judgment and pass appropriate orders in accordance with law. Record of the trial court be send back immediately.