SUNDEEP POLYMERS PVT. LTD. , MUMBAI v. MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD. , NAGPUR
2009-07-07
R.C.CHAVAN
body2009
DigiLaw.ai
JUDGMENT :- This revision is directed against an order passed by learned Second Joint Civil Judge Senior Division, Nagpur refusing to reject plaint under Order VII, Rule 11 of the Code of Civil Procedure. 2. The respondent /plaintiff had filed suit for recovery of arrears of energy charges amounting to Rs. 1,90,927/- from the defendant. According to the plaint, arrears as on the date of permanent disconnection, effected on 31st October, 2002, were Rs. 2,77,384.24ps. The plaintiff claimed to have given credit to the defendant on 31st December, 2003 of a sum of Rs. 86,547/- and then filed suit for balance on 15th September, 2005. 3. The defendant filed application under Order VII, Rule 11 of the Code of Civil Procedure contending that temporary disconnection had occurred on 18-72002 and since the defendant did not pay any electricity bills after April, 2002, the suit filed on 15th September, 2005 was barred by limitation. It was pointed out from the plaint averments itself, the defendant was not paying any bills even before August, 2001. The defendant contended that the date of permanent disconnection 31 st October, 2002 was deliberately alleged by the plaintiff to bring the suit within limitation. The defendant also claimed that last credit of Rs. 86,547/- allegedly made on 31st December, 2003 had nothing to do with the amount of bills of the plaintiff which was sought to be recovered by the suit and therefore, the suit which was barred by limitation, ought to have been rejected under Order VII, Rule 11 of the Code of Civil Procedure. 4. This application was opposed by the plaintiff. After hearing both the parties. The learned trial Judge came to pass the impugned order rejecting the application. Aggrieved thereby the original defendant is before this Court. 5. The learned counsel for the applicant submitted that the suit was liable to be rejected under Order VII, Rule 11 (d) as it was barred by limitation. He submitted that it was the duty of the Court under section 3 of the Limitation Act to dismiss the actions which were barred by limitation prescribed under the Limitation Act. He submitted that electricity has been held to be goods or movable property in a judgment of Madhya Pradesh High Court in Harda Municipality vs. H Electric Supply Co., reported at AIR 1964 MP 101 .
He submitted that electricity has been held to be goods or movable property in a judgment of Madhya Pradesh High Court in Harda Municipality vs. H Electric Supply Co., reported at AIR 1964 MP 101 . Relying on the judgment of the Supreme Court in Hardesh Ores (P) Ltd. VS. Hede and Company, reported at (2007)5 SCC 614 the learned counsel submitted that language 'of Order VII, Rule 11 of the Code of Civil Procedure is quite clear and plaint can be rejected even on the ground of limitation only, when the suit appears from the statement in the plaint to be barred any law. Therefore, he submitted that it is not open to contend that the question of limitation would have to await full trial, if it is possible to show on the basis of averments in the plaint that the suit was liable to be dismissed on the ground of limitation. 6. The learned counsel for the respondent/ plaintiff submitted that in Elmano Menino vs. Archbishop, reported at 2008(5) Mh.L.J 18 this Court has held that it was well settled that for rejecting plaint under Order VII, Rule 11 of the Code of Civil Procedure the only averments in the plaint are to be seen and if there is any slightest doubt, or an arguable point, the plaint cannot be rejected under Order VII, Rule 11 (d) of the Code of Civil Procedure. In that case the Court had held that on reading the averments in the plaint that the suit could not be held to have been barred by limitation. The learned counsel for the respondent/ plaintiff submitted that in this case, the plaint averments show that the credit of a sum of Rs. 86,547/- was given on 31st December, 2003. Whether this was justifiably given or not, or could have been given on that date or not, would be a question which would require evidence to be taken and therefore, on the averments in the plaint it could not be said that the suit was barred by limitation. 7.
86,547/- was given on 31st December, 2003. Whether this was justifiably given or not, or could have been given on that date or not, would be a question which would require evidence to be taken and therefore, on the averments in the plaint it could not be said that the suit was barred by limitation. 7. Relying on a judgment of the Supreme Court in Popat and Kotecha Property vs. State Bank of India Staff Assn., reported at (2005) 7 SCC 510 the learned counsel submitted that Order VII, Rule II(d) would apply only when the statement in the plaint, without any doubt or dispute, shows that the suit is barred by a law in force. In this case, according to the learned counsel, the plaint averments are sought to be assailed as untenable or incorrect, which cannot be looked into at the stage of consideration application for rejection of plaint. The learned counsel for the respondent also placed reliance on the judgment of the Supreme Court in Balasaria Construction (P) Ltd. vs. Hanuman Seva Trust, reported at (2006) 5 SCC 658 where the Court held in paragraph 8 as under: "8. After hearing counsel for the parties, going through the plaint, application under Order 7, Rule 11 (d), Civil Procedure Code 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 Order 7, Rule 11 (d) of the Code of Civil Procedure." 8. The learned counsel submitted that in view of this, the question of limitation would have to be decided only after taking evidence which would indicate whether the credit of Rs. 86,547/- or date of permanent disconnection could bring the case within limitation.
The learned counsel submitted that in view of this, the question of limitation would have to be decided only after taking evidence which would indicate whether the credit of Rs. 86,547/- or date of permanent disconnection could bring the case within limitation. In Mayar (HK.) Ltd. vs. Owners & Parties, Vessel M V. Fortune Express, reported at AIR 2006 SC 1828 the Court held in paragraph 11 as under: "11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII, Rule 11 of the Code. Essentially, whether the plaint discloses a 'cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order-VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants." 9. The learned counsel, therefore, submitted that whether the plaintiff was justified in giving credit of Rs. 86,547/- for taking the date for accrual of cause of action as 31st December, 2003, would have to be gone into at the trial.
The learned counsel, therefore, submitted that whether the plaintiff was justified in giving credit of Rs. 86,547/- for taking the date for accrual of cause of action as 31st December, 2003, would have to be gone into at the trial. He submitted that the defence raised or objection raised by the defendant cannot be a valid consideration for deciding whether the plaint ought to be rejected or not since at that stage the defence or the written statement cannot be looked into. 10. I have carefully considered the rival contentions. There can be no doubt that if a suit is on the face of it barred by limitation it can be rejected under Order VII, Rule 11 (d) of the Code. In such a case it is not necessary to push the parties to trial merely because limitation is mixed question of fact and law. But it does not follow that the objections of the defendant to the date shown in the plaint as the date of accrual of cause of action can be looked into at that stage. The question whether the suit is within limitation or not would have to be considered by the Court for the purpose of application for rejection of plaint only on the basis of averments in the plaint. Therefore, it cannot be said that the learned trial Judge erred in refusing to reject the plaint at the threshold. The impugned order, therefore, does not call for any interference. 11. The revision application is, therefore, rejected. 12. In the circumstances of the case, there shall be no order as to costs. Revision Application Rejected.