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2010 DIGILAW 446 (KAR)

A. Krishnappa v. Shanawaz Begum

2010-04-01

RAVI MALIMATH

body2010
Judgment : 1. The 2nd respondent filed a suit in O.S. No. 161 of 1999 for specific performance, injunction and consequential reliefs before the Civil Judge (Junior Division) and Judicial Magistrate First Class, Pavagada. The said suit was dismissed as withdrawn. Thereafter, another suit in O.S. No. 39 of 2002 was filed by the petitioner/defendants filed I.A. No. 12 and I.A. No. 13 under Order 7 rule 11 of the Civil Procedure Code, 1908 for rejection of the plaint. The Trial Court by the impugned order rejected the said applications. Hence, the present petition. 2. The learned Counsel for the petitioner contends that the present suit is devoid of a cause of action and is barred by limitation. He contends that the impugned order is bad law and is liable to be set aside 3. Smt. Nalina, learned Counsel for the respondents submits that there is no error committed by the Trial Court in passing the impugned order. She contends that by virtue of the order dated 21-2-2001, the present suit has been filed. Hence, she submits that no interference is called for. 4. The order dated 21-12-2001 is an order which reads as follows.- “ Order passed on 1-9-2001 by dismissing the suit as withdrawn, holds good. Hence, suit is dismissed as withdrawn”. 5. Unfortunately, the learned Counsel for the respondents is not aware as to what is the effect of the order that she has relied upon. The second suit has not been filed on the order dated 21-12-2001. She supports an order that is not the subject-matter of this petition. On the contrary no submissions have been made regarding the impugned order herein. Notwithstanding the misconceived submissions of the respondents, this Court has considered the impugned order dated 1-9-2001 on its merits. Therefore, the submission of the learned Counsel for the respondents is misconceived and is not supported by records. 6. Heard both sides. 7. The specific case of the petitioner is that no liberty has been granted to file a separate suit. The order dated 1-9-2001 would disclose that I.A. No. 8 filed under Order 23, Rules 1 and 3 of CPC was considered and the plaintiff was permitted to withdraw the suit with a liberty to file a fresh suit, if law permits. The specific case of the petitioner is that no liberty has been granted to file a separate suit. The order dated 1-9-2001 would disclose that I.A. No. 8 filed under Order 23, Rules 1 and 3 of CPC was considered and the plaintiff was permitted to withdraw the suit with a liberty to file a fresh suit, if law permits. Therefore, it is contended that in law, the second suit is not permissible, since no liberty to file a fresh suit was granted by the Trial Court. 8. The Trial Court while passing the impugned order held that the absence of a cause of action is to be decided after adducing evidence. So far as the question of limitation is concerned, the same being a mixed question of law and facts, has to be decided after adducing evidence. 9. I am unable to accept both the reasons. By the order dated 1-9-2001, an opportunity was granted to the respondents to file a fresh suit, if law permits. The 2nd suit should have been filed within a period of 3 years in terms of law. The cause of action begins on 2-9-2001. The show-cause notice was issued on 13-11-1998, for which, the reply was issued on 18-11-1998. Hence, the second suit seeking specific performance should have been filed within three years i.e., on or before 18-11-2001. However, since the earlier suit was filed and on its withdrawal, the Trial Court should have granted a liberty to file a fresh suit on the same cause of action. That has not been expressly done. There is no liberty granted to the respondent to file a fresh suit on the same cause of action. However, the liberty is granted only if permissible in law. The second suit being admittedly barred by limitation, should have been rejected on that ground alone. 10. For the aforesaid reasons, the order dated 3-4-2009 passed by the learned Civil Judge (Junior Division) and Judicial Magistrate First Class, Pavagada, is set aside. The applications filed by the petitioners under Order 7 Rule 11 of CPC are allowed. The suit of the respondents stands rejected.