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2013 DIGILAW 3267 (MAD)

M. Thillaikkarasi v. Kalavathi

2013-09-11

P.R.SHIVAKUMAR

body2013
Judgment : 1. This Civil Miscellaneous Appeal has been filed against the decree of the lower Appellate Court dated 15.07.2010 made in A.S. No. 75 of 2006. As the Civil Miscellaneous Appeal was sought to be filed against the decree passed in an appeal, a question was raised by the Registry as to its maintainability. It was clarified that though the Appellate Court's judgment resulted in a decree, the same was, in effect nothing but an order of remand, since the order of the trial court rejecting the plaint was reversed and the trial court was directed to take the plaint on file and number it as a suit. Accepting the clarification, the Civil Miscellaneous Appeal was taken on file. 2. Notice before admission was served on the respondents and the respondents are also represented by the counsel. Mr. A. Thiagarajan, learned senior counsel appearing for the counsel on record for the appellant and Mr. T. Murugamanikkam, learned counsel for the respondents submit that arguments on merits can be heard and the Civil Miscellaneous Appeal itself can be disposed of. Accordingly, the arguments advanced on behalf of the appellant and also on behalf of the respondents are heard. The grounds of appeal and the other materials are also perused. 3. A suit in O.S. SR. No.13287 of 2003 was sought to be filed by the respondents herein, against the appellant, to set aside the decree dated 27.05.1995 made in O.S. No.284 of 1995 on the file of the Additional Subordinate Judge, Salem. The said plaint was rejected by the Vacation Civil Judge, Salem by an order dated 21.05.2003. The said order was challenged before the First Additional District Judge, Salem in A.S. No.75 of 2006. The learned First Additional District Judge, Salem, allowed the appeal setting aside the order passed by the Vacation Civil Judge and directed the trial court namely, the Subordinate Court, Salem to take up the plaint on file and number it as a suit. As against the said decree, stating that the said decree passed by the lower Appellate Court is nothing but an order of remand, the present Civil Miscellaneous Appeal has been filed, by the appellant who is shown as the defendant in the above said un-numbered plaint. 4. The reason for rejection of the plaint assigned by the trial court (Vacation Judge) is that the suit was barred by limitation. 4. The reason for rejection of the plaint assigned by the trial court (Vacation Judge) is that the suit was barred by limitation. Though the date of decree sought to be set aside was taken as the starting point of limitation, the plaintiffs had claimed exclusion of the period spent on other proceedings before the very same court and before the High Court, under Section 14 of the Limitation Act. Thus an averment was made in the plaint that if the said period was excluded, the suit was well within time and not barred by limitation. 5. The learned trial Judge (Vacation Judge) rejected the said plea without even conducting a trial regarding the issue of limitation, which made the said court to reject the plaint. On appeal, the lower Appellate Court set aside the order of the trial court holding that the period during which the appellants therein (the respondents herein) were prosecuting the other proceedings before the Sub-court and the High Court shall be excluded under section 14 of the Limitation Act. Based on the said finding, after setting aside the order of the trial court rejecting the plaint, the learned lower appellate judge directed the trial court to take the plaint on file and number it as a suit. The said order is challenged in the present Civil Miscellaneous Appeal. 6. When the suit was sought to be filed by presenting the plaint in the trial court (vacation court), the same was rejected by the said court on the premise that the relief sought therein was barred by limitation. The said court was of the view that the trial court has expressed the view that the bar of limitation will come under the ambit of sub clause (d) of Rule 11 of Order VII CPC. The plaint can be rejected if it is brought within the ambit of Order VII Rule 11 CPC. 7. For the sake of convenience Rule 11 of Order VII CPC is reproduced here under : " 11. The plaint can be rejected if it is brought within the ambit of Order VII Rule 11 CPC. 7. For the sake of convenience Rule 11 of Order VII CPC is reproduced here under : " 11. Rejection of plaint.- The plaint shall be rejected in the following 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 valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the deficiency within the time, if any, granted by the Court; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails comply with the provision of Rule 9. Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff. Admittedly, the other clauses of Order VII Rule 11 are not attracted. Clause (d) alone was relied on by the trial court for rejecting the plaint. Clause (d) makes a plaint liable to be rejected, if the suit appears from the statement in the plaint to be barred by any law. Except the question of limitation, no other provision of law barring the Civil Court's jurisdiction, either expressly or impliedly has been cited as the ground for rejection of the plaint by the trial court. On the other hand, the law of limitation is sought to be projected as the law that bars the present suit. It shall be helpful to reproduce Section 3 of the Limitation Act, 1963. 3. On the other hand, the law of limitation is sought to be projected as the law that bars the present suit. It shall be helpful to reproduce Section 3 of the Limitation Act, 1963. 3. Bar of limitation.-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purpose of this Act, – (a) A suit is instituted, - (i) in an ordinary case, when the plaint is presented to the proper officer; (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted– (i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in Court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court. 8. From a reading of the above section, it shall be obvious that the bar of limitation provided therein is made subject to the provisions contained in Sections 4 to 24 of the Limitation Act, which includes part III containing exclusion of certain periods for the computation of period of limitation. Section 3 of the Limitation Act does not say that the plaint filed after the expiry of period of limitation is liable to be rejected. On the other hand, it simply says that the suit instituted, appeal preferred or the application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Section 3 of the Limitation Act does not say that the plaint filed after the expiry of period of limitation is liable to be rejected. On the other hand, it simply says that the suit instituted, appeal preferred or the application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Of course, the said section has been interpreted by the Supreme Court in Lachman Singh v. Hazara Singh reported in (2008) 5 SCC 444 to the effect that Section 3 puts an embargo on the court to entertain a suit, if it is found to be barred by limitation. The court cannot conduct a rowing enquiry to find out whether the averments made in the plaint claiming how the suit was in time, are true or false. On the other hand, on the very basis of the averment made in the plaint, it should be apparent that suit shall be barred by limitation to bring the plaint within the ambit of clause (d) of Rule 11 of Order VII CPC. What clause (d) of Rule 11 of Order VII CPC says is that it must appear from the statements made in the plaint itself that the suit is barred by law. Suppose the plaint averments indicate the date of commencement of the period of limitation and it is found that the suit has been filed beyond the period of limitation without any averment claiming exclusion of certain period and thus pleading that the suit is not barred by limitation, we can say that the same would come under clause (d) of Rule 11 of Order VII CPC. 9. On the other hand, if an explanation is offered claiming exclusion of certain period and contended that thus the suit is not barred by limitation, then it shall not be proper for the court to conduct an enquiry in to the correctness or otherwise of the said statements and render a finding regarding the question of limitation for the purpose of rejection of plaint shall not be proper. The court must keep in mind that the issue of limitation is not a pure question of law and it is a mixed question of law and facts. The court must keep in mind that the issue of limitation is not a pure question of law and it is a mixed question of law and facts. In the absence of a plea that the plaintiffs' claim for exclusion of the period during which they were bonafide prosecuting other proceedings in a court without jurisdiction or a proceedings with a similar defect, as per Section 14 of the Limitation Act, it would have been easy for the court to make a decision as to whether the statement made in the plaint itself shows that the suit is barred by limitation or not. When exclusion of the particular period on the ground that other proceedings were pursued bonafide, it becomes a contentious issue that has got to be tried and decided. Instead of doing it, the trial court chose to decide the same based on the materials produced along with the plaint and ultimately on the basis of the decision, chose to reject the plaint. 10. The Appellate court also committed the very same mistake, in going into the merits of the issue as to whether such a period can be excluded under Section 14 of the Limitation Act and rendering a finding. Had the Appellate Court made a proper approach to the problem, it would have arrived at a conclusion that the question of limitation has to be raised as an issue and decided in the suit, after registering the plaint as a suit, even though the question of limitation has not been taken as a plea of defence by the defendants. In addition, the Appellate Court would have come to the conclusion that the question of limitation could not be decided based on the plea without affording an opportunity to the appellant before it (respondent before this court) to let in evidence to prove his bonafide in prosecuting the other proceedings, when exclusion of a period under Section 14 is sought. In either case, the ultimate result would be a direction to take the plaint on file and number it as a suit, keeping open the question of limitation to be raised and decided in the suit. In either case, the ultimate result would be a direction to take the plaint on file and number it as a suit, keeping open the question of limitation to be raised and decided in the suit. As the trial court and the lower Appellate court had gone into the merits of the matter without affording an opportunity to the parties to lead evidence regarding the question of limitation, the finding of the lower Appellate Court that the period during which the respondents were prosecuting the other proceedings in the other Courts should be excluded under Section 14, should be nullified and expunged. At the same time, since no case has been made out for the rejection of the plaint under Order VII Rule 11 CPC, the final order (decree) passed by the 1st Appellate Court setting aside the order of the trial court and sending back the plaint to the trial court to be numbered as a suit, has got to be confirmed. In the result the Civil Miscellaneous Appeal is dismissed confirming the decree (order of remand) passed by the learned Appellate Judge. The finding on merits regarding the question of limitation rendered by the lower Appellate Court is set aside. The trial court shall try the suit regarding all issues, including the question of limitation, uninfluenced by any of the observations made by the lower Appellate court in its judgment. The trial court is directed to make an endeavour to dispose of the case within a year. There shall be no order as to costs. Consequently, connected M.P is closed.