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2014 DIGILAW 4405 (MAD)

Petitioner v. Respondent

2014-11-25

PUSHPA SATHYANARAYANA

body2014
Judgment 1. The second defendant in C.S. No. 801 of 2013 has taken out this application seeking to reject the plaint in the above suit. 2. The case of the applicant is that the suit in C.S. No. 801 of 2013 has to be rejected as the same is barred by law and also on the ground that it does not disclose a cause of action. According to the applicant, the cause of action for the suit is explained in paragraph 16 of the plaint wherein it is stated that the cause of action for the suit arose on 06.3.2004 when the plaintiff exported 17 numbers of carton of leather goods to Naples, Italy, on 30.3.2004 when a pre-alert notice was sent to the plaintiff, on 27.7.2004 when the plaintiff wrote a letter to the second defendant to hold the shipment and on 11.8.2004 when the plaintiff had lost the goods and on 19.9.2013, the date of which the suit was filed. The main contention of the applicant is that the suit ought to have been filed on or before 11.8.2007 whereas it has been filed only on 19.9.2013 and, therefore, the suit is barred by limitation. 3. It is further stated in the application that the plaintiff had filed O.P. No. 659 of 2005 on the file of the District Consumer Disputes Redressal Forum, Chennai South for the suit claim. When the same was returned for want of jurisdiction, it was re-presented and numbered as C.C. No. 20 of 2007 before the State Consumer Disputes Redressal Commission. The second defendant/applicant also claims to have filed M.P. No. 80 of 2007 seeking rejection of the plaint on the ground that the claim was based on commercial transaction. When the complaint was listed for hearing on 14.10.2011, the plaintiff herein did not appear and hence, the complaint was dismissed for non-prosecution. Challenging the same, the plaintiff had filed an appeal in F.A. No. 489 of 2008 and the same was withdrawn by the plaintiff with a liberty to file a suit in the Civil Court agitating the questions raised in the appeal, along with an application under Section 14 of the Limitation Act to condone the delay for the time spent before the Consumer Fora. Based on the said liberty granted by the National Commission, the plaint has been filed before this Court. Based on the said liberty granted by the National Commission, the plaint has been filed before this Court. However, there is no separate application filed by the plaintiff to exclude the time taken in the bona fide prosecution of the complaint before the Consumer Fora. Therefore, it was contended that the plaint has to be rejected under Order VII Rule 11(a) and (d) CPC as there is no cause of action and the same is barred by limitation. 4. The plaintiff/first respondent in the above application has filed its counter affidavit narrating the sequence and the events prior to the filing of the present Application before this Court. The first respondent also contended that no separate application is required to claim the exclusion of the time spent in the Consumer Fora under Section 14 of the Limitation Act, 1963 as it has been explained clearly and categorically in paragraphs 13 to 15 of the plaint about the time taken by them in prosecuting before the Consumer Fora and that in view of the liberty granted by the National Commission, the said time is excluded. Therefore, according to the first respondent/plaintiff, the suit is filed within time. 5. Heard Mr. M. Sundar, learned counsel appearing for the applicant/second defendant and Mr. Hari Radhakrishnan, learned counsel for the first respondent/plaintiff and perused the records. 6. The only question that has to be decided in this application is whether the plaint has to be rejected under Order VII Rule 11 (a) and (d) CPC. 7. Clause (a) of Order VII Rule 11 CPC deals with disclosure of cause of action and Clause (d) of Order VII Rule 11 CPC deals with the bar of the suit by any law. The idea undermined in clause (a) is that when no cause of action is disclosed in the plaint, the Court will not unnecessarily protract and the party should not be unnecessarily harassed in the suit. Therefore, when there is no cause of action, the court has power to reject the plaint. No doubt, the cause of action is a bundle of facts and whether the plaint discloses a cause of action is a question of fact which has to be gathered based on the averments made in the plaint in its entirety by taking them to be correct. No doubt, the cause of action is a bundle of facts and whether the plaint discloses a cause of action is a question of fact which has to be gathered based on the averments made in the plaint in its entirety by taking them to be correct. Therefore, so long as the plaint discloses cause of action which requires determination by the Court, the mere opinion that the plaintiff may not succeed in the suit, cannot be a ground for rejecting the plaint. 8. Insofar as clause (d) of Order VII Rule 11 CPC is concerned, it deals with the plaint and the Rules speak about the particulars that are to be contained in the plaint, how the plaintiffs and the defendants are to be described, how a ground of exemption from limitation law is to be pleaded and how the relief sought to be framed. Clause (d) of Order VII Rule 11 CPC empowers the Court to reject the plaint if the suit is barred by any law. To decide whether the plaint discloses a cause of action or not, as stated earlier, the Court has to look only to the allegations in the plaint and as such, the allegations should be assumed to be correct. 9. The only objection raised by the learned counsel for the applicant/second defendant is that though the plaintiff had taken the liberty from the National Commission for exclusion of the period spent before the Consumer Fora, when specific direction is given to file an application under Section 14 of the Limitation Act, the act of the plaintiff in having failed to take out such an application, would result in the rejection of the plaint. No doubt, the plaint is liable to rejected when the plaint averments in the suit are found prima facie not maintainable being barred under any law. In fact, to attract Rule (a), no investigation into fact is necessary. 10. As regards the question of limitation is concerned, admittedly, it is a mixed question of law and fact. When the plaintiff, in paragraphs 13 to 15 of the plaint averments, has explained the time taken for the prosecution, the same need not be repeated by filing a separate application for condoning the delay under Section 14 of the Limitation Act. As regards the question of limitation is concerned, admittedly, it is a mixed question of law and fact. When the plaintiff, in paragraphs 13 to 15 of the plaint averments, has explained the time taken for the prosecution, the same need not be repeated by filing a separate application for condoning the delay under Section 14 of the Limitation Act. In view of the averments made in the plaint, the requirement of clause (d) of Rule 11 CPC is not fully satisfied as the plaint is very clear about the cause of action and limitation. Suffice it to say that the above mentioned statement made by the plaintiff in the plaint that the suit was within the limitation and the cause of action accrued on 06.3.2004, the provisions of Order VII Rule 11(d) CPC is not attracted. No doubt, the parties may take interpretation of law as they may be advised and in the matter relating to limitation, the plaintiff may insist that or assert that the period of limitation should be counted from a particular date. The defendant may or may not agree with the said view. Order VII Rule 11 CPC casts a duty on the Court and it cannot be left to the event of an objection in this respect to be raised by one party. It is the duty of the Court to find out from the contents of the plaint that if there was any disclosure of cause of action and if so, it was barred under any provision of law. If a controversy arises, the Court of original jurisdiction has to decide the controversy in accordance with law deciding the disputed question of fact as may be necessary. Such disputed questions cannot be decided at the time of considering the application filed under Order VII Rule 11 CPC. 11. In this regard, it would be relevant to refer to the decision of the Hon'ble Supreme Court in C. Natrajan vs. Ashim Bai and another [ (2007) 14 SCC 183 ] wherein Their Lordships while referring to Order 7 Rule 11(d) CPC, held in paragraphs 7 and 8, as follows:- Para 7 : “Order VII Rule 11(d) of the Code of Civil Procedure reads as under : “11. Rejection of plaint.-- The plaint shall be rejected in the following cases : (a) - (c) * * * (d) where the suit appears from the statement in the plaint to be barred by any law; (e) to (f) * * * Para 8 : An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. {See [Popat and Kotecha Property v. State Bank of India Staff Association [ (2005) 7 SCC 510 ]}.” 12. Therefore, in my opinion, Order VII Rule 11(d) CPC applies to cases only where the statement, made by the plaintiff in the plaint, without any doubt or dispute, shows that the suit is barred by law. Further, when the dispute is to be dealt with elaborately on facts, the Courts cannot venture into deciding the same while deciding the application under Order VII Rule 11 CPC. It is also open to the applicant/second defendant to raise the question of limitation as one of the issues and get the same decided in accordance with law in the suit itself. 13. In view of the foregoing discussion, I see no merits in the application to reject the plaint and the same is dismissed.