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2014 DIGILAW 953 (RAJ)

Sita Ram Pareek v. State of Rajasthan

2014-04-16

ARUN BHANSALI

body2014
JUDGMENT 1. - This appeal under Section 96 CPC is directed against order dated 22.03.2012 passed by Additional District Judge, Ratangarh, District Churu, whereby, the plaint filed by the appellant-plaintiff has been rejected as barred by limitation under Order 7, Rule 11 (d) CPC. 2. The facts in brief may be noticed thus: the plaintiff firm filed a suit for recovery of a sum of Rs. 1,31,812/- alongwith interest on 29.01.2011 with the averments that the plaintiff was engaged for transportation of drinking water by Tanker at Tehsil Ratangarh by the defendants, which order was confirmed on 30.05.2006; the rate for such transportation under the agreement was approved at Rs. 3.71 P. kilometer per thousand liter; for the period 05.06.2007 to 17.07.2007 bill for Rs. 1,02,231/- and for the period 21.07.2007 to 03.08.2007 bill for Rs. 29,581/- was sent, which were got certified by defendant No.4 from defendant No.2 by sending the same on 23.07.2007; the bills were approved by the Junior Engineer and Assistant Engineer, P.H.E.D., which were forwarded by defendant No.3 to defendant No.2 vide letter No. 1509-14 on 23.06.2008, however, despite repeated requests the payment was not received and again defendant No.3 wrote a letter to defendant No.2 on 30.03.2009, whereafter also the payment was not received and, therefore, a letter dated 09.07.2010 was written by the plaintiff to defendant No.1 making him aware of the situation, which was forwarded by defendant No.1 to defendant No.3 on 09.07.2010 itself; the defendant No.3 wrote a letter dated 16.07.2010 to defendant No.1 seeking sanction of budget and, in reply to the explanation, a false basis was prepared regarding non-compliance of the Rules by the plaintiff; the payment is not being made and an amount of Rs. 1,31,812/- alongwith interest w.e.f. 03.08.2008 was outstanding; a notice dated 02.11.2010 under Section 80 CPC was sent, however, no reply has been received; it was claimed that the cause of action arose on 01.01.2011 treating absence of reply to the notice dated 02.11.2010 as denial; ultimately, it was prayed that a decree in a sum of Rs. 1,31,812/- be granted. 3. 1,31,812/- be granted. 3. On being served, the respondents filed an application under Order 7, Rule 11 (d) CPC with the averments that the limitation for the nature of suit filed by the plaintiff was three years and, as per the averments made in the suit, the last date of such execution of work is 03.08.2007 and, even if, the entire work is assumed to have been done on 03.08.2007, the limitation has expired on 03.08.2010 and from a bare reading of the plaint, the suit was barred by limitation and, therefore, the same deserves to be dismissed on this count. 4. A reply to the application was filed by the plaintiff and the averments made in the application were denied; it was claimed that the officials of the respondents have made correspondence with the higher officials for seeking sanction for payment and letters dated 30.03.2009 and 16.07.29010 in this regard have been produced alongwith the plaint; ultimately, it was prayed that the application filed by the defendants be dismissed. 5. The trial court by the impugned order, after hearing the parties, came to the conclusion that Article 18 of the Limitation Act, 1963 ('the Act') was applicable, wherein, for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for payment, the time from which period begins to run is when the work is done and as per the contentions of the defendants, even if, the last of such work done is taken as the date when the cause of action arose i.e. 03.08.2007, the suit having been filed on 29.01.2011 was barred by limitation and accordingly dismissed the same. 6. It is submitted by learned counsel for the appellant that the trial court was not justified in dismissing the suit in a summary manner holding the same to be barred by limitation; the letters produced by the appellant alongwith the plaint clearly made out a case of acknowledgement of liability and, therefore, in terms of Section 18 of the Act, a fresh period of limitation is to be computed from the time when the acknowledgement was signed and, therefore, the trial court was not justified in coming to the conclusion that the suit was barred by limitation. Reliance has been placed on the judgment of Hon'ble Supreme Court in Food Corporation of India v. Assam State Co-operative Marketing & Consumer Federation Limited & Ors., 2005 DNJ (SC) 16 . 7. Learned counsel for the respondents supported the impugned order passed by the trial court and submitted that in view of provisions of Article 18 of the Act, the suit was ex facie barred by limitation and the letters relied on by counsel for the appellant cannot be termed as acknowledgement under Section 18 of the Act and, therefore, the trial court was justified in dismissing the suit and the appeal deserves to be dismissed. 8. I have considered the rival submissions advanced by learned counsel for the parties. 9. A bare look at the plaint, contents whereof have been noticed hereinbefore, reveals that in the plaint the plaintiff besides indicating the fact of his executing the work as per agreement during the period from 05.06.2007 to 17.07.207 and from 21.07.2007 to 03.08.2007, made reference to letters dated 23.06.2008, 30.03.2009 and 09.07.2010 alongwith their contents, copies of said letters have also been filed alongwith plaint; however, the trial court while deciding the application under Order 7, Rule 11 (d) CPC did not even refer to the averments and/or documents while coming to the conclusion that the suit was barred by limitation. As to whether the letters said to have been written by the plaintiff and/or the officials of the defendants were in fact written and as to whether the contents thereof can be termed as acknowledgment, as claimed by learned counsel for the appellant could only be decided if the defendants had filed its written statement and/or the parties were granted opportunity to lead evidence after framing of the issues. 10. The question as to whether the present suit was barred by limitation or not, in the facts and circumstances, could not be decided by the trial court by referring to part of the averments made in the plaint and with reference to Article 18 of the Act only. 10. The question as to whether the present suit was barred by limitation or not, in the facts and circumstances, could not be decided by the trial court by referring to part of the averments made in the plaint and with reference to Article 18 of the Act only. It is well settled that the averments contained in the plaint have to be read as a whole and their effect and implication has to be taken into consideration while arriving at a finding as to whether the contention raised by the defendants regarding the suit being barred by limitation could be sustained; the trial court failed to comply with the basic requirements while dealing with the application filed by the respondents under Order 7, Rule 11 (d) C.P.C. 11. Though submissions have been made by learned counsel for the appellant by relying on the judgment of Hon'ble Supreme Court in the case of Food Corporation of India (supra), the claim of acknowledgement in view of the letters referred to in the plaint and filed alongwith the plaint, the effect and implication of the said letters and as to whether they can be termed as acknowledgement has to be considered by the trial court after evidence is led by the parties and the adjudication at this stage by this Court is not desirable. 12. Consequently, the appeal is allowed; the order dated 22.03.2012 rejecting the plaint passed by the trial court is set aside; the suit is remanded back to the Court of Additional District Judge, Ratangarh, District Churu, who after granting an opportunity to the respondents to file written statement, would thereafter decide the suit including the issue of limitation. No costs.Appeal allowed. *******