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2015 DIGILAW 145 (ORI)

Orissa Spinning Mills Ltd. v. OCL India Ltd.

2015-02-25

S.PANDA

body2015
JUDGMENT S. PANDA, J. - This Writ Petition has been filed by the petitioner challenging the order dated 09.04.2013 passed by the learned District Judge, Sundargarh in Civil Revision No. 1 of 2012 confirming the order dated 06.01.2012 passed by the learned Civil Judge (Junior Division), Sundargarh in C.S. No. 6 of 2009 rejecting an application filed under Order 7, Rule 11 of C.P.C. for rejection of the plaint. 2.The brief facts of the case as narrated are as follows: The opposite party no. 1 M/s OCL India Ltd., as plaintiff filed C.S. No. 6 of 2009 before the learned Civil Judge (Junior Division), Sundargarh for declaration of right, title, interest, permanent injunction and for recovery of possession. The petitioner-defendant no. 3 appeared in the suit and filed an application under Order 7, Rule 11 of C.P.C for rejection of the plaint on the ground that the plaint does not disclose any cause of action, the relief claimed in the suit is undervalued and the suit is barred by limitation. The plaintiff filed its objection to the said application taking a stand that at paragraph-38 of the plaint it has been stated that the cause of action of the suit arose on 21.03.2008 and 25.03.2008 when notices were published by the plaintiff on coming to know about disposal of the suit land by the defendant. It was further stated that the suit was properly valued. One witness has been examined on behalf of the plaintiff and the defendants have cross-examined the said witness. Therefore, the application has been filed by the petitioner only to linger the proceeding. 3.The Court below after hearing the parties rejected the application with a finding that there is no document to ascertain that the suit land is undervalued. The point of limitation is a mixed question of fact and law, where an issue or a point is dealing with both the question of fact and law, it is not proper to decide the same at a preliminary stage. 4.Being aggrieved the petitioner preferred Civil Revision No. 1 of 2012 before the learned District Judge, Sundargarh. The petitioner specifically stated before the revisional Court that though it has raised several questions before the Court below, the same were not considered. 4.Being aggrieved the petitioner preferred Civil Revision No. 1 of 2012 before the learned District Judge, Sundargarh. The petitioner specifically stated before the revisional Court that though it has raised several questions before the Court below, the same were not considered. The petitioner also raised the following questions before the revisional Court: I)The plaint does not disclose any cause of action; II)The suit is undervalued; III)There was an arbitration clause in the Conveyance Deed dated 26.11.1956 entered into between the plaintiff and defendant No. 2 that in case any dispute arose between the parties the matter shall be referred to an Arbitrator, therefore, the jurisdiction of the Civil Court is ousted in view of Section 8 of the Arbitration Act (old Act) and IV)The suit is barred by law of limitation. 5.The revisional Court after considering question nos. 1 and 2 raised by the petitioner come to the conclusion that the plaintiff has clearly mentioned in the plaint about the dates when the cause of action arose, therefore, it cannot be stated that the plaint is liable to be rejected for want of cause of action. So far as the question of valuation of the suit is concerned the same being a mixed question of of law and fact, can be determined during the course of hearing of the suit and after final hearing if the Court will come to the conclusion that the suit is undervalued and proper Court fee has not been paid, the Court can pass order for recovery of the deficit Court fee from the plaintiff. 6. In so far as the question of jurisdiction of Civil Court is ousted in view of Section 8 of the Arbitration Act is concerned it reveals that the Conveyance Deed was entered between the plaintiff and defendant No. 2 but the suit has been filed by the plaintiff impleading other defendants, who are not parties to the said Deed of Conveyance. Therefore, the Arbitrator has no jurisdiction to adjudicate any dispute between the parties, who are not governed by the Arbitration Clause incorporated in the deed. The question of limitation being a mixed question of law and facts, the plaintiff can explain the point of limitation by adducing evidence. Therefore, the Arbitrator has no jurisdiction to adjudicate any dispute between the parties, who are not governed by the Arbitration Clause incorporated in the deed. The question of limitation being a mixed question of law and facts, the plaintiff can explain the point of limitation by adducing evidence. Accordingly, the revisional Court by the impugned order confirmed the order of the trial Court and directed the trial Court to dispose of the suit within a period of four months from the date of receipt of the order. 7.Learned counsel appearing for the petitioner submitted that the Court below misconceived the scope and ambit of Order 7, Rule 11 of C.P.C. Hence the impugned order need be interfered with. He further submitted that the Court below committed illegality in not considering the issue of limitation as provided under Section 3 of the Limitation Act. He also submitted that the plaint does not disclose any cause of action and mere publication of notice does not constitute a cause of action. It is stated that vague applications are to be nipped at the bud. In support of his contention he has relied on the decisions reported in AIR 1997 ORISSA 67 and AIR 1997 SC 2421 . 8.Learned counsel appearing for opposite party no. 1 however supported the impugned order and submitted that the petitioner has already filed its written statement in the suit and has cross-examined the witness of the plaintiff therefore it has not right to raise the question to refer the matter to Arbitrator. He further submitted that the issue of limitation being a mixed question of fact and law can be considered at the time of hearing of the suit. He also submitted that the plaintiff at para-39 of the plaint clearly disclosed the valuation of the suit and if at all the suit is found to be undervalued the requisite Court fee can be paid by the plaintiff on the direction of the Court having jurisdiction. Hence the impugned order need not be interfered with. In support of his contention he has relied on the decisions reported in (2007) 10 SCC 59 and (2011)5 SCC 532 . 8.1This Court in the case of Satyananda Sahoo Vs. Ratikanta Panda reported in AIR 1997 ORISSA 67 held that limitation need not be set up as defence. Hence the impugned order need not be interfered with. In support of his contention he has relied on the decisions reported in (2007) 10 SCC 59 and (2011)5 SCC 532 . 8.1This Court in the case of Satyananda Sahoo Vs. Ratikanta Panda reported in AIR 1997 ORISSA 67 held that limitation need not be set up as defence. It is duty of the Court to look into averments of the plaint to see that cause of action saves limitation or not. The plaintiff must have a cause of action to sue and the same must have arisen within the prescribed period of limitation. If the cause of action on a meaningful reading of the entire plaint does not disclose a clear right to sue and creates an illusion of cause of action, it should be nipped in the bud. Similarly, if a cause of action giving rise to a grievance is no more remediable because of prescript of the law of limitation, the plaintiff cannot approach a Court of law. 8.2Similar question was considered by the Apex Court in the case of T.Arivandandam Vs. T.V. Satyapal and another reported in AIR 1977 SC 2421 and it was held that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and merit less, in the sense of not disclosing a clear right to sue, the trial Court should exercise it s power under order 7, Rule 11 of C.P.C taking care to see that the ground mentioned therein is fulfilled. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest state. 8.3The Apex Court in the case of Ram Prakash Gupta Vs. Rajiv Kumar Gupta and others reported in (2007) 10 SCC 59 held that under Order 7. Rule 11 of C.P.C the plaint is liable to be rejected if it does not contain necessary averments relating to limitation. The person filing application for rejection of the plaint has to satisfy the Court that the plaint does not disclose how the same is in time. Duty of Court is to verify the entire plaint averments and not to read few lines or passages in isolation before deciding the said issue. 8.4Further the Apex Court in the case of Booz Allen and Hamilton Inc. Vs. Duty of Court is to verify the entire plaint averments and not to read few lines or passages in isolation before deciding the said issue. 8.4Further the Apex Court in the case of Booz Allen and Hamilton Inc. Vs. SBI Home Finance Ltd. And others reported in (2011) 5 SCC 532 held that though Section 8 of the Arbitration and Conciliation Act, 1996 does not prescribe any time limit for filing an application under that Section, and only states that the application under Section 8 of the Act should be filed before submission of the first statement on the substance of the dispute, the scheme of the Act and the provisions of the Section clearly indicate that the application thereunder should be made at the earliest. Obviously, a party who willingly participates in the proceedings in the suit and subjects himself to the jurisdiction of the Court cannot subsequently turn around and say that the parties should be referred to arbitration in view of the existence of an arbitration agreement. 9.Considering the rival submission of the parties and after going through the materials available on record, it appears that the petitioner has already appeared in the suit and filed its written statement. The Court below considering the pleadings of the parties formulated the issues and hearing of the suit has already been commenced. One witness was examined on behalf of the plaintiff and cross-examined by the defendants. Thereafter the petitioner filed an application under order 7, Rule 11 of C.P.C. for rejection of the plaint. Both the Courts below on the touchstone of aforesaid position of law considering the questions raised by the petitioner recorded concurrent findings and rejected the application of the petitioner. 10.In view of the discussions made hereinabove and as there is no error apparent on the face of the record, this Court is not inclined to interfere with the concurrent findings of the Courts below in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly this Writ Petition along with Misc. Case is dismissed. No. cost. Petition dismissed.