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2019 DIGILAW 70 (KAR)

Giridhar v. Bowring Institutem, Bengaluru

2019-01-07

SREENIVAS HARISH KUMAR

body2019
JUDGMENT : SREENIVAS HARISH KUMAR, J. 1. The plaintiffs in the suits O.S. Nos. 3924/2017, 4030/2017, 4033/2017 and 4362/2017 on the file of the supra XVII Additional City Civil and Sessions Judge, Bengaluru City, have filed these appeals challenging the order dated 14.12.2017 rejecting the plaints in their suits under Order VII Rule 11 (d) of the Civil Procedure Code (for short 'CPC'). The necessary facts are :- 2. The plaintiffs are the members of the defendant society. At the inception they were inducted as temporary members and thereafter they were made permanent in a decision taken by the Special General Body Meeting held on 20.4.2007. Thereafter, the plaintiffs participated in all the meetings, discussions, etc., and also contested in the elections. But, all of a sudden, the managing committee of the defendant appointed an enquiry committee to enquire into the lapses and irregularities said to have been committed by the plaintiffs. The report given by the committee was placed in its Special General Body Meeting held on 21.4.2013. The plaintiffs have stated that initiation of enquiry against them was void ab initio and without any authority. The plaintiffs were called upon to pay a sum of Rs.9,00,000/- as difference amount with regard to membership. They were required to pay the said amount within 90 days from the date of the said notice. Therefore, the plaintiffs and some other members, in all 30 in number filed a suit O.S.25936/2013 for declaration and permanent injunction against the defendant society. During the pendency of the said suit, the defendant agreed to call for a Special General Body Meeting to discuss the grievances of the plaintiffs and other persons. For these reasons, all those persons who had filed the suit made application under Order supra-III Rule 1 (3) CPC for withdrawing the suit seeking liberty to file fresh suit on the same cause of action. The court after hearing both sides allowed the said application observing that the defendant should convene a Special General Body Meeting and take a decision. The plaintiffs were permitted to withdraw their suit and liberty was given to them to file fresh suit on the same cause of action. This order was passed on 14.3.2017. Accordingly, a meeting was called on 21.4.2017. The plaintiffs were permitted to withdraw their suit and liberty was given to them to file fresh suit on the same cause of action. This order was passed on 14.3.2017. Accordingly, a meeting was called on 21.4.2017. The plaintiffs participated in the Special General Body Meeting, but, they state they did not come to know as to what transpired in the said meeting and what resolution was passed. No serious discussion was held in the said meeting with regard to grievance of the plaintiffs and other members who had initiated the suit. Therefore, some of the members out of 30 brought another suit claiming the reliefs similar to the one they had claimed in the former suit. 3. Defendant got filed an application I.A.no.3 under Order VII Rule 11 (d) CPC to reject the plaint as the suit was barred under law. The trial court allowed this application and came to conclusion that the suit was otherwise not maintainable as it was barred by limitation and rejected the plaint consequently. Therefore, these appeals. 4. The counsel for the appellants has also filed an application under Order VI Rule 17 CPC as per I.A.1/2018 seeking amendment to the plaints. 5. Learned counsel for the appellants argued that the question of limitation was not urged during the arguments on the application filed under Order VII Rule 11 (d) of CPC. It was not the case of the defendant that the suit was barred by time. The defendant simply made an application that the suit was barred by law without mentioning as to which law prohibited the filing of the suit. The court did not hear either the plaintiffs or the defendant on the question of limitation but had suo motu came to conclusion that the suit was time barred and rejected the suits. Had the plaintiffs been heard on the limitation, the plaintiffs would have pointed out that the suit was very much maintainable and was not barred by limitation. The court failed to notice that the second suit was initiated pursuant to the orders passed on an application under Order supra-III Rule 1 (3) CPC in the former suit. Had the plaintiffs been heard on the limitation, the plaintiffs would have pointed out that the suit was very much maintainable and was not barred by limitation. The court failed to notice that the second suit was initiated pursuant to the orders passed on an application under Order supra-III Rule 1 (3) CPC in the former suit. Despite noticing the fact that in the former suit permission had been granted to initiate fresh suit on the same cause of action, if the trial court came to the conclusion that the suit was time barred and consequently rejected the plaint, it is nothing but an error committed by the trial court and therefore the impugned order needs to be set aside. 6. Learned counsel for the respondent argued that though permission was granted in the former suit to file a fresh suit, it cannot be said that the limitation is saved for the second suit. Order supra-III Rule 2 clearly states that law of limitation is very much applicable whenever a suit is filed subsequently after withdrawing the earlier suit. If the reliefs claimed by the plaintiffs are seen, they challenge the resolution dated 6.11.2012 and the report dated 8.4.2013. The suits were filed in the year 2017. Limitation for seeking declaration is only three years from the date of cause of action which is stated to have arisen for the first time on 18.4.2013. Whenever an application under Order VII Rule 11 (d) is filed, the maintainability of the suit is to be decided on the basis of the plaint averments only. If the plaintiffs have stated in para 12 of the plaint that the cause of action arose on 18.4.2013 and then on 21.4.2013, apparently the suit was time barred and therefore the trial court has not committed any error. He argued that as has been held by the Supreme Court in T. Arivandandam vs. Satyapal, (1977) 4 SCC 467 what is essential is meaningful reading of the plaint to find out whether suit survives or not. Whether or not the parties argue on question of limitation, section 3 of the Limitation Act makes it very clear that the court has to dismiss a time barred suit. In this view of the matter, the trial court has not committed any error. Whether or not the parties argue on question of limitation, section 3 of the Limitation Act makes it very clear that the court has to dismiss a time barred suit. In this view of the matter, the trial court has not committed any error. He also argued that Order VII Rule 13 clearly states that a fresh suit can be filed once the plaint is rejected. This remedy being available, there is no need to interfere with the well reasoned order of the trial court. 7. Learned counsel for the appellants replied that subsequent meeting held on 21.4.2017 gave fresh cause of action to the plaintiffs. The plaintiffs cannot directly challenge any resolution passed on 21.4.2017 unless they seek to set aside the earlier resolution passed in the year 2013. This is the reason why in para 12 of the plaint it is stated that the cause of action arose on 18.4.2013. Moreover when the court permits the plaintiff to file a fresh suit, the question of limitation does not arise. If the plaint as a whole is read it becomes amply clear that the suit is not time barred. He also argues that the applications under Order VI Rule 17 CPC seeking amendment to the plaints have been filed. The proposed amendment explains as to how the suit is not time barred and therefore the applications need to be allowed. 8. The counsel for the respondent submitted that amendment to the plaints cannot be permitted and even if the applications are allowed, the plaintiffs case will not improve. 9. The trial court has dislodged the plaint in all the suits on the ground of limitation though it appears that the defendant did not seek rejection of the plaint on this ground and neither its application discloses as to which law barred the suit. Whenever rejection of plaint is sought under Order VII Rule 11 (d) CPC, the defendant must clearly point out as to which law bars the suit so as to enable the court to examine this aspect in the background of plaint averments. In this case, the impugned order does not disclose any reference to specific contention taken by the defendants with regard to bar of the suit under any law. It appears that the trial court took up the ground of limitation on its own. In this case, the impugned order does not disclose any reference to specific contention taken by the defendants with regard to bar of the suit under any law. It appears that the trial court took up the ground of limitation on its own. Therefore, in this regard it is to be stated that if at the time of deciding the application for rejection of plaint, the court arrives at a conclusion that the suit appears to be time barred, the plaint cannot be rejected without hearing the plaintiff on the question of limitation. Rejection of plaint on the ground of limitation must be resorted to only if the suit is time barred ex-facie. But, if the limitation appears to be mixed question of law and fact, an issue as regards limitation has to be framed and answered along with other issues. 10. In this case, if the plaints are read, all that the plaintiffs have pleaded is that after withdrawal of the former suit, though Special General Body Meeting was convened, no decision was taken and that the plaintiffs were again asked to pay Rs.9,00,000/-. Actually a new cause of action arose for the plaintiffs to institute a suit. The suits are maintainable on a new cause of action but not on the cause of action pleaded in the former suit. It is true that in the former suit at the time of allowing the application under Order supra-III Rule 1 CPC, liberty had been granted to the plaintiffs to institute a suit on the same cause of action, but that liberty is however subject to question of limitation as envisaged under Order supra-III Rule 2 CPC and rightly the trial court has taken this aspect into consideration. What the trial court has not considered is the consequences of the general body meeting held subsequent to withdrawal of the suit. In the plaint there is a reference to this meeting. Therefore, whether the plaintiffs have brought the suit on the cause of action pleaded in the former suit or based their suit by referring to the special general body held on 21.4.2017 is a question of fact. Rejection of plaint is a drastic step that the court takes; therefore as has been held by the Supreme Court in the case of T. Arivandandam (supra) what is required is meaningful reading of the plaint. Rejection of plaint is a drastic step that the court takes; therefore as has been held by the Supreme Court in the case of T. Arivandandam (supra) what is required is meaningful reading of the plaint. Meaningful reading is essential not only for rejection of plaint, but also for its sustenance till decision on merits in case the suit is really maintainable. As an artistic and intelligent drafting gives an illusion of existence of a cause of action, a plaint wanting in clarity gives an impression of non-maintainability of a suit or non-disclosure of cause of action. Therefore, the courts are to be careful while deciding an application under Order VII Rule 11 CPC. 11. Learned counsel for the respondent argued that according to Order VII Rule 13 CPC the plaintiffs could bring another suit on the same cause of action and therefore these appeals do not serve any purpose. I do not think that this contention can be appreciated because here are the suits which have been filed having withdrawn the earlier suit under Order XXIII Rule 1 CPC. Even if new suits are filed as has been argued by the learned counsel, question of limitation does arise because the plaintiffs have to refer to the earlier resolutions. Therefore, with this discussion, I come to the conclusion that the order of the trial court rejecting the plaints on the ground of limitation cannot be sustained. 12. The application for amendment of plaint need not be considered here as the suits are to be restored. The plaintiffs may seek amendment to their plaints by making applications in the trial court. 13. Hence, I pass the following order : - (a) All the appeals are allowed. (b) The order dated 14.12.2017 passed in O.S. nos. 3924/2017, 4030/2017, 4033/2017 and 4362/2017 on the file of the XXXVII Additional City Civil and Sessions Judge, Bengaluru City, are set aside. The suits are restored to the file of the trial court. (c) The parties are directed to appear before the trial court on 24.1.2019. (d) The trial court shall proceed further to dispose of the suits in accordance with law. (e) The application for amendment is dismissed, but liberty is given to plaintiffs to seek amendment by making application for amendment before the trial court.