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2025 DIGILAW 1855 (MAD)

S. P. R. Velumurugan v. S. P. R. Rajmohan

2025-04-02

R.VIJAYAKUMAR

body2025
ORDER : The defendants 4 and 11 in O.S.No.127 of 2024 on the file of the Additional District Court, Paramakudi, Ramnad District have filed the above civil revision petition seeking to strike off the plaint on the ground that the suit is barred by limitation. 2. A perusal of the records reveal that the first respondent in the revision petition has filed the above said suit for the relief of declaration that the registered sale deed dated 29.06.2018 registered in Document No. 860 of 2018 executed by the 1 st defendant in favour of the 4 th defendant is null and void and not binding upon the plaintiff and the 11 th defendant. The plaintiff has further prayed for permanent injunction restraining the defendants from alienating the suit schedule properties in favour of others. 3. The plaint averments reveal that the plaintiff and the 11 th defendant are the brothers and they jointly owned the suit schedule properties. They have jointly executed a power deed in favour of the 1 st defendant on 15.03.2018. Relying upon the power deed, the 1 st defendant has executed a mortgage deed in favour of his wife on 16.03.2015. Thereafter, the 1 st defendant has sold the property in favour of the 4 th defendant on 29.06.2018. 4. The averments further reveal that the plaintiff has lodged a police complaint on 16.03.2020 alleging that misusing the power deed, the power agent has collusively executed a mortgage deed in the name of his wife and later, sold it to the 4 th defendant. An F.I.R was registered in Crime No.23 of 2020 as against the 1 st defendant, his wife, his son and others. The 1 st defendant and his family members had filed Crl.O.P.No.8346 of 2020 to quash the said F.I.R. The 1 st defendant has filed an affidavit in Crl.O.P.No.8346 of 2020 to the effect that he will not oppose any civil suit to be filed by the defacto complainant (plaintiff herein) challenging the sale deed dated 29.06.2018 on the ground of limitation. 5. Based upon the said undertaking letter, the F.I.R was quashed by this Court on 05.12.2023. The plaintiff had filed the above said suit on 18.09.2024 seeking to declare the sale deed dated 29.06.2018 to be null and void and not binding upon him and his brother 11 th defendant. The 11 th defendant is not sailing with the plaintiff. 5. Based upon the said undertaking letter, the F.I.R was quashed by this Court on 05.12.2023. The plaintiff had filed the above said suit on 18.09.2024 seeking to declare the sale deed dated 29.06.2018 to be null and void and not binding upon him and his brother 11 th defendant. The 11 th defendant is not sailing with the plaintiff. 6. The 4 th defendant is the purchaser and the beneficiary of the sale deed dated 29.06.2018, along with 11 th defendant who is the co-sharer of the property, have filed the present civil revision petition under Article 227 of the Constitution of India to strike off the plaint on the ground that the suit is barred by limitation. 7. According to the learned counsel for the revision petitioners, the sale deed was executed by the 1 st defendant in favour of the 4 th defendant on 29.06.2018 based upon the power deed executed by the plaintiff and the 11 th defendant in favour of the 1 st defendant. The plaintiff was aware of the said sale deed while he lodged a police complaint on 16.03.2020. Therefore, the civil suit ought to have been filed within a period of three years namely on or before 16.03.2023. However, the present suit has been filed on 18.09.2024 and therefore, it is clearly barred by limitation. 8. The learned counsel for the first respondent/plaintiff had contended that they have erroneously approached the police authority for registering an F.I.R and therefore, they are entitled to the benefits under Section 14 of the Limitation Act. The period spent before the criminal Court should also be excluded. It is further contended that the power agent (1 st defendant) has already filed an affidavit before this Court that he would not oppose the suit to be filed by the defacto complainant and he would not raise the plea of limitation. Only relying upon the said undertaking affidavit, the F.I.R was quashed. Therefore, again the defendant cannot raise the plea limitation in the civil proceedings. 9. The learned counsel for the first respondent had further contended that the civil revision petition under Article 227 of Constitution of India for rejection of plaint is not maintainable. Only relying upon the said undertaking affidavit, the F.I.R was quashed. Therefore, again the defendant cannot raise the plea limitation in the civil proceedings. 9. The learned counsel for the first respondent had further contended that the civil revision petition under Article 227 of Constitution of India for rejection of plaint is not maintainable. The revision petitioners ought to have approached the trial Court invoking Order 7 Rule 11 of C.P.C. The learned counsel relied upon a decision of this Court reported in (2013) 6 MLJ 119 ( R.Perumal Naicker Vs. R.Sakrapani) to impress upon the Court that even the plea of limitation should be raised only by filing an application under Order 7 Rule 11 of C.P.C before the trial Court. 10. The learned counsel for the first respondent had further contended that the criminal original petition was quashed by the High Court only on 05.12.2023. The suit has been filed on 18.09.2024. Therefore, the suit is well within the time. The learned counsel had further contended that the High Court while quashing the criminal proceedings had directed the civil Court to number the suit and decide all the issues except the issue of limitation, in view of the undertaking affidavit filed by the accused before the Court. In such circumstances, neither the trial Court nor the defendant in the suit can raise the plea of limitation. Hence, she prayed for dismissing the revision petition. 11. Heard both sides and perused the material records. 12. A perusal of the plaint averments reveal that the suit has been to declare the sale deed dated 29.06.2018 said to have been executed by the 1 st defendant in favour of the 4 th defendant as null and void and not binding upon the plaintiff and the 11 th defendant. The plaintiff has lodged a complaint as against his power agent (1 st defendant) and others before the police authorities on 16.03.2020 alleging collusion and fraud in execution of mortgage deed and sale deed. In the said complaint, there is a reference about the sale deed which is challenged in the suit. The F.I.R in Crime No. 23 of 2020 has been enclosed along with the plaint as plaint Document No.8. 13. A perusal of the F.I.R reveals that the plaintiff is aware of the sale deed dated 29.06.2018 and he has mentioned about the said sale deed in the complaint. The F.I.R in Crime No. 23 of 2020 has been enclosed along with the plaint as plaint Document No.8. 13. A perusal of the F.I.R reveals that the plaintiff is aware of the sale deed dated 29.06.2018 and he has mentioned about the said sale deed in the complaint. The present suit for declaration, to declare that the sale deed is null and void has been filed on 18.09.2024. A cumulative reading of the plaint documents and the plaint averments would clearly reveal that the suit has been filed beyond a period of three years from the date of knowledge of the plaintiff about the sale deed dated 29.06.2018. As per Article 58 of the Limitation Act, a suit for declaration has to be filed within a period of three years from the date when the right to sue first accrues. In case, if the party wishes to set aside the document, the suit should be filed within a period of three years from the knowledge as per Article 59. 14. Viewed from any angle, the present suit, having been filed beyond a period of three years, is clearly barred by limitation even as per the plaint averments and the documents enclosed along with the plaint. The learned counsel for the respondent/plaintiff had further contended that the plaintiff is entitled to invoke the benefit under Section 14 of the Limitation Act in view of the fact that they have filed a criminal complaint and they were prosecuting the same. 15. The benefits under Section 14 of Limitation Act can be derived only if the plaintiff was prosecuting with due diligence another civil proceeding. Only in such circumstances, the period spent before the wrong forum could be excluded. In the present case, admittedly the plaintiff had only lodged an F.I.R and had not filed any other civil suit to seek the benefit under Section 14 of the Limitation Act. Therefore, the said contention is not legally sustainable. 16. The learned counsel for the respondent had further contended that his power agent namely the 1 st defendant in the suit had given an undertaking before this Court by way of an affidavit that he would not oppose the suit which is likely to be filed by the defacto complainant challenging the sale deed dated 29.06.2018. 16. The learned counsel for the respondent had further contended that his power agent namely the 1 st defendant in the suit had given an undertaking before this Court by way of an affidavit that he would not oppose the suit which is likely to be filed by the defacto complainant challenging the sale deed dated 29.06.2018. It is further averred in the affidavit that the first defendant (A1) would not raise the plea of limitation before the trial Court, in case if such a suit is filed. 17. It is settled position of law that the parties cannot waive the defence of limitation. Even if they do not set up the defence of limitation, the Court has to dismiss the suit on the ground of limitation in view of Section 3 of Limitation Act. Therefore, the suit cannot be entertained on the basis of concession /waiver by one of the parties that he would not raise the plea of limitation, in case a civil suit is filed. 18. The learned counsel for the first respondent/plaintiff has also relied upon a decision of this Court in Crl.O.P.No.8346 of 2020 dated 05.12.2023 to contend that this Court has issued a direction to the civil Court to number the suit and decide all the issues except the issue of limitation, in view of the undertaking affidavit filed by the accused person. It is to be noted that only the 1 st defendant in the suit has filed such an affidavit of undertaking. The 4 th defendant who is the purchaser of the property or the 11 th defendant who is one of the co-owner of the property has not filed any affidavit before this Court. In such circumstances, the affidavit of undertaking filed by the 1 st defendant would not be binding upon the 4 th defendant and 11 th defendant in the suit. In such circumstances, the observations made by this Court in Crl.O.P.(MD).No. 8346 of 2020 cannot be put against the 4 th and 11 th defendants in the present suit. 19. The Hon'ble Supreme Court in a decision reported in 2023 SCC Online SC 521 (Ramisetty Venkatanna and another Vs. Nasyam Jamal Saheb and others ) in Paragraph No.28 has held as follows: “28. 19. The Hon'ble Supreme Court in a decision reported in 2023 SCC Online SC 521 (Ramisetty Venkatanna and another Vs. Nasyam Jamal Saheb and others ) in Paragraph No.28 has held as follows: “28. Applying the law laid down by this Court in the aforesaid decisions on the applicability of Order VII Rule XI to the facts of the case on hand, we are of the opinion that the plaint ought to have been rejected in exercise of powers under Order VII Rule XI(a) and (d) of CPC being vexatious, illusory cause of action and barred by limitation. By clever drafting and not asking any relief with respect to partition deed dated 11.03.1953, the plaintiffs have tried to circumvent the provision of limitation act and have tried to maintain the suit which is nothing but abuse of process of court and the law . 20. The Hon'ble Supreme Court in a judgment reported in 2024 SCC Online SC 3844 (Shri Mukund Bhavan Trust and others Vs. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another) in Paragraph No.26 has held as follows: “26. At this juncture, we wish to observe that we are not unmindful of the position of law that limitation is a mixed question of fact and law and the question of rejecting the plaint on that score has to be decided after weighing the evidence on record. However, in cases like this, where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief and drive the parties back to the trial Court. We again place it on record that this is not a case where any forgery or fabrication is committed which had recently come to the knowledge of the plaintiff. Rather, the plaintiff and his predecessors did not take any steps to assert their title and rights in time. The alleged cause of action is also found to be creation of fiction. However, the trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC. Rather, the plaintiff and his predecessors did not take any steps to assert their title and rights in time. The alleged cause of action is also found to be creation of fiction. However, the trial Court erroneously dismissed the application filed by the appellants under Order VII Rule 11(d) of CPC. The High Court also erred in affirming the same, keeping the question of limitation open to be considered by the trial Court after considering the evidence along with other issues, without deciding the core issue on the basis of the averments made by the Respondent No.1 in the Plaint as mandated by Order VII Rule 11 (d) of CPC. The spirit and intention of Order VII Rule 11(d) of CPC is only for the Courts to nip at its bud when any litigation ex facie appears to be a clear abuse of process. The Courts by being reluctant only cause more harm to the defendants by forcing them to undergo the ordeal of leading evidence. Therefore, we hold that the plaint is liable to be rejected at the threshold. “ 21. A careful perusal of the judgment of the Hon'ble Supreme Court cited supra would clearly reveal that in all cases where it is glaring from the plaint averments that the suit is hopelessly barred by limitation, the Courts should not be hesitant in granting the relief. In the present case, the plaint averments and the copy of the F.I.R in Crime No.23 of 2020 dated 18.03.2020, annexed to the plaint as Document No.8, would clearly reveal that the suit has been filed beyond a period of 3 years from the date of knowledge. In such circumstances, this Court cannot relegate the parties back to the trial Court to undergo trial, when dates and events remain undisputed. 22. In view of the above said deliberations, the plaint in O.S.No. 127 of 2024 is hereby struck off from the file of Additional District Court, Paramakudi, Ramanathapuram District. This Civil Revision Petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed.