Dattratrya and Others vs Girimal and Others

K.N. Phaneendra, J—By way of this petition the defendants in OS No. 111/2013 has called in question the order dated 18.08.2014 passed by the Senior Civil Judge, Chikodi at Chikodi on IA No. 5 wherein the trial Court has dismissed IA No. 5 filed under Order-VII Rule 11(d) read with Section 151 of CPC.

I have heard the learned counsel for the petitioners and as well as of the respondents and carefully perused the orders passed by the trial Court.

The suit of the plaintiffs was filed in the year 2013 in OS No. 111/2013 for specific performance of the agreement of sale alleged to have been executed by the defendants dated 23.01.1995. The defendants, in fact, filed their written statement specifically stating that the suit is barred by limitation and as well as there is no cause of action for the purpose of filing of the suit. Hence, they invoked the provision under Order-VII Rule 11(d) before the Court and sought for dismissal of the suit at the threshold.

The trial Court has held that the plaint cannot be rejected at the threshold and rejected the said application on the ground that the limitation point is mixed question of law and fact and also as well as the cause of action to the suit.

On perusal of the order of the trial Court, there is no whisper with regard to the previous transaction that was taken between the parties with regard to the plaintiffs earlier filing of a suit in the year 1995 for permanent injunction. Even after the alleged execution of the sale agreement by the defendants, the said suit came to be dismissed for non-prosecution subsequently after lapse of two years.

Learned counsel for the petitioners contends that the trial Court has to consider whether in all the cases limitation point to be treated as mixed question of law and fact or the Court can come to the conclusion that the suit is not maintainable on the point of the limitation and on the ground of cause of action. Whether the Court in spite of sufficient materials before it to establish that there was no necessity for the parties to lead any evidence to explain limitation before the Court or the cause of action or it can be born out from the records that the suit is ex-facie barred by limitation and it does not admit any facts to be proved by way of evidence by the parties, in such circumstances also the Court has to go on with the ordeal of trial of the suit. In this regard, the learned counsel has drawn my attention to the following decisions of the Apex Court:

"(1) T. Arivandandam Vs. T.V. Satyapal and Another, AIR 1977 SC 2421 : (1977) 4 SCC 467 : (1978) 1 SCR 742 : (1977) 9 UJ 697

(2) I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others, AIR 1998 SC 634 : (1998) 92 CompCas 1 : (1997) 3 CTC 746 : (1997) 10 JT 334 : (1997) 7 SCALE 767 : (1998) 2 SCC 70 : (1997) 6 SCR 683 Supp

(3) Hardesh Ores Pvt. Ltd. Vs. Hede and Company, (2007) 7 JT 150 : (2007) 7 SCALE 348 : (2007) 5 SCC 614 : (2007) 6 SCR 608 AND

(4) Sri R. Sadagopan Vs. Sri K. Rajaiah Naidu, (2009) ILR (Kar) 3302 : (2009) 6 KarLJ 239 : (2010) 1 KCCR 759

On perusal of these decisions, the Court has categorically observed that, in all these decisions, the law of limitation cannot be in all the circumstances be concluded as mixed question of law and fact. It is the bounden duty of the Court to carefully peruse the pleadings of the parties and also entire material on record in order to find out whether, even though, there was no cause of action for the suit and the suit is barred by limitation by virtue of the pleadings, if the plaintiffs want to drag on the suit before the Court for an uncertain period harassing the defendants in that context the Court has to ascertain whether the suit has filed with ulterior motive to harass the defendants or the suit is vexatious or frivolous and how the suit is barred by limitation. Under such circumstances, the Court has to apply its judicious mind and find out the truth. In view of the above said decisions I am of the opinion the trial Court has not bestow its attention to the entire facts and circumstances of the case.

I do not express my opinion with regard to factual aspects of the case. It would suffice to say that the trial Court has not looked into the entire plaint allegations and admitted fact by the plaintiffs and also previous causes between the parties to find out whether the suit filed by the plaintiffs is maintainable or not, or whether it is frivolous or vexatious. It is the duty of the Court to analyse the entire materials on record not simply stating that the point of limitation is mixed question of law and fact, whether the Court require any evidence and whether the parties are entitled to lead any oral and documentary evidence to answer the questions by the trial Court. If absolutely the point on limitation run as a pure question of law, then the Court should observe under such circumstances whether the suit is filed in order to harass the defendants. Therefore, I am of the opinion, the trial Court has to bestow its attention to the entire pleadings of the parties not only in this suit but also in the previous suit and also look into the facts in the context of the agreement between the parties and to ascertain from the pleadings then only the Court can give proper and appropriate findings on the applications filed under Order-VII Rule 11(d) of CPC.

With these observations, I proceed to pass the following:

"ORDER

Petition is allowed.

The order under challenge is hereby set aside. The said application is restored on to the file of the trial Court. The trial Court has to give opportunity to both the parties to appraise the Court with regard to the factual matrix and legal aspects of the case. The Court looking to the previous transaction between the parties in OS No. 124/1995 and also the contents of the agreement of sale invoked by the plaintiffs and also rulings referred above in this order and then pass appropriate suitable orders on the applications.

The Court should not persuade itself in any manner the observations made by this Court in this order while passing the orders on merits of the applications."