M. Thillaikkarasi vs Kalavathi and Selvam

P.R. Shivakumar, J.—This Civil Miscellaneous Appeal has been filed against the decree of the lower Appellate Court dated 15.07.2010

made in A.S. No. 75 of 2006. As the Civil Miscellaneous Appeal was sought to be filed against the decree passed in an appeal, a question was

raised by the Registry as to its maintainability. It was clarified that though the Appellate Court''s judgment resulted in a decree, the same was, in

effect nothing but an order of remand, since the order of the trial court rejecting the plaint was reversed and the trial court was directed to take the

plaint on file and number it as a suit. Accepting the clarification, the Civil Miscellaneous Appeal was taken on file. Notice before admission was

served on the respondents and the respondents are also represented by the counsel. Mr. A. Thiagarajan, learned senior counsel appearing for the

counsel on record for the appellant and Mr. T. Murugamanikkam, learned counsel for the respondents submit that arguments on merits can be

heard and the Civil Miscellaneous Appeal itself can be disposed of. Accordingly, the arguments advanced on behalf of the appellant and also on

behalf of the respondents are heard. The grounds of appeal and the other materials are also perused.

A suit in O.S. SR. No. 13287 of 2003 was sought to be filed by the respondents herein, against the appellant, to set aside the decree dated

27.05.1995 made in O.S. No. 284 of 1995 on the file of the Additional Subordinate Judge, Salem. The said plaint was rejected by the Vacation

Civil Judge, Salem by an order dated 21.05.2003. The said order was challenged before the First Additional District Judge, Salem in A.S. No. 75

of 2006. The learned First Additional District Judge, Salem, allowed the appeal setting aside the order passed by the Vacation Civil Judge and

directed the trial court namely, the Subordinate Court, Salem to take up the plaint on file and number it as a suit. As against the said decree, stating

that the said decree passed by the lower Appellate Court is nothing but an order of remand, the present Civil Miscellaneous Appeal has been filed,

by the appellant who is shown as the defendant in the above said un-numbered plaint.

The reason for rejection of the plaint assigned by the trial court (Vacation Judge) is that the suit was barred by limitation. Though the date of

decree sought to be set aside was taken as the starting point of limitation, the plaintiffs had claimed exclusion of the period spent on other

proceedings before the very same court and before the High Court, u/s 14 of the Limitation Act. Thus an averment was made in the plaint that if

the said period was excluded, the suit was well within time and not barred by limitation.

The learned trial Judge (Vacation Judge) rejected the said plea without even conducting a trial regarding the issue of limitation, which made the

said court to reject the plaint. On appeal, the lower Appellate Court set aside the order of the trial court holding that the period during which the

appellants therein (the respondents herein) were prosecuting the other proceedings before the Sub-court and the High Court shall be excluded u/s

14 of the Limitation Act. Based on the said finding, after setting aside the order of the trial court rejecting the plaint, the learned lower appellate

judge directed the trial court to take the plaint on file and number it as a suit. The said order is challenged in the present Civil Miscellaneous

Appeal.

When the suit was sought to be filed by presenting the plaint in the trial court (vacation court), the same was rejected by the said court on the

premise that the relief sought therein was barred by limitation. The said court was of the view that the trial court has expressed the view that the bar

of limitation will come under the ambit of sub clause (d) of Rule 11 of Order VII CPC. The plaint can be rejected if it is brought within the ambit of

Order VII Rule 11 CPC.

For the sake of convenience Rule 11 of Order VII CPC is reproduced here under:

Rejection of plaint.- The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the

court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped, and the plaintiff does not make good the

deficiency within the time, if any, granted by the Court;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails comply with the provision of Rule 9.

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless

the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the

valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would

cause grave injustice to the plaintiff. Admittedly, the other clauses of Order VII Rule 11 are not attracted. Clause (d) alone was relied on by the

trial court for rejecting the plaint. Clause (d) makes a plaint liable to be rejected, if the suit appears from the statement in the plaint to be barred by

any law. Except the question of limitation, no other provision of law barring the Civil Court''s jurisdiction, either expressly or impliedly has been

cited as the ground for rejection of the plaint by the trial court. On the other hand, the law of limitation is sought to be projected as the law that

bars the present suit. It shall be helpful to reproduce Section 3 of the Limitation Act, 1963.

Bar of limitation.-(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application

made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.

(2) For the purpose of this Act, -

(a) A suit is instituted, -

(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and

(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official

liquidator;

(b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted-

(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;

(ii) in the case of a counter claim, on the date on which the counter claim is made in Court;

(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.

From a reading of the above section, it shall be obvious that the bar of limitation provided therein is made subject to the provisions contained in

Sections 4 to 24 of the Limitation Act, which includes part III containing exclusion of certain periods for the computation of period of limitation.

Section 3 of the Limitation Act does not say that the plaint filed after the expiry of period of limitation is liable to be rejected. On the other hand, it

simply says that the suit instituted, appeal preferred or the application made after the prescribed period shall be dismissed although limitation has

not been set up as a defence. Of course, the said section has been interpreted by the Supreme Court in Lachhman Singh (Deceased) through Legal

Representatives and Others Vs. Hazara Singh (Deceased) through Legal Representatives and Others, to the effect that Section 3 puts an embargo

on the court to entertain a suit, if it is found to be barred by limitation. The court cannot conduct a rowing enquiry to find out whether the averments

made in the plaint claiming how the suit was in time, are true or false. On the other hand, on the very basis of the averment made in the plaint, it

should be apparent that suit shall be barred by limitation to bring the plaint within the ambit of clause (d) of Rule 11 of Order VII CPC. What

clause (d) of Rule 11 of Order VII CPC says is that it must appear from the statements made in the plaint itself that the suit is barred by law.

Suppose the plaint averments indicate the date of commencement of the period of limitation and it is found that the suit has been filed beyond the

period of limitation without any averment claiming exclusion of certain period and thus pleading that the suit is not barred by limitation, we can say

that the same would come under clause (d) of Rule 11 of Order VII CPC.

On the other hand, if an explanation is offered claiming exclusion of certain period and contended that thus the suit is not barred by limitation,

then it shall not be proper for the court to conduct an enquiry in to the correctness or otherwise of the said statements and render a finding

regarding the question of limitation for the purpose of rejection of plaint shall not be proper. The court must keep in mind that the issue of limitation

is not a pure question of law and it is a mixed question of law and facts. In the absence of a plea that the plaintiffs'' claim for exclusion of the period

during which they were bonafide prosecuting other proceedings in a court without jurisdiction or a proceedings with a similar defect, as per Section

14 of the Limitation Act, it would have been easy for the court to make a decision as to whether the statement made in the plaint itself shows that

the suit is barred by limitation or not. When exclusion of the particular period on the ground that other proceedings were pursued bonafide, it

becomes a contentious issue that has got to be tried and decided. Instead of doing it, the trial court chose to decide the same based on the

materials produced along with the plaint and ultimately on the basis of the decision, chose to reject the plaint. The Appellate court also committed

the very same mistake, in going into the merits of the issue as to whether such a period can be excluded u/s 14 of the Limitation Act and rendering

a finding. Had the Appellate Court made a proper approach to the problem, it would have arrived at a conclusion that the question of limitation has

to be raised as an issue and decided in the suit, after registering the plaint as a suit, even though the question of limitation has not been taken as a

plea of defence by the defendants. In addition, the Appellate Court would have come to the conclusion that the question of limitation could not be

decided based on the plea without affording an opportunity to the appellant before it (respondent before this court) to let in evidence to prove his

bonafide in prosecuting the other proceedings, when exclusion of a period u/s 14 is sought. In either case, the ultimate result would be a direction

to take the plaint on file and number it as a suit, keeping open the question of limitation to be raised and decided in the suit. As the trial court and

the lower Appellate court had gone into the merits of the matter without affording an opportunity to the parties to lead evidence regarding the

question of limitation, the finding of the lower Appellate Court that the period during which the respondents were prosecuting the other proceedings

in the other Courts should be excluded u/s 14, should be nullified and expunged. At the same time, since no case has been made out for the

rejection of the plaint under Order VII Rule 11 CPC, the final order (decree) passed by the 1st Appellate Court setting aside the order of the trial

court and sending back the plaint to the trial court to be numbered as a suit, has got to be confirmed.

In the result the Civil Miscellaneous Appeal is dismissed confirming the decree (order of remand) passed by the learned Appellate Judge. The

finding on merits regarding the question of limitation rendered by the lower Appellate Court is set aside. The trial court shall try the suit regarding all

issues, including the question of limitation, uninfluenced by any of the observations made by the lower Appellate court in its judgment. The trial

court is directed to make an endeavour to dispose of the case within a year. There shall be no order as to costs. Consequently, connected M.P. is

closed.