Shailendra Singh vs Smt. Gulab Devi and Others

S.N. Jha, J.—This civil revision by defendant No. 1 is directed against order dated 21.8.1997 passed by the 1st Subordinate Judge, Bettiah in Money Suit No:5 of 1995 rejecting his application to reject the plaint.

The plaintiff-opposite party have filed the above mentioned suit for realisation of sum of Rs.33,3333/- with interest. According to the plaintiff, late Nand Kishore Singh, the common ancestor died, leaving behind three sons, namely, Ramji Singh, Shailendra Singh and Devendra Singh and widow Debkanya Devi. The plaintiff is the wife of Ramji Singh, Debkanya Devi, on 8.1.1974 made a gift of the property described in Schedule I of the plaint in favour of her daughters-in-law, namely, Rekha Devi, Urmila Devi and the plaintiff. On 1.9.1974 the donees executed the deed of power of attorney in favour of the defendant No, 1 i.e., the petitioner to realise the rent and give one-third of the amount of each of them. Defendant No. l realised huge amount of money from 1974 but nothing was paid to plaintiff or other donees. Separate suit as proposed to be filed for accounts (such a suit was actually filed being title suit No. 10/93 pending in the same Court). The plaintiff further contended that two floors had been constructed over the lands in question and let out to defendant No.2 State Bank of India, Bettiah Branch, the rental income from which too was being realised by defendant No. l. He deposited Rs.72,000 in the said bank in fixed deposit vide TDR No. 947120 on 18.1.1988 and later withdrew Rs. 14,000 being the amount of interest Rs.72,000 was again invested in fixed deposit viz. TDR Nos.4563 23 and 456324 on 17.1.1990. He, however, withdrew the amount prematurely on 26.10.1991 and misappropriated the same. According to the plaintiffs, the aforesaid rental income the amount deposited with the bank and the interest accruing thereon was for the benefit of the plaintiff and the two co-donees. When she learnt about misappropriation in October, 1994 she asked the defendant to pay the amount which he declined. Hence the suit.

The petitioner filed written statement stating, inter alia, that the plaintiff was aware of the facts regarding the deposit of Rs.72,000/-, withdrawal of the amount in the year 1980 itself. The suit was, therefore, barred by limitation under Article 24 of the Limitation At, He file a separate application on 24.4.1997 to reject the plaint as being barred by the law of limitation. From Annexure-I it appears that the application was labeled as one under order VII, Rule 11 and also Order XIV, Rule 2(2)(b) of the Code of Civil Procedure. The prayer however was to decide the maintainability of the suit as preliminary issue and dismiss the suit as being barred by law of limitation.

Counsel for the petitioner submitted that in terms of clause (d) of Rule 11 of Order VII, of the Code where the suit is barred by limitation, the Court has no option but to reject the plaint. Counsel also made submission on merit of the case in order to show that the plaintiffs claim is barred by limitation. Counsel for the opposite party, on the other hand, contended that the question of limitation is a mixed question of law and fact which can be decided only by taking evidence. The provisions of neither Order VII, Rule 11 nor those of Order XIV, Rule 2(2) of the Code are applicable.

Order VII, Rule 11 provides for rejection of the plaint in four types of cases, (a) where the plaint does not disclose cause of action, (b) where the relief claimed is under-valued and the plaintiff on being required by the Court to correct the valution fails to do so. (c) where relief claimed is properly valuted but the Court fee paid is not sufficient and the plaintiff on being required by the Court to pay the deficit Court-fee fails to do so, and (d) where the suit appears from the statement in the plaint to be barred by any law.

Mr. S.S. Dwivedi, learned counsel for the petitioner submitted that the expression "barred by any law" includes the bar of limitation. He submitted that the law of limitation is the mother of all laws and therefore, where on the statement made in the plaint, the suit appears to have been filed beyond the period of limitation, the plaint is fit to be rejected summarily.

The point for consideration is whether the plaint filed beyond the period of limitation is to be summarily rejected? Also, whether the Court is required to make any enquiry upon such objection being taken by the defendant at the threshold stage or to await the stage of trial?

A provision which can be said to be analogous to that of Order VII Rule 11 (d) is to be found in Order XIV, Rule 2(2)(b). Rule 2 provides that notwithstanding that a case may be disposed of on a preliminary issue, the Court, shall subject to the provisions of sub-rule (2), pronounce judgment on all issues. Sub-rule (2) lays down:

Where issues both of law and of fact arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force.

There does not appear to be any material difference in the phraseology of the two provisions. While Order VII, rule 11(d) use expression "barred by any law'''', in Order XIV, Rule 2(2)(b) the expression used is "bar created by any law". In my opinion, the expressions "barred by any law" or "bar created by any law" refer to the bar to the institution or the entertain ability of the suit itself. As is well known, in several special statues the jurisdiction of the Civil Court has been ousted by express words or by necessary implication. In the CPC itself Section 80 provides that no suit shall be instituted against the Government or against public servant in respect of any official act unless a notice of the propose suit is served and period of two months therefrom has expired.

So far as the law of limitation is concerned, it does not bar the institution of the suit, it merely bars the remedy. As a piece of substantive law, it may result in. extinguishment of the right if the action is not commenced within a particular time, or as a piece of procedural law, it may merely bar the claim but nonetheless it remains part of obligation which can furnish consideration fro a fresh contract. Where a party to the suit sets up the plea of limitation, the Court is required to consider (n) the course of action in the suit (b) when the cause of action commenced and (c) the result of non-action by the plaintiff. In these premises, the question of limitation cannot be called a pure question of law, it would rather be mixed question of law and fact. It is, therefore, doubtful if the plaint can be rejected at the threshold stage, without its admission, on the ground of limitation under Order VII, Rule 11 (d) of the code.

However, it is well-settled that the provisions of Order VII. Rule 11 are not exhaustive. Whether at the stage of admission or afterwards, if the suit appears to the Court to be barred by limitation or otherwise barred, the Court is not precluded from dismissing the suit. The only resultant difference is that where plaint is rejected under Order VII, Rule 11 a fresh suit or the same cause of action may lie but where the suit is dismissed on such ground afterwards, a fresh suit for same cause of action may not lie. So far as Order VII, Rule 11 (d) is concerned, from bare perusal of the rule it is clear that the suit must appear "from the statement in the plaint" to be barred by any law. In other words, it must appear on the face of it that the suit is barred. Where the Court has any doubt or a bona fide dispute is raised, surely, this provision cannot be applied.

While considering the scope of order XIV, Rule 2 of the code, as it stood prior to the amendment by Art 104 of 1976, in Major S.S. Khanna Vs. Brig. F.J. Dillon, . the Supreme Court observed.

The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally, ail the issues in a suit should be tried by the Court; not to do so specially when the decision of issues of fact, would result in a lopsided trial of the suit.

It is significant to mention that sub-rule (2) of Order XIV, Rule 2 prior to the amendment contained the word "shall". The word "shall" has been substituted by the word "may" in the amended rule.

If an issue which involves question of law as well as fat cannot be decided as a preliminary issue under Order XIV, Rule 2, I have grave doubts if such an issue can be decided at the stage of admission of the plaint under Order VII, Rule 11 of the Code. However, as indicated hereinabove, this may not be absolute rule. These observations may not hold good in a case where on plaint reading of the plaint itself a clear case of bar of limitation is made out. This may indeed be a rare case. In such a case it may not be necessary for the Court to admit the suit and keep the matter pending which may cause unnecessary and avoidable harassment to the defendant.

In the present case, having heard the Counsel for the parties at length, considered the submissions in the light of the case law cited, I have no doubt in my mind that in the facts and circumstances of the case, the issue cannot be resolved summarily. The issues go to the root of the matter and can be appropriately decided Alongwith other issues at the stage of trial. Although as indicated above, Counsel for the parties made submission on the merit of the claim I think it would be inappropriate for this Court to go into the question at this stage. I would leave the issue open to be decided in the stage of trial.

For the reasons stated above. I am not inclined to interfere with the impugned order. The civil revision is therefore, dismissed. There will be no order as to costs.