The Allahabad High Court held that rejection of the application under Order VII Rule 11 of the Civil Procedure Code will not operate as res judicata on deciding issue of limitation raised at the time of final hearing question of limitation being a mixed question of law and fact requires evidence to be led by contesting parties.
The issue of limitation as such cannot be decided at the stage of deciding an application under Order VII Rule 11 of CPC unless the pleading in the plaint shows the plaint to be barred by limitation, it said.
Brief Facts:
The Petitioner filed an application under Order VII Rule 11 of CPC on the grounds that the original application was filed after a lapse of 19 years from the date of execution of the Deed of Guarantee executed by the Petitioner. it was contended that the claim of respondent No.1 is time-barred. This application under Order VII Rule 11 of CPC was rejected. An appeal against the same was filed before the Debt Recovery Appellate Tribunal, Allahabad. The Appellate Tribunal disposed of the appeal permitting the appellant-petitioner to raise his contentions/grievances whatever he has, with regard to the maintainability of the Original Application in view of limitation before the DRT by way of any application. It was directed that if such an application is filed by the petitioner, it shall be dealt with at the time of the final hearing of the said Original Application. The appeal was not entertained on merits as the case was pending before the DRT.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner submitted that D.R.A.T. has though permitted the petitioner to raise his grievances as to the issue of maintainability of the Original Application on the ground of limitation and has also directed for consideration of same at the time of the final hearing of Original Application but has not set aside the order passed by the DRT Jabalpur by which application filed by the petitioner under Order VII Rule 11 of CPC, has been rejected by the D.R.T. Jabalpur holding that Original Application is not barred by limitation. It has been further contended by learned counsel for the petitioner that unless the order passed by Debts Recovery Tribunal is set aside holding that the Original Application is not barred by limitation, the same will operate as resjudicata when the matter will be considered by Debts Recovery Tribunal in pursuance to the directions given by the D.R.A.T. Contentions are also raised by learned counsel appearing for the petitioner on merits against the findings recorded by the D.R.T. Jabalpur while dismissing his application under Order VII Rule 11 CPC.
Observations of the court:
The court referred to the case of T. Arivandandam vs. T.V. Satyapal, wherein it was held that the provisions of Rule 11 are mandatory. If the plaint is found to be defective and the case is covered by Rule 11, it goes to the root of the matter the Court has no option and the plaint has to be rejected. An application by the opposite party is not necessary. Further, the court stated that from the reading of Clause 11 of Order 7 C.P.C., it is clear where the suit appears from the statements in the plaint to be barred by any law, the Court shall reject the plaint and Order VII Rule 11 CPC gives ample power to the Court to reject the plaint, if from the averments in the plaint, it is evident that the suit is barred by any law including the law of limitation, this position is no more res integra.
Further, it was stated that Order VII Rule 11(d) CPC provides that the plaint shall be rejected “where the suit appears from the statement made in the plaint to be barred by any law”, hence, in order to decide whether the suit is barred by law, it is the statement in the plaint will have to be construed. The Court while deciding such an application under Order 7 Rule 11 C.P.C. must have due regard only to the statements made in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case.
The Court placed reliance on Srihari Hanumandas Totala vs. Hemant Vithal Kamat and others where the Supreme Court has laid down two guiding principles for deciding an application under Order VII Rule 11 (d) of CPC and further relying on the decision of Supreme Court in Ramesh B Desai and others vs. Vipin Vadilal Mehta and others, the Court stated that “question of limitation is generally a mixed question of law and fact.”
The Court observed that a perusal of the original application filed by Respondent No.1 - Stressed Asset Stabilisation Fund does not disclose any fact to bar the suit on grounds of limitation. The Court observed that the submissions made by the petitioner including submissions regarding a lapse of 16 years, cannot be gone into at the stage of deciding an application under Order VII Rule 11 of CPC.
The Court held that the claim of the petitioner regarding limitation and other things can only be considered once the issues regarding the same have been framed by the Tribunal and by considering the evidence led by the parties. It cannot be decided at the stage of deciding the application under Order VII Rule 11 CPC.
Further, the Court held that the DRT has to look at the pleading and evidence led by both parties while dealing with the original application, therefore, any finding recorded by the DRT at the time of rejection of the application under Order VII Rule 11 CPC will not act as res-judicata regarding the issue of limitation.
The decision of the Court:
The court disposed of the petition with a direction to DRT to decide the case as per directions of DRAT.
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