Bombay High Court

In The High Court Of Judicature At ... vs : on 10 December, 2009

Bench: C. L. Pangarkar

                         
    C.R.A.111.08                           1




                                                                                   
                                                 

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH NAGPUR.




                                                           
             CIVIL REVISION APPLICATION NO.111 of 2008.




                                                          
    APPLICANTS:     1. Western Coalfields Ltd.
                       Coal Estate, Civil Lines, Nagpur.




                                               
                           2. Chairman cum Managing Director
                              Western Coalfields Ltd. Coal Estate,
                            
                              Civil Lines, Nagpur.

                                 
                           
                                              : VERSUS :


    RESPONDENT:      Shri Chandraprakash s/o Krishnalal Khare,

Aged about 70 years, Occu: Retired, r/o 405, Suraksha Apartments, 16,

Hindustan Colony, Amravati Road, Nagpur.

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

Mr.S.C.Mehadia, Advocate for the petitioners. Mr.S.V.Manohar and Mr.Amit Khare, Advocates for the respondent. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J

DATED : 10th December, 2009.

ORAL JUDGMENT:

1. This revision is preferred by the defendants, feeling

aggrieved by the order rejecting their application under Order 7

Rule 11(d) of C.P.C.

2. The facts giving rise to this revision are as follows -

Respondent/plaintiff filed a suit for declaration about his

date of birth and arrears of salary. The respondent/plaintiff also

sought a relief that it be declared that his superannuation was

illegal. Respondent was in service of the applicant as Deputy Chief

Finance Manager. The respondent alleges that he was unilaterally

superannuated by the applicant in August, 1996. It is his case that

at the time of his appointment in 1975, he had submitted a

matriculation certificate as well as affidavit of his father that his

correct date of birth was 10/8/1948. This proof by way of affidavit

was accepted by the applicant. However, in 1991, when

respondent/plaintiff received seniority list, he noticed that his date

of birth is recorded in the office record as 10/08/1938. The

respondent immediately wrote to the applicant to correct the

mistake. The applicant informed by letter dated 8/5/1991 that the

date is correctly recorded and there is no need to make any change.

The respondent, therefore, made a representation. Ultimately, the

respondent was served with a notice of superannuation w.e.f.

31/8/1996. The respondent filed a writ petition challenging this

notice of superannuation but he later withdrew the said petition.

Thereafter, respondent filed this suit on 17/12/2007 challenging

the superannuation and the refusal to change the date of birth.

3. The applicant/defendant appeared before the trial court

and filed application under Order 7 Rule 11 (d) of C.P.C. mainly

contending that the plaint is defective and is liable to be rejected as

the suit is hopelessly barred by limitation. The learned Judge of

the trial court rejected the application and the defendants feel

aggrieved thereby.

4. I have heard Shri Mehadia, learned counsel for the

applicants and Shri S.V.Manohar, learned counsel for the

respondent.

5. Learned counsel for the applicant contends that the

plaintiff's own pleadings would show that the suit is hopelessly

barred by limitation. The counsel for the respondent submits that

this court need not go into the aspect whether the suit is barred by

limitation or not, but must consider the question whether the suit

being barred by limitation could be the ground falling under Rule

11(d) of Order 7 of C.P.C. Rule 11 of Order 7 of C.P.C. reads thus -

11. 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 under-valued, and the plaintiff, on being required by the Court to

so 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 upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed

by the Court, fails to do so;

(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 to comply with the

provisions 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.]

6. What rule 11(d) says is that the plaint is liable to be

rejected where it is barred by law. I think the controversy can be

resolved and should in fact be resolved without entering into the

question as to whether the suit is apparently barred by limitation or

not. The question of limitation is always a mixed question of fact

and law. In such cases, it may not at times be possible for the court

to arrive at a prima facie conclusion if the suit is barred by

limitation. It may at times require certain evidence. It is in this

context, one will have to decide if the plaint itself could be rejected

as one barred by Law of Limitation. Although a plaint can be

rejected at any stage of the suit, mostly such plea is raised at the

threshold itself. Therefore, question as to whether limitation is a

bar as contemplated by clause (d) has to be decided with a

different angle. Relying on the decision of the Supreme Court in

2007(5) SCC 614 (Hardesh Ores (P) Ltd. ..vs.. Hede and

Company), Shri Mehadia, learned counsel for the applicant,

contended that if the suit is apparently barred by limitation, the

plaint should be rejected and the bar as mentioned in clause (d) of

rule 11 covers Limitation Law also. The Supreme Court makes the

following observations -

25. The language of Order 7 Rule 11 CPC is quite

clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears

from the statement in the plaint to be barred by any law. Mr.Nariman did not dispute that "law" within the

meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is

essentially a question of fact, but whether it does or

does not must be found out from reading the plaint itself. For the said purpose the averments made in the

plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be

passed. The averments made in the plaint as a whole

have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permission to cull out a sentence or a passage and to read it out of the

context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without

addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the

judgments of th is Court in Liverpool and London S.P. & I Assn. Ltd. v. M.V.Sea Success I and Popat and

Kotecha Property v. State Bank of India Staff Assn.

7. The Supreme Court had relied on its own decisions in

2005 (5) SCC 548 ( N.V.Srinivasa Murthy vs. Mariyamma) as well

as 2005 (7) SCC 510 (Popat and Kotecha Property .vs. State Bank

of India Staff Assn.). In fact, there was a conflict of opinion in

these decisions hence the matter was referred to the larger Bench

by the Supreme Court. The larger Bench did not, however, express

opinion as to which view was correct, as it found that rendering of

a decision on that question would be merely academic. Obviously,

the conflict between the two decisions is not at all resolved. This

can be gathered from the decision of the Supreme Court in 2006(5)

SCC 658 (Balasaria Construction (P) Ltd. ..vs.. Hanuman Seva

Trust and ors.). Referring to the above two decisions, in

Shrinivasa Murthy and Popat and Kotecha Property, the Supreme

Court observed in (2006)5 SCC 658 as follows -

5. Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by

this Court in N.V.Srinivasa Murthy v. Mariyamma and Popat and Kotecha Property v. State Bank of India Staff

Assn. the Bench referred the following question of law for consideration to a larger Bench:

"Whether the words 'barred by law' under Order

7 Rule 11(d) would also include the ground that it is barred by the law of limitation."

6. Before the three-Judge Bench, counsel for both the parties stated as follows:

"...... It is not the case of either side that as an absolute proposition an application under Order 7 Rule 11 (d) can never be based on the law of limitation. Both sides

state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 Rule 11(d) could be based

on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case."

7. In view of the statement made by the counsel for the parties, the Bench held that the question referred to

the larger Bench was academic so far as this case is concerned and accordingly declined to decide the

question. The case was sent back to the Bench for disposal on merits based on the facts of the case.

8. After hearing counsel for the parties, going through

the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court,

we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of

evidence. Question of limitation is a mixed question of

law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching

upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint

cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure.

This decision is also rendered by the two Hon'ble Judges and they

find that plaint cannot be rejected under rule 11 since question of

limitation is a mixed question of fact and law. The Supreme Court,

however, in Hardesh Ore's (P) Ltd. case observes that the plaint can

be rejected when the suit appears from the statement in plaint to

be barred by limitation and relies on Popat and Kotecha Property

decision. Referring to the same decision the Supreme Court in

Balasara Construction (P) Ltd. referred to above, says that the

plaint can not be rejected since limitation is a question of fact and

law. I too find that the plaint cannot be rejected on the ground

that the suit is barred by limitation and I give my own reasons in

addition to the reasons given by the Supreme Court in Balasara

Construction (P) Ltd. case.

8. The words used in clause (d) of rule 11 of C.P.C. are to

the effect that the plaint can be rejected when suit appears from

the statement in the plaint to be barred by law. The important

words in the said clause are "barred by law". The words barred by

law have to be interpreted in the sense the suit itself could not be

filed in the civil court i.e. where the civil court inherently lacks

jurisdiction and certain law prohibits it from taking cognizance of

the suit. Where, therefore, a mere plea of limitation is raised; it

could not be said that the suit is barred by law. The law of

limitation cannot prevent a party from instituting a suit in civil

court. But there are certain laws which prevent the suit being

instituted in the civil court, for that law, makes a provision of

alternate remedy and forum. If a person wants to get an industrial

dispute resolved, which is essentially a civil dispute, such a person

cannot approach civil court, since Industrial Disputes Act makes

remedy and forum available and therefore, civil court in such cases

will inherently lack jurisdiction. The law of limitation, therefore,

does not prohibit a party from approaching the civil court and

filing a suit even though it may be barred by limitation.

9. While dealing with the question, we have to bear in mind

the difference between rejection of a plaint and the dismissal of a

suit. The plaint is rejected because it is found to be defective for

the reasons mentioned in Rule 11. Though not in every case,

generally the defective plaint is rejected by the court at the

threshold. The court refusing to take cognizance can reject the

plaint. Where plaint is rejected, a party has a right to present a

fresh plaint but where a suit is dismissed, no party has a right to

present a fresh suit on the same cause of action. It is for this

reason, we must look into Section 3 of the Limitation Act. Section

3 of the Limitation Act reads as follows -

3. 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 purposes 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;