Karnataka High Court
Sri.Kalikamba Vinayaka Temple vs Sri.Harischandra Acharya on 11 December, 2023
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CRP No. 305 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO.305 OF 2020 (IO)
BETWEEN:
SRI. KALIKAMBA VINAYAKA TEMPLE
CAR STREET, MANGALURU - 575 003
REPRESENTED BY ITS
MANAGING TRUSTEE
REPRESENTED HEREIN BY ITS
SECOND TRUSTEE
SUNDARA ACHARYA BELAVI
S/O LATE GOPALA ACHARYA
...PETITIONER
(BY SRI. ANANDARAMA K., ADVOCATE)
AND:
Digitally
signed by SRI. HARISCHANDRA ACHARYA
SUMA
Location: S/O SHIVARAM ACHARYA
HIGH AGED ABOUT 51 YEARS
COURT OF
KARNATAKA R/A "SRI HARI", SANTHOSH APARTMENTS,
KODICAL CROSS ROAD,
ASHOKNAGAR,
MANGALURU - 575 006
...RESPONDENT
(BY SRI. RAJASHEKAR, ADVOCATE)
THIS CRP FILED UNDER SECTION 115 OF CPC, AGAINST
THE ORDER DATED 24.09.2020 PASSED ON IA No.VI IN
OS.No.1232/2017 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, MANGALURU DAKSHINA KANNADA, REJECTING THE IA
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CRP No. 305 of 2020
VI FILED UNDER ORDER VII RULE 11(a)(d) OF CPC FOR
REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the order dated 24.09.2020
passed by the Principal Civil Judge, Mangaluru, Dakshina
Kannada, in O.S.No.1232/2017, by which, an application filed
by it under Order VII Rule 11(a)(d) of Civil Procedure Code,
1908 was rejected.
2. The suit in OS.No.1232/2017 was filed by the
respondent herein on 26.10.2017 for recovery of a sum of
Rs.2,41,920/- and interest at the rate of 12% p.a., from the
date of suit till repayment.
3. The respondent claimed that he was employed as a
Manager in the petitioner-Temple and that he was accused of
misappropriation of a sum of Rs.1,51,200/- between 2008 to
2012. He claimed that he was called upon to reimburse the said
sum and a complaint was lodged with the jurisdictional police.
He claimed that, though, he had given appropriate explanation
before the police that in the audit report for the year 2008 to
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2012, there is no mention of any misappropriation nonetheless,
at a meeting of the petitioner held on 06.08.2012, it was
decided that the respondent shall pay a sum of Rs.1,51,200/-
to the petitioner within a week and if it is found after a fresh
audit that there was no misappropriation, the amount would be
returned to the respondent.
4. The respondent claimed that in good faith and
believing the statement made, he deposited a sum of
Rs.1,51,200/- on 10.08.2012. However, the petitioner did not
keep up his promise, but in the meanwhile, removed him from
employment, which forced him to initiate proceedings in
IDR.No.2/2015, which was referred to the Labour Court on
02.03.2015. He claimed that before the Labour Court, he also
sought for recovery of a sum of Rs.1,51,200/-. However, the
Labour Court in terms of its order dated 31.07.2017, ordered
reinstatement of his services, but rejected his prayer for
recovery of a sum of Rs.1,51,200/-. Therefore, he filed a suit
on 26.10.2017 for recovery of a sum of Rs.1,51,200/- along
with interest.
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5. The petitioner contested the suit, filed his written
statement and denied the assertion that he had received a sum
of Rs.1,51,200/- and had agreed that re-audit, if it is found
that the respondent was not guilty of misappropriation, the
amount would be refunded. The petitioner, thereafter, filed an
application under Order VII Rule 11 of CPC contending that the
suit filed for recovery was belated. The said application was
opposed by the respondent by contending that he was pursuing
the relief in the wrong forum. Therefore, he was entitled to
seek exclusion of the time in pursuing the proceeding before
the Labour Court.
6. The Trial Court held that the Labour Court is a civil
court in view of Section 11 of the Industrial Disputes Act, 1947
and held that since the respondent was pursuing the relief of
recovery of a sum of Rs.1,51,200/- before the Labour Court,
the respondent was entitled to seek exclusion of period of 2
years, 9 months and 19 days and consequently rejected the
application filed by the petitioner. Being aggrieved by the
same, the petitioner is before this Court.
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7. Learned counsel for the petitioner contended that
under Order VII Rule 6 of CPC, it is incumbent upon the plaintiff
to plead specifically the ground upon which the exemption from
the applicability of provisions of Limitation Act, 1963 is claimed.
He invited the attention of the Court to the plaint and
contended that the respondent did not set out the ground
under which he had sought exemption from the applicability of
Limitation Act. Even otherwise, he contends that the Labour
Court was not a Court for the purposes of Limitation Act and
therefore, the respondent was not entitled to claim the benefit
of Section 14 of the Limitation Act. In this regard, he relied
upon the following judgments:
i. Nityananda M.Joshi & Others Vs. Life Insurance
Corporation of India & Others - 1969 (2) SCC 199);
ii. Sakuru Vs. Tanaji - (1985) 3 SCC 590;
iii. Ganesan Rep. by its Power Agent, G.Rukmani Ganesan
Vs. Commissioner, Tamil Nadu Religious and Charitable
Endowments Board & Others - (2019) 7 SCC 108;
8. He contended that the Court should not be averse
to nip mischievous suits in the bud. In this regard, he relied on
the judgment of the Hon'ble Supreme Court in the case of
T.Arivandandam Vs. T.V.Satyapal and Others reported in
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(1977) 4 SCC 467. He also contended that, if upon reading of
the plaint, it is highly barred by law of limitation, the Court
should exercise power under Order VII Rule 11(d) of CPC. In
this regard, he relied upon the judgment of a Co-ordinate
Bench of this Court in CRP.No.307/2020 as well the judgment
of the Hon'ble Supreme Court in the case of Hardesh Ores (P)
Ltd., Vs. Hede & Company reported in (2007) 5 SCC 614;
Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra) Dead,
Through Legal Representatives and Others reported in
(2020) 7 SCC 366; and Church of Christ Charitable Trust
& Educational Charitable Society Rep. by its Chairman
Vs. Ponniamman Educational Trust Rep. by its
Chairperson/Managing Trustee reported in (2012) 8 SCC
706.
9. Per contra, learned counsel for the respondent
submitted that the plaint disclosed that the respondent had
paid a sum of Rs.1,51,200/- on 10.08.2012 and that it was
specifically agreed by the petitioner that after a fresh audit, if it
is found that the respondent was not guilty of misappropriation,
the amount would be refunded back to him. He contends that
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the account of the petitioner is not re-audited. Therefore, the
limitation for recovery of amount had not commenced as
provided under Article 26 of the Limitation Act. He contends
that the issue of limitation has to be considered based on the
averments made in the plaint and time to recover the amount
did not commence until the respondent conducted a re-audit of
its accounts. Even otherwise, he contends that the amount of
Rs.1,51,200/- was paid on 10.08.2012 and in the ordinary
course, the amount had to be recovered within three years i.e.,
on or before 10.08.2015. He contends that the proceedings was
initiated before the Labour Court, where the respondent did
seek for the relief of recovery of a sum of Rs.1,51,200/- and
the Labour Court disposed off the proceedings on 31.07.2017.
He contends that the suit was filed for recovery on 24.10.2017.
Thus, he claimed that if time consumed in pursuing the
proceeding before the Labour Court i.e., between 02.03.2015
and 31.07.2017 is excluded, then the suit filed on 24.10.2017
is well within the limitation. He contends that whether the
Labour Court was a Court or not, was not material, but what
was the material was, whether a civil proceeding was initiated
before the Labour Court. Therefore, he contends that the trial
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Court was right in excluding the time consumed in pursuing the
civil proceedings before the Labour Court. He contends that the
trial Court has framed issues regarding limitation. Therefore, it
was not prudent to reject the plaint at an interlocutory stage on
the ground that it was barred by law of limitation.
10. I have considered the submissions made by the
learned counsel for the petitioner as well as learned counsel for
the respondent.
11. Perusal of the plaint discloses that the plaintiff had
specifically pleaded that:
"Plaintiff submits that even after giving said
explanation in order to set right the mistake made by
defendant, defendants managing committee held the
meeting on 06.08.2012 in the name of god and before
the community peoples, it was decided that plaintiff shall
pay a sum of Rs.1,51,200/- to the defendant-temple
within a week and the defendant shall make auditing
afresh and after auditing is completed, if it is found that
there was no misappropriation, the amount paid by the
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plaintiff will be returned. Believing the statement given
before god and in front of community people, plaintiff
has deposited a sum of Rs.1,51,200/- to the defendant-
temple on 10.08.2012. However, the defendant did not
keep up their promise and plaintiff had to move before
the Labour Court and accordingly, plaintiff lodged a case
before labour court in IDR.No.2/2015."
12. The aforesaid pleadings would lay the onus of proof
upon the respondent that the petitioner had agreed to conduct
a re-audit of the accounts and that on re-audit, if it was found
that there is no misappropriation, the amount paid by him
would be returned. Therefore, as rightly contended by the
learned counsel for the respondent, since it is stated that no
such re-audit was conducted, the time for filing a suit as
specified in Article 26 of the Limitation Act, did not commence.
13. Be that as it may, since the petitioner denied his
liability to pay a sum of Rs.1,51,200/- before the Labour Court
and since the Labour Court has rejected the claim of the
respondent on the ground that it lacked jurisdiction, it has to be
construed that the respondent was pursuing the relief before
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the wrong forum. If this is considered, the date on which the
amount was paid and the date of filing the proceedings before
the Labour Court and the date of disposal of the proceedings
before the Labour court and also the date on which the present
suit is filed, prima facie, it indicates that the suit was filed well
within the limitation by applying Section 14 of the Limitation
Act.
14. The Trial Court has considered the aforesaid and
rightly held that the plaint cannot be rejected on the ground
that the suit is barred by law of limitation. Since, the issue
whether the petitioner had agreed to refund the amount after
re-audit, is a question of fact that the respondent has to prove
before the Trial Court and limitation being a mixed question of
fact and law, ought to be determined taking into account, the
evidence that the respondent may adduce before the trial
Court. This cannot certainly be done by entertaining an
application at an interlocutory stage to reject the plaint.
15. In that view of the matter, there is no error
committed by the trial Court in rejecting the application. Hence,
this petition is dismissed. Since the trial Court has framed an
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issue whether the suit filed is within the limitation or not, it is
bound to a render finding on that issue, more particularly, in
view of Section 3 of the Limitation Act. In doing so, the trial
Court shall not be influenced by any observations made by this
Court in the course of this order.
16. Accordingly, this petition is dismissed.
Sd/-
JUDGE
PB
