Madras High Court
Tamilia vs N.P.Murugesan on 16 November, 2021
A.S.No.914 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2021
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Appeal Suit No.914 of 2020
and
C.M.P No.12384 of 2020
[Video Conferencing]
1.Tamilia
W/o.Late Mahalingam
2.Anuradha
D/o.Late Mahalingam
3.Saravanan
S/o.Late Mahalingam ... Appellants/Plaintiffs
Vs.
1.N.P.Murugesan
S/o.Perumal
2.Venkatesan
S/o.Late Ammasi
3.Nithiyadevi
W/o.Karthik Yuvaraj
4.Navanishvenkatam
S/o.Karthik Yuvaraj
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A.S.No.914 of 2020
5.Vijayarakavan
S/o.Karthik Yuvaraj
6.R.Sampath
S/o.Ramachandran ... Respondents/Defendants
Prayer : Appeal Suit filed under Section 96 R/W 41 of Civil Procedure
Code against the judgment and decree dated 31.10.2019 made in
O.S.No.92 of 2018 on the file of the Additional District Judge,
Dharmapuri.
For Appellants : Mr.N.Manokaran,
for Mr.R.Prabakar
For Respondents : Mr.V.Raghavachari, for R1 to R6
JUDGMENT
The present Appeal has been filed under Section 96 R/W Order 41 of
Civil Procedure Code as against the judgment and decree made in
O.S.No.92 of 2018 on the file of the learned Additional District Judge,
Dharmapuri.
2.The brief facts that are necessary for the disposal of the appeal are
as follows:
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(a).The appellants herein as plaintiffs filed the suit in O.S.No.92 of
2018 on the file of the Additional District Court, Dharmapuri praying for
the following reliefs:
“(1) jhth brhj;Jf;fs; thjpfSf;F
cilikahdJ vd tpsk;gy; bra;Jk;
(2) gpujpthjpfshtJ mth;fspd; Ml;fshtJ
jhth brhj;jpy; rl;ltpnuhjkhft[k; vt;tifapYk;
gpuntrpf;fhkYk; g[jpa mikg;ig Vw;gLj;jhkypUf;f
thjpfspd; bjhlu;r;rpahd RthjPd mDgtj;jpw;F
bjhy;iy juhkypUf;f epiya[Wj;Jf; fl;lis
gpwg;gpj;Jk;
(3) 17/10/1996 1?k; gpujpthjp bgaupy;
jahupf;fg;gl;Ls;s fpua Mtzk; vz;/1873-1996
KiwnflhdJ. bry;yhJ vd mwptpf;ft[k;
(4) 17/10/1996 ghf;fpaehjd; bgaupy;
jahupf;fg;gl;Ls;s fpua Mtzk; vz;/1872-1996
KiwnflhdJ. bry;yhJ vd mwptpf;ft[k;
(5) 10/5/1996 xU gHdp bgaupy; jahupf;fg;gl;l
Mtzk; vz;/944-1996 KiwnflhdJ. bry;yhJ vd
mwptpf;ft[k;/
(6) 15/11/1999?y; gHdp mynkYf;F vGjp
itj;jjhf brhy;Yk; Mtzk; vz;/2636-1999
KiwnflhdJ. bry;yhJ vd mwptpf;ft[k;
(7) 26/04/2000 ghf;fpaehjd; 1?k; gpujpthjp
bgaupy; vGjpf; bfhLj;jjhf ,Uf;Fk; Mtzk;
vz;/942-2000 KiwnflhdJ. bry;yhJ vd
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mwptpf;ft[k;
(8) 28/7/2014 khzpf;fk; kw;Wk; 2 Kjy; 5
gpujpthjpf;F 6?k; gpujpthjp bra;jjhf cs;s fpua
Mtzk; vz;/3330-2014 KiwnflhdJ. bry;yhJ vd
mwptpf;ft[k;
(9) jhth bryt[ thjpfSf;F gpujpthjpfshy;
fpilf;Fk;gof;Fk;”
The prayer in the suit is therefore for declaration of title and consequent
permanent injunction and to declare that the alienation made by the
Husband of the first petitioner in favour of the first defendant and the
subsequent alienations made by the first defendant in favour of the third
parties are invalid and void.
(b).Immediately after the suit was filed, the respondents 1 and 6
herein who are the defendants 1 and 6 in the suit filed an application in
I.A.No.127 of 2018 for rejection of plaint under Order 7 Rule 11 CPC. The
main ground on which the said application was filed is that the suit is
hopelessly barred by limitation, as the sale deeds which were executed
between 17.10.1996 and 28.07.2014 are challenged in the suit which was
filed in the year 2018. The said application was contested by the plaintiffs.
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The Trial Court without deciding the issue as to whether the suit is barred
by limitation or not, dismissed the application mainly on the ground that it
would be appropriate if the issue relating to limitation is decided after the
written statement is filed and issues are properly framed. The operative
portion of the said order dismissing the application in I.A.No.127 of 2018
is extracted below for convenience.
“6/ i) kfhyp';fk; 10/5/1996k; tUlk; gHdp
vd;gtUf;F fpuak; bfhLj;Js;shu;/ 17/10/1996y;
KUnfrd; kfhyp';fj;jplk; ,Ue;J fpuak;
bgw;wpUf;fpwhu;/ 17/10/1996y; ghf;fpaehjDk;
kfhyp';fj;jplk; ,Ue;J fpuak; bgw;wpUf;fpwhu;/ mij
bjhlu;e;J fpua';fs; eilbgw;wpUf;fpwJ/ ,e;epiyapy;
,e;j tptu';fs; 2017k; tUlk; j';fSf;F bjupa
te;jjhf tHf;Fiuapy; gj;jp?7y; brhy;yg;gl;Ls;sJ/
mjhtJ Rkhu; 21 Mz;Lfs; fHpj;J bjupa te;jjhf
bfhs;s Koa[k;/
6/ ii) vJ vg;goapUg;gpDk;. ,e;j tHf;fhdJ
X/v!;/92-2018 vd;w vz;zplg;gl;l tHf;fhFk;/
vjpu;kDjhuh;fs; jug;gpy; mry; tHf;fpd; thjpfs;
vjph;tHf;Fiu jhf;fy; bra;atpy;iy vd;gij Rl;of;
fhl;oapUf;fpwhh;fs;/ vdnt. ,k;kDtpd; kDjhuh; mry;
tHf;fpy; vjph; tHf;Fiuia jhf;fy; bra;J
mjd;nghpy; rl;lk; kw;Wk; bghUd;ik vGtpdhf;fs;
tide;J tpil fhz;gJjhd; rhpahd eilKiw
vd;Wk;. ,e;j epiyapy; mry; tHf;fpy; thjpfs;
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jhf;fy; bra;j gpuhij fhytiur; rl;lj;jpd;fPH;
epuhfhpf;f ntz;Lbkd kDjhuh; jug;gpy; nfhUtJ
bfh";rk; mtrukhd epiy vd;gij ,e;ePjpkd;wk;
fUj;jpy; bfhz;L mry; tHf;fpy; vjph;tHf;Fiuia
jhf;fy; bra;at[k;. gpwF fhytiur; rl;lj;jpd;fPH;
,e;j tHf;F ghjpg;g[ilajh> vd;gJ Fwpj;J rl;l
vGtpdh tide;J Kot[ vLg;gjw;F cz;lhd
eilKiwfSf;F cz;lhd tha;g;g[fs; kDjhuUf;F
cs;sJ vd;fpw fhuzj;jpdhy; ,e;j epiyapy; ,e;j
kD mDkjpf;fj;jf;fjy;y vd Kot[ bra;J js;Sgo
bra;J cj;jutplg;gLfpwJ/”
(c).Thus, the application in I.A.No.127 of 2018 filed under Order 7
Rule 11 CPC came to be dismissed by an order dated 15.02.2019.
Thereafter, on 28.03.2019, the 6th defendant in the suit filed the written
statement in O.S.No.92 of 2018 and on the very same day, the second
application in I.A.No.1 of 2019 was filed under Order 7 Rule 11 CPC. The
second application in I.A.No.1 of 2019 was mainly contested by the
plaintiffs on the ground that it is barred by res judicata and that there is no
change in the circumstances warranting the second application I.A.No.1 of
2019 under Order 7 Rule 11 CPC. It was also pointed out by the plaintiffs
that the second application does not disclose the dismissal of the first
application.
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(d).A mere perusal of the affidavit filed in I.A.No.1 of 2019 would
disclose that it is almost the replica of the affidavit filed in I.A.No.127 of
2018, except paragraphs 6 and 7 in the affidavit in I.A.No.1 of 2019. Be
that as it may, it is admitted that the Trial Court took up the second
application and allowed it summarily. Consequently, the suit was taken up
and without recording the evidence, it was summarily rejected mainly on
the ground that the petition filed in I.A.No.1 of 2019 under Order 7 Rule
11 CPC was allowed.
(e).Aggrieved against the judgment and decree passed in O.S.No.92
of 2018 rejecting the plaint under Order 7 Rule 11 CPC, the present Appeal
has been filed.
3.The learned counsel appearing on behalf of the appellants though
raised several grounds emphasized much on the point that the second
application in I.A.No.1 of 2019 filed under Order 7 Rule 11 CPC is not
maintainable and it is barred by the principle of res judicata. Before
dealing with the contentions and arguments putforth by the learned counsel
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for the appellants, this Court is desirous to deal with the scope and object
of Order 7 Rule 11 CPC.
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 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 returned
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-paper 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-paper, 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.]
From the express language of S.11(d), the Court can reject the plaint only
if the suit is barred by any law from the statements in the plaint. The
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provisions of Order 7 Rule 11 CPC are designed and aimed at preventing
vexatious and frivolous litigations. For the purpose of deciding an
application under Order 7 Rule 11(d), the averments in the plaint alone are
relevant and the pleas or materials produced by the defendant are wholly
irrelevant at that stage. The Court need not examine the correctness of the
contents of the plaint. Rejection of plaint would result in termination of
proceedings before trial and will have serious consequences affecting the
rights of parties. Therefore, much care is required and the power has to be
exercised carefully.
4.The learned counsel appearing on behalf of the appellants relied
upon several judgment of the Hon'ble Supreme Court as well as this Court
to substantiate the first point that the issue relating to limitation cannot be
decided at the threshold, since it is always a mixed question of law and
facts. Since the plaint averments would clearly show that the suit is well
within the period of limitation, which starts from the date of knowledge of
the plaintiffs, it is contended by the learned counsel for the appellants that
the issue relating to limitation is a triable issue and hence, the plaint cannot
be rejected at the threshold.
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5.At this juncture, it would be appropriate to consider the judgments
relied on by the learned counsel for the appellants.
(i).In the decision of the Hon'ble Supreme Court made in the case of
Salim D.Agboatwala and others v. Shamalji Oddhavji Thakkar and
others reported in 2021 SCC Online SC 735, reliance was placed on
paragraphs 10 to 16 of the judgment and the same is usefully extracted
hereunder:
“10. Insofar as the rejection of plaint on the ground of limitation
is concerned, it is needless to emphasis that limitation is a mixed
question of fact and law. It is the case of the appellants/plaintiffs that
only after making inspection of the records in connection with the suit
land available in the office of defendant No.3 (Court Receiver) that they
came across the correspondence and documents relating to the
transactions and that the proceedings before the ALT were collusive,
fraudulent and null and void. The appellants/plaintiffs have even
questioned the authority of the Court Receiver to represent them in the
tenancy proceedings.
11. The above averments may or may not be true. But if the
plaintiffs succeed in establishing the above averments, the issue of
limitation cannot be put against the plaintiffs. Generally a party, who
never had any notice of a particular proceeding before a quasijudicial
authority, is entitled to approach the Court upon gaining knowledge of
the proceedings. Limitation cannot be put against such a party.
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12. We are not dealing here with a case where notices were
ordered to be issued, but were not or could not, be served on necessary
and proper parties. We are dealing with a case where the plaintiffs assert
in no uncertain terms that notices were never ordered to them nor served
on them. Therefore, the answer to the issue regarding limitation, will
depend upon the evidence with regard to the issuance and service of
notice and the knowledge of the plaintiffs. Hence, the Trial Court as well
as the High Court were not right in rejecting the plaint on the ground of
limitation, especially in the facts and circumstances of this case.
13. As observed by this Court in P.V. Guru Raj Reddy vs. P.
Neeradha Reddy And Others, the rejection of plaint under Order VII
Rule 11 is a drastic power conferred on the Court to terminate a civil
action at the threshold. Therefore, the conditions precedent to the
exercise of the power are stringent and it is especially so when rejection
of plaint is sought on the ground of limitation. When a plaintiff claims
that he gained knowledge of the essential facts giving rise to the cause of
action only at a particular point of time, the same has to be accepted at
the stage of considering the application under Order VII Rule 11.
14. Again as pointed out by a three member bench of this Court in
Chhotanben vs. Kiritbhai Jalkrushnabhai Thakkar2, the plea regarding
the date on which the plaintiffs gained knowledge of the essential facts,
is crucial for deciding the question whether the suit is barred by
limitation or not. It becomes a triable issue and hence the suit cannot be
thrown out at the threshold.
15. Referring to a few averments contained in the plaint, it is
contended by the learned counsel for the respondents that the appellants
had constructive notice of the proceedings under Section 32G and the
sale certificate issued under Section 32M. In support of such a plea, the
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learned counsel relies upon the following decisions, Ram Niwas (Dead)
vs. Bano (Smt.) & Ors.; Rajasthan Housing Board vs. New Pink City
Nirman Sahakari Samiti Limited & Anr.; Murlidhar Bapuji Valve vs.
Yallappa Lalu Chaugule; Parvathathammal vs. Sivasankara Bhattar And
Others.
16. But a defendant in a suit cannot pick up a few sentences here
and there from the plaint and contend that the plaintiffs had constructive
notice of the proceedings and that therefore limitation started running
from the date of constructive notice. In fact, the plea of constructive
notice is raised by the respondents, after asserting positively that the
plaintiffs had real knowledge as well as actual notice of the proceedings.
In any case, the plea of constructive notice appears to be a subsequent
invention.”
(ii).In the decision of the Hon'ble Supreme Court made in the case of
Shakti Bhog Food Industries Ltd. v. Central Bank of India and another
reported in 2020 (5) MLJ 502 SC, the Hon'ble Supreme Court had an
occasion to deal with the scope of Order 7 Rule 11 CPC, particularly with
reference to sub-rule (d) of Order 7 Rule 11 CPC. When a petition is filed
under Order 7 Rule 11 CPC on the ground that the suit is barred by law of
limitation, the Hon'ble Supreme Court held that the issue should be
considered purely on the basis of what is stated in the plaint and not on the
basis of the information furnished or supplemented by the defendants
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either in the written statement or in the application filed under Order 7
Rule 11 CPC. Further, it is reiterated that the plea of limitation is a mixed
question of fact and law and that the Court cannot consider the plea of
limitation in a petition filed under Order 7 Rule 11 CPC, if the plaint
disclose the cause of action and the plaint averments save the period of
limitation.
(iii).In the decision of the Hon'ble Supreme Court made in the case
of Vaish Aggarwal Panchayat v. Inder Kumar and others reported in
2020 (12) SCC 809, the Hon'ble Supreme Court reiterated that in an
application filed under Order 7 Rule 11 CPC for rejection of plaint on
ground that the suit is barred by law in view of applicability of principle of
res judicata, the issue has to determined only after the trial with regard to
all the issues framed. Paragraphs 10 and 16 of the said judgment is usefully
extracted hereunder:
“10.As is evident, after the framing of the issues the defendant
filed the application under Order VII Rule 11 C.P.C. stating that the suit
is not maintainable as barred by resjudicata. The learned trial Judge, as
is evident from the order passed by him, has taken note of the stand taken
in the written statement which has been regarded as the incorrect
approach by the learned appellate Judge. The High Court, as it appears,
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has been guided by the finding recorded by the learned trial Judge
totally ignoring the factum that such a conclusion has been arrived at by
taking into consideration the averments made in the plaint and the
assertions put forth in the written statement. The crux of the matter is
whether, in the obtaining factual matrix, the High Court should have
applied the principle of resjudicata. The cause of action for filing the suit
is different. The grounds urged in the suit, as we find, are also quite
different. Even if the plaint is read keeping in mind the cleverness and
deftness in drafting, yet it is not prima facie discernible from the plaint
that it lacks any cause of action or is barred by any law. On a perusal of
the plaint alone it cannot be said that the suit is barred by the principle
of resjudicata.
....
....
16.After so stating, the Division Bench opined that in the facts of
the said case, the suit could not be dismissed as barred by limitation
without proper pleadings, framing of issue on limitation and taking
evidence, for question of limitation is a mixed question of fact and law
and on ex-facie reading of the plaint it could not be held that the suit was
barred by time.”
(iv).In the decision of the Hon'ble Supreme Court made in the case
of Urvashiben and another v. Krishnakant Manuprasad Trivedi reported
in 2019 (13) SCC 372, the Hon'ble Supreme Court held that in the
application for rejection of plaint on the ground that the suit is barred by
limitation, in a suit for specific performance, cannot be summarily decided
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at the threshold, since the issue as to when actually the plaintiff had notice
of refusal of performance could be adjudicated only at the time of trial. The
Hon'ble Supreme Court considering the scope of Order 7 Rule 11 CPC has
reiterated the legal position that for the purpose of adjudicating the
application, the averments made in the plaint alone should be considered
and that the allegations by the defendants cannot be gone into at the stage
of deciding the application under Order 7 Rule 11 CPC. In other words,
from the reading of the averments in the plaint, if the suit can be saved
from the bar of limitation, then the issue cannot be decided in a petition
filed under Order 7 Rule 11 CPC.
6.From the several other judgments relied on by the learned counsel
for the appellants, this Court has no hesitation to reiterate the law settled
by the Hon'ble Supreme Court as well as this Court in several precedents
that the plea of limitation should be treated as a mixed question of fact and
law and that the averments in the plaint alone should be considered while
deciding the issue as to whether the application under Order 7 Rule 11
CPC is barred by any law.
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7.This Court has no difficulty in understanding the law as focused by
the learned counsel appearing on behalf of the appellants. The learned
counsel for the appellants further submitted that the second application
filed under Order 7 Rule 11 CPC is not maintainable and the decision of
the Trial Court in the earlier application will operate as res judicata. Even
though, no judgments were cited by the learned counsel for the appellants,
this Court is able to appreciate the point based on the first principle on the
interpretation of Section 11 CPC and also the principles of law recognized
by our High Court and various High Courts even before the Civil
Procedure Code. The principle of res judicata was followed by several
Courts in India and in abroad without the aid of Section 11 CPC. The
principle of res judicata can also be extended to other proceedings as well.
8.The original application in I.A.No.127 of 2018 for rejection of
plaint under Order 7 Rule 11 CPC filed by the respondents 1 and 6 herein
who are the defendants 1 and 6 in the suit was dismissed by the Trial Court
not on merits but on the ground that the question of limitation should be
decided only after trial. This is an appropriate order and any Trial Judge is
normally expected to pass the same order in view of the specific languages
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employed in Order 7 Rule 11 CPC and various judgments, some of which
have been referred to earlier.
9.The learned counsel appearing on behalf of the respondents
however submitted that the principle of res judicata need not be followed
in deciding the subsequent application filed under Order 7 Rule 11 CPC.
The learned counsel relied upon a few judgments for the proposition that
this Court can directly entertain a revision to reject the plaint under Order
7 Rule 11 CPC, if it is an abuse of process of law. The learned counsel
pointed out that the application originally filed under Order 7 Rule 11 CPC
was dismissed giving liberty to the defendants to file the same after filing
of the written statement. He also pointed out that the second application
was filed immediately after filing of the written statement. The very same
Presiding Officer who dismissed the earlier application has allowed the
subsequent application. Referring to these facts, the learned counsel would
further submit that the dismissal of the earlier application by the lower
court itself would suggest that the respondents can file an application once
again after the filing of written statement. This Court is unable to get any
support from the nature of the order passed by the learned Trial Judge
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while dismissing the application on the first occasion. It has to be seen that
the learned Trial Judge has given elaborate reasons for dismissing the first
application. The learned Trial Judge was convinced that the question of
limitation cannot be finally adjudicated summarily as the plaintiffs should
be given an opportunity to establish his case to save limitation. It is seen
that the Trial Court was earlier convinced that the plaintiff has specifically
pleaded the date of knowledge to save limitation. Therefore, the issue
regarding limitation should be considered after the written statement is
filed. It was also observed by the Trial Court that no prejudice will be
caused to the defendants as they will have ample opportunity to let in
evidence to show that the suit is barred by limitation.
10.Secondly, the learned counsel for the respondents relied upon the
decision of the learned Single Judge of this Court in the case of P.Baskar
and others v. P.Annadurai and others reported in (2021) 1 LW 267. It is
seen that the learned counsel on behalf of the respondents herein was the
counsel representing the respondent in the aforesaid case which was in
favour of the plaintiff therein. The learned counsel appearing for the
appellants was in fact appearing for the defendants to strike off the plaint
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under Order 7 Rule 11 CPC. This Court after considering the lack of
particulars in the plaint, came to the conclusion that the statement found in
the plaint was contrary to the documents and that the intention to
camouflage the pleading to make as if the suit is filed within the period of
limitation was critically commented by this Court before holding that the
suit should be thrown out under Order 7 Rule 11 CPC on the ground that it
is barred by limitation. The learned counsel also relied on a few more
judgments.
11.The learned counsel for the respondents also relied on the
judgment of the Hon'ble Supreme Court made in the case of Samar Singh
v. Kedar Nath and Others reported in 1987 (Suppl) SCC 663, wherein the
Hon'ble Supreme Court has held that the election petition which does not
disclose any cause of action can be dismissed under Order 7 Rule 11 CPC
either at the threshold of the proceedings or at any subsequent stage of the
proceedings. The aforesaid judgment was relied on by the learned counsel
appearing on behalf of the respondents to support his contention that the
Hon'ble Supreme Court has approved the second application filed under
Order 7 Rule 11 CPC, if it is taken up for hearing after filing of the written
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statement and evidence, even though the earlier application was dismissed
at the initial stage. However, this Court is unable to accept the submission
as the judgment of the Hon'ble Supreme Court cannot be taken as authority
for maintaining the second application under Order 7 Rule 11 CPC.
12.The learned counsel appearing on behalf of the respondent also
relied on the decision of the Madhya Pradesh High Court made in the case
of Dilip Buildcon Ltd v. Ghyanshyam Das Dwivdei reported in I.L.R.
(2018) M.P. 2502. A bare reading of the said judgment would reveal that
though the Madhya Pradesh High Court has considered the scope of an
application filed under Order 7 Rule 11 CPC on the ground that the suit is
barred under Section 63 of the State Act and that the second application
was held maintainable. The decision as reported would indicate that the
Court entertained the second application under Order 7 Rule 11 CPC on
the basis of the subsequent event which was not available at the time when
the first application was decided and therefore, principle of res judicata
was held not applicable. One of the basic ingredients for applying Section
11 CPC is that the cause of action and issue based on the cause of action
should be similar. In the present case, the earlier application was decided
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for valid reason which was supported by several precedents. The said order
cannot be ignored when the subsequent application is filed. As if the said
point was never raised by the appellant, the Trial Court decided the second
application and rejected the plaint as a consequence, without any Trial. In
short, the suit itself was dismissed without any opportunity being given to
the appellant to examine any witness or marking any documents to support
the facts stated by him in the entire plaint.
13.In view of the aforesaid judgments relied upon and discussed
above, this Court is of the view that the Trial Court has allowed the second
application mechanically and as a consequence, dismissed the suit itself
without any Trial. Thus, the nature of order passed does not go well with
the principles reiterated by this Court and the Hon'ble Supreme Court
while considering the scope of Order 7 Rule 11 CPC.
14.The question of limitation as per the averments made in the plaint
in the present case may be a remote chance for the plaintiff to save
limitation. A mere possibility will give a right to the plaintiff to withstand
the application under Order 7 Rule 11 CPC. In that view of the matter, this
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Court is unable to sustain the order of the Trial Court in entertaining the
second application and therefore, the order of the Trial Court is set aside
on the ground that the second application is barred by principle of res
judicata.
15.As a result, the Appeal Suit is allowed and the judgment and
decree dated 31.10.2019 made in O.S.No.92 of 2018 on the file of the
learned Additional District Judge, Dharmapuri is set aside. Consequently
connected miscellaneous petition is closed. No costs.
16.Since the judgment and decree in the suit is consequent to the
order made in I.A.No.1 of 2019 in O.S.No.92 of 2018, the learned
Additional District Judge, Dharmapuri is directed to restore the suit on file
and proceed with the Trial. Considering the fact that the suit is of the year
2018, the Trial Court is directed to expedite the Trial and dispose of the
suit within a period of six months from the date of receipt of a copy of this
order. Since the plaintiffs are now given an opportunity to let in evidence
and substantiate their case as to how the suit is saved by limitation, the
plaintiffs are not permitted to cause unnecessary hurdle to the respondents
https://www.mhc.tn.gov.in/judis
A.S.No.914 of 2020
by amending the plaint or by filing additional pleadings before the Trial
Court. The Trial Court is directed to proceed with the Trial on the basis of
the averments made in the plaint, as it is.
16.11.2021
Index : yes/no
Internet: yes/no
pgp
To
Learned Additional District Judge,
Dharmapuri.
https://www.mhc.tn.gov.in/judis
A.S.No.914 of 2020
S.S.SUNDAR, J.,
pgp
AS.No.914 of 2020
Dated : 16.11.2021
https://www.mhc.tn.gov.in/judis
