Madras High Court
V.T.S.A.Abdul Hameed vs Vallimayil on 21 April, 2022
A.S.(MD)No.91 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S(MD)No.91 of 2018
and
C.M.P.(MD)Nos.4746 and 4747 of 2018
V.T.S.A.Abdul Hameed ... Appellant / Plaintiff
Vs.
Vallimayil ... Respondent / Defendant
PRAYER: Appeal Suit filed under Section 96 of C.P.C., praying to set
aside the judgment and decree dated 22.03.2018 in O.S.No.118 of 2017
on the file of the Principal District Court, Tirunelveli.
For Appellant : Mr.M.Kumar
For Respondent : Mr.M.P.Senthil
JUDGMENT
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
The plaintiff is on appeal, challenging the rejection of the
plaint in O.S.No.118 of 2017. The plaintiff sought enforcement of
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A.S.(MD)No.91 of 2018
agreement, which was entered into between him and the defendant on
13.09.2004.
2.According to the plaintiff, after the sale agreement, the
defendant herein filed a suit for partition in O.S.No.33 of 2005, which
came to be decreed on 16.12.2009. As against the said decree, an appeal
was filed by the defendant in the partition suit in A.S.No.155 of 2010
before this Court and the said appeal came to be dismissed on
29.06.2017. After the disposal of the appeal, the present appellant filed a
suit for specific performance in O.S.No.118 of 2017, seeking
enforcement of the agreement as aforesaid. The plaintiff even in the
plaint had specifically alleged that the cause of action for the present suit
for specific performance arose only after the disposal of the appeal and
share of the plaintiff was being determined. Therefore, according to the
plaintiff, cause of action for the suit arose only on the disposal of
A.S.No.155 of 2017.
3.Upon service of notice, the defendant filed an application in
I.A.No.286 of 2017, seeking to reject the plaint on the ground that it is
barred by limitation. The learned Principal District Judge, Tirunelveli
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A.S.(MD)No.91 of 2018
allowed the said I.A.No.2868 of 2017 and rejected the plaint on the
conclusion that the suit is barred by limitation. Hence, this Appeal Suit
is filed.
4.We have heard Mr.S.Kumar, learned counsel appearing for
the appellant and Mr.M.P.Senthil, learned counsel appearing for the sole
respondent.
5.Mr.S.Kumar, learned counsel for the appellant would
vehemently contend that the learned Principal District Judge was not
right in rejecting the plaint on the ground of limitation. He would point
out that the very agreement entered into between the parties on
13.09.2004 shows that the defendant had agreed to sell whatever the
property that is allotted to her at the partition. Admittedly, the partition
suit ended only on 29.06.2017. No doubt, soon after the decree in the
suit on 16.12.2009, the plaintiff had issued a notice, calling upon the
defendant to execute the sale deed and the defendant has also expressed
her readiness and willingness. However, the preliminary decree for
partition was stayed by this Court in M.P.(MD)No.1 of 2010 in A.S.
(MD)No.155 of 2010 on 02.09.2010. The interim stay was in operation,
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A.S.(MD)No.91 of 2018
till the appeal was disposed of on 29.06.2017. Therefore, according to
Mr.S.Kumar, learned counsel for the appellant, the period during which
the appeal was pending has to be excluded in calculation of the limitation
for the present suit.
6.He would also rely upon the following recitals in the
agreement dated 13.09.2004 to buttress his submissions that what was
agreed to be conveyed is the property that would be allotted to the
defendant in the partition:-
“uhikaj; Njthpd; thhpRfshd Kj;ijah
fNzrd; ts;spkapy; ,th;fSf;F ghj;jpag;gl;L
Nkw;gbahh;fs; Mz;lDgtpj;J tUifapy; tp\;Z vd;w
Jiuuh[; Njth; mth;fs; jpUkzk; MFtjw;F Kd;Ng
fhyk; nrd;W tpl;l epyikapy; ek;kpy; 2tJ ghh;l;bf;F
thhpR fpukg;gbAk; ,e;J thhpR chpik rl;lg;gbAk;
ghj;jpag;gl;Lk; ,e;J thhpR chpik rl;lg;gb vd;
ghfj;jpw;F fpilf;Fk; nrhj;jpy;jgrpy; fz;l 16.5 nrd;l;
epyNkh my;yJ mjw;F $Ljyhf my;yJ Fiwthf
xJf;fPL nra;jhYk; mt;thW xJf;fPL nra;Ak; jgrpy;
vy;iyf;Fs; tUk; tp];jPuzkhf nrhj;ij ek;kpy; 1tJ
ghh;l;bf;F xU nrd;L 1-f;F &gha; 175000/- t{jk; ,e;J
thhpR chpik rl;lg;gb vdf;F fpilf;f $ba ghf
nrhj;ij fpuak; nfhLf;f 2tJ ghh;l;b xg;Gf; nfhz;lgb”
7.Since there was no amicable partition, the defendant filed the
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A.S.(MD)No.91 of 2018
suit for partition and obtained a decree.
8.Contending contra Mr.M.P.Senthil, learned counsel
appearing for the respondent would submit that the subsequent clause in
the agreement shows that the balance of the sale consideration should be
paid within four months from the date of agreement. He would rely upon
the following recitals in the agreement to buttress the submissions:-
“{i\ tpgug;gb jPh;khdkhfpw tp];jPuzj;jpw;Fhpa kPjpf;
fpuaj; njhifia 1tJ ghh;l;b ehsJ Njjp Kjy; ehd;F
khj thapjh fhyj;jpw;Fs; 2tJ ghh;l;bf;F nuhf;fk;
nrYj;j Ntz;baJ 2tJ ghh;l;b kPjpf; fpuaj; njhifia
Nkw;gbtpgug;gb 1tJ ghh;l;baplk; ,Ue;J nuhf;fk; ngw;Wf;
nfhz;L 1tJ ghh;;l;b nghWg;gpy; 1tJ ghh;l;b ngaUf;F
my;yJ mth; Fwpg;gpLk; egh; my;yJ egh;fs; ngaUf;F
vOjg;gLk; fpuag; gj;jpuj;jpy; ifnahg;gk; nra;J nfhLj;J
mjd; gjpit jgrpy; nrhj;J rk;ge;jg;gl;l rhh;gjptfj;jpy;
g+h;j;jp nra;J nfhLf;f Ntz;baJ.”
9.In the light of the above submissions, the following point
arises for consideration in this appeal:-
“Whether the learned Principal District Judge was
right in rejecting the plaint under Order 7 Rule 11 of C.P.C.,
on the ground that it is barred by limitation.”
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A.S.(MD)No.91 of 2018
10.The power of the Court to reject a plaint under Order 7 Rule
11 of C.P.C., on the ground of limitation, is no longer res integra. A
Division Bench of this Court, in Dr.L.Ramachandran and another Vs.
K.Ramesh and others reported in 2015 (5) CTC 629, while recognizing
the power of Court to reject the plaint on the ground that it is barred by
limitation, has held as follows:-
“ 26.In terms of Order 7 Rule 11 (d) CPC, the
Plaint shall be rejected where the suit appears from the
statement in the Plaint to be barred by any law. The scope
of Rule 11 of Order 7 CPC has been explained in various
decisions and the legal principle deducible are that, if the
Plaint does not disclose the cause of action or is bared by
law; can be rejected where the litigation was utterly
vexatious and abuse of process of Court ; if any one of the
conditions mentioned under the Rule were found to exist,
thus saving the defendants onerous and hazardous task of
contesting a non maintainable suit during the course of
protracted litigation and where the suit was instituted
without proper authority. Thus, the provision of Order 7
Rule 11 PC being procedural is designed and aimed to
prevent vexatious and frivolous litigation. The plaint is
liable to be rejected on the ground of limitation only
where the suit appears from the statements in the plaint
to be barred by any law and the law within the meaning
of clause (d) of Order 7 Rule 11 CPC, shall include law of
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A.S.(MD)No.91 of 2018
limitation as well.”
11.In Popat and Kotecha Property Vs. State Bank of India
Staff Association reported in 2005 (7) SCC 510, the Hon'ble Supreme
Court of India had held that the power of Court under Order 7 Rule 11(d)
of C.P.C., to reject the plaint on the ground of bar created by any law,
cannot be invoked, where the question has to be decided on the basis of
the facts as to whether the suit is barred by limitation or not.
12.Thus, it could be seen that while reserving the powers of
Court to reject the plaint on the ground that it is barred by limitation,
both this Court as well as the Hon'ble Supreme Court have pointed out
that the bar of limitation should not be depended upon establishment of
fact. It should be appear from the statement made in the plaint itself. If
it is not so, Order 7 Rule 11(d) of C.P.C., cannot be invoked to reject the
plaint on the ground of limitation.
13.In the case on hand, as we had already pointed out, the very
agreement is for sale of property, which would be allotted to the
defendant at a partition, since the shares had not crystallised on the date
of agreement. Therefore, the intention of the parties would depend on
the evidence that is to be let in by the parties at trial.
14.We are, therefore, of the considered opinion that the Court
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A.S.(MD)No.91 of 2018
ought not to have rejected the plaint at threshold on the facts of this case.
We, therefore, allow the appeal and set aside the judgment of the trial
Court. The suit is remitted back to the trial Court to be tried and
disposed of in accordance with law. We make it clear that we have not
expressed any opinion on the merits of the case and the parties are at
liberty to raise all contentions, including the contention that the suit is
barred by limitation before the trial Court. The trial Court will decide the
same on merits on the evidence let in before it without being influenced
by any of our observations made herein above. The parties are directed
to bear their own costs.
15.With the above observations, this Appeal Suit is allowed
and the Court fee paid on the appeal will be directed to be refunded to
the appellant. No costs. Consequently, connected miscellaneous
petitions are closed.
[R.S.M, J.] & [N.S.K., J.]
21.04.2022
Index:Yes/No
Internet:Yes/No
Myr
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A.S.(MD)No.91 of 2018
To
1.The Principal District Judge,
Tirunelveli.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.91 of 2018
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
Myr
JUDGMENT MADE IN
A.S(MD)No.91 of 2018
21.04.2022
https://www.mhc.tn.gov.in/judis
