Madras High Court
Ganga Educational & Welfare Trust vs E.Valliammal on 17 June, 2022
C.R.P.(PD)No.2217 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.06.2022
CORAM:
THE HON'BLE MR. JUSTICE K.KUMARESH BABU
C.R.P.(PD)No.2217 of 2016
and C.M.P.No.11488 of 2016
1.Ganga Educational & Welfare Trust
Represented by its President,
Natarajan ...Petitioners
having office at Sri Ganga Matriculation,
Higher Secondary School,
Ingur – 638 058, Perundurai Taluk.
2.K.R.Paramasivam
3.M.Murugaboopathi
4.P.Ganapathy
5.P.Jeganathan
6.R.Kolandasamy
Vs.
1.E.Valliammal
2.T.C.Thangaraj
3.T.Kannan
4.K.V.Kandasamy
5.Eswari
6.T.Jeganathan
7.A.Murugavel
8.M.Thangamuthu
9.S.D.Ramasamy
10.A.M.Kandasamy … Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India,
against the fair order and decretal order of the District Munsif, Perundurai dated
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1/15
C.R.P.(PD)No.2217 of 2016
13.06.2016, in dismissing I.A.No.476 of 2015 in O.S.No.79 of 2010 filed under
Order VII Rule 11 of the Code of Civil Procedure, 1908.
For Petitioners : Mr.V.Lakshmi Narayanan
For Respondents : Mr.V.Anadhamurthy for R1 to R8
R9 & R10 – No appearance
ORDER
The instant Civil Revision Petition has been filed challenging the fair and
decretal order of the Court below dismissing an application filed under Order VII
Rule 11 read with Section 151 of C.P.C.
2.The case of the petitioner is that the first petitioner Trust has been formed by
the petitioners 2 to 9 and the respondents and they were Members cum Directors of
the petitioner Trust. As certain Members of the Trust had acted against the interest of
the Trust, the first petitioner Trust had issued a show-cause notice calling upon such
individuals to submit their responses. On 09.06.2002, the General Body of the first
petitioner herein passed a resolution removing the respondents from the Trust.
(i).The respondents herein had filed a suit in the year 2010 challenging the
resolution dated 09.06.2002 and for a declaration that they were continuing to be the
Trustees of the first petitioner Trust and for a consequential permanent injunction
restraining the defendants 2 to 9 therein from any way and in any manner prevent the
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C.R.P.(PD)No.2217 of 2016
plaintiffs in participating in meeting and other proceedings of the first petitioner
Trust.
(ii).The suit was taken up for trial and is in the process of examining the
defendant side witnesses after the plaintiffs side evidence was closed. At this
juncture, the petitioner herein along with three other persons had filed an application
under Order VII Rule 11 read with Section 151 of C.P.C. seeking to reject the plaint
on the ground that the suit as framed by the respondents/plaintiffs is barred by
Article 58 of the Limitation Act. Resisting the same, the respondents herein filed a
counter statement contending that the evidence of the plaintiffs were closed and that
DW1 had also filed the proof affidavit. At that stage, the respondents gave a notice
to the petitioner to produce some documents which were in the custody of the
petitioners/defendants. They have also averred that the suit has been laid after the
honourable acquittal by a criminal Court in a complaint made by the Trust. The
allegations made by the Trust for removal of these respondents and the allegations in
the criminal complaint filed by the Trust were one and the same. After the criminal
Court has held that the allegations are baseless and acquitted the respondents, the
respondents had filed the present suit and hence the suit is not time barred and is well
within the period of limitation.
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C.R.P.(PD)No.2217 of 2016
3.The learned Trial Judge had considered the case of the respective parties by
its order dated 13.06.2016 had dismissed the application filed by the petitioners
holding that the question of limitation is a question of mixed facts and law and that
the facts could not be decided at the present stage, and to decide the same evidences
put-forth by both the parties have to be taken into consideration.
4.Being aggrieved against the said order, the present revision has been filed.
5.Heard Mr.V.Lakshmi Narayanan, learned counsel for the petitioners and
Mr.V.Anadhamurthy, learned counsel for the respondents 1 to 8.
6.Learned counsel for the petitioners vehemently contended that the Court
below wholly erred in rejecting the application filed under Order VII Rule 11 by
holding that it is not the correct stage when such an application could be entertained
and that the question of law being mixed question of facts and law could only be
decided after the trial is over.
7.It is also further argued that the resolution of the first petitioner removing the
respondents as Members/Directors of the Trust was passed on 09.06.2002 which was
the crucial date when the right to sue first accrues and that the acquittal in the
criminal proceedings could not be a fact that can be considered or is not continuous
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C.R.P.(PD)No.2217 of 2016
cause of action for the respondents to institute a suit.
8.Learned counsel for the petitioners also relied upon the following judgments:
(i) A Judgment of Hon’ble Maharashtra High Court in the case of
Saleem Bhai and Ors vs. State of Maharashtra and Ors. in Appeal (Civil)
No.8518 of 2002 dated 17.12.2002.
(ii) A Judgment of Hon’ble Karnataka High Court in the case of
M/s.Bharat Electronics Limited vs. V.Ethiraj reported in AIR 2000 Kant 314.
(iii) A Judgement of Hon’ble Supreme Court in the case of
N.V.Srinivasa Murthy & Ors. vs. Mariyamma (Dead) by Proposed Lrs. &
Ors. in Civil Appeal No.4500 of 2004 reported in 2005 0 AIR (SC) 2897.
(iv) A Judgment of Madurai Bench of this Court in the case of
Rajapalayam Municipality through its Commissioner vs. Jayabhaskaran
and 10 others in S.A.No.791 of 1998 dated 04.12.2012.
9.Countering his arguments, Mr.V.Anadhamurthy, learned counsel for the
respondents 1 to 8 would draw my attention to the stage at which the proceedings
had gone through. According to him, the present suit is posted for cross-examination
of DW1. At that stage, the respondents had called upon the petitioners to produce
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C.R.P.(PD)No.2217 of 2016
certain documents and feeling that if the documents sought for were to be produced
it would be detrimental to the case of the petitioner they have moved the present
application without any rhyme or reason.
10.Supporting his arguments, learned counsel for the respondents 1 to 8 relied
upon the following judgments:
(a) A Judgment of the Hon’ble Supreme Court in the case of Shakti Bhog
Food Industries Limited vs. Central Bank of India and Another reported in (2020)
17 SCC 260.
(b) A Judgment of the Hon’ble Supreme Court in the case of Ram Prakash
Gupta vs. Rajiv Kumar Gupta and Ors. in Civil Appeal No.4626 of 2007 (arising
out of SLP (C) No.8781 of 2006) reported in 2007(6) ALLMR(SC) 953.
11.I have considered the arguments of both the counsel and perused the
materials produced before this Hon’ble Court.
It is a well established principle of law that the issue of limitation is an issue that can
be decided by a mixed question of facts and law.
12.The facts of the case is that a resolution has been passed by the General
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C.R.P.(PD)No.2217 of 2016
Body of the first petitioner Trust removing the respondents from being the Members
and Directors of the Trust. On certain allegations that they have acted against the
interest of the Trust. The Trust had also initiated a criminal complaint on the same
set of facts which had ended in acquittal of the respondents herein, after which they
had instituted the present suit.
13.The cause of action as described by the respondents/plaintiffs for the
initiation of the suit is as follows:
“(i).The cause of action for the suit arose on 31.12.1997 when the
plaintiffs joined as Members of the Trust and all subsequently dates
when the plaintiffs were being Trustees and holding offices, on the dates
when the plaintiffs contributing to the development of the Trust
activities on the dates when the defendants 2 to 9 lodged criminal
complaints against the plaintiffs on 10.01.2007 when the plaintiffs were
acquitted from the cases and on all subsequent dates when the
defendants 2 to 9 assured the plaintiffs to reinstate them in to the Trust
at Ingur Village, Perundurai Taluk within the territorial jurisdiction of
this Hon’ble Court.
(ii).The Members of the first defendant Trust including the
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C.R.P.(PD)No.2217 of 2016
plaintiffs and the defendants 2 to 9 started the first defendant Trust in
1997 and through the Trust they started educational institution viz., “Sri
Ganga Higher Secondary School” Ingur Village, Perundurai Taluk by
the President-ship of one Eswaramoorthy. Subsequently, the said
Eswaramoorthy was elected as Secretary/Correspondent in the year
2000. The said school was developed tremendously under the
management of the said Eswaramoorthy. The second plaintiff is the
treasurer of the said institution. Under those circumstances having eye
over the management by Eswaramoorthy, the defendants 2 to 9 raised
some false allegations against the said Eswaramoorthy and also lodged
false complaints before the Chennimalai Police Station and the
plaintiffs 1 to 7 were charged by the Police and after trial all of them
were acquitted from the said charges by the learned District Munsif
Cum Judicial Magistrate, Perundurai by its judgment dated 10.01.2007.
(iii).In the above said circumstances the plaintiffs received a show
cause notice from the first defendant’s Trust dated 02.05.2002 and
called for explanations about the above said false complaints. The
plaintiffs gave proper reply to the notice at once. Even though without
satisfying the explanations by the plaintiffs they were removed from the
Membership of the Trust by its resolution passed in the General Body
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C.R.P.(PD)No.2217 of 2016
Meeting held on 09.06.2002. The certified copy of the resolution passed
by the first defendant Trust is filed herewith. The above said removal
was effected by the District Registrar on 17.09.2002 and the certified
copy of the same also filed herewith. The only allegation against the
plaintiffs for their removal from the Trust was the criminal cases
pending against them which are all ended in acquittal.”
14.The perusal of the cause of action as shown by the respondents/plaintiffs in
the plaint prima-facie satisfies that the suit is laid within the period of limitation. As
has been repeatedly held by this Hon’ble Court and the Hon’ble Apex Court, the
Court cannot travel beyond the averments in the plaint and look into the averments
made by the defendants in their written statement or otherwise to decide an
application under Order VII Rule 11 CPC. If the averments/allegations of the
petitioners are to be gone into, the facts are also to be decided which has been
disputed by the parties. Hence, in the present case, the issue of limitation has to be
decided on the basis of the facts pleaded by the parties.
15.The judgments relied upon by the learned counsel for the petitioners as
follows:
(a) 2005 4 SCC 683 is a case where the Court had held that there was no cause
of action to institute the suit and held on the fact stated in the plaint, the suit has
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C.R.P.(PD)No.2217 of 2016
framed is prima-facie barred by law of limitation and on the provisions of the
Specific Relief Act has also Order II Rule 2 C.P.C. But, in the present case on hand,
even according to the petitioners, this Court is called upon to look beyond the
averments in the plaint to decide the issue which this Court will restraint to do so.
(b) A Judgment of this Court in S.A.No.791 of 1998 dated 04.12.2012 and
AIR 2000 Kant 314. Both these judgments relates to the issue as to when a right
accrues to sue to calculate the period of limitation.
It is worthwhile to note that the question answered by the Courts in both the cases
where after the full fledged trial based upon which a Judgment and Decree came to
be passed by the Trial Court and which was the subject matter of further appeals.
The present case issue relating to when a right accrues to sue is also a mixed
question of fact and law which could only be decided after the evidence were led by
both the parties and hence, these two judgments relied upon by the petitioners could
not be relied upon to state that the Court has to also look into the same to reject the
plaint under Order VII Rule 11, as again the Court would have to travel beyond the
averments made in the plaint to decide the issue.
16.The judgment relied upon by the counsel for the petitioners of the Hon’ble
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C.R.P.(PD)No.2217 of 2016
Supreme Court dated 17.12.2002 made in Civil Appeal No.8518 of 2002, is a
judgment to which no quarrel could be made as it is a well established principle that
an application under Order VII Rule 11 could be filed at any time before the
conclusion of the trial. The fact relating to the case is that when the defendants in the
suit had filed application under Order VII Rule 11 C.P.C, the Trial Court had directed
the defendants to file their written statement which was the subject matter of
challenge.
17.The Hon’ble Apex Court had categorically held that for deciding an
application under Order VII Rule 11 only the averments in the plaint are germane
and the plea taken by the defendant in the written statement would be wholly
irrelevant and set aside the order passed by the Trial Court and remitted the matter
back to it on the ground that the Court below has not exercised its jurisdiction vested
in it. In the present case, the Court below had considered the arguments made by the
petitioners were rejected.
18.On an analysis of the judgments referred to by the learned counsel for the
respondents is as follows:
(a) Shakti Bhog Food Industries Limited vs. Central Bank of India and
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C.R.P.(PD)No.2217 of 2016
Another reported in (2020) 17 SCC 260.
(b) Ram Prakash Gupta vs. Rajiv Kumar Gupta and Ors. in Civil Appeal
No.4626 of 2007 (arising out of SLP (C) No.8781 of 2006) reported in 2007(6)
ALLMR(SC) 953.
The judgment reported in (2020) 17 SCC 260 has categorically held that it is a well
established principle that the cause of action for filing a suit would consist of bundle
of facts and that the question of limitation would also be a mixed question of facts
and law.
19.In the present case on hand, according to the petitioners, the issue of
limitation starts on 09.02.2002 when the first petitioner passed a resolution.
According to the respondents, the cause of action continued and when the criminal
Court acquitted them for certain charges which were also basis for them being
removed from the Trust, the limitation to sue continue to operate till the date of
acquittal and hence the suit has been instituted within time. This is the disputed
question of fact which have to be gone into by the Court below.
20.On the facts of the present case, the issue of limitation is a mixed question
of facts and law which could also be an issue that could be dealt with by the Trial
Court as a preliminary issue. Hence, the facts and circumstances of this case, no
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C.R.P.(PD)No.2217 of 2016
interference is called for against the fair and decretal order made in I.A.No.476 of
2015 in O.S.No.79 of 2010 on the file of the District Munsif, Perundurai and hence,
this Civil Revision Petition fails and is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
21.Considering the fact that the suit is pending over a period of 7 years, the
Court below is directed to dispose of the suit in accordance with law as expeditiously
as possible.
17.06.2022
Index: Yes/No
Speaking Order/Non-Speaking Order
pam
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C.R.P.(PD)No.2217 of 2016
To
The District Munsif, Perundurai.
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C.R.P.(PD)No.2217 of 2016
K.KUMARESH BABU, J.
pam
C.R.P.(PD)No.2217 of 2016
17.06.2022
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