Madras High Court
A. Selvam vs B.Therimuthu on 4 March, 2022
C.R.P(MD).No.1118 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE S. ANANTHI
CRP(MD).No. 1118 of 2021 and
CMP(MD).No.6527 of 2021
A. Selvam .. petitioner
Vs.
1. B.Therimuthu
2. B.Dhanasekaran
3. D.Santhakumari
4. M.Basheer Ahmed .. Respondents
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the Fair and Decreetal order passed in
I.A.No.671/2020 in O.S.No.134/2016, dated 09.03.2021, on the file of
District Munsif, Vadipatti and allow the Civil Revision Petition Revision
Petition.
For Petitioner ... Mr. G.Jeremiah
For R1 & R2 ... Mr. S. Gopinath
for Mr.D. Senthil
1/6
https://www.mhc.tn.gov.in/judis
C.R.P(MD).No.1118 of 2021
ORDER
The revision petitioner / 3rd defendant filed this revision to set
aside the order passed in I.A.No.671/2020 in O.S.No.134/2016, dated
09.03.2021, on the file of District Munsif, Vadipatti.
2. Heard the learned counsel appearing on either side and
perused the materials available on record.
3. The said Interlocutory application in I.A.No.671 of 2020
was filed by the revision petitioner / 3rd defendant under Order 7 Rule 11
CPC to reject the plaint on two grounds that there is no cause of action and
barred by limitation. In para 22 of the plaint the respondents 1 and 2 /
plaintiffs have stated the cause of action for the suit. Whether the cause of
action is shown or not to be decided only after full trial. To decide the
application filed under Order 7 Rule 11 CPC only pleadings in the plaint
can be looked into. As per the plaintiffs, there is a cause of action and the
second objection is barred by limitation.
4. The respondents / plaintiffs have filed a suit in the year
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C.R.P(MD).No.1118 of 2021
2016 to declare the sale deeds, dated 27.01.2009, 06.11.2012, 12.02.2013
as null and void. The revision petitioner / 3rd defendant contended that
sine the suit has been filed in the year 2016 the suit is barred by limitation.
The suit is filed after three years from the date of cause of action of sale
deeds by the plaintiffs, but the plaintiffs are not a party to the documents.
So the limitation is start from the date of knowledge and the limitation is
the mixture question of fact of law.
5. The revision petitioner / 3rd defendant relied on the
Judgment of the Hon'ble Supreme Court made in Civil Appeal No.9519 of
2019 arising out of SLP (Civil) No.11619 of 2017 in the case of Dahiben
Vs. Aravindbhai Kalyanji Bhanusali (Gajra) (D) Thr LRs and others,
wherein it has been held as follows:
“On a reading of the plaint, it is clear that the cause
of action arose on the non-payment of the bulk of the sale
consideration, which event occurred in the year 2009. The
plea taken by the plaintiffs is to create an illusory cause of
action, so as to overcome the period of limitation. The plea
raised is rejected as being meritless and devoid of any truth.
15.5. The conduct of the Plaintiffs in not taking
recourse to legal action for over a period of 5 and ½ years
from the execution of the sale deed in 2009, for payment of
the balance sale consideration, also reflects that the
plaintiffs apparently filed the suit after the property was
further sold by respondent No.1 to respondent Nos.2 and 3,
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C.R.P(MD).No.1118 of 2021
to case a doubt on the title of respondent No.1 to the suit
property.”
6. But in the case on hand the plaintiffs pleaded that they get
knowledge only in the year 2016 and thereafter, filed a set aside
application under Order 7 Rule 11 CPC. When the pleadings shows the
limitation period then only it can be rejected on the ground of limitation.
7. In the present case, as per the pleadings in the plaint, the
date of knowledge is in the year 2016 only. So the limitation is start from
2016 only. Already written statement filed and the issues were framed and
the suit is pending for cross of PW.1 and for marking of additional
documents, the revision petitioner / 3rd defendant contended that summon
for defendants 1 and 2 not served is not at al considerable. The revision
petitioner can raise the said plea before the trial Court at the time of cross
examination of PW.1. In such circumstances, I am of the view that the
learned Judge has exercised his power conferred on him properly and
there is no irregularity or illegality in the said order, warranting
interference by this Court.
8. In the result, these Civil Revision Petition is dismissed, by
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C.R.P(MD).No.1118 of 2021
confirming the order passed in I.A.No.671 of 2020 in O.S.No.134 of 2016,
dated 09.03.2021, on the file of District Munsif, Vadipatti. No costs.
Consequently, the connected Miscellaneous Petition is closed.
04.03.2022
trp
Index :yes/No
Internet:yes/No
To
The District Munsif Court, Vadipatti.
https://www.mhc.tn.gov.in/judis
C.R.P(MD).No.1118 of 2021
S. ANANTHI, J.,
trp
CRP(MD).No. 1118 of 2021 and
CMP(MD).No.6527 of 2021
04.03.2022
https://www.mhc.tn.gov.in/judis
