A single-judge bench of the Madras High Court comprising of Justice N. Seshasayee was adjudicating upon an issue of limitation wherein the plaintiffs had taken up the application, 9 years after the institution of the suit.
It was held that where in any suit, the defendant takes up a plea of limitation, it will be the defendant who will seek that the issue of limitation is to be decided as a preliminary issue and not the plaintiff. However, the court held that this will not forfeit the plaintiff’s right to sue.
Brief Facts:
The revision petitioners are the plaintiffs in a case that was laid for the redemption of a certain mortgage. In the meantime, the mortgagee/first defendant decided to bring the property to sale under Section 69 of the Transfer of Property Act and approached the third defendant, the auctioneer, and an auction notice came to be issued. Defendants 1 and 2 filed their written statements and have taken up a plea of limitation. When the matter went to the trial Court, it imposed a cost of Rs.20,000/- on the plaintiffs, and in default to pay the same it held that the right to sue of the plaintiffs will stand forfeited. This order was challenged by this revision petition.
Observations of the Court:
The court observed that where in any suit, the defendant takes up a plea of limitation, it will be the defendant who will seek that the issue of limitation is to be decided as a preliminary issue and not the plaintiff. The fact that the plaintiffs had taken out this application, some nine years after the institution of the suit was indicative of the fact that he possibly is keen to delay the trial of the suit.
The court remarked that now having lost this application, he would again move the trial Court with an application for reviewing it. This was held to be untenable. However, the court held that the order of the Trial Court holding that the plaintiffs would lose their right to sue was incorrect. Therefore, that part of the order of the Court directing the right of the plaintiffs to sustain the suit would be forfeited, was set aside.
The decision of the Court:
The revision petition was disposed of by partially modifying the trial court judgment.
Case Title: Chandma and others vs D. Geetha and others
Coram: Justice N. Seshasayee
Case No.: C.R.P.No.1177 of 2018 and CMP.No.6083 of 2018
Advocate for the Petitioners: Ms. Thenmozhi Shiva Perumal
Advocate for the Respondents: Mr R. Babu (For R1 and R2)
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