There can be no doubt
that if a suit is on the face of it barred by limitation it can be rejected
under Order VII Rule 11(d) of the Code. In such a case it is not necessary
to push the parties to trial merely because limitation is mixed question of
fact and law. But it does not follow that the objections of the defendant to
the date shown in the plaint as the date of accrual of cause of action can
be looked into at that stage. The question whether the suit is within
limitation or not would have to be considered by the Court for the purpose
of application for rejection of plaint only on the basis of averments in the
plaint. Therefore, it cannot be said that the learned trial Judge erred in
refusing to reject the plaint at the threshold. The impugned order,
therefore, does not call for any interference.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.10 OF 2009.
Sundeep Polymers Private Limited,
// VERSUS //
Maharashtra State Electricity Distribution
Company Limited (formerly known as
Maharashtra State Electricity Board),
CORAM : R.C.CHAVAN, J.
Judgment Pronounced on: 07.07.2009.
Citation; 2009(5) MH L J 327 bombay
1. This revision is directed against an order passed by learned Second Joint
Civil Judge Senior Division, Nagpur refusing to reject plaint under Order
VII Rule 11 of the Code of Civil Procedure.
2. The respondent /plaintiff had filed suit for recovery of arrears of energy
charges amounting to Rs.1,90,927/ from the defendant. According to the
plaint, arrears as on the date of permanent disconnection, effected on 31st
October, 2002, were Rs.2,77,384.24ps. The plaintiff claimed to have given
credit to the defendant on 31st December, 2003 of a sum of Rs.86,547/
and then filed suit for balance on 15th September, 2005.
3. The defendant filed application under Order VII Rule 11 of the Code of
Civil Procedure contending that temporary disconnection had occurred on
18.07.2002 and since the defendant did not pay any electricity bills after
April, 2002, the suit filed on 15th September, 2005 was barred by
limitation. It was pointed out from the plaint averments itself, the
defendant was not paying any bills even before August, 2001. The
defendant contended that the date of permanent disconnection 31st
October, 2002 was deliberately alleged by the plaintiff to bring the suit
within limitation. The defendant also claimed that last credit of Rs.
86,547/ allegedly made on 31st December, 2003 had nothing to do with
the amount of bills of the plaintiff which was sought to be recovered by the
suit and therefore, the suit which was barred by limitation, ought to have
been rejected under Order VII Rule 11 of the Code of Civil Procedure.
4. This application was opposed by the plaintiff. After hearing both the
parties. The learned trial Judge came to pass the impugned order rejecting
the application. Aggrieved thereby the original defendant is before this
Court.
5. The learned counsel for the applicant submitted that the suit was liable to
be rejected under Order VII Rule 11(d) as it was barred by limitation. He
submitted that it was the duty of the Court under Section 3 of the
Limitation Act to dismiss the actions which were barred by limitation
prescribed under the Limitation Act. He submitted that electricity has
been held to be goods or movable property in a judgment of Madhya
Pradesh High Court in Harda Municipality Vs. H. Electric Supply Co.,
reported at AIR 1964 MP 101. Relying on the judgment of the Supreme
Court in Hardesh Ores (P) Ltd. Vs. Hede and Company, reported at (2007)5
SCC 614 the learned counsel submitted that language of Order VII Rule 11
of the Code of Civil Procedure is quite clear and plaint can be rejected
even on the ground of limitation only, when the suit appears from the
statement in the plaint to be barred any law. Therefore, he submitted that
it is not open to contend that the question of limitation would have to
await full trial, if it is possible to show on the basis of averments in the
plaint that the suit was liable to be dismissed on the ground of limitation.
6. The learned counsel for the respondent/ plaintiff submitted that in Elmano
Menino Vs. Archbishop, reported at 2008(5) Mh.L.J. 18 this Court has held
that it was well settled that for rejecting plaint under Order VII Rule 11 of
the Code of Civil Procedure the only averments in the plaint are to be seen
and if there is any slightest doubt, or an arguable point, the plaint cannot
be rejected under Order VII Rule 11 (d) of the Code of Civil Procedure. In
that case the Court had held that on reading the averments in the plaint
that the suit could not be held to have been barred by limitation. The
learned counsel for the respondent/ plaintiff submitted that in this case,
the plaint averments show that the credit of a sum of Rs.86,547/ was
given on 31st December, 2003. Whether this was justifiably given or not,
or could have been given on that date or not, would be a question which
would require evidence to be taken and therefore, on the averments in the
plaint it could not be said that the suit was barred by limitation.
7. Relying on a judgment of the Supreme Court in Popat and Kotecha
Property Vs. State Bank of India Staff Assn., reported at (2005) 7 SCC 510
the learned counsel submitted that Order VII Rule 11(d) would apply only
when the statement in the plaint, without any doubt or dispute, shows that
the suit is barred by a law in force. In this case, according to the learned
counsel, the plaint averments are sought to be assailed as untenable or
incorrect, which cannot be looked into at the stage of consideration
application for rejection of plaint. The learned counsel for the respondent
also placed reliance on the judgment of the Supreme Court in Balasaria
Construction (P) Ltd. Vs. Hanuman Seva Trust, reported at (2006) 5 SCC
658 where the Court held in paragraph 8 as under :
“8. After hearing counsel for the parties, going through the plaint,
application under Order 7 Rule 11(d) CPC and the judgments of
the trial court and the High Court, we are of the opinion that the
present suit could not be dismissed as barred by limitation without
proper pleadings, framing of an issue of limitation and taking of
evidence. Question of limitation is a mixed question of law and
fact. Ex facie in the present case on the reading of the plaint it
cannot be held that the suit is barred by time. The findings
recorded by the High Court touching upon the merits of the dispute
are set aside but the conclusion arrived at by the High Court is
affirmed. We agree with the view taken by the trial court that a
plaint cannot be rejected under Order 7 Rule 11(d) of the Code of
Civil Procedure.”
8. The learned counsel submitted that in view of this, the question of
limitation would have to be decided only after taking evidence which
would indicate whether the credit of Rs.86,547/ or date of permanent
disconnection could bring the case within limitation. In Mayar (H.K.) Ltd.
Vs. Owners & Parties, Vessel M.V. Fortune Express, reported at AIR 2006 SC
1828 the Court held in paragraph 11 as under :
“11. From the aforesaid, it is apparent that the plaint cannot be
rejected on the basis of the allegations made by the defendant in
his written statement or in an application for rejection of the
plaint. The Court has to read the entire plaint as a whole to find
out whether it discloses a cause of action and if it does, then the
plaint cannot be rejected by the Court exercising the powers under
Order VII, Rule 11 of the Code. Essentially, whether the plaint
discloses a cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the plaint in its
entirety taking those averments to be correct. A cause of action is
a bundle of facts which are required to be proved for obtaining
relief and for the said purpose, the material facts are required to be
stated but not the evidence except in certain cases where the
pleadings relied on are in regard to misrepresentation, fraud,
willful default, undue influence or of the same nature. So long as
the plaint discloses some cause of action which requires
determination by the Court, mere fact that in the opinion of the
Judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint. In the present case, the averments made in
the plaint, as has been noticed by us, do disclose the cause of action
and, therefore, the High Court has rightly said that the powers
under Order VII, Rule 11 of the Code cannot be exercised for
rejection of the suit filed by the plaintiffappellants.”
9. The learned counsel, therefore, submitted that whether the plaintiff was
justified in giving credit of Rs.86,547/ for taking the date for accrual of
cause of action as 31st December, 2003, would have to be gone into at the
trial. He submitted that the defence raised or objection raised by the
defendant cannot be a valid consideration for deciding whether the plaint
ought to be rejected or not since at that stage the defence or the written
statement cannot be looked into.
10.I have carefully considered the rival contentions. There can be no doubt
that if a suit is on the face of it barred by limitation it can be rejected
under Order VII Rule 11(d) of the Code. In such a case it is not necessary
to push the parties to trial merely because limitation is mixed question of
fact and law. But it does not follow that the objections of the defendant to
the date shown in the plaint as the date of accrual of cause of action can
be looked into at that stage. The question whether the suit is within
limitation or not would have to be considered by the Court for the purpose
of application for rejection of plaint only on the basis of averments in the
plaint. Therefore, it cannot be said that the learned trial Judge erred in
refusing to reject the plaint at the threshold. The impugned order,
therefore, does not call for any interference.
11.The revision application is, therefore, rejected.
12.In the circumstances of the case, there shall be no order as to costs.
Print Page
that if a suit is on the face of it barred by limitation it can be rejected
under Order VII Rule 11(d) of the Code. In such a case it is not necessary
to push the parties to trial merely because limitation is mixed question of
fact and law. But it does not follow that the objections of the defendant to
the date shown in the plaint as the date of accrual of cause of action can
be looked into at that stage. The question whether the suit is within
limitation or not would have to be considered by the Court for the purpose
of application for rejection of plaint only on the basis of averments in the
plaint. Therefore, it cannot be said that the learned trial Judge erred in
refusing to reject the plaint at the threshold. The impugned order,
therefore, does not call for any interference.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.10 OF 2009.
Sundeep Polymers Private Limited,
// VERSUS //
Maharashtra State Electricity Distribution
Company Limited (formerly known as
Maharashtra State Electricity Board),
CORAM : R.C.CHAVAN, J.
Judgment Pronounced on: 07.07.2009.
Citation; 2009(5) MH L J 327 bombay
1. This revision is directed against an order passed by learned Second Joint
Civil Judge Senior Division, Nagpur refusing to reject plaint under Order
VII Rule 11 of the Code of Civil Procedure.
2. The respondent /plaintiff had filed suit for recovery of arrears of energy
charges amounting to Rs.1,90,927/ from the defendant. According to the
plaint, arrears as on the date of permanent disconnection, effected on 31st
October, 2002, were Rs.2,77,384.24ps. The plaintiff claimed to have given
credit to the defendant on 31st December, 2003 of a sum of Rs.86,547/
and then filed suit for balance on 15th September, 2005.
3. The defendant filed application under Order VII Rule 11 of the Code of
Civil Procedure contending that temporary disconnection had occurred on
18.07.2002 and since the defendant did not pay any electricity bills after
April, 2002, the suit filed on 15th September, 2005 was barred by
limitation. It was pointed out from the plaint averments itself, the
defendant was not paying any bills even before August, 2001. The
defendant contended that the date of permanent disconnection 31st
October, 2002 was deliberately alleged by the plaintiff to bring the suit
within limitation. The defendant also claimed that last credit of Rs.
86,547/ allegedly made on 31st December, 2003 had nothing to do with
the amount of bills of the plaintiff which was sought to be recovered by the
suit and therefore, the suit which was barred by limitation, ought to have
been rejected under Order VII Rule 11 of the Code of Civil Procedure.
4. This application was opposed by the plaintiff. After hearing both the
parties. The learned trial Judge came to pass the impugned order rejecting
the application. Aggrieved thereby the original defendant is before this
Court.
5. The learned counsel for the applicant submitted that the suit was liable to
be rejected under Order VII Rule 11(d) as it was barred by limitation. He
submitted that it was the duty of the Court under Section 3 of the
Limitation Act to dismiss the actions which were barred by limitation
prescribed under the Limitation Act. He submitted that electricity has
been held to be goods or movable property in a judgment of Madhya
Pradesh High Court in Harda Municipality Vs. H. Electric Supply Co.,
reported at AIR 1964 MP 101. Relying on the judgment of the Supreme
Court in Hardesh Ores (P) Ltd. Vs. Hede and Company, reported at (2007)5
SCC 614 the learned counsel submitted that language of Order VII Rule 11
of the Code of Civil Procedure is quite clear and plaint can be rejected
even on the ground of limitation only, when the suit appears from the
statement in the plaint to be barred any law. Therefore, he submitted that
it is not open to contend that the question of limitation would have to
await full trial, if it is possible to show on the basis of averments in the
plaint that the suit was liable to be dismissed on the ground of limitation.
6. The learned counsel for the respondent/ plaintiff submitted that in Elmano
Menino Vs. Archbishop, reported at 2008(5) Mh.L.J. 18 this Court has held
that it was well settled that for rejecting plaint under Order VII Rule 11 of
the Code of Civil Procedure the only averments in the plaint are to be seen
and if there is any slightest doubt, or an arguable point, the plaint cannot
be rejected under Order VII Rule 11 (d) of the Code of Civil Procedure. In
that case the Court had held that on reading the averments in the plaint
that the suit could not be held to have been barred by limitation. The
learned counsel for the respondent/ plaintiff submitted that in this case,
the plaint averments show that the credit of a sum of Rs.86,547/ was
given on 31st December, 2003. Whether this was justifiably given or not,
or could have been given on that date or not, would be a question which
would require evidence to be taken and therefore, on the averments in the
plaint it could not be said that the suit was barred by limitation.
7. Relying on a judgment of the Supreme Court in Popat and Kotecha
Property Vs. State Bank of India Staff Assn., reported at (2005) 7 SCC 510
the learned counsel submitted that Order VII Rule 11(d) would apply only
when the statement in the plaint, without any doubt or dispute, shows that
the suit is barred by a law in force. In this case, according to the learned
counsel, the plaint averments are sought to be assailed as untenable or
incorrect, which cannot be looked into at the stage of consideration
application for rejection of plaint. The learned counsel for the respondent
also placed reliance on the judgment of the Supreme Court in Balasaria
Construction (P) Ltd. Vs. Hanuman Seva Trust, reported at (2006) 5 SCC
658 where the Court held in paragraph 8 as under :
“8. After hearing counsel for the parties, going through the plaint,
application under Order 7 Rule 11(d) CPC and the judgments of
the trial court and the High Court, we are of the opinion that the
present suit could not be dismissed as barred by limitation without
proper pleadings, framing of an issue of limitation and taking of
evidence. Question of limitation is a mixed question of law and
fact. Ex facie in the present case on the reading of the plaint it
cannot be held that the suit is barred by time. The findings
recorded by the High Court touching upon the merits of the dispute
are set aside but the conclusion arrived at by the High Court is
affirmed. We agree with the view taken by the trial court that a
plaint cannot be rejected under Order 7 Rule 11(d) of the Code of
Civil Procedure.”
8. The learned counsel submitted that in view of this, the question of
limitation would have to be decided only after taking evidence which
would indicate whether the credit of Rs.86,547/ or date of permanent
disconnection could bring the case within limitation. In Mayar (H.K.) Ltd.
Vs. Owners & Parties, Vessel M.V. Fortune Express, reported at AIR 2006 SC
1828 the Court held in paragraph 11 as under :
“11. From the aforesaid, it is apparent that the plaint cannot be
rejected on the basis of the allegations made by the defendant in
his written statement or in an application for rejection of the
plaint. The Court has to read the entire plaint as a whole to find
out whether it discloses a cause of action and if it does, then the
plaint cannot be rejected by the Court exercising the powers under
Order VII, Rule 11 of the Code. Essentially, whether the plaint
discloses a cause of action, is a question of fact which has to be
gathered on the basis of the averments made in the plaint in its
entirety taking those averments to be correct. A cause of action is
a bundle of facts which are required to be proved for obtaining
relief and for the said purpose, the material facts are required to be
stated but not the evidence except in certain cases where the
pleadings relied on are in regard to misrepresentation, fraud,
willful default, undue influence or of the same nature. So long as
the plaint discloses some cause of action which requires
determination by the Court, mere fact that in the opinion of the
Judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint. In the present case, the averments made in
the plaint, as has been noticed by us, do disclose the cause of action
and, therefore, the High Court has rightly said that the powers
under Order VII, Rule 11 of the Code cannot be exercised for
rejection of the suit filed by the plaintiffappellants.”
9. The learned counsel, therefore, submitted that whether the plaintiff was
justified in giving credit of Rs.86,547/ for taking the date for accrual of
cause of action as 31st December, 2003, would have to be gone into at the
trial. He submitted that the defence raised or objection raised by the
defendant cannot be a valid consideration for deciding whether the plaint
ought to be rejected or not since at that stage the defence or the written
statement cannot be looked into.
10.I have carefully considered the rival contentions. There can be no doubt
that if a suit is on the face of it barred by limitation it can be rejected
under Order VII Rule 11(d) of the Code. In such a case it is not necessary
to push the parties to trial merely because limitation is mixed question of
fact and law. But it does not follow that the objections of the defendant to
the date shown in the plaint as the date of accrual of cause of action can
be looked into at that stage. The question whether the suit is within
limitation or not would have to be considered by the Court for the purpose
of application for rejection of plaint only on the basis of averments in the
plaint. Therefore, it cannot be said that the learned trial Judge erred in
refusing to reject the plaint at the threshold. The impugned order,
therefore, does not call for any interference.
11.The revision application is, therefore, rejected.
12.In the circumstances of the case, there shall be no order as to costs.
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