In the case of N.V. Srinivasa Murthy and others
(supra), the Apex Court held that omitting to claim relief
warranted on facts and claiming other reliefs, to get around bar of
limitation is impermissible in law.
IN THE HIGH COURT OF BOMBAY AT GOA
CIVIL REVISION APPLICATION NO. 18 OF 2011
Sima Hotels & Resorts Limited,V Dugal Projects Development
Company Private Limited,
CORAM : A. P. LAVANDE,J
PRONOUNCED ON : 7TH DECEMBER, 2012.
Citation;2013 (3) ALL M R 65
By this revision application, the petitioner takes
exception to the order dated 16.04.2011 passed by the learned
IIIrd Additional Civil Judge, Senior Division, Margao, in Special Civil
Suit No. 162/2009/III by which the application filed by the
petitioner who is the defendant in the above suit under Order VII
Rule 11 of Civil Procedure Code for rejection of the plaint has been
dismissed.
2.
Briefly, the facts relevant for the disposal of the
revision application are as under :
In December, 2009, the respondent herein filed a
Special Civil Suit No. 162/2009/III before the Civil Judge Senior
Division, Margao, seeking relief of declaration and injunction. On
4.3.2010, the petitioner who is the defendant in the above suit,
filed an application under Order VII Rule 11 and Order II, Rule 2
of the Civil Procedure Code on the following grounds :
(a) The plaint does not disclose any cause of action for
the reliefs claimed and is therefore liable to be
dismissed for want of cause of action.
(b) The suit is barred by the law of limitation.
(c) The suit is barred under the provisions of Order I
Rule 2 of the Civil Procedure Code since the plaintiff had
earlier filed suit bearing No. SCS No.47/1991.
3.
The application was opposed by the plaintiff.
dated
25.5.2010,
the
learned
trial
Judge
By order
dismissed
the
application. Being aggrieved, the petitioner herein preferred Civil
Revision Application No.16/2010. By order dated 6.10.2010, this
Court partly allowed the revision application
and remanded the
matter to the learned trial Judge for deciding the matter afresh,
by giving a reasoned
heard.
order.
Thereafter, both the parties were
The learned trial Judge, by order dated 16.4.2011,
rejected the application.
Aggrieved by the said order, the
defendant has filed the present revision application.
4.
With the consent of the learned counsel appearing for
the parties, the revision application was taken up for final hearing
and hence Rule. By consent heard forthwith.
5.
the
Shri Nadkarni, learned Senior Counsel appearing for
petitioner/defendant
at
the
outset
submitted
that
the
petitioner is only pressing the ground of limitation and the plaint is
liable to be rejected on the ground that the suit
filed by the
respondent/plaintiff is hopelessly barred by limitation. According
to the learned Senior Counsel, having regard to the prayers (b),
(c) and (d) in the suit which are founded on the notice dated
31.01.1991 given by the plaintiff to the defendant. The suit filed
by the plaintiff in the year 2009 is hopelessly barred by limitation.
According to the learned Senior Counsel, by the said composite
notice dated 31.01.1991, the plaintiff called upon the defendant to
remedy the breach and also claimed forfeiture of lease and in the
event, the breach was not remedied within a period of 60 days,
further claimed a consequential right of re-entry in the premises.
The notice period ended on 31 st March, 1991 and according to the
plaintiff, the defendant had failed to remedy the breach and
consequently the lease was forfeited and terminated w.e.f. 1 st
April, 1991 and as such the right of re-entry had accrued to the
plaintiff on the said date.
The learned Senior Counsel therefore
submitted that the cause of action based on notice dated
31.01.1991, accrued to the plaintiff in April, 1991 and as such the
limitation period for filing the suit on the basis of the suit, the
cause of action expired in April, 1994.
The learned Senior
Counsel further submitted that the case of the plaintiff that since
the receiver was appointed by this Court in July, 1991, who took
possession of the suit premises and as such the plaintiff could not
have filed a suit for possession is untenable in law in view of
Section 9 of the Limitation Act, 1963.
According to the learned
Senior Counsel, the time to file the suit on the basis of notice
dated 31.01.1991 had began to run w.e.f. 01.04.1991 and
therefore the subsequent disability or inability on account of the
appointment of the receiver in July, 1991 could not stop the
limitation which had already
began to run from 01.04.1991.
According to the learned Senior Counsel, the learned Trial Judge
overlooked this provision of the Limitation Act and has come to
the conclusion that the receiver having taken over the possession
of the suit premises in July, 1991 as contended by the plaintiff,
the plaintiff could not have filed a suit within a period of three
years from April, 1991. According to the learned Senior Counsel,
by clever drafting of the plaint, the plaintiff cannot get over the
question of limitation by camouflaging the real issue in the suit.
According to the learned Senior Counsel, the reliefs sought by the
plaintiff in the suit are hopelessly barred by limitation on the basis
of the pleadings of the plaintiff itself and therefore the plaint in the
above suit filed by the plaintiff is liable to be rejected under Order
VII Rule 11(d) of the
Civil Procedure Code.
According to the
learned Senior Counsel, the suit filed by the plaintiff was
hopelessly barred by limitation and as such the learned Trial Judge
ought to have allowed the application on the ground of limitation
and ought to have rejected the plaint.
In support of his
submission, the learned Senior Counsel placed reliance upon the
following judgments :
(I)
State of
U.P. and others V/s Maharaja
Dharmander Prasad Singh etc., AIR 1989 SC 997;
(ii)
T. Arivandandam
V/s T. V. Satyapal
&
Another, (1977) 4 SCC 467;
(iii)
N.
V.
Srinivasa
Murthy
&
Others
V/s
Mariyamma & Another, (2005)5 SCC 548 ;
(iv)
Hardesh Ores Pvt. Ltd., V/s M/s Hede &
Co., AIR 2007 SCW 3456; and
(v)
Khatri Hotels Pvt. Ltd. and another
V/s
Union of India and another, (2011) 9 SCC 126.
6.
Per contra, Shri Advani, learned Counsel appearing for
the respondent/plaintiff submitted that the learned Trial Judge has
gone into the issues raised before it in the application under Order
VII Rule 11 of the Civil Procedure Code and has rightly observed
that all these questions and issues raised by the defendant are
disputed questions of fact and interpretation of law could not be
decided in an application under Order VII Rule 11 of the Civil
Procedure Code. The same have to be dealt with at the stage of
trial after the parties lead evidence.
According to the learned
Counsel, the scope of an application under Order VII Rule 11 of
Civil Procedure Code is restricted and the Court has to merely see
whether the plaint discloses cause of action as a pure question of
fact as rightly observed by the learned trial Judge. According to
the learned Counsel, whether the plaint discloses the cause of
action or not must be found from the simple reading of the plaint
assuming that all the averments in the plaint are correct.
In
ascertaining whether the plaint discloses the cause of action, the
Court is not required to hold elaborate inquiry into doubtful or
complicated questions of law or fact.
According to the learned
counsel, the cause of action has been clearly spelt out by the
plaintiff in paragraph 12 of the plaint.
7.
In so far as the issue of limitation is concerned, the
learned Counsel submitted that the defendant had issued a notice
of
termination
on
31.01.1991
calling
upon
the
petitioner/defendant to remedy the breach committed by them
within a period of 60 days failing which the lease would be
terminated/forfeited.
However, the defendant neither took any
step to remedy the breach nor replied to the said notice and as
such accepted the termination of the lease. The learned Counsel
further submitted that though the lease was terminated in April,
1991, the plaintiff was not in a position to claim the possession on
account of appointment of receiver in Suit No. 2654 of 1990 by
the Principal Bench of this Court at Bombay which was filed by the
Financial Institutions. According to the learned Counsel, till date
the receiver is in possession of the suit premises.
According to
the learned Counsel, the plaintiff has clearly stated in the plaint
that the cause of action for the plaintiff to file the suit arose in the
year 2008 when the defendant filed the written statement in the
Suit No. 116/2007-08 before the Debt Recovery Tribunal, in
Mumbai and claimed to be lessee of the suit property. According
to the learned Counsel, the cause of action further continued in
the year 2009 when the defendant claimed to be the owner of the
property by filing an affidavit in D.R.T. Moreover, the defendant
deposited a sum of Rs.6.04 crores in D.R.T. for claiming
possession of the suit property and in this factual background, the
plaintiff was constrained to file the present suit for declaration and
termination of lease against the defendant.
According to the
learned Counsel, the defendant was granted lease for specific
purpose of constructing and operating a five star hotel project and
9
the
defendant not only failed to construct the
same
but
abandoned the project and having accepted the termination has
no right to claim to be lessee in respect of the suit property.
According to the learned Counsel, it is well settled that the cause
of action accrues only when some right or title was disputed or
denied by any person. According to the learned Counsel, in the
present case also though the plaintiff issued notice terminating the
lease in the year 1991, the defendant never disputed or
challenged the same till 2008 and it was only in the year 2008 for
the first time the defendant denied the termination of lease and
claimed right in respect of the suit premises, on account of which
the plaintiff was constrained to file the suit in December, 2009.
The learned Counsel therefore submitted that in view of the above
factual position, the suit filed by the plaintiff in the year 2009
cannot be said to be barred by limitation and as such the plaint is
not liable to be rejected and consequently the revision application
filed by the defendant is liable to be dismissed with exemplary
costs. In support of his submissions, the learned Counsel relied
upon the following judgments.
(i)
Ram Prakash Gupta V/s Rajiv Kumar
Gupta, 2007(6) ALL M. R. 953
(ii)
Popat and Kotecha V/s State Bank of India
Staff Association, 2005(7) SCC 510
(iii)
Ibrahim V/s Sharifan, AIR 1980 P & H
25,
and
(iv)
Arjan Singh V/s Union of India,
AIR 1987
Delhi 165.
8.
I have carefully considered the rival submissions,
perused the records and judgments relied upon.
9.
Before I deal with the rival submissions made by
learned Counsel on merits, I deem it appropriate to deal with the
authorities cited by both sides.
10.
In T. Arivandandam (supra), the Apex Court held
that the trial Court upon meaningful, and not formal, reading of
the plaint, ought to find out a clear right to sue and if such a right
is not made out, ought to exercise its power
under Order VII,
Rule 11 C.P.C.. The Apex Court further held that if clever drafting
has created the illusion of a cause of action, the Court must nip it
in the bud at the first hearing by examining the party searching
under Order X C.P.C..
12.
In the case of
Khatri Hotels Private Limited
(supra), the Apex Court held that the Limitation Act prescribes
time limit for all conceivable suits, appeals, etc.
down that every
Section 3 lays
suit instituted, appeal preferred or application
made after the prescribed period, shall, subject to the provisions
of Sections 4 to 24, be dismissed even though limitation may not
have been set up as a defence.
The Apex Court further held that
if a suit is not covered by any specific articles, then it would fall
within the residuary article.
In other words, the residuary article
is applicable to every kind of suit, not otherwise provided for in
the schedule.
13.
In
the case of Maharaja Dharmander Prasad
Singh etc. (supra), the Apex Court held that a lessor with best
title, has no right to resume possession extra-judicially by use of
force from a lessee even after the expiry or earlier termination of
the lease by forfeiture or otherwise.
“re-entry”
The
use of the expression
in the lease-deed does not authorise
methods to resume possession.
a lessee, even
extrajudicial
Under the law, the possession of
after the expiry or its earlier termination, is
juridical possession and forcible dispossession is prohibited.
lessee cannot be dispossessed
A
otherwise than in due course of
law.
14.
In the case of Hardesh Ores Pvt. Ltd. (supra), the
Apex Court held that whether a plaint discloses
the cause of
action, is essentially a question of fact, but whether it does or
does not must be found out from reading the plaint itself and for
this purpose all the averments in the plaint in their entirety must
be held to be correct.
Although it is the substance
and not
merely the form that has to be looked into, the pleading has to be
construed
as it stands.
The Apex Court further held that the
plaint deserves to be rejected under Order VII, Rule 11 CPC
since the suit appeared from the statements in the plaint to be
barred by law of limitation.
15.
In the case of N.V. Srinivasa Murthy and others
(supra), the Apex Court held that omitting to claim relief
warranted on facts and claiming other reliefs, to get around bar of
limitation is impermissible in law.
16.
In the case of Ram Prakash Gupta (supra), the Apex
Court held that for rejection of plaint under Order VII, Rule 11(a)
and (d) CPC., only the facts averred in the plaint must be looked
into and such a power can be exercised at any stage of the suit,
before conclusion of the trial and for this purpose all the pleadings
in the suit have to be read as a whole.
17.
In the case of Popat and Kotecha Property (supra),
the Apex Court considered its several judgments and held that the
real object
of Order VII, Rule 11 CPC is to keep out of Courts
irresponsible law suit and if the Court is prima facie of the view
that the suit is an abuse of the process of the Court in the sense
that it is a bogus and irresponsible litigation, the jurisdiction
under Order VII, Rule 11 of the Code can be exercised.
The Apex
Court further held that in terms of Order VI, Rule 2(1) of CPC., the
cardinal rule of pleadings has to state material facts and not the
evidence and every pleading shall contain only a statement in a
concise form of material facts on which the party pleading relies
for his claim or defence as the case may be, but not the evidence
by which they are to be proved.
18.
In
Ibrahim (supra),
the Division Bench of Punjab
and Haryana High Court, on facts, held that
the word 'first'
occurring in Article 58 of the Limitation Act has great significance
and the same could not be construed
in any other manner,
except that the limitation in a declaratory suit shall begin to run
when the cause to sue
for the property first accrues to the
plaintiff. In the facts of the case, the High Court held that it was
in the year 1957 that a cloud was cast on the right of the plaintiff
to succeed to the entire land in dispute
and that the period of
limitation began to run from the year 1957 and not afterwards.
19.
In the case of Arjan Singh and others (supra), the
Delhi High Court held that if the plaint itself shows that the claim
is barred by time, then the plaint can be rejected
under Order
VII, Rule 11 CPC.
20.
Perusal of the impugned order discloses that though
the ground that the suit was barred by limitation was raised, the
petitioner did not place reliance upon Section 9 of the Limitation
Act and consequently, the trial Court did not deal with the same.
No doubt, the defendant ought to have raised the issue before the
learned trial Court by placing reliance upon Section 9.
fact remains that the issue of limitation
But the
raised by the petitioner
based on Section 9 of the Limitation Act, goes to the root of the
matter inasmuch in the event the submission of the defendant
that Section 9 is attracted is accepted, the necessary sequitur is
that the plaint will have to be rejected on the ground that the suit
is barred by limitation.
21.
In the above factual background, there are two options
available to me.
Firstly, to decide the issue on the basis of the
submissions made and the averments made in the plaint, and
secondly, to remand the matter to the learned trial Court
for
fresh adjudication on the issue of limitation in the light of Section
9 of the Limitation Act.
I would prefer to adopt the second
course, so that the trial Court which has to deal with the
application under Order VII, Rule 11 CPC
submissions
considers the rival
on the basis of the averments made in the plaint
and the documents
annexed to the plaint and gives findings.
However, since the petitioner chose not to raise the issue of
limitation on the basis of Section 9 which it ought to have raised
before the trial Court, while remanding the matter to the trial
Court, I deem it appropriate to impose costs on the petitioner.
22.
In view of the above, the impugned order dated 16 th
April, 2011 passed
by the learned IIIrd
Additional Civil Judge,
Senior Division, Margao in Special Civil Suit No.162/2009/III, is
quashed and set aside and the matter remanded to the learned
trial Court to decide the application under Order VII, Rule 11 CPC
made by the petitioner/defendant only in respect of the issue of
limitation, in the light of the observations made above and
16
cra 18-11
keeping in view the principles laid down by the Apex Court, to be
considered by the trial Court while dealing with
under Order 7, Rule 11 CPC.
a application
The petitioner shall pay costs of
Rs. 10,000/- (Rupees ten thousand only) to the respondent. The
costs shall be deposited in the trial Court within four weeks and
upon deposit, liberty to the respondent to withdraw the same.
23.
The parties to appear before the trial Court on 14 th
January, 2013 at 10.00 a.m.. The learned trial Court shall decide
the issue of limitation raised in the application
dated 4.3.2010
filed by the defendant under Order VII, Rule 11 CPC, after giving
an opportunity of being heard to the parties in the light of the
observations made above.
24.
It is made clear that I have not expressed any opinion
on the merits of the rival contentions.
25.
The
revision
application
stands
disposed
accordingly.
A.P. LAVANDE, J.
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