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Tuesday, February 9, 2016

rejected on the ground that it was already barred by time. But, such a bar would work in perpetuity , so filing of fresh plaint as per Delhi Wakf Boards case does not arise =The order of the Supreme Court in Delhi Wakf Boards case, referred to supra, has been rendered in a different context. That is a case where the fresh plaint presented on the second occasion was rejected by the Trial Court on the ground that a similar plaint was rejected earlier. In that context, the Supreme Court clarified that rejection of a plaint earlier once before does not prevent the plaintiff to present a suit afresh, as per the provision contained under Rule 13 of Order VII C.P.C. But, in the instant case, the earlier plaint in O.S.S.R.No.1156 of 2007, (numbered as O.S.No.7 of 2008) has been rejected on the ground that it was already barred by time. But, such a bar would work in perpetuity against the present plaintiff/petitioner. Therefore, the ratio in Delhi Wakf Boards case would not get attracted to the cases of rejection of plaint under Clause (d) of Rule 11 of Order VII C.P.C,

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION NO.1874 OF 2015    

07-10-2015

Nalla Raji Reddy Petitioner

Venkatanantha Chary. Respondent  

Counsel for the petitioner :Sri Mohd. Adnan
                                       
Counsel for the respondents  :
               
<GIST:

>HEAD NOTE:  

? Cases referred

1. (1997) 10 SCC 192

THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO            

CIVIL REVISION PETITION No.1874 of 2015  

ORDER:
       
        This revision is preferred by the plaintiff, whose plaint
bearing O.S.S.R No.639 of 2009 has been rejected by the Court
of the Senior Civil Judge, Vikarabad, Ranga Reddy District,
under Order VII Rule 11(d) of C.P.C.
        O.S.S.R No.639 of 2009 has been preferred for directing
the sole defendant to execute sale deed and to register the same
in favour of the plaintiff or his nominees in respect of the land
comprising of Ac.33-41 cts situate in various survey numbers of
Aloor Village, Chevella Mandal, Ranga Reddy district. The
plaintiff also sought for a perpetual injunction for restraining the
defendants and his men from causing interference with the
peaceful possession and enjoyment over the suit schedule land.
It appears, the suit was presented on or around 12.03.2009 and
it was rejected by a detailed order passed on 18.02.2015.
        It is the case of the plaintiff/petitioner that he entered into
an agreement of sale with the defendant on 25.01.1992 for
purchasing the suit schedule property and it is his case that in
compliance with the terms, he paid the balance sale
consideration amount of Rs.1,80,000/- on 22.03.1992, within
the stipulated period of time and that the defendant has
executed a receipt in respect thereof. It is also the case of the
plaintiff that the defendant earlier instituted O.S.No.77 of 2006
on the file of the Court of the Junior Civil Judge, Chevella
seeking perpetual injunction against the plaintiff/petitioner
herein. On 16.03.2006, in I.A.No.226 of 2006 moved therein, a
temporary injunction was granted restraining the present
plaintiff/petitioner from interfering with the possession of the
suit schedule property and against the said order, the present
plaintiff/petitioner carried the matter in CMA No.22 of 2006
before the Sub-Court, Vikarabad, which court allowed CMA
No.22 of 2006 and dissolved the interim injunction granted in
I.A.No.226 of 2006 by the Trial Court. Then, the
respondent/defendant carried the matter by way of revision in
C.R.P.No.1705 of 2007 to this Court and that civil revision
petition was dismissed on 08.08.2007 confirming the order
passed by the Sub-Court, Vikarabad. Thereafter, the present
plaintiff filed civil suit bearing O.S.S.R.No.1156 of 2007 on
21.12.2006 seeking specific performance of agreement of sale
dated 25.01.1992.  The Court of the Senior Civil Judge,
Vikarabad, by its order dated 03.04.2007 rejected the plaint
under Order VII Rule 11 C.P.C holding that it is barred by
limitation. Against that order of rejection of the plaint dated
03.04.2007, the present plaintiff/petitioner carried the matter by
way of revision in C.R.P.No.4249 of 2007 to this Court. This
Court allowed the revision and thereupon the Sub-Court
numbered the plaint as O.S.No.7 of 2008.  However, the
respondent herein, who is the defendant in that case carried the
matter by way of Civil Appeal No.1322 of 2009 to the Supreme
Court of India. The Supreme Court by its order dated 27.02.2009
allowed the civil appeal on the ground that a perusal of the plaint
makes it clear that the cause of action for filing the suit for
specific performance accrued to the plaintiff on 31.03.1992 and
the period of limitation prescribed for filing such suit is three
years and hence, the suit instituted 11 years thereafter in the
year 2006 is clearly barred by limitation and hence, the Trial
Court was justified in rejecting the plaint on the ground of
limitation and the High Court committed an error in reversing
the said order of the Trial Court. By virtue of the order of the
Supreme Court dated 27.02.2009, the said civil suit
O.S.S.R.No.1156 of 2007, since numbered as O.S.No.7 of 2008  
stood rejected. It would also be appropriate to notice that the
petitioner/plaintiff herein has filed Review Petition (C) No.1079 of
2013 in Civil Appeal No.1322 of 2009.  That review petition was
considered by the Supreme Court on 16.07.2013 and dismissed
the same as the earlier order passed in Civil Appeal No.1322 of
2009 does not suffer from any error apparent warranting its
reconsideration and also for the reason that the review petition is
barred by time also. Notwithstanding the same, once again the
present suit O.S.S.R.No.639 of 2009 was presented on
12.03.2009.
        Now, once again, this plaint is rejected under Clause (d) of
Rule 11 of Order VII C.P.C, as it is barred by limitation. It is this
order which is sought to be revised in this revision.
        Learned counsel for the petitioner would contend that Rule
13 of Order VII C.P.C made it very clear that the rejection of the
plaint on any of the grounds therein mentioned shall not of its
own force preclude the plaintiff from presentation of a fresh
plaint in respect of the same cause of action and hence, the
rejection of the present plaint based upon the order of earlier
rejection of the plaint in O.S.No.7 of 2008 is erroneous. The
learned counsel for the petitioner would also place reliance upon
the order passed by the Supreme Court in Delhi Wakf Board
vs. Jagadish Kumar Narang  and would submit that in view of
the clear legal position contained in Rule 13 of Order VII, the
rejection of the present plaint is totally illegal, unjust and
unsustainable.
        Order VII Rule 11 C.P.C has dealt with various aspects
relating to rejection of plaint and hence, it has spelt out the types
of cases in which the plaint shall be rejected. Clause (a) thereof
sets out that a plaint is liable to be rejected where it does not
disclose any cause of action, inasmuch as, upon a careful and
meaningful reading of the plaint as a whole in a non-formal
manner and if the same is found to be manifestly vexatious and
meritless, in the sense that it failed to disclose a clear right to
sue such a plaint is liable to be rejected under Clause (a) of Rule
11 Order VII C.P.C.  The rejection in such cases is for want of the
necessary cause of action accruing the right to sue or it could be
for the reason that it was not disclosed clearly in the plaint.
Therefore, if a plaint is rejected once before for want of non-
disclosure or for not accruing of cause of action, the provision
contained in Rule 13 of Order VII will certainly come to the
rescue of such a plaintiff to present a fresh plaint clearly
disclosing the cause of action and the right to sue, which may
have either occurred prior to the filing of the earlier suit or even
thereafter. Therefore, cases where a plaint is rejected in view of
Clause (a) of Rule 11 Order VII C.P.C does not present any
serious difficulty, for purposes of applicability of Rule 13 of the
said order.
        Same is the case with Clauses (b), of Rule 11 which deal
with cases where the relief claimed is undervalued and inspite of
being required by the Court to correct the valuation, within a
time fixed by the Court, the plaintiff fails to do so and in such
cases, the plaint itself is liable to be rejected. In such cases,
upon proper valuation of the relief claimed, perhaps, the issue
relating to the pecuniary jurisdiction of the Court will get settled
and hence, even in cases of rejection of plaint under Clause (b) of
Rule 11 would not come in the way for presentation of a fresh
plaint in respect of the same cause of action in terms of Rule 13
of the same order.
        Clause (c) of Rule 11 deals with cases where the relief
claimed is properly valued by the plaintiff but however, the
plaintiff inspite of being required by the Court to sufficiently
stamp it within the time prescribed, fails to do so, then the plaint
is liable to be rejected. In such cases, there would be no difficulty
whatsoever for presentation of a fresh plaint properly valuing the
relief claimed therein and also properly stamping it. Therefore,
the principle contained in Rule 13 of Order VII would present no
difficulty whatsoever.
        But, however, when it comes to the rejection of a plaint
where it appears to have been barred by any law, can such a
plaint be liable to be presented once again, is the question that is
required to be addressed. It will be important to notice the fact
that Section 3 of the Limitation Act, 1963, has clearly spelt out
that every suit instituted after the prescribed period shall be
dismissed although limitation has not been set-up as a defence.
Thus, the language employed in Section 3 of the Limitation Act,
1963, is in mandatory terms. When once, the prescribed time for
institution of a suit for a particular relief sought for therein has
expired, such a suit shall be dismissed irrespective of the fact
whether limitation has been set-up as a defence or not. In the
instant case, the petitioner earlier instituted a suit seeking an
identical relief, i.e. O.S.S.R.No.1156 of 2007 (later on numbered
as O.S.No.7 of 2008) and that was found to have been barred by
the Supreme Court by its judgment on 27.02.2009 in Civil
Appeal No.1322 of 2009.  A Review Petition (C) No.1079 of 2013
moved therein was also dismissed by the Supreme Court on
16.07.2013.  Therefore, the suit for specific performance of the
agreement of sale dated 25.01.1992 by the plaintiff herein, if it is
barred in the year 2006 itself, the question of the same plaintiff
presenting another civil suit for an identical relief on 12.03.2009
would not simply arise. Once, the period of limitation
commences, it does not stop, unless, by a statutory provision it
has been done so. In cases where a plaint is rejected once before
on the ground that the relief claimed therein is barred by
limitation, the provision contained under Rule 13 of Order VII
C.P.C would not come to the rescue of such a plaintiff for
presentation of a fresh plaint for the reason that the period of
limitation which has expired earlier remains to be the same even
on the subsequent occasion and consequently, the subsequent
plaint is also bound to be rejected. A time barred relief cannot be
got enforced through the process of the Court.
        The order of the Supreme Court in Delhi Wakf Boards
case, referred to supra, has been rendered in a different context.
That is a case where the fresh plaint presented on the second
occasion was rejected by the Trial Court on the ground that a
similar plaint was rejected earlier. In that context, the Supreme
Court clarified that rejection of a plaint earlier once before does
not prevent the plaintiff to present a suit afresh, as per the
provision contained under   Rule 13 of Order VII C.P.C.  But, in
the instant case, the earlier plaint in O.S.S.R.No.1156 of 2007,
(numbered as O.S.No.7 of 2008) has been rejected on the ground
that it was already barred by time. But, such a bar would work
in perpetuity against the present plaintiff/petitioner. Therefore,
the ratio in Delhi Wakf Boards case would not get attracted to
the cases of rejection of plaint under Clause (d) of Rule 11 of
Order VII C.P.C,
       
        Therefore, I do not see any merit in this revision and it is
accordingly dismissed, but however without costs.
        Consequently, miscellaneous applications pending if any,
shall also stand dismissed. No costs.
_______________________________________      
JUSTICE NOOTY RAMAMOHANA RAO          
07.10.2015

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