Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co

Held: The right to sue under Article 113 of the Limitation Act accrues when there is an accrual of rights asserted in the suit and an unequivocal threat by the defendant to infringe the right asserted by the plaintiff in the suit – Thus, “right to sue” means the right to seek relief by means of legal procedure when the person suing has a substantive and exclusive right to the claim asserted by him and there is an invasion of it or a threat of invasion – When the right to sue accrues, depends, to a large extent on the facts and circumstances of a particular case keeping in view the relief sought – It accrues only when a cause of action arises and for a cause of action to arise, it must be clear that the averments in the plaint, if found correct, should lead to a successful issue – The use of the phrase “right to sue” is synonymous with the phrase “cause of action” and would be in consonance when one uses the word “arises” or “accrues” with it. [Para 9.8] Limitation Act, 1963 – Arts.

54 and 113 – The second suit was filed after rejection of the plaint in the earlier suit for seeking specific performance of a contract – What is the period of limitation of filing second suit: Held: In the present case, the earlier suit was filed by the respondent/plaintiff in July, 1993 on the basis of Article 54 and the plaint in the said suit was rejected on 12.01.1998 – The second suit being O.S. No. 49/2007 was filed on the strength of Order VII Rule 13 of the Code for the very same cause of action and for seeking the very same relief of specific performance of the agreement dated 26.04.1991 as the plaint in the earlier suit was rejected on 12.01.1998 – Therefore, it cannot be said that the second suit namely O.S. No. 49/2007 was filed as per Article 54 of the Limitation Act – Since this is a suit filed for the second time after the rejection of the plaint in the earlier suit, in view of this Court, Article 54 of the Limitation Act does not apply to a second suit filed for seeking specific performance of a contract – Then, the question is, what is the limitation period for the filing of O.S. No.

49/2007 – One have to fall back on Article 113 of the Limitation Act – Article 113 of the Limitation Act is an omnibus Article providing for a period of limitation not covered by any of the specific Articles – Digital Supreme Court Reports [2025] 1 S.C.R. 545 Article 113 of the Schedule to the Limitation Act provides for a suit to be instituted within three years from the date when the right to sue accrues. [Paras 9.6, 9.7, 9.9] Case Law Cited T. Arivandandam v. T.V. Satyapal [1978] 1 SCR 742 : (1977) 4 SCC 467; Sopan Sukhdeo Sable v. Assistant Charity Commissioner [2004] 1 SCR 1004 : (2004) 3 SCC 137; Popat and Kotecha Property v. State Bank of India Staff Association [2005] Supp. 2 SCR 1030 : (2005) 7 SCC 510; Roop Lal Sathi v. Nachhattar Singh Gill [1983] 1 SCR 702 : (1982) 3 SCC 487; Raptakos Brett & Co. Ltd. v. Ganesh Property [1998] Supp. 1 SCR 485 : (1998) 7 SCC 184; Saleem Bhai v. State of Maharashtra [2002] Supp.

5 SCR 491 : (2003) 1 SCC 557; R.K. Roja v. U.S. Rayudu [2016] 3 SCR 221 : (2016) 14 SCC 275; Kuldeep Singh Pathania v. Bikram Singh Jaryal [2017] 1 SCR 915 : (2017) 5 SCC 345; Maqsud Ahmad v. Mathra Datt & Co., AIR 1936 Lah 1021; Sejal Glass Ltd. v. Navilan Merchants Private Ltd. [2017] 7 SCR 557 : (2018) 11 SCC 780; Madhav Prasad Aggarwal v. Axis Bank Ltd. [2019] 8 SCR 1058 : (2019) 7 SCC 158; Biswanath Banik v. Sulanga Bose [2022] 3 SCR 302 : (2022) 7 SCC 731; Delhi Wakf Board v. Jagdish Kumar Narang (1997) 10 SCC 192; A. Nawab John v. V.N. Subramaniyam [2012] 6 SCR 369 : (2012) 7 SCC 738; Mannan Lal v. Mst. Chhotaka Bibi, (Dead) by LRs. [1971] 1 SCR 253 : (1970) 1 SCC 769; Patil Automation Private Ltd. v. Rakheja Engineers Private Ltd. (2022) 10 SCC 1; State of Punjab v. Gurdev Singh [1991] 3 SCR 663 : (1991) 4 SCC 1; Shakti Bhog Food Industries Ltd. v. Central Bank of India [2020] 6 SCR 538 : (2020) 17 SCC 260; M.V.S. Manikyala Rao v.

M. Narasimhaswami [1966] 1 SCR 628 : AIR 1966 SC 470; N Narasimhiah v. State of Karnataka [1996] 1 SCR 698 : (1996) 3 SCC 88 – referred to. Pioneer Bank Ltd v. Ramdev Banerjee (1950) 54 Cal WN 710; James Skinner v. Kunwar Naunihal Singh, ILR (1929) 51 All 367, (PC) – referred to. Books and Periodicals Cited “Limitation Periods” by Andrew McGee, Barrister of Lincoln’s Inn, published in 2002; Tagore Law Lectures, U N Mitra, Law of Limitation and Prescription, Sixteenth Edition, Volume 1, Sections 1-32 & Articles 1-52. Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co. 546 [2025] 1 S.C.R. List of Acts Charitable and Religious Trust Act, 1921; Limitation Act, 1963; Limitation Act, 1908; Code of Civil Procedure, 1908. List of Keywords Specific Performance; Rejection of plaint; Cause of Action; Barred by Limitation; Res-Judicata; Order VII Rule 11 of Code of Civil Procedure, 1908, Order VII Rule 13 of Code of Civil Procedure, 1908; Article 54 of Limitation Act, 1963; Article 113 of Limitation Act, 1963; Right to sue; Residuary Article; Omnibus Article; Right of plaintiff.

Case Arising From CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1525 of 2023 From the Judgment and Order dated 15.03.2022 of the High Court of Judicature at Madras at Madurai in CRPMD No. 1116 of 2011 Appearances for Parties P.V. Balasubramaniam, Sr. Adv., Anish R. Shah, Ankit Sahu, Advs. for the Appellant. V. Giri, Sr. Adv., Mahesh Agarwal, Rishi Agrawala, Ankur Saigal, Ms. S. Lakshmi Iyer, Ms. Sukriti Bhatnagar, Shaswat Singh, E. C. Agrawala, Advs. for the Respondent. Judgment / Order of the Supreme Court Judgment Nagarathna, J. This appeal has been filed by assailing the order dated 15.03.2022 passed by the Madras High Court, Madurai Bench in C.R.P. (MD) No.1116 of 2011 dismissing the Civil Revision Petition filed by the appellant.

1.

For the sake of convenience, the parties in the present appeal are being referred to as per their status and positions before the trial court. Digital Supreme Court Reports [2025] 1 S.C.R. 547 Factual Background:

According to the plaintiff/respondent herein, the present dispute pertains to land measuring 5.05-acre being a portion of a 6.48-acre property known as Loch End at Kodaikanal, originally purchased by American missionaries of the Lutheran Church Missouri Synod and Missouri Evangelical Lutheran India Mission in 1912. The Kodaikanal International School (seeking to implead in the suit) is located across the road from Loch End. In 1975, an agreement was made between the American missionaries and the India Evangelical Lutheran Church Trust Association (defendant/ appellant herein) to transfer various properties, including the Kodaikanal property, to the defendant. This agreement was formalized through the joint filing of O.P. No.101/1975 under Section 7 of the Charitable and Religious Trust Act, 1921 before the District Judge, Madurai, leading to a decree dated 26.11.1975, appointing the defendant as the trustee of those properties for the objects of the Trust stated thereunder.

2.1. According to the plaintiff, the defendant being in need of funds decided to sell a part of those properties, including the 5.05 acres of Loch End, consisting of 12 out of 15 buildings (hereinafter referred to as “suit scheduled property”). An agreement to sell was executed on 26.04.1991 between the defendant and the plaintiff, i.e., M/s. Sri Bala & Co., for the suit scheduled property, on a total sale consideration fixed at Rs.3,02,00,000/- (Rupees Three Crores and Two Lakhs only) and an advance payment of Rs. 10,00,000/- (Rupees Ten Lakhs only) was made. Partial possession of the property is said to have been handed over to the plaintiff. At that time, the impleading party was allegedly in possession of three of the twelve buildings on Loch End in the capacity of a tenant.

2.2. The plaintiff filed an unnumbered suit in the year 1993 before the Court of the Subordinate Judge, Dindigul Anna District for specific performance of the agreement to sell dated 26.04.1991, by seeking execution of the sale deed in respect of the suit scheduled property and for placing the plaintiff in possession of the property. The said suit was subsequently transferred to the Court of the Subordinate Judge, Palani. But the said suit was rejected vide order dated 12.01.1998 passed by the Court of Subordinate Judge, Palani due to non-payment of requisite court-fees by the plaintiff. Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co. 548 [2025] 1 S.C.R.

2.

The plaintiff thereafter filed O.S. No.49/2007 before the Court of the Principal District Judge, Dindigul District, seeking specific performance of the sale agreement dated 26.04.1991, with a direction to the defendant to execute the sale deed in favour of the plaintiff after receiving the balance sale consideration for the suit scheduled property.

2.

The defendant sought rejection of the second suit by filing I.A. No.233/2007 under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (for short, “Code”), on the ground that the subsequent suit for specific performance is barred by the principle of res judicata as the plaintiff had not filed any appeal against the rejection of the plaint in the previous suit. The defendant also contended that the subsequent suit for specific performance was barred by the law of limitation since it was filed after a gross delay of almost nine years and beyond the period stipulated under Article 54 of the Limitation Act, 1963 (“Limitation Act”, for short).

2.

The plaintiff filed its objections to the defendant’s application for rejection of plaint and placed reliance on Order VII Rule 13 of the Code to argue that a rejection of a plaint does not preclude the presentation of a fresh plaint for the same cause of action. It was further contended by the plaintiff that as per the sale agreement, the Kodaikanal International School, which is in possession of part of the suit scheduled property in the capacity of a tenant, has to be evicted and the vacant possession ought to be handed over to the plaintiff. Since the tenants had not been vacated from the property, the suit for specific performance of the sale agreement is not barred by Article 54 of the Limitation Act. Reliance was placed by the Plaintiff on an extension letter dated 15.07.1991 executed by the defendant’s Secretary-cum-Treasurer namely Reverent A. Sundaram in favour of the plaintiff, which had extended the period of the sale agreement in light of multiple pending litigations with the impleading party.

2.

The said application, i.e., I.A. No.233/2007, was dismissed by the trial court vide order dated 16.09.2010, on the grounds that the previous suit was not decided on merits and therefore the principle of res judicata would not apply and further, the Digital Supreme Court Reports [2025] 1 S.C.R. 549 issue of limitation period being extended to file the suit for specific performance in light of the pending litigations with the impleading party was a question of fact and the said issue had to be adjudicated only after examination of proper witnesses and documents during trial. Thus, the trial court refused to reject the plaint at such an early stage.

2.

Being aggrieved by the order of the trial court, defendant preferred a civil revision petition before the High Court being C.R.P. (MD) No.1116/2011. However, the High Court on 15.03.2022 dismissed the said Civil Revision Petition. The High Court observed that the previous suit was neither registered nor numbered and since the issues were not finally decided, it was not hit by the principle of res judicata. Further, the question of extension of the limitation period is a mixed question of fact and law which can be decided only after the recording of evidence and not at the stage of rejection of plaint. Thus, the High Court confirmed the order dated 16.09.2010 passed by the trial court on the application filed by the defendant for rejection of the plaint. The said order of the High Court in C.R.P. (MD) No.1116/2011 is under challenge in this appeal.

2.

Two more orders arising out of the same set of facts were passed by the Madras High Court, Madurai Bench on the same date as that of the impugned order. The issues in those matters dealt with impleadment and beneficiary rights of the impleading party with respect to the suit scheduled property. This Court granted leave in those matters as well and had tagged them with the present matter. However, since the present appeal deals with an issue more germane to the suit and the relevance of those two appeals rests on the fate of the present appeal, the present appeal was de-tagged by this Court from the other two connected matters vide order dated 24.10.2024. Submissions:

3. We have heard Sri P.V. Balasubramaniam, learned senior advocate for the appellant/defendant and learned senior advocate Sri V. Giri for the respondent/plaintiff and perused the material on record.

3.1. Sri Balasubramaniam, at the outset submitted that both the High Court as well as the trial court were not right in dismissing the Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co. 550 [2025] 1 S.C.R. application filed by the appellant/defendant in the suit under Order VII Rule 11(d) of the Code. No doubt, the respondent/ plaintiff in the suit had the right to file another suit on the same cause of action after rejection of the plaint in the earlier unnumbered suit filed by it in the year 1993 for the relief of specific performance of the agreement to sell dated 26.04.1991 on the strength of Order VII Rule 13 of the Code. However, the said suit had to be on the same cause of action as the earlier suit and within the period of limitation as prescribed under the Limitation Act, 1963. Thus, the rejection of the plaint in the earlier suit filed by the respondent/plaintiff was not a bar to file a fresh suit on the same cause of action. The law provides for another opportunity to a plaintiff to reagitate on an identical cause of action despite the rejection of the plaint in the earlier suit filed by a plaintiff on the basis of Order VII Rule 13 of the Code. However, the second suit which is on the same cause of action must be maintainable in law and not hit by Order VII Rule 11(d) of the Code.

3.2. Elaborating on the aforesaid contention, learned senior counsel submitted that in the instant case, the first suit was filed in the year 1993 to seek specific performance of the agreement to sell dated 26.04.1991 which suit was filed within the period of limitation as prescribed under Article 54 of the Limitation Act. The plaint of the said suit was rejected vide order dated 12.01.1998 owing to non-payment of the requisite court-fees by the plaintiff. If another suit had to be filed by the very same plaintiff on the very same cause of action, then the second suit had to be within the prescribed period of limitation and otherwise not barred by law. In the instant case, the respondent/ plaintiff filed the second suit only in the year 2007 for specific performance of agreement to sell dated 26.04.1991, when the cause of action accrued to the respondent/plaintiff in the year 1993 itself, i.e., when the earlier suit was filed. Even if the period of the pendency of the said earlier suit till the rejection of the plaint on 12.01.1998 is excluded for the purpose of computing the limitation period which had commenced as early as in the year 1993, there is no explanation as to why the second suit i.e., O.S. No.49/2007 was filed only in the year 2007. At best, the limitation period could have extended for a period of three Digital Supreme Court Reports [2025] 1 S.C.R. 551 years from 12.01.1998 for the filing of the second suit by the respondent/plaintiff. That, the aforesaid facts are all admitted by the respondent/plaintiff in the plaint itself and hence, on that basis the trial court as well as the High Court ought to have exercised their jurisdiction in rejecting the plaint in O.S. No.49/2007 as the filing of the second suit in the year 2007 is way beyond the prescribed period of limitation.

3.3. It was contended that when the earlier suit was filed by the respondent/plaintiff, it was on the basis of the cause of action that had accrued to the plaintiff. If the plaint in the earlier suit was rejected on 12.01.1998, then the second suit ought to have been filed immediately thereafter so as to maintain a continuity in the cause of action or possibly within three years from the date of the rejection of the plaint, which would mean that the suit ought to have been filed by 12.01.2001. But, in the instant case, the filing of the suit in the year 2007 gives rise to an inference that the respondent/plaintiff had acquiesced to the rejection of the plaint and thus had waived its right to seek specific performance of the agreement to sell dated 26.04.1991. Therefore, the filing of the second suit in the instant case is only an afterthought, a chance and being speculative in nature, ought to have resulted in rejection of the plaint on the basis of Order VII Rule 11(d) of the Code as being hit by Article 54 of the Limitation Act and therefore, barred in law.

3.4. It was therefore submitted that the plaint in O.S. No.49/2007 may be rejected by setting aside the impugned order and allowing this appeal.

3.5. Per contra, learned senior counsel Sri Giri supported the impugned orders rejecting the application filed by the appellant herein under Order VII Rule 11(d) of the Code and contended that there is no merit in this appeal. Elaborating on this submission, Sri Giri contended that on the basis of Order VII Rule 13 of the Code, the second suit, namely, O.S. No.49/2007 was filed. In the plaint of the aforesaid suit, it has been categorically averred that the letter dated 15.07.1991 which was executed by the Secretary-cum-Treasurer Reverend, namely, A. Sundharam in favour of the plaintiff clearly extended the period of limitation owing to multiple litigations pending between the parties and the Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co. 552 [2025] 1 S.C.R. party seeking to implead in the said suit. Further, the question of a suit being barred under Article 54 of the Limitation Act is a mixed question of law and fact which cannot be decided on mere averments made in the plaint. Hence, the trial court as well the High Court rightly rejected the application filed by the appellant herein for seeking rejection of the plaint. It was contended that owing to the pendency of litigation between the parties, the time for performance under the agreement dated 26.04.1991 was automatically extended and therefore, it was only when the other litigation between the parties herein and the impleading party in the suit concluded that the cause of action for filing the second suit in the year 2007 resurfaced as till then it was dormant and hence, there is no merit in this appeal. It was contended that there was in fact no basis to file the application under Order VII Rule 11(d) of the Code by the appellant herein as the issue of limitation could have been adjudicated upon on conclusion of the trial and along with the other issues which arise in the suit. It was submitted that there is no merit in this appeal and the same may be dismissed.

3.6. By way of reply, learned senior counsel for the appellant contended that there is a contradiction in the submission of the respondent/plaintiff inasmuch as when the earlier suit was filed in the year 1993 it was on the basis of a cause of action which had accrued to the plaintiff and there was no reference to letter dated 15.07.1991 extending the time for performance under the agreement or for that matter, resulting in extension of time for the filing of the suit akin to Section 18 of the Limitation Act. There is no reference to the letter dated 15.07.1991 in the earlier suit filed by the respondent/plaintiff and the same is also not admitted by the appellant herein. Even otherwise, the pendency of other litigations vis-à-vis the suit scheduled property could not have been a reason for filing the second suit as late as in the year 2007 for seeking specific performance of the agreement to sell dated 15.07.1991. On a comparison of the earlier suit and the present suit and on a holistic reading of the plaint in the second suit, the trial court as well as the High Court ought to have allowed the application filed by the appellant herein and rejected the plaint as being barred in law, hit by the Limitation Act and thus, coming within the scope and Digital Supreme Court Reports [2025] 1 S.C.R. 553 ambit of Order VII Rule 11(d) of the Code. Therefore, learned senior counsel submitted that the present appeal may be allowed with costs. Points for Consideration:

4. The short issue before this Court in this appeal is, whether the plaint in the subsequent suit for specific performance filed by the plaintiff, i.e., O.S. No.49/2007, is liable to be rejected in terms of Order VII Rule 11(d) of the Code on the ground that the said suit is barred by the law of limitation. What order is to be passed?

5. The detailed narration of facts and contentions would not call for a reiteration.

5.1. The undisputed facts of the case are that on 26.04.1991, the appellant/defendant entered into an agreement to sell the suit scheduled property to the respondent/plaintiff for a total consideration of Rs.3,02,00,000/- (Rupees Three Crores and Two Lakhs only) and an advance payment of Rs.10,00,000/- (Rupees Ten Lakhs only) was made. There was a time schedule for the payment of the balance in sale consideration within a period of twenty-seven months from 26.04.1991 which is also extracted in paragraph 4 of the plaint. Thus, within a period of twenty-seven months from the date of the agreement, the entire balance of sale consideration had to be paid by the respondent/ plaintiff to the appellant herein. However, as early as in 1993 itself, the suit for specific performance of the agreement to sell was filed by the respondent/plaintiff, which was an unnumbered suit, but the plaint in the said suit was rejected vide order dated 12.01.1998 passed by the trial court due to non-payment of the requisite court fees by the respondent/plaintiff.

5.2. Thereafter, it was only in the year 2007 that the respondent/ plaintiff filed O.S. No.49/2007 seeking the very same relief of specific performance of the sale agreement on receipt of the balance sale consideration. This suit was filed on the strength of Order VII Rule 13 of the Code. It is in this suit that the appellant/defendant filed an application under Order VII Rule 11(d) of the Code on the ground that the said suit was barred by the law of limitation since it was filed after a gross delay of almost nine years from the date of rejection of the plaint in the Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co. 554 [2025] 1 S.C.R. earlier suit and the said suit not being maintainable as barred in law. Consequently, the plaint was subject to rejection. The trial court dismissed the application filed for seeking rejection of the plaint by its order dated 16.09.2010 and the said order has been sustained by the High Court by the impugned order. Legal Framework: Order VII Rule 11 of the Code:

6. Since the issue in this appeal pertains to the correctness or otherwise of the impugned orders refusing rejection of the plaint, at this stage, we deem it necessary to refer to Order VII Rule 11 of the Code which deals with the grounds for rejection of a plaint:

11. Rejection of plaint. - The plaint shall be rejected in the following cases- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law: (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provision of rule 9: Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the Digital Supreme Court Reports [2025] 1 S.C.R. 555 case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

6.1. In the instant case, an application was filed under Order VII Rule 11(d) of the Code where the ground of rejection of the plaint was that the suit appears from the statement in the plaint to be barred by any law. In this regard, our attention was drawn to various decisions of this Court with regard to rejection of plaint under Order VII Rule 11 of the Code which are as follows: (i) In T. Arivandandam vs. T.V. Satyapal (1977) 4 SCC 467, this Court while examining the aforesaid provision has held that the trial court must remember that if on a meaningful and not a formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code, as observed by Krishna Iyer, J.