Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.2122 of 2007 ====================================================== 1. Anil Kumar Verma, S/o late Kameshwar Prasad Verma, resident of village + P.O. Kumhara Bishanpur, District-Sitamarhi, presently residing C/o Sri Vinay Prasad, Mohalla-Maripur Ramraji Road, P.O. & P.S. & District-Muzaffarpur 2. Sunil Kumar Verma, S/o late Kameshwar Prasad Verma, resident of village + P.O. Kumhara Bishanpur, District-Sitamarhi, presently residing at C/o Narayan Roy Ram Thakur Mandir Road New Millan Palli Siliguri, District-Darjeeling, State- West Bangal. .... .... Petitioner/s Versus Smt.Godabari Devi, W/o late Lakshman Prasad Verma, resident of village + P.O. Kumhara Bishanpur, District-Sitamarhi, presently residing at Mohalla-Bahadurpur, Ward No. 1(old), 21 (New) under Town Samastipur, P.S.+District-Samastipur .... .... Opposite Party/s ====================================================== Appearance: For the Petitioner/s : Mr. Basant Kumar Choudhary, Sr. Advocate For the Respondent/s : Ms. Mira Kumari, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 12. 12-02-2013 Heard Mr. Basant Kumar Choudhary, learned Senior Counsel appearing on behalf of the petitioners and Ms. Mira
Legal Reasoning
Kumari, learned counsel appearing for the opposite party no. 1. This Civil Revision application is directed against the order dated 05.09.2007 passed by learned Civil Judge, Junior Division- 2nd, Samastipur in Title Suit No. 5 of 2006, whereby the learned court below has been pleased to reject the application filed by the defendant-petitioners under Order 7 Rule 11(d) of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) raising objection as to the maintainability of the suit. The suit in question Patna High Court C.R. No.2122 of 2007 (12) dt.12-02-2013 2 has been filed by the plaintiff-opposite party 1st set praying for grant of decree for part performance of contract in her favour on the basis of a Mahadnama stated to have been executed by the mother of the defendant-petitioners, namely, Shanti Devi as back as on 09.07.1983. Mr. Choudhary, with reference to the statement made in the plaint as well as the statement relating to the cause of action for the plaintiffs to maintain the application, submits that the suit in question has been filed for enforcing the contract, if any, arising from the Mahadnama dated 09.07.1983. It is stated that even when the plaintiff has admitted that the cause of action is the Mahadnama dated 09.07.1983 executed by the mother of the defendant-petitioners, which has vested a legal right on the plaintiffs to maintain the suit and an objection has been raised by the petitioners as to the maintainability of the suit as being hopelessly barred by limitation the objection raised by the defendant-petitioners has been rejected by the impugned order, inter alia, on grounds that being a mixed issue of law and facts, the same shall be decided during the course of trial. Mr. Choudhary, learned Senior Counsel has submitted that where a plain reading of the plaint itself manifests that the suit is barred by the limitation and that the Court is not required to delve into the Patna High Court C.R. No.2122 of 2007 (12) dt.12-02-2013 3 respective evidence, the objection raised by the defendant- petitioners required adjudication. It is submitted that where the facts apparent from the record indicates the suit being barred by limitation prescribed under Article 54 of the Limitation Act, 1963, the defendant-petitioners may not be forced to undergo the rigors of trial. The submission has been contested by Ms. Mira Kumari appearing for the plaintiff who even while admitting that the Mahadnama dated 09.07.1983 is the cause of action for the plaintiffs to maintain the suit, has submitted that the explanations to the delay can be found in the plaint itself. I have heard learned counsel for the parties and have perused the materials on record. The normal approach of the Courts in matter pertaining to objections raised on grounds of limitation is to allow the trial court to consider such objections during the course of trial but such opinion is not absolute rather has to be tested from case to case. Insofar as the present case is concerned, prima facie it appears that the cause of action for the plaintiff to maintain the suit arose on 09.07.1983 and an attempt has been made by the plaintiff to explain the delay. Article 54 of the Limitation Act prescribes a period of three years from the date of execution of the Mahadnama. The objection in such Patna High Court C.R. No.2122 of 2007 (12) dt.12-02-2013 4 circumstances requires to be adjudicated upon, before the learned trial court proceeds to adjudicate upon the other issues raised in the suit. A somewhat similar mater came up for consideration before the Supreme Court in the case of Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust (2012) 8 SCC 706. In paragraph- 12 of the said judgment, the Supreme Court while relying upon an earlier pronouncement reported in (1977) 4 SCC 467 (T. Arivandandam vs. T.V. Satyapal), has held that if the trial court upon a meaningful and not formal reading of the plaint, is of the opinion that the claim is manifestly vexatious and meritless, not disclosing a clear right to sue, it should exercise the power vested under Order 7 Rule 11 of the Code and dismiss the suit. Insofar the present case is concerned whereas it is the contention of the defendant-petitioners that the suit is hopelessly barred by limitation, having been filed on 23 years after the execution of Mahadnama and about 20 years of the expiry of limitation in terms of Article 54 of the Act, the position is contested by the plaintiff- opposite party saying that the delay has been explained. This Court upon consideration of the arguments advanced by the parties and after perusal of the material on record is of the Patna High Court C.R. No.2122 of 2007 (12) dt.12-02-2013 5 firm opinion that though an issue of limitation is a mixed issue of law and fact and should normally be adjudicated by allowing the parties to support their claim by leading evidence during the course of trial but in the special facts of the present case where the Mahadnama relied upon by the plaintiff is dated 9.7.1983 and the suit has been filed 23 years thereafter, it would be in the interest of justice that the objection raised by the defendant- petitioners questioning the maintainability of the suit on the grounds of limitation should be adjudicated upon by the trial court before it proceeds to adjudicate upon other issues during the course of trial. For the reasons aforesaid, the order dated 05.09.2007 passed in Title Suit No. 5 of 2006 by the learned Civil Judge, Junior Division-2nd , Samastipur is set aside and the trial court is directed to consider the objection raised by the defendant- petitioners in his application dated 09.07.2007 and adjudicate upon the same in accordance with law after giving due opportunity of hearing to both the parties and if upon such adjudication the learned court below finds the suit maintainable it shall proceed in the matter in accordance with law. This Civil Revision application is allowed. S.Sb/- (Jyoti Saran, J)