K.Rajagopal v. Ms.Jayalakshmi Ravindran

BEFORE THE HIGH COURT OF JUDICATURE AT MADRASDATE : 15.07.2008CORAMTHE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANA.S.No.862 of 19981.K.Rajagopal2.K.Alagirisami.. Appellants / PlaintiffsVs.

Ms.Jayalakshmi Ravindran2.Rajagopal Thamban3.Ms.Gayathri.. Respondents / DefendantsPrayer:-This appeal has been filed under section 96 of CPC againstthe fair and decretal order dated 10.02.1998 made in unnumberedplaint C.F.R.No.12761 of 1998 on the file of the Subordinate Judge, Tirupur. For Appellant s : Mrs.P.T.Asha, Advocate for M/s. Sarvabhauman AssociatesFor Respondents : Mr.N.Anand Venkatesan, Advocate (For R2 & R3) No appearance for R1ORDERThe learned Subordinate Judge, Tirupur, has rejected the plaint, which was unnumbered as C.F.R.No.12761 of 1998, by order dated10.02.1998, which necessitated the plaintiff to approach this Courtby way of this appeal.

The suit was filed by the plaintiffs for specific performanceof contract on the basis of a registered sale agreement dated22.04.1992 entered into between the plaintiffs and the defendants inrespect of 6 acres 37 cents in S.No.128A in Pedampalli village, Palladam taluk. https://hcservices.ecourts.gov.in/hcservices/

The learned trial Judge without taking the plaint on file hadrejected the same on 10.02.1998 on the ground that the timestipulated under the sale agreement dated 22.04.1992 was extendedonly upto 25.10.1993 and since the suit was filed only on 23.09.1997the same is barred under Section 54 of the Limitation Act. It iswell settled proposition of law that the question of limitation is aquestion involving fact and law. Probably the learned trial Judgewhile exercising his powers under Order 7 Rule 11(d) of CPC hadrejected the plaint on the ground that the suit is barred bylimitation. The Court can exercise its power under Order 7 Rule11(d) of CPC only if the plaint pleading appears to show that theplaint is barred by limitation or under any law in force. Thelearned counsel appearing for the respondents would fairly state thateven at paragraph 8 of the plaint, the plaintiffs have in unequivocalterms stated that as per the terms of contract of the parties, therewas no time fixed for the performance of the contract and that theplaintiffs had issued notice on 05.02.1996 demanding the defendantsto perform their part of the contract and hence, the time forlimitation will run only from the date of notice ie., from 05.02.1996and hence, the suit is in time and not barred by limitation. Undersuch circumstance the trial Court ought to have given an opportunityto the parties to prove their respective claims and then ought tohave decided the matter on the basis of evidence.

In this regard the ratio decidendi in AIR 1993 SC 1742[Smt. Chand Rani (dead) by L.Rs. Vs. Smt. Kamal Rani (dead) by L.Rs]will have some bearing to the facts of this case. The relevantobservation in the above said dictum for the purpose of deciding thisappeal runs as follows:-"From an analysis of the above case law it is clear that inthe case of sale of immovable property there is no presumptionas to time being the essence of the contract. Even if it is notof the essence of the contract the Court may infer that it is tobe performed in a reasonable time if the conditions are :1.from the express terms of the contract,2.from the nature of the property; and3.from the surrounding circumstances, for example; theobject of making contract. "

I am of the view that while the trial Court exercising thepower under Order 7 Rule 11 of CPC ought not to have rejected theplaint on the ground of bar of limitation. The same view was takenin AIR 1995 Andhra Pradesh 43 (Khaja Quthubullah, Vs. Government of Andhra Pradesh and others), wherein the relevant observation runs asfollows:- https://hcservices.ecourts.gov.in/hcservices/ "The bar of limitation has so many ingredients. If a partyto the litigation sets up a contention that the suit is barredby limitation, the Court has first of all to examine (1)thecause of action in the suit, (2) when the cause of actioncommences, (3)when the parties act in a particular fashion asto fix the cause of action and (4) ultimately what is resultflowing from such cause of action. Even while operating Arts.18 and 25 of the Limitation Act, the Court was bound to examineas to when the parties stood at conditions to fulfil theirobligations, and when the money became liable to be paid. Theseare questions of fact to be examined on the basis of theevidence produced by the parties in the case based on thepleadings. "So, I am of the view that without giving an opportunity to theparties to let in evidence on the basis of their pleadings, the trialCourt ought not to have rejected the plaint without even numberingthe same at the threshold. Whether the parties have considered thetime as essence of contract in the case or not is a matter to beproved only by evidence.

In fine, the appeal is allowed and the impugned order of thelearned trial judge in C.F.R.No.12761 of 1998 dated 10.02.1998 on thefile of the Court of Subordinate Judge, Tirupur, is hereby set asideand the matter is remanded to the trial Court with a direction tonumber the plaint (C.F.R.No.12761 of 1998), and after givingopportunity to both sides to file their written statement & replystatement, if any, and thereafter, framing relevant issues includingthe issue Whether the suit is barred by time?, shall dispose of thesame in accordance with law, preferably within three months from thedate of receipt of copy of this order. No costs. This Appeal Suit having been posted today i.e. On 5.9.2008 underthe caption “For Being Mentioned” in the presence of the aforesaidadvocates, and upon perusing the order dt.15.7.2008 and made herein. The Court made the following order:-Heard the learned counsel for the appellant in A.S.No.862 of1998, which was taken under the caption 'Being Mentioned'The grievance of the learned counsel for the appellant is thatwhile remanding the matter, this Court has omitted to order refund ofthe court fee. According to the learned counsel for the appellant, asper Section 67 of the Tamil Nadu Court Fees and Suits Valuation Act,1955, the appellant is entitled to refund of the Court Fee since theremand was not caused due to the fault of the party. In support ofthis contention the learned counsel for the appellant would rely on2001(3) MLJ 309 (B.Parvathy Vs Ramakrishna Mission rep by duly https://hcservices.ecourts.gov.in/hcservices/ authorised Power Agent Swami Amirthanantha and others), wherein therelevant observation runs as follows:- “In view of the remand of thematter to the lower Appellate Court, the appellant is entitled to therefund of the Court Fee”. Under Such circumstance, the appellant isentitled to refund of the Court fee paid in the first appeal, andordered accordingly.sd/-Asst. Registrar/true copy/Sub Asst. RegistrarssvTo1)The Subordinate Judge, Tirupur.+1 cc To Mr..N.Anand Venkatesan, Advocate, SR.37486A.S.No.862 of 1998MDR {CO}TP/5.9.08