BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 15.07.2008 CORAM THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.862 of 1998 1.K.Rajagopal 2.K.Alagirisami .. Appellants / Plaintiffs Vs. 1.Ms.Jayalakshmi Ravindran 2.Rajagopal Thamban 3.Mr.Gayathri .. Respondents / Defendants Prayer:-This appeal has been filed under section 96 of CPC against the fair and decretal order dated 10.02.1998 made in unnumbered plaint C.F.R.No.12761 of 1998 on the file of the Subordinate Judge, Tirupur. For Appellant s : Mrs.P.T.Asha, Advocate For Respondents : Mr.N.Anand Venkatesan, Advocate (For 2 & R3) ORDER
The learned Subordinate Judge, Tirupur, has rejected the plaint, which was unnumbered as C.F.R.No.12761 of 1998, by order dated 10.02.1998, which necessitated the plaintiff to approach this Court by way of this appeal.
2.The suit was filed by the plaintiffs for specific performance of contract on the basis of a registered sale agreement dated 22.04.1992 entered into between the plaintiffs and the defendants in respect of 6 acres 37 cents in S.No.128A in Pedampalli village, Palladam taluk.
3.The learned trial Judge without taking the plaint on file had rejected the same on 10.02.1998 on the ground that the time stipulated under the sale agreement dated 22.04.1992 was extended only upto 25.10.1993 and since the suit was filed only on 23.09.1997 the same is barred under Section 54 of the Limitation Act. It is well settled proposition of law that the question of limitation is a question involving fact and law. Probably the learned trial Judge while exercising his powers under Order 7 Rule 11(d) of CPC had rejected the plaint on the ground that the suit is barred by limitation. The Court can exercise its power under Order 7 Rule 11(d) of CPC only if the plaint pleading appears to show that the plaint is barred by limitation or under any law in force. The learned counsel appearing for the respondents would fairly state that even at paragraph 8 of the plaint, the plaintiffs have in unequivocal terms stated that as per the terms of contract of the parties, there was no time fixed for the performance of the contract and that the plaintiffs had issued notice on 05.02.1996 demanding the defendants to perform their part of the contract and hence, the time for limitation will run only from the date of notice ie., from 05.02.1996 and hence, the suit is in time and not barred by limitation. Under such circumstance the trial Court ought to have given an opportunity to the parties to prove their respective claims and then ought to have decided the matter on the basis of evidence.
4. 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 relevant observation in the above said dictum for the purpose of deciding this appeal runs as follows:-
“From an analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are :
1.from the express terms of the contract,
2.from the nature of the property; and
3.from the surrounding circumstances, for example; the object of making contract.”
5. I am of the view that while the trial Court exercising the power under Order 7 Rule 11 of CPC ought not to have rejected the plaint on the ground of bar of limitation. The same view was taken in AIR 1995 Andhra Pradesh 43 (Khaja Quthubullah, Vs. Government of Andhra Pradesh and others), wherein the relevant observation runs as follows:-
“The bar of limitation has so many ingredients. If a party to the litigation sets up a contention that the suit is barred by limitation, the Court has first of all to examine (1)the cause of action in the suit, (2) when the cause of action commences, (3)when the parties act in a particular fashion as to fix the cause of action and (4) ultimately what is result flowing from such cause of action. Even while operating Arts. 18 and 25 of the Limitation Act, the Court was bound to examine as to when the parties stood at conditions to fulfil their obligations, and when the money became liable to be paid. These are questions of fact to be examined on the basis of the evidence produced by the parties in the case based on the pleadings.”
So, I am of the view that without giving an opportunity to the parties to let in evidence on the basis of their pleadings, the trial Court ought not to have rejected the plaint without even numbering the same at the threshold. Whether the parties have considered the time as essence of contract in the case or not is a matter to be proved only by evidence.
6. In fine, the appeal is allowed and the impugned order of the learned trial judge in C.F.R.No.12761 of 1998 dated 10.02.1998 on the file of the Court of Subordinate Judge, Tirupur, is hereby set aside and the matter is remanded to the trial Court with a direction to number the plaint (C.F.R.No.12761 of 1998), and after giving opportunity to both sides to file their written statement & reply statement, if any, and thereafter, framing relevant issues including the issue Whether the suit is barred by time?, shall dispose of the same in accordance with law, preferably within three months from the date of receipt of copy of this order. No costs.
The Subordinate Judge,