Bombay High Court
Applicants: 1. Western Coalfields Ltd vs Respondent: Shri Chandraprakash S/O ... on 10 December, 2009
Author: C.L.Pangarkar
Bench: C.L.Pangarkar
C.R.A.111.08 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH NAGPUR.
CIVIL REVISION APPLICATION NO.111 of 2008.
APPLICANTS: 1. Western Coalfields Ltd.
Coal Estate, Civil Lines, Nagpur.
2. Chairman cum Managing Director
Western Coalfields Ltd. Coal Estate,
Civil Lines, Nagpur.
: VERSUS :
RESPONDENT: Shri Chandraprakash s/o Krishnalal Khare,
Aged about 70 years, Occu: Retired, r/o
405, Suraksha Apartments, 16,
Hindustan Colony, Amravati Road,
Nagpur.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.S.C.Mehadia, Advocate for the petitioners.
Mr.S.V.Manohar and Mr.Amit Khare, Advocates for the respondent.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM: C.L.PANGARKAR,J
DATED : 10th December, 2009.
ORAL JUDGMENT:
1. This revision is preferred by the defendants, feeling ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 2 aggrieved by the order rejecting their application under Order 7 Rule 11(d) of C.P.C.
2. The facts giving rise to this revision are as follows -
Respondent/plaintiff filed a suit for declaration about his date of birth and arrears of salary. The respondent/plaintiff also sought a relief that it be declared that his superannuation was illegal. Respondent was in service of the applicant as Deputy Chief Finance Manager. The respondent alleges that he was unilaterally superannuated by the applicant in August, 1996. It is his case that at the time of his appointment in 1975, he had submitted a matriculation certificate as well as affidavit of his father that his correct date of birth was 10/8/1948. This proof by way of affidavit was accepted by the applicant. However, in 1991, when respondent/plaintiff received seniority list, he noticed that his date of birth is recorded in the office record as 10/08/1938. The respondent immediately wrote to the applicant to correct the mistake. The applicant informed by letter dated 8/5/1991 that the ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 3 date is correctly recorded and there is no need to make any change.
The respondent, therefore, made a representation. Ultimately, the respondent was served with a notice of superannuation w.e.f.
31/8/1996. The respondent filed a writ petition challenging this notice of superannuation but he later withdrew the said petition.
Thereafter, respondent filed this suit on 17/12/2007 challenging the superannuation and the refusal to change the date of birth.
3. The applicant/defendant appeared before the trial court and filed application under Order 7 Rule 11 (d) of C.P.C. mainly contending that the plaint is defective and is liable to be rejected as the suit is hopelessly barred by limitation. The learned Judge of the trial court rejected the application and the defendants feel aggrieved thereby.
4. I have heard Shri Mehadia, learned counsel for the applicants and Shri S.V.Manohar, learned counsel for the respondent.
::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 45. Learned counsel for the applicant contends that the plaintiff's own pleadings would show that the suit is hopelessly barred by limitation. The counsel for the respondent submits that this court need not go into the aspect whether the suit is barred by limitation or not, but must consider the question whether the suit being barred by limitation could be the ground falling under Rule 11(d) of Order 7 of C.P.C. Rule 11 of Order 7 of C.P.C. reads thus -
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 under-valued, and the plaintiff, on being required by the Court to so 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 ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 5 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 provisions of rule 9:
(Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers 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 from correcting the valuation or supplying the requisite stamp- papers, as the 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. What rule 11(d) says is that the plaint is liable to be rejected where it is barred by law. I think the controversy can be resolved and should in fact be resolved without entering into the ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 6 question as to whether the suit is apparently barred by limitation or not. The question of limitation is always a mixed question of fact and law. In such cases, it may not at times be possible for the court to arrive at a prima facie conclusion if the suit is barred by limitation. It may at times require certain evidence. It is in this context, one will have to decide if the plaint itself could be rejected as one barred by Law of Limitation. Although a plaint can be rejected at any stage of the suit, mostly such plea is raised at the threshold itself. Therefore, question as to whether limitation is a bar as contemplated by clause (d) has to be decided with a different angle. Relying on the decision of the Supreme Court in 2007(5) SCC 614 (Hardesh Ores (P) Ltd. ..vs.. Hede and Company), Shri Mehadia, learned counsel for the applicant, contended that if the suit is apparently barred by limitation, the plaint should be rejected and the bar as mentioned in clause (d) of rule 11 covers Limitation Law also. The Supreme Court makes the following observations -
25. The language of Order 7 Rule 11 CPC is quite ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 7 clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr.Nariman did not dispute that "law" within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order 7 is applicable. It is not permission to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 8 judgments of th is Court in Liverpool and London S.P. & I Assn. Ltd. v. M.V.Sea Success I and Popat and Kotecha Property v. State Bank of India Staff Assn.
7. The Supreme Court had relied on its own decisions in 2005 (5) SCC 548 ( N.V.Srinivasa Murthy vs. Mariyamma) as well as 2005 (7) SCC 510 (Popat and Kotecha Property .vs. State Bank of India Staff Assn.). In fact, there was a conflict of opinion in these decisions hence the matter was referred to the larger Bench by the Supreme Court. The larger Bench did not, however, express opinion as to which view was correct, as it found that rendering of a decision on that question would be merely academic. Obviously, the conflict between the two decisions is not at all resolved. This can be gathered from the decision of the Supreme Court in 2006(5) SCC 658 (Balasaria Construction (P) Ltd. ..vs.. Hanuman Seva Trust and ors.). Referring to the above two decisions, in Shrinivasa Murthy and Popat and Kotecha Property, the Supreme Court observed in (2006)5 SCC 658 as follows -::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 9
5. Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by this Court in N.V.Srinivasa Murthy v. Mariyamma and Popat and Kotecha Property v. State Bank of India Staff Assn. the Bench referred the following question of law for consideration to a larger Bench:
"Whether the words 'barred by law' under Order 7 Rule 11(d) would also include the ground that it is barred by the law of limitation."
6. Before the three-Judge Bench, counsel for both the parties stated as follows:
"...... It is not the case of either side that as an absolute proposition an application under Order 7 Rule 11 (d) can never be based on the law of limitation. Both sides state that the impugned judgment is based on the facts of this particular case and the question whether or not an application under Order 7 Rule 11(d) could be based on law of limitation was not raised and has not been dealt with. Both sides further state that the decision in this case will depend upon the facts of this case."::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 10
7. In view of the statement made by the counsel for the parties, the Bench held that the question referred to the larger Bench was academic so far as this case is concerned and accordingly declined to decide the question. The case was sent back to the Bench for disposal on merits based on the facts of the case.
8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure.
::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 11This decision is also rendered by the two Hon'ble Judges and they find that plaint cannot be rejected under rule 11 since question of limitation is a mixed question of fact and law. The Supreme Court, however, in Hardesh Ore's (P) Ltd. case observes that the plaint can be rejected when the suit appears from the statement in plaint to be barred by limitation and relies on Popat and Kotecha Property decision. Referring to the same decision the Supreme Court in Balasara Construction (P) Ltd. referred to above, says that the plaint can not be rejected since limitation is a question of fact and law. I too find that the plaint cannot be rejected on the ground that the suit is barred by limitation and I give my own reasons in addition to the reasons given by the Supreme Court in Balasara Construction (P) Ltd. case.
8. The words used in clause (d) of rule 11 of C.P.C. are to the effect that the plaint can be rejected when suit appears from the statement in the plaint to be barred by law. The important words in the said clause are "barred by law". The words barred by ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 12 law have to be interpreted in the sense the suit itself could not be filed in the civil court i.e. where the civil court inherently lacks jurisdiction and certain law prohibits it from taking cognizance of the suit. Where, therefore, a mere plea of limitation is raised; it could not be said that the suit is barred by law. The law of limitation cannot prevent a party from instituting a suit in civil court. But there are certain laws which prevent the suit being instituted in the civil court, for that law, makes a provision of alternate remedy and forum. If a person wants to get an industrial dispute resolved, which is essentially a civil dispute, such a person cannot approach civil court, since Industrial Disputes Act makes remedy and forum available and therefore, civil court in such cases will inherently lack jurisdiction. The law of limitation, therefore, does not prohibit a party from approaching the civil court and filing a suit even though it may be barred by limitation.
9. While dealing with the question, we have to bear in mind the difference between rejection of a plaint and the dismissal of a ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 13 suit. The plaint is rejected because it is found to be defective for the reasons mentioned in Rule 11. Though not in every case, generally the defective plaint is rejected by the court at the threshold. The court refusing to take cognizance can reject the plaint. Where plaint is rejected, a party has a right to present a fresh plaint but where a suit is dismissed, no party has a right to present a fresh suit on the same cause of action. It is for this reason, we must look into Section 3 of the Limitation Act. Section 3 of the Limitation Act reads as follows -
3. Bar of limitation - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act,-
(a) A suit is instituted,-
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 14 for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off, or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted -
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii)in the case of a counter-claim, on the date on which the counter claim is made in Court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court.
10. The section itself says that if suit is barred by limitation, it has to be necessarily dismissed. If law of limitation, which is a substantive law, speaks as to how a suit barred by limitation should be dealt with, then the mandate in the substantive law has to be ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 15 followed. The Legislation in its wisdom has mandated dismissal of the suit. It could have also said that in such cases plaint be rejected. The fact that it makes use of the word dismiss is by itself eloquent. Necessarily, therefore, if the suit is apparently barred by limitation, the suit has to be dismissed. This is necessary because the rejection of plaint does not prohibit a party from filing a fresh suit as envisaged by rule 13 of Order 7 of C.P.C. Therefore, when once court records a finding that suit is barred by limitation and dismisses it, the lis comes to an end while where a plaint is rejected the lis does not come to an end.
11. Where, therefore, a plea of limitation is raised, the court cannot reject the plaint but may dismiss it on framing a preliminary issue. The learned judge of the trial court has rightly rejected the application under Order 7 Rule 11 of C.P.C. There is, therefore, no substance in the revision and the same is dismissed. No order as to costs.
JUDGE chute ::: Downloaded on - 09/06/2013 15:24:08 ::: C.R.A.111.08 16 ::: Downloaded on - 09/06/2013 15:24:08 :::