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Judgment
The applicant has filed the present revision challenging the order dated 17.08.2015 passed by 2nd Additional District Judge, Jabalpur in Civil
Suit No. 12- B/2015.
The respondent/plaintiff had filed a civil suit claiming money decree of Rs.10,06,39,724/- against the petitioner/defendant towards various
works which he claims to have been executed. The respondent in his plaint has stated that in pursuance to the work order issued in the year 1999,
the respondent/plaintiff has executed certain works and for which, according to it payments became due in the year, 2003. The respondent/plaintiff
filed a Writ Petition No. 1249/2003 before this Court praying for a direction for payment of its alleged dues between May, 2002 till January,
2003. However, the said writ petition was dismissed vide order dated 14.07.2009 granting liberty to the respondent/plaintiff to approach before
the appropriate forum. The respondent/plaintiff did not prefer any civil suit in pursuance to the order dated 14.07.2009 passed by this Court.
Thereafter, petitioner/defendant has preferred a Civil Suit No. 3-B/2011 claiming an amount of Rs.1,62,01,202.28/- from the respondent/plaintiff.
The respondent/plaintiff did not filed any cross-objection or counter claim in the said civil suit. The said civil suit was dismissed vide order dated
31.10.2012. On dismissal of the said civil suit, the respondent/plaintiff has submitted a representation before the petitioner that after dismissal of the
said civil suit he is entitled for the payment of certain dues which became due in the year 2003. In the year 2012, the payment of bills of the
respondent/plaintiff was unauthorisedly and illegally processed by two officials of the petitioner/defendant but on coming to know about the
unauthorized processing, further processing and payment of the said bills was stopped.
The respondent/plaintiff, therefore, preferred a Writ Petition No. 10478/2013, claiming payment of its dues. This Court has issued show cause
notice to the petitioner on 11.08.2014. The petitioner/defendant filed reply affidavit before this Court on 07.11.2014 stating that the bills in
question were wrongly processed on the basis of mis-representation made by the plaintiff and were promptly blocked by the higher officials. This
Court vide order dated 15.09.2014 has dismissed the petition preferred by the respondent/plaintiff with a liberty to pursue its remedy before the
competent Civil Court. In pursuance of the directions issued by this Court, the respondent/plaintiff has filed the present civil suit.
During the pendency of the said civil suit, the petitioner has filed an application under Order 7 Rule 11 of the Civil Procedure Code for dismissal
of the suit on the ground that it is barred by limitation and there is no cause of action stated by the respondent/plaintiff in the plaint. The
respondent/plaintiff has clearly pleaded in the plaint that the amount claimed by it became due in the year 2003. Learned Court below vide
impugned order has rejected the application preferred by the petitioner under Order 7 Rule 11 of the C.P.C. Being aggrieved by that order, the
petitioner has filed the present petition.
Learned counsel appearing on behalf of the petitioner submits that the order passed by the Court below is illegal, arbitrary and contrary to the
provisions of Order 7 Rule 11 of the C.P.C. He submits that in view of the plaint allegations, it is the suit preferred by the respondent/plaintiff is
clearly barred by limitation. He further submits that in the plaint, the plaintiff has pleaded that the cause of action in the present case has arisen in the
year 2003, therefore, on the basis of this pleading, the trial Court should have dismissed the suit on the ground of limitation. He further submits that
the trial Court has wrongly applied the provisions of Section 25 (3) of the Indian Contract Act in the present case as the processing of bills of
respondent/plaintiff in the year 2012 was unauthorized and based on its own mis-representation. He further submits that the trial Court has further
erred in relying on the TDS deduction. He submits that the processing of bills of respondent/plaintiff was unauthorized, therefore, deduction of TDS
is inconsequential. He further submits that the plaintiff has failed to show any cause of action in the plaint. He further relied on the judgment passed
by the Apex Court in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust,
(2012) 8 SCC 706, Hardesh Ores (P) Ltd. Vs. Hede and Company, (2007) 5 SCC 614, Valliamma Champaka Pillai Vs. Sivathanu Pillai and
Others, (1979) 4 SCC 429 and the judgment passed by the Division Bench of this Court in the case of Bank of Baroda, Indore Vs. Krishna
Gopal Kakani, 2001 (2) MPLJ 567.
The respondent has filed the written submissions. The respondent has stated that the trial Court has dismissed the application preferred by the
petitioner under order 7 Rule 11 of the C.P.C. by a reasoned order. Respondent has further stated that whether a suit is barred by limitation or
not, the only measuring yardstick is the statement written in the plaint. It is submitted that while deciding the application under Order 7 Rule 11 of
the C.P.C. only the allegations made in the plaint is required to be seen. In the instant facts and circumstances, the plaint is categorical in nature and
contains specific paragraphs by which how the plaint is in limitation and how the cause of action is a continuous one is very properly described.
The petitioner/defendant has already admitted the liability in the year 2012 and has informed the respondent/plaintiff that the payment etc. is to be
issued and accordingly a copy of the same was also marked to the respondent/plaintiff. Thus, factually it is the petitioner/defendant, who has
himself waived the issue of limitation. Learned counsel for the respondent further relied on Section 3 of the Limitation Act and stated that on a plain
and simple reading of Section 3 of the Law of Limitation, it will be clear that the Act says categorically about dismissal of the suit, even when
limitation has not been pleaded as a defence. It has further been submitted that a suit is dismissed or decreed at the final stage of judgment after
framing of issues and recording of evidence. The intention of the legislature is quite clear and in the above circumstances the instant suit cannot be
rejected on the ground of limitation. In the present case, in the year 2012-13, the petitioner/defendant has deducted tax at source from the
payment that is supposed to be made to the respondent/plaintiff. The amount of tax deducted and deposited with the Government of India General
Fund Account is abut Rs. 10,00,000/- to Rs. 11,00,000/- for which the TDS certificate has already been issued. The tax was deducted at source
in the year 2013 and respondent/plaintiff was called to receive his payment in the year 2013 and hence under these circumstances, the
petitioner/defendant themselves made out a fresh cause of action and called upon the respondent/plaintiff to receive his payment and the
respondent/plaintiff acted upon the same. Under these circumstances, the claim of the petitioner/defendant that the suit is barred by limitation is not
tenable in the eyes of law for all the reasons stated above. In light of the aforesaid submissions, learned counsel for the respondent submits that the
trial Court has not committed any error in rejecting the application preferred by the petitioner under Order 7 Rule 11 of the C.P.C.
Heard learned counsel for the parties and perused the record as well as the order passed by the trial Court. From perusal of the record, it
reveals that the respondent/plaintiff has filed a civil suit against the petitioner for recovery of an amount of Rs.10,06,39,724/-. This amount is
sought to be recovered on account of the work order issued in favour of the respondent/plaintiff by the petitioner in the year 1999. The
respondent/plaintiff has executed some work in pursuance of the said work order and the payments became due in the year 2003. However, as
the said payment was not made to the respondent, he, therefore, filed a Writ Petition No. 1249/2003. The said writ petition was dismissed vide
order dated 14.07.2009 directing the respondent/plaintiff to approach before the appropriate forum. However, the respondent/plaintiff did not
prefer any civil suit. However, the petitioner/defendant preferred a Civil Suit No. 3-B/2011 claiming an amount of Rs.1,62,01,202.28/- from the
respondent/plaintiff. The said civil suit was dismissed vide order dated 31.10.2012. Thereafter, in the year 2012, the payment of bills of the
respondent/plaintiff was processed by the two officials of the petitioner/defendant and even the TDS was also deducted and a certificate was also
issued to the respondent/plaintiff in the year 2013. However, as the said amount was not paid to the respondent he, therefore, again approached to
this Court by filing a writ petition No. 10478/2013. The said writ petition was dismissed by this Court vide order dated 15.09.2014 with a liberty
to the respondent/plaintiff to pursue its remedy before the competent Civil Court. Under this backdrop, the respondent/plaintiff has filed the present
civil suit.
During the pendency of this civil suit, the petitioner has filed an application under Order 7 Rule 11 of the C.P.C. for dismissal of the suit on the
ground that it is barred by limitation and the respondent/plaintiff has not shown any cause of action in the plaint. The trial Court vide impugned
order has dismissed the said application and, therefore, the present revision has been filed.
The provisions of under Order 7 Rule 11 of the C.P.C provides for rejection of plaint. As per this Sub Rule 11 the plaint shall be rejected on
the conditions which are numerated there. The relevant provision for this purpose is Order 7 Rule 11 (d). According to which a plaint is liable to be
rejected where the suit appears from the statement in the plaint to be barred by any law. Thus, as per this provision if on the basis of the plaint
allegations, it appears that the suit is barred by any law then the plaint is liable to be rejected.
In the present case, the petitioner has filed the application on the ground that on the basis of the allegations made in the plaint, the suit is barred
by limitation as he is claiming the amount which is due in the year 2003. The trial Court while rejecting the application has found that in the present
case the plaintiff has earlier filed a Writ Petition No. 1249/2003 before this court praying for a direction for payment of its alleged dues. The said
writ petition was dismissed on 14.07.2009 and the plaintiff''s has granted liberty to approach before the appropriate forum. Then the
petitioner/defendant has preferred a Civil Suit No. 3-B/2011. The said civil suit was dismissed on 31.10.2012. After the dismissal of the said civil
suit certain outstanding bills of the plaintiff was processed in the year 2012 and TDS certificate was also issued in favour of the respondent/plaintiff.
However, as the amount was not paid he, therefore, again approached to this Court by filing a Writ Petition No. 10478/2013. The said writ
petition was dismissed in the year 2014 with a liberty to the plaintiff to file a civil suit. Thus, in pursuance of the direction issued by this Court, the
respondent/plaintiff has filed the present suit. On the basis of these findings, the trial Court has found that whether the suit is barred by limitation or
not is a mixed question of fact which can be decided only after recording the evidence. The respondent has stated that these bills were
unauthorizedly process by the officers and, therefore, the payment of these bills have been stopped. However, whether the bills have been
processed unauthorizedly or not is again a question to be decided after recording the evidence of the parties.
The Section 25 (3) of the Contract Act reads as under:-
It is promise, made in writing and singed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to
pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suit.
Thus, the trial court has rightly applied the provisions of Section 25 (3) of the Indian Contract Act in the present case. In the present case the
tax was deducted at source and was also deposited in the Government Treasury, therefore, the theory of ""acted upon"" would be applicable in the
present case, therefore, it cannot be a case of misrepresentation. Thus, the findings given by the trial Court that the question of limitation can be
decided only after recording the evidence by both the parties does not call for any interference. The Apex Court in the case of Balasaria
Construction (P) Ltd. Vs. Hanuman Seva Trust and Others, (2006) 5 SCC 658 in para 8 has held as under:-
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.
So far as, the judgment relied on by learned counsel for the petitioner is concerned, the same are distinguishable on the facts itself. In light of the
aforesaid, I do not find any reason to entertain the said civil revision.
Accordingly, the civil revision is dismissed. However, the trial Court is directed to frame and decide the issue of limitation as a preliminary issue
in accordance with law.
Consequently, the interim order dated 29.10.2015 passed by this court stands vacated.