Case Note & Summary
The petitioners, original defendants, filed a civil revision challenging the order of the Civil Judge, Junior Division, Jalgaon-Jamod, dated 8.7.2016, which dismissed their application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint in Regular Civil Suit No. 13/2016. The suit was filed by the respondents, original plaintiffs, seeking specific performance of an agreement of sale dated 17.4.1974. The petitioners sought rejection of the plaint on three grounds: (1) the suit was barred by limitation as the agreement was from 1974 and the suit was filed in 2016; (2) the suit was barred under Sections 3 and 4 of the Benami Transaction (Prevention) Act, 1988; and (3) the suit was not properly valued. During the hearing, the petitioners' counsel conceded that the ground of benami transaction was not pressed. The respondents' counsel submitted that the valuation had been corrected, rendering that ground moot. Thus, the only surviving issue was whether the suit was barred by limitation. The court observed that on the face of it, the suit appeared barred by limitation given the 42-year gap between the agreement and the filing. However, instead of rejecting the plaint, the court found it fair and reasonable to direct the trial court to frame an issue on limitation and decide it as a preliminary issue under Order XIV Rule 2 CPC. The court held that the impugned order did not call for interference and dismissed the revision, with the direction to the trial court to frame and decide the limitation issue as a preliminary issue.
Headnote
A) Civil Procedure - Rejection of Plaint - Order VII Rule 11 CPC - Limitation - The petitioner sought rejection of plaint on grounds of limitation, benami transaction, and improper valuation. The court held that the ground of benami was not pressed, valuation was corrected, and the only surviving issue was limitation. The court declined to reject the plaint but directed the trial court to frame a preliminary issue on limitation under Order XIV Rule 2 CPC. (Paras 2-6)
B) Limitation - Specific Performance - Agreement of Sale - Preliminary Issue - The agreement of sale was executed on 17.4.1974 and the suit was filed in 2016, which on the face of it appears barred by limitation. The court directed the trial court to frame an issue on limitation and decide it as a preliminary issue under Order XIV Rule 2 CPC, as the request was fair and reasonable. (Paras 5-7)
Issue of Consideration
Whether the suit for specific performance of an agreement of sale dated 17.4.1974 filed in 2016 is barred by limitation, and whether the plaint should be rejected under Order VII Rule 11 CPC.
Final Decision
The revision is dismissed. The trial court is directed to frame an issue on limitation and decide it as a preliminary issue under Order XIV Rule 2 CPC.
Law Points
- Order VII Rule 11 CPC
- Order XIV Rule 2 CPC
- Limitation Act 1963
- Benami Transaction (Prevention) Act 1988 Sections 3 and 4
Case Details
2017 LawText (BOM) (07) 169
Civil Revision Application No. 90 of 2016
Dr. (Smt.) Shalini Phansalkar-Joshi, J.
Shri J. B. Gandhi for Petitioners; Shri S. R. Tiwari for Respondents
Gopal Keshav Pathak and others
Gunwant Shankar Chaudhary and another
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Nature of Litigation
Civil revision against order dismissing application for rejection of plaint under Order VII Rule 11 CPC in a suit for specific performance of agreement of sale.
Remedy Sought
Petitioners (original defendants) sought rejection of plaint on grounds of limitation, benami transaction, and improper valuation.
Filing Reason
The suit for specific performance was based on an agreement of sale dated 17.4.1974, filed in 2016, which the petitioners contended was barred by limitation and other grounds.
Previous Decisions
The trial court dismissed the application for rejection of plaint on 8.7.2016.
Issues
Whether the suit for specific performance is barred by limitation?
Whether the plaint should be rejected under Order VII Rule 11 CPC?
Submissions/Arguments
Petitioners argued that the suit was barred by limitation as the agreement was from 1974 and suit filed in 2016, and also barred under Benami Transaction Act and improper valuation.
Respondents conceded that benami ground was not pressed and valuation was corrected, leaving only limitation issue.
Ratio Decidendi
When a plaint appears prima facie barred by limitation, the court may not reject it outright under Order VII Rule 11 CPC but can direct the trial court to frame a preliminary issue on limitation under Order XIV Rule 2 CPC, especially when other grounds for rejection are not pressed or resolved.
Judgment Excerpts
The only issue which remains, is whether the suit is barred by limitation considering that the agreement of sale was executed on 17.4.1974 and the suit was filed in the year 2016.
Considering that on the face of it also, the suit appears to be barred by limitation, the request made by learned counsel for the petitioner that trial Court should be directed to frame the issue of limitation and decide the same as preliminary issue under Order XIX Rule2 of the Code of Civil Procedure., appears to be fair and reasonable.
To this limited extent only, direction needs to be given to trial Court. Otherwise the impugned order of the trial Court does not call for any interference. Hence, Revision stands dismissed.
Procedural History
The petitioners (original defendants) filed an application under Order VII Rule 11 CPC for rejection of plaint in Regular Civil Suit No. 13/2016 pending before Civil Judge, Junior Division, Jalgaon-Jamod. The trial court dismissed the application on 8.7.2016. The petitioners challenged that order by filing Civil Revision Application No. 90 of 2016 before the Bombay High Court, Nagpur Bench. The High Court heard the revision and passed the present judgment on 6.7.2017.
Acts & Sections
- Code of Civil Procedure, 1908: Order VII Rule 11, Order XIV Rule 2, Order XIX Rule 2
- Benami Transaction (Prevention) Act, 1988: Sections 3, 4
- Limitation Act, 1963:
