Summary
The Supreme Court rejected under Order VII Rule 11(d) CPC the plaint in a second suit for specific performance filed in 2007 after the plaint in the first suit (filed in 1993) was rejected in January 1998 for non-payment of court fee. A fresh suit under Order VII Rule 13 is governed by the residuary Article 113 of the Limitation Act, with time running from the rejection of the earlier plaint, so it had to be filed by January 2001; reliance on an alleged letter extending time, never pleaded in the first suit, could not save it.
Issues
- Whether the plaint in a second suit for specific performance, filed under Order VII Rule 13 CPC after rejection of the earlier plaint for non-payment of court fee, was liable to be rejected under Order VII Rule 11(d) as barred by limitation.
- Which article of the Limitation Act, 1963 governs such a second suit, and from when time runs.
- Whether limitation, ordinarily a mixed question of fact and law, could be decided at the stage of Order VII Rule 11 on the admitted facts in the plaint.
Provisions considered
- Order VII Rule 11(d), Code of Civil Procedure, 1908The plaint must be read as a whole, without regard to the defence, to see whether the suit appears barred by law; the Court held that, where an earlier suit on the same cause of action exists, that earlier suit may be considered, and on the admitted facts the second suit was plainly time-barred. (¶¶ 6, 6.1, 8, 8.3, 8.8, 9.12)
- Order VII Rule 13, Code of Civil Procedure, 1908Rejection of a plaint does not by itself bar a fresh plaint on the same cause of action, but the fresh suit must be within limitation and is liable to rejection under Rule 11(d) if it is not. (¶¶ 7, 7.1, 7.2, 7.4, 9.8, 9.12)
- Article 54, Limitation Act, 1963Governed the first suit for specific performance, which was filed in time; the Court held that it does not apply to a second suit filed after the plaint in the first was rejected. (¶¶ 9.6, 9.7, 9.8)
- Article 113, Limitation Act, 1963Held to govern the second suit: the right to sue by a fresh suit accrued on rejection of the earlier plaint on 12.01.1998, so the three-year period expired in January 2001 and the 2007 suit was barred. (¶¶ 8.8, 9.4, 9.5, 9.6, 9.7, 9.8, 9.9, 9.12)
- Section 9, Limitation Act, 1963Applied with Article 113: once time began to run after the rejection of the earlier plaint, no subsequent inability to sue stopped it. (¶¶ 9.10, 9.11, 9.12)
- Section 3, Limitation Act, 1963A suit instituted after the prescribed period must be dismissed even if limitation is not set up as a defence; the court's task is to see whether, on the assumed facts, the plaintiff is within time. (¶ 9.3)
Held
- When deciding an application under Order VII Rule 11(d), the plaint must be read meaningfully and as a whole, together with documents annexed, without reference to the written statement; but where the suit is a second suit on the same cause of action, the court may take into account the earlier suit and the rejection of its plaint in deciding whether the second suit is time-barred. (¶¶ 6.1, 8.3)
- Order VII Rule 13 permits a fresh plaint on the same cause of action after rejection, but only if the fresh suit is within limitation; otherwise it must again be rejected under Order VII Rule 11(d). (¶¶ 7, 7.2, 7.4)
- Article 54 of the Limitation Act does not govern a second suit for specific performance filed after the plaint in the first suit was rejected; the residuary Article 113 applies, and the right to sue by a fresh suit accrues on the date the earlier plaint is rejected. 'When the right to sue accrues' need not mean when it first accrues. (¶¶ 9.7, 9.8, 9.9)
- Since the plaint in the first suit was rejected on 12.01.1998, a second suit had to be filed by 12.01.2001; by Section 9 time ran continuously once it began, and the suit filed in 2007 was barred by limitation and liable to rejection under Order VII Rule 11(d) on the admitted facts, without recording evidence. (¶¶ 8.5, 9.10, 9.11, 9.12)
- The plaintiff's reliance in the second suit on a letter said to extend the time for performance until other litigation ended was rejected as mischievous: the first suit was filed on the footing that a cause of action had already arisen and did not mention the letter, which was inconsistent with any extension of time. (¶¶ 8.1, 8.4, 8.6, 8.7)
- Litigation between the plaintiff and the tenant, a stranger to the agreement, was no impediment to filing the earlier suit and could not explain postponing the second suit until 2007; the averments to that effect had no bearing on limitation, and the belated suit appeared speculative. (¶¶ 8.2, 8.6, 8.7)
- Although limitation is normally a mixed question of fact and law and a plaint is not usually rejected on that ground, this is not an inflexible rule where the bar is evident from the admitted facts. (¶¶ 8.8, 9.12)
Result
Appeal allowed; orders of the trial court and the High Court set aside; the application under Order VII Rule 11(d) CPC allowed and the plaint in O.S. No. 49/2007 rejected as barred by limitation under Article 113 of the Limitation Act; parties to bear their own costs.