Dismissed

Abida v. Abdul Azeez

Kerala HC9 Nov 2020FAO (RO)/34/2019

Case brief

AI extract

What is this about?

This appeal challenged an appellate order directing registration of a suit for specific performance. The High Court held that while the appellate court correctly set aside the rejection order under CPC, it erroneously found the suit was within limitation. The High Court dismissed the appeal but directed registration without prejudice to limitation issues.

What did the court decide?

The appeal was dismissed. The Munsiff-Magistrate was directed to register the suit and issue summons. The court clarified that the issue of limitation would be considered strictly by the trial court w

Abida Vs Abdul Azeez — Specific Performance | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942

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FAO (RO).No.34 OF 2019

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AGAINST THE JUDGMENT AND DECREE DATED 14-06-2019 IN A.S.NO. 73/2016 OF ADDITIONAL DISTRICT COURT, OTTAPALAM

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APPELLANTS/ RESPONDENTS/ DEFENDANTS 1 AND 3:

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1 ABIDA,

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AGED 57 YEARS, W/O.LATE VALIYADI ABDUL RASHEED, KUMARAMPUTHUR AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT.

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2 MUHAMMED RINSHAD,

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AGED 22 YEARS,S/O.LATE VALIYADI ABDUL RASHEED, KUMARAMPUTHUR AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.RAJESH SIVARAMANKUTTY SHRI.RASSAL JANARDHANAN A.

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RESPONDENTS / APPELLANT/ PLAINTIFF AND 2ND DEFENDANT:

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1 ABDUL AZEEZ, AGED 62 YEARS, S/O.VALIYADI KUNJALAVI, THIRUVIZHAYAMKUNNU AMSOM, DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 582.

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2 MUHAMMED RASHIB, AGED 26 YEARS, S/O.LATE VALIYADI ABDUL RASHEED, KUMARAMPUTHUR AMSOM DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT, PIN-678 583..

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R1 BY ADVS. SRI.K.M.FIROZ

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SMT.M.SHAJNA

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 06-11-2020, THE COURT ON 09-11-2020 DELIVERED THE FOLLOWING:

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F.A.O.(RO)No.34/2019

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Dated this the 9^th November,2020

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J U D G M E N T

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Defendants 1 and 3 in an unnumbered suit filed in 2016 before Munsiff-Magistrate, Mannarkkad, have filed this appeal challenging the appellate judgment of Addl. District Judge, Ottapalam dated 14.06.2019 whereby the unnumbered suit was ordered to be registered.

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The first respondent/plaintiff in this appeal filed the suit for a decree of specific performance directing the defendants to register an assignment deed pursuant to the agreement dated 13.08.1997 alleged to have been entered into between parties. At the very inception and before ordering the plaint to be registered the learned Munsiff found the claim of the respondent to be barred by limitation under Art.65 of the Limitation Act, 1963 (for short, 'the Act') and rejected the plaint under Order VII Rule 11 of the Code of Civil Procedure,1908(for short, 'the CPC') by order dated 15.10.2016.

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Being aggrieved by the said order, the first respondent, plaintiff filed A.S.No.73/2016 before the Additional District Court, Ottapalam

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F.A.O.(RO)No.34/2019

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which set aside the order and directed the learned Munsiff-Magistrate to register the suit. The order dated 14.06.2019 passed by the appellate court is the subject matter of this appeal.

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The appellate court after hearing the parties on both sides held that the issue of limitation should not have been prejudged by the court below and Order VII Rule 11 of the CPC was wrongly invoked on the facts of the case. It was held on the basis of cases law discussed that limitation being a mixed question of law and facts was to be considered as an issue in the suit after appearance of the defendants. It was further held that the appropriate Article in the Act that applied to the facts of the case was Art.54. While allowing the appeal and setting aside the impugned order of the learned Munsiff-Magistrate dated 15.10.2016, the appellate court, however, went ahead and proceeded to hold that suit brought by the respondents was within the period of limitation. The appellants being aggrieved by this observation, filed this appeal.

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In the course of the argument, it was

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further submitted that on the facts set out in the

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F.A.O.(RO)No.34/2019

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plaint itself, the plaint claim was liable to be rejected under Order VII Rule 11 of the CPC and an attempt was made seeking to restore the order of rejection passed by the Munsiff-Magistrate Court.

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I heard the learned counsel for the appellants as well as the first respondent. 7. Copy of the plaint made available to me shows that suit was filed for reconveyance of plaint schedule property pursuant to an agreement dated 13.08.1997 executed between the parties. The plaint averments disclose that the agreement was to the effect that reconveyance shall be made after discharge of the outstanding liabilities in the property. That means, performance of the agreement was to precede the discharge of liabilities. Whether the outstanding liabilities have been discharged or not is nowhere stated. If liabilities have been discharged also, the date of discharge is not mentioned in the plaint. Appropriate provision in the Act that applies to the facts of this case appears to be second part of Art.54. That means, the limitation has to run from the date when the plaintiff has notice of refusal of performance. This is no doubt a

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F.A.O.(RO)No.34/2019

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question of fact which is to be settled by the court below on appreciation of facts etc.

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As rightly observed by the appellate

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court, power under Order VII Rule 11 of the CPC could not be invoked to reject a plaint by prejudging an issue which arises after registration of the suit. But it is seen that the appellate court after having understood the law correctly made a wrong approach by entering into a finding that suit filed on 14.10.2006 was within time. This will certainly prejudice the defendants in the suit and is inconsistent with the own legal finding entered into by the appellate court.

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In addition to what has been said above, I have my own doubt, whether this appeal itself is maintainable since the impugned order challenged in this appeal is one directing rejection of the suit. In any view of the matter, I have no reason to interfere with the conclusion of the appellate court setting aside the order rejecting the plaint.

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In the result, appeal fails and it is dismissed. The Munsiff-Magistrate, Mannarkkad shall register the suit and issue summons to the

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F.A.O.(RO)No.34/2019

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defendants. It is made clear that issue of limitation, if raised by the defendants shall be considered strictly in accordance with law and untrammelled by any of the observations made in A.S.No.73/2016 as well as this appeal.

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All pending interlocutory applications will stand closed.

Sd/-

T.V.ANILKUMAR,JUDGE

DST

//True copy/ P.A.To Judge

Abida v. Abdul Azeez

Case brief

What is this about?

What did the court decide?

Abida v. Abdul Azeez

Case brief

What is this about?

What did the court decide?

What the court decided

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