Dismissed

Uma v. R.Devasagayam Alias Rd.Sagayam

Madras HC21 Jul 2014CRP/2131/2014

Case brief

AI extract

What is this about?

This court dismissed a civil revision petition challenging the dismissal of an application to reject a plaint. The petitioner argued the suit was barred by lack of Section 80 CPC notice and limitation. The court held the trial court was correct; the suit was within limitation per plaint averments, and Section 80 compliance is a question for trial.

What did the court decide?

The Civil Revision Petition is dismissed; connected Miscellaneous Petition No. 1 of 2014 is closed.

Uma Vs R.Devasagayam Alias Rd.Sagayam — Property and Title | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 21.07.2014

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CORAM

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THE HON'BLE MS. JUSTICE R.MALA

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Civil Revision Petition (PD).No.2131 of 2014 and M.P.No.1 of 2014

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A.Uma

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Vs.

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R.Devasagayam alias R.D.Sagayam ... Respondent

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CRP filed under Article 227 of the Constitution of India praying to set aside the dismissal order dated 03.04.2014 passed in I.A.No.1046 of 2013 in O.S.No.57 of 2013 by the District Munsif, Poonamallee.

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For petitioner : Mr.P.K.Sabapathi

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The civil revision petitioner/first defendant has come forward with this petition to set aside the dismissal order dated 03.04.2014 passed in I.A.No.1046 of 2013 in O.S.No.57 of 2013 by the District Munsif, Poonamallee.

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The learned counsel appearing for the petitioner would submit that the respondent/plaintiff has filed the suit in O.S.No.57 of 2013 seeking for a mandatory injunction directing the defendants to remove the hut house put

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up by the first defendant in the suit 'B' Schedule of property and also for other reliefs.

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The first defendant/revision petitioner has filed a written statement and contested the suit. During the pendency of the suit in O.S.No.57 of 2013, the revision petitioner herein/first defendant filed I.A.No.1046 of 2013 under Order VII Rule 11 of CPC praying to reject the plaint filed in O.S.No.57 of 2013 on two grounds stating that since the defendants 2 to 4 viz., The District Collector, The District Revenue Officer and the Thasildar were added as defendants in the suit and not complying with the provisions of Section 80 CPC as far as defendants 2 to 4 are concerned, suit itself is not maintainable. It is further submitted that suit is barred by limitation and the plaintiff has purchased the suit property in the year 2002 and has chosen to file the suit for declaration nearly after 11 years, however, the trial court without considering all the above issues dismissed the I.A.

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The learned counsel for the petitioner further submitted that in respect of notice under Section 80 CPC as far as the defendants 2 to 4 are concerned, the lower court has failed to look into Sub Section 2 of Section 80 CPC, which states as under:-

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80: Notice ... (2) A suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the

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leave of the Court, without serving any notice as required by sub-section (1): but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief praying for in the suit.”

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Accordingly, the learned counsel for the petitioner prayed for setting aside the order passed in I.A.No.1046/2013 as the suit is barred by limitation.

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Heard the arguments of the learned counsel appearing for the petitioner in length.

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The respondent herein/plaintiff filed a suit in O.S.No.57 of 2013 for the following reliefs:-

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“(a) declaring that the suit 'B' Schedule of property is the Public Street namely Bajanai Koil Street (now called as Church Street);

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(b) declaring that the plaintiff is entitled to the frontage right from the suit 'A' Schedule of property from all points to the Public Street namely Bajanai Koil Street (now called as Church Street) on the West;

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(d) granting permanent injunction restraining the 1^st

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defendant, her men and other claiming right through her from putting up concrete building in the suit 'B' Schedule of property;

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(e) directing the defendant to pay the cost of the suit;

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(f) pass such order relief or reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice.”

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In respect of the suit 'B' Schedule mentioned property viz., now this Court has to decide whether the averment in the plaint expresses that the suit is barred by limitation.

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The learned counsel appearing for the petitioner has taken me through Paragraph 3 of the plaint filed under Order VII Rule 1 CPC, wherein, the plaintiff has stated as under:-

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“ 3. The Plaintiff submits that the plaintiff has

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purchased the suit 'A' Schedule of property situated in S.No.121/1 at Parivakkam Village which is morefully described in the Schedule hereunder from one Mr.S.Om Prakash, son of Suguna Sekaran, by a sale deed dated 26.06.2002 in Doc.No.783 of 2002 registered at S.R.O., Poonamallee. “

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The learned counsel submitted that however the suit was admitted on 24.01.2013 and thus, the trial court is wrong in admitting the O.S.No.57 of 2013 as it is barred by limitation and in this regard, he placed reliance on the judgment of this Court reported in 2013 (5) CTC 849 in the case of M.Thillaikkarasi Vs. Kalavathi and another . The learned counsel relied on paragraph 8 of the judgment, which this Court would of the view that it is appropriate to incorporate the said paragraph:-

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“8. ......The Court cannot conduct a rowing enquiry to

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find out whether the averments made in the Plaint claiming how the Suit was in time, are true or false. On the other hand, on the very basis of the averment made in the Plaint, it should be apparent that Suit shall be barred by limitation to bring the Plaint within the ambit of clause (d) of Rule 11 of Order 7 CPC. What clause (d) of Rule 11 of Order 7 CPC says is that it must appear from the statements made in the Plaint itself that the Suit is barred by law. Suppose the Plaint averments indicate the date of commencement of the period of limitation and it is found that the suit has been filed beyond the period of limitation without any averment claiming exclusion of certain period and thus pleading that the suit is not barred by limitation, we can say that the same would come under clause (d) of Rule 11 of Order 7 CPC.”

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In the above citation, it is held that the trial court shall try the suit regarding all issues, including the question of limitation, uninfluenced by any of the observations made by the lower Appellate Court in its judgment, and thus dismissed the Civil Miscellaneous Appeal finding no merits regarding the question of limitation rendered by the lower Appellate Court. Further, this Court, in the said case ordered that the trial court shall make an endeavour to dispose of the case within a year.

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In view of the foregoings, I am of the view that the submissions of the learned counsel appearing for the petitioner does not merit acceptance. Thus, pertaining to cause of action and the limitation point, it is useful to extract paragraph 12 of the plaint in O.S.No.57 of 2013.

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“12. The cause of action arose on when the 1^st

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defendant encroached the suit 'B'Schedule of property and filed the suit in O.S.No.333 of 2008; on 14.10.2008 when the first defendant encroached further extent in the said public street during the pendency of the suit in O.S.No.333 of 2008; on 28.10.2008 when the 1^st defendant put up coconut thatched hut; on 1.12.2008 when the plaintiff issued legal notice to the 1^st defendant; on 6.12.2008, when the 1^st defendant sent reply; on 20.12.2008 when the plaintiff sent rejoinder to the 1^st defendant; on 30.12.2008

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when the 1^st defendant sent reply; on 5.2.2009 when the plaintiff sent legal notice to the defenants 1, 2 and 4; on 11.06.2009 when the patta was issued to the 1^st defendant;

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on 24.02.2011 when the writ petitions filed by the plaintiff were dismissed with the directions to seek remedy. ....”

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On a perusal of the above averments, it is seen that though the plaintiff has purchased the property on 26.06.2002, the cause of action arose on when the first defendant encroached the suit 'B' Schedule property on 14.10.2008 and filed the suit in O.S.No.333 of 2008 and thus the suit in O.S.No.57 of 2013 praying for mandatory injunction to remove the house put up by the first defendant in the suit 'B' Schedule property is filed within the time and thus, it is not barred by limitation.

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It is well settled principle that the question of limitation is a mixed question of law based on the facts of each case and the same can be decided by considering the oral and documentary evidence let in by both sides. Therefore, the suit cannot be nipped at the budding stage stating that the suit is barred by limitation. Therefore, in my considered opinion, the lower court has come to the correct conclusion and rejected the I.A.No.1046 of 2013, in which, this Court do not find any error.

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Now the court has to decide whether Section 80 CPC has been complied with by the plaintiff or not. Section 80 deals with Notice and Sub Section (2) to Section 80 CPC states that a suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1): but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief praying for in the suit.

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In my considered view the said question whether compliance to provisions of Notice under Section 80 CPC is satisfactory or not can be decided at the time of trial. Further more, it is pertinent to note that in the plaint itself, the prayer sought for is for declaration declaring that the suit 'B' Schedule of property is the public Street viz., Bajanai Koil Street (now called as Church Street) and mandatory injunction directing the defendants to remove the hut house put up by the first defendant in the suit 'B' Schedule of property.

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In such circumstances, I am of the view that Section 80 Notice will not be a reason for allowing the I.A., filed under Order VII Rule 11 of CPC. Further, this Court is of the view that the said question of Notice under

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Section 80 could also be decided at the time of trial and not at an interim stage.

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In view of the foregoing reasons, this Court does not think that it is a fit case to give relief to the petitioner herein by setting aside the order passed in I.A.No.1046 of 2013 dated 03.04.2014. Both on the point of Section 80-Notice and the question of limitation, the allegation of the plaintiff that the first defendant encroached the suit 'B' Schedule of property is dated 14.10.2008 and the admission of the O.S.No.57 of 2013 fits with limitation and thus there is no acceptable ground to set aside the order passed by the lower court in I.A.No.1046 of 2013 dated 03.04.2014.

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In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected M.P.No.1 of 2014 is closed.

21.07.2014

Index:Yes/No

nvsri

The District Munsif, Poonamallee.

R.MALA, J

nvsri

C.R.P.(P.D)No.2131 of 2014

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21.07.2014

Uma v. R.Devasagayam Alias Rd.Sagayam

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Uma v. R.Devasagayam Alias Rd.Sagayam

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