Heard learned counsel appearing on behalf of the parties and have gone through the records.
This revision under Section 115 of Civil Procedure Code has been preferred by the revisionist/defendant against the order dated 21.05.2012 passed by learned Civil Judge (Sr. Div.), Lucknow in Regular Suit No.1533 of 2008 (Sardar Avtar Singh and another Vs. M/s. Emcure Pharmaceuticals Ltd.), by which application Paper No.109-C has been disposed of, in such a way, that since issues have been settled, the matter relating to limitation may be disposed of along with the suit, after final hearing.
The revisionist/defendant has moved an application, Paper No.109-C, with a prayer that since the suit is barred by time, the plea of limitation may be decided and the plaint may be rejected under Order VII, Rule 11 of the Code of Civil Procedure.
Brief facts, relevant for the purpose of deciding this revision, are very short. The plaintiff (respondent nos.2 and 3 herein) filed a suit for recovery as "forma pauperis" on 22.10.2007 by making averments to this effect in para 19 of the plaint, but plaintiff did not move any separate application for the same. The plaint was registered as Regular Suit and written statement was filed by the revisionist (defendant in the suit). Admittedly, the plaint was filed, well within time, and the matter regarding payment of Court fees or adjudication of the status of "forma-pauperis" was decided later on and, as such, the learned trial Court framed one of the issues to determine and adjudicate upon defendant's plea that plaint should have been rejected under Order VII, Rule 11 of the Code of Civil Procedure. This is obviously a matter, which requires adjudication by the learned trial Court.
Learned counsel for the revisionist/revisionist has relied upon the law laid down by Hon'ble Apex Court in the case of I.T.C. Limited v. Debts Recovery Appellate Tribunal and others, reported in (1998) 2 SCC 70, in which it was held:-
"We may state that in the context of Order 7 Rule 11 C.P.C., a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain vs. Rajiv Gandhi [1986 (Supp.) SCC 315] (p.324] as follows:
"In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial....is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court..."
The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh vs. Kedar Nath [1987 (Supp.) SCC 663]. We therefore hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7 Rule 11 C.P.C."
On the other hand, learned counsel for the plaintiffs/ respondents/caveator has relied upon the law laid down by the Hon'ble Apex Court in a bunch of cases, in which the leading case was Ramesh Chandra Sankla and others v. Vikram Cement and others, reported in (2008) 14 SCC 58, in which it has been held:-
"In our considered opinion, in the present case, it cannot be said that the Courts below have committed any error of jurisdiction in not deciding the issue as to the maintainability of claim-petitions as preliminary issue. It is well settled that generally, all issues arising in a suit or proceeding should be tried together and a judgment should be pronounced on those issues. Before more than hundred years, the Privy Council in Tarakant Bannerjee v. Puddomoney Dossee (1866) 10 MooIA 476, favoured this approach. Speaking for the Judicial Committee, Lord Turner stated:
"The Courts below, in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the Courts below should, as far as may be practicable, pronounce their opinions on all the important points".
(emphasis supplied) The above principle has been consistently followed."
It was further held:-
"The Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order XIV (before the amendment), the Commission stated:
"This rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue, the decision of the Court on that issue is reversed, the case has to be remanded to the Court of first instance for trial on the other issues. This causes delay. It is considered that this delay should be eliminated, by providing that a court must give judgment on all issues, excepting, of course, where the Court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force".
(emphasis supplied) In the case of Ramesh B. Desai and others v. Bipin Vadilal Mehta and others, reported in (2006) 5 SCC 638, the Hon'ble Apex Court has held:-
"Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depend upon the decision of issues of fact, would result in a lop-sided trial of the suit."
Though there has been a slight amendment in the language of Order XIV Rule 2 CPC by the Amending Act, 1976, but the principle enunciated in the above quoted decision still holds good and there can be no departure from the principle that the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue of law depends upon decision of fact, it cannot be tried as a preliminary issue."
It was further held:
"10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force."
.......................the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11 CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by clause (d) of Order VII Rule 11 CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence."
It was also held:
"A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction (P) Ltd. vs. Hanuman Seva Trust and others) decided on 8.11.2005 and it was held: -
"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."
In the case of Hardesh Ores (P) Ltd. v. Hede and Company, reported in (2007) 5 SCC 614, the Hon'ble Apex Court has held:-
"The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this court in Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I and another : (2004) 9 SCC 512 and Popat and Kotecha Property Vs. State Bank of India Staff Association : (2005) 7 SCC 510."
It shall not be out of place to mention here that in Balasaria Construction (P) Ltd. v. Hanuman Seva Trust and others, reported in (2006) 5 SCC 658, the Hon'ble Apex Court has held:-
"This case was argued at length on 30-8-2005. Counsel appearing for the appellant had relied upon a judgment of this Court in N.V. Srinivasa Murthy v. Mariamma for the proposition that a plaint could be rejected if the suit is ex facie barred by limitation. As against this, counsel for the respondents relied upon a later judgment of this Court in Popat and Kotecha Property v. State Bank of India Staff Assn. in respect of the proposition that Order 7 Rule 11 (d) was not applicable in a case where a question has to be decided on the basis of fact that the suit was barred by limitation. The point as to whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would include the suit being "barred by limitation" was not specifically dealt with in either of these two judgments, cited above. But this point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman, Khaja Quthubullah v. Govt. of A.P., Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana, Arjan Singh v. Union of India wherein it has been held that the plaint under Order 7 Rule 11 (d) cannot be rejected on the ground that it is barred by limitation. According to these judgments the suit has to be barred by a provision of law to come within the meaning of Order 7 Rule 11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd., National Insurance Co. Ltd. v. Navrom Constantza, J. Patel & Co. v. National Federation of Industrial Coop. Ltd. and State Bank of India Staff Assn. v. Popat & Kotech Property. The last judgment was the subject-matter of challenge in Popat and Kotechu Property v. State Bank of India Staff Assn. This Court set aside the judgment and held in para 25 as under:-
'When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case' It was also held that :
Noticing the conflict between the various High Courts and the apparent conflict of opinion expressed by this Court in N.V. Srinivasa Murthy v. Mariyamma and Popat and Kotechu Property v. State Bank of India Staff Assn. the Bench referred the following question of law for consideration to a larger Bench:
"Whether the words 'barred by law' under Order 7 Rule 11(d) would also include the ground that it is barred by the law of limitation."
It was also held:
"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."
In another case between the same parties reported at Page 658, the Hon'ble Supreme Court has also held:-
"Learned counsel appearing for the appellant relies upon a judgment of this Court in N.V. Srinivasa Murthy v. Mariyamma for the proposition that plaint could be rejected if the suit is ex facie barred by limitation. The Bench did not consider the import of the words "barred by law" occurring in Order 7 Rule 11(d) CPC exhaustively. This point has been specifically dealt with by the different High Courts in Mohan Lal Sukhadia University v. Priya Soloman, Khaja Quthubullah v. Govt. of A.P., Vedapalli Suryanarayana v. Poosarla Venkata Sanker Suryanarayana, Arjan Singh v. Union of India and State Bank of India Staff Assn. v. Popat & Kotech Property wherein it has been held that the plaint under Order 7 Rule 11(d) cannot be rejected on the ground that it is barred by limitation. According to these judgments the suit has to be barred by a provision of law to come within the meaning of Order 7 Rule 11 CPC. A contrary view has been taken in Jugolinija Rajia Jugoslavija v. Fab Leathers Ltd., National Insurance Co. Ltd. v. Navrom Constantza and J. Patel & Co. v. National Federation of Industrial Coop. Ltd."
It was further held :
"Keeping in view the importance of the question and the conflict of opinion we deem it appropriate to direct that the matter be placed before a larger Bench. The Registry is directed to place the papers before the Hon'ble the Chief Justice for necessary orders."
In view of the law, as discussed above, and the facts of the case, the plaint is in itself not barred by limitation. It is simply because Court fee was not paid on the date of institution of the suit and the plaintiff pleaded himself to be an indigent person and filed suit in forma-pauperis. The trial Court was fully justified in holding that the plea of limitation shall be taken up after evidence along with the suit. In the case of Jugal Kishore vs. Dhanno Devi (dead) by L.R.Rs, reported in AIR 1973 SC, 2508, the Hon'ble Apex Court has held:-
"There has been a conflict of judicial opinion on the question whether a suit could be held to have been instituted when a petition to sue as a pauper was presented. One view is that until permission is granted under rule 7 of Order 33 there is no suit instituted. The other view is that since a suit under section 26 may be instituted not merely by the presentation of a plaint but also in such manner as may be prescribed the presentation of the application by the pauper under Order 33 would amount to institution of the suit. This latter view is accepted by this Court in Vijay Pratap Singh v. Dukh Haran Nath Singh and Another [1962] (2) Suppl, SCR, 675. In that case Vijay Pratap Singh filed a petition for leave to sue in forma pauperis for the declaration of his title to Ayodhya Raj. He claimed that on the death of the widows of Maharaja Man Singh, the estate devolved on his grand father, Ganga Dutt, who died in 1942. The estate was 'thus ancestral property in the hands of Ramjivan, the father of the plaintiff, who thus got interest in the same by reason of his birth. Ramjivan was made one of the defendants to the suit. The plaintiff's petition to sue as a pauper was rejected by the Subordinate Judge under Order 33 rule 5(d) on the ground that the allegations in the application did not show a cause of action. It is to be noted that the court had not decided the issue about his pauperism because that could be done only under Rule 7(3) after trial of the issue under rule 6. On such rejection Ramjivan-the father applied to the court to be transposed as the petitioner but that application was also rejected. This court held that the rejection of both these applications was improper because, in the first case, the court had to see under rule 5 (d) whether the allegations made in the petition showed a cause of action and the court had no power to enter upon a trial of the issues affecting the merits of the claim at that stage. As regards Ramjivan's application for transposition under Order 1 Rule 10 it was held that the application was wrongly rejected because such an application could have been legally entertained by the court because the suit had already been instituted. It was pointed out that an application to sue in forma pauperis is but a method prescribed by the Code for institution of a suit without payment of court fee and, therefore, the suit commences from the moment the application for permission to sue in forma pauperis, as required by Order 33 of the Code, is presented. Dealing with the point the court observed at page 685. "We are also of the view that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by Order 33 of the Code of Civil procedure is presented, and Order 1, Rule 10, of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid."
This Court has, therefore, finally resolved the conflict by declaring that the suit by a pauper or a person claiming to be a pauper must be regarded as instituted on the date of the presentation of the application for- permission to sue in forma pauperis as required by rules 2 and 3 of Order 33 Civil Procedure Code."
The above extract is being quoted for the guidance of the trial Court to consider the law as settled by the Hon'ble Apex Court and shall adjudicate upon all the disputes between the parties.
The settled law of the land is that law disfavour piecemeal and deferred decisions, unless otherwise expressly barred. In Ravindra Kaur v. Ashok Kumar and another, reported in (2003) 8 SCC 289, a two Judge Bench of the Hon'ble Apex Court has held:-
"Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree-holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing law's delay and bringing bad name to the judicial system."
This Court shall not fail in its pious duty to deprecate the malafide design of the revisionist to suppress material facts viz. as to when application under Order 33 of Code of Civil Procedure was moved by the respondents/plaintiffs or, it was not, at all moved, the respondents/plaintiffs were declared as forma pauperis or not, or the Court fee has been paid. It was the duty of the revisionist to have mentioned all the surroundings facts and circumstances. The revision petition is reciting unrelated matters, which are not even remotely relevant for the purposes of deciding this revision petition. The only relevant fact has been mentioned in Para 7 that the present plaint was registered as misc. case no.140 of 2007 and subsequently registered as regular suit no.1553 of 2008; the written statement was filed on 22.04.2010. During all this period, the defendant/revisionist did not apply for rejection of plaint under Order VII, Rule 11 of the Code of Civil Procedure and the application to this effect has been moved on 10.08.2011. During this period writ petition no.2662 (M/S) of 2011 was also filed.
A copy of plaint shows that the plaintiffs have claimed to be forma pauperis, in para 19 of the plaint. The copy of written statement shows that this para is being denied by the defendant/revisionist before the learned trial Court as misleading and misconceived. The plaintiff's status of being forma pauperis has not been denied. Moreover, the learned trial Court has not ousted the defendant/revisionist, nor the lis has come to an end. It is for the learned trial Court to decide the way of management of the Court's business. Taking a worst case that it is an erroneous decision, this Court cannot correct the error, in exercise of its power conferred under Section 115 of the Code of Civil Procedure. In view of law laid down by a full Bench of the Hon'ble Apex Court in the case of Pandurang Dhondi Chougule and others Vs. Maruti Hari Jadhav and others, reported in AIR 1966 SC, 153 in which it was held:-
".............It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court, which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under Section 115."
This view has been reiterated by the Hon'ble Apex Court in Prem Bakshi v. Dharam Deo, reported in AIR 2002 SC 559. Again in Gayatri Devi and others v. Shashi Pal Singh reported in 2005 (2) AWC 1072 (SC), it was held that revision under Section 115 of the Code of Civil Procedure is not maintainable against an interim order.
In Shiv Shakti Co-op. Housing Society, Nagpur v. M/s Swaraj Developers and others, reported in AIR 2003 SC 2434, it was held:-
"It is fairly a well settled position in law that the right of appeal is a substantive right. But there is no such substantive right in making an application under S. 115. Section 115 is essentially a source of power for the High Court to supervise the subordinate courts. It does not in any way confer a right on a litigant aggrieved by any order of the subordinate court to approach the High Court for relief. The scope for making a revision under S. 115 is not linked with a substantive right."
With these observations, revision petition is dismissed in limine.
Dated: 23.08.2012.
Rks.