1/10 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.100/2002 Rajni Bhatia and Ors. ...Plaintiffs – appellants. Versus Nagar Nigam,Jodhpur and Ors. ...Defendants – respondents. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.R.K.Thanvi, for the appellants.. Mr.H.R.Soni, for the respondents. . DATE OF JUDGMENT : 9th January, 2008. JUDGMENT 1. This second appeal filed in this Court on 2.4.2002 is pending for about 5 years for admission, therefore, with the consent of the parties, arguments for final disposal of the appeal itself were heard at length. 2. The case appears to have chequered history of litigation; first in writ jurisdiction of this Court from the year 1992 till 1998 and thereafter in the civil suit No.13/2000 which however came to be 2/10 dismissed by the learned trial Court upon an application under Order 7 Rule 11 C.P.C. filed by the defendants holding the said suit to be barred by limitation. 3. The civil suit in question was filed by the plaintiffs on 23.4.1999. The dispute revolves around renewal of lease of plot of land given by the Municipal Council, Jodhpur to the ex-partners of the firm M/s Jodhpur Diesels. The plaintiffs are daughters of V.B. Gandhi who was partner with Mr.Shyam Lal. The writ petition No.1056/1992 came to be dismissed by the learned Single Judge on 12.8.1997. The operative portion of the judgment is reproduced hereunder: “In this regard, the Court summoned the file of D.B. Civil Special Appeal No.163/91 – Brijendra V/s State and ors. (decided on 28.11.1994) also. Looking into the record of this Special Appeal various pleadings were referred to by the parties and in view of conforming nature of the facts, it would not be in the fitness of things to adjudicate this writ petition on merits because that will involve settlement of angularities of facts, which 3/10 would not be appropriate in the extra ordinary jurisdiction of this Court. Thus, this is a wrong forum selected by the petitioner for redressal of his grievance. He may move to civil court if so advised. If the petitioner approaches civil court, the question of limitation may be decided looking to the fact that petitioner has been availing remedy of writ petition before this Court. This writ petition stands disposed of with aforesaid observations.” 4. The matter was carried further to the Division Bench where also the appeal, namely, D.B. Special Appeal No.1284/1997 – Rajni Bhatia V/s Municipal Council, Jodhpur and ors. was disposed of on 6.1.1998 with the following directions: “We do not find any force in this appeal as we are also of the opinion that a civil suit would be the appropriate remedy for redressal of the grievance of the appellant. Learned counsel Shri Lodha submits that difficulty of limitation may arise in filing a suit now. Relying on the decision of the Supreme Court in Danda Rajeshwari V/s 4/10 Bodavula Hanumayamma and ors. 1999(6) SCC 1999 he prays for a direction that if a suit is filed within the time granted by this Court, the plea of limitation would not be entertained in that case. We therefore, direct that if a civil suit is filed on the same cause of action within a month from today, the Court shall entertain it treating it to be within limitation. The petition is disposed of with the above direction.” 5. Thereafter the present suit was filed on 23.4.1999. 7. The defendants filed an application under Order 7 Rule 11 C.P.C. saying that the suit was barred by limitation. The trial Court rejected the suit holding it to be barred by limitation vide order dtd.19.9.2000. The first appeal against that order was also dismissed by the first appellate Court on 30.1.2002. Hence, this second appeal. 8. The substantial question of law which arises in the present appeal is as under: “Whether the Courts below were justified in dismissing the suit of the plaintiff – appellant under Order 7 Rule 11 C.P.C?” 5/10 9. I have heard the learned counsel and perused the record. 10. Mr. R.K. Thanvi learned counsel for the appelalnts urged before this Court that though the Division Bench of this Court had allowed one month's time on 6.1.1998 to file civil suit in the mater and the suit was filed after a gap of more than one year on 23.4.1999, independent of said directions of Division Bench, the suit filed by the present appellant could not have been dismissed as barred by limitation as cause of action of renewal of lease by the Municipal Council was a cause of action which arose to the plaintiff continuously and therefore, the suit filed for injunction against the Municipal Council could not be held to be barred by limitation. Alternatively he submits that at best, the directions of Division Bench meant that plea of limitation could not be raised by the defendants if the suit was filed within one month from the date of decision by the Division Bench on 6.1.1998 and if the suit was filed later on, they could raise such a plea and it was for the trial Court to frame an issue with regard to the same and after taking evidence of the parties, this mixed question of facts and law could be decided by the trial Court. He further submits that the civil suit could not be dismissed under Order 7 Rule 11 C.P.C. on the ground that from plain averments made 6/10 in the plaint, the suit could not be held to be barred by any statutory limitation. He relied upon various judgments in support of his submission. 12. Mr. H.R. Soni on the side opposite submitted that firstly since the civil suit in question was not filed within one month as directed by the Division Bench of this Court, the suit was clearly barred by limitation and secondly assuming for the argument sake that the civil suit could be filed independent of such direction, still since cause of action arose in the year 1990, when the renewal of the lease-deed became due, the civil suit could not be filed after expiry of 3 years therefrom. He also urged that during pendency of the said suit, the defendants had been pursuing their litigation against the Municipal Council for grant/renewal of lease and it is only after the decision by this Court through Division Bench on 26.9.2002 and after deposit of lease money of Rs.36 lacs that the defendants Shyamu Mal and others were able to get lease in question renewed and therefore, the plaintiffs had no right in the matter and the suit for injunction had itself become infructuous. He therefore, prayed for dismissal of the appeal. He also relied upon certain judgments. 7/10 14. In Mayar (H.K.) Ltd. and ors. V/s Owners and parties, Vessel M.V.Fortune Express and Ors. reported in 2006(2) Civil Court Cases 15 (SC) in para 11 of the judgment, the Hon'ble Supreme Court held that the plaint cannot be rejected on the basis of allegations made by the defendants in his written statement or in an application for rejection of plaint. The court has to read entire plaint as a whole to find out whether it discloses cause of action and if it does, then the plaint cannot be rejected by the Court exercising powers under Order 7 Rule 11 C.P.C. 15. This position of law was reiterated by the Hon'ble Supreme Court in the case of Ramesh B. Desai and ors. V/s Bipin Vadilal Mehta and ors reported in 2006(3) Apex Court Judgments 180 (SC). 16. This Court in the case of Mohan Lal Sukhadia University, Udaipur V/s Miss Priya Soloman reported in 1999(2) Western Law Cases (Raj.) 110 held in para that the controversy as to limitation has to be decided after hearing and taking evidence and unless the suit be shown to be barred by any law on the basis of statements in plaint, clause (d) of Rule 11 would not apply. 8/10 17. Mr. Soni relied upon the judgment of Hon'ble Supreme Court in the case of Gannmani Anasuya and ors. V/s Parvatini Amarendra Chowdhary and ors. reported in 2007(2) Apex Court Judgments 744 (S.C.) wherein the Hon'ble Supreme Court has held that irrespective of question of limitation being raised by the parties, it is for the Court to determine the question as to whether the suit is barred by limitation or not and such a jurisdictional fact need not be pleaded. 18. Looking to the factual aspect of the matter and the contentions raised on behalf of the parties and previous litigative history of this case, wherein in writ jurisdiction, this Court clearly observed that the parties should avail their remedy by way of civil suit, the Division Bench while disposing of the appeal on 6.1.1998 had clearly held that if the suit is filed within one month thereof, the trial Court shall proceed without objection as to the limitation, it does not appear to be correct in law to dismiss the said suit as barred by limitation. 19. The learned counsel for the appellants appears to be justified in contending that directions of the Division Bench only prevented the defendants from raising plea of bar of limitation if the suit was filed within one month thereof. Since the suit in question was filed after 9/10 one month, the defendants could raise plea of limitation and it was for the trial Court to decide the same after framing an issue and taking evidence thereon. However, it appears that the suit could not have been dismissed on the ground of limitation taking cause of action to have arisen in the year 1990. The cause of non-renewal of lease by the Municipal Council was a cause which continued till such renewal was granted by the Municipal Council in the year 2003. At the time of filing of the suit on 23.4.1999, the said cause of action of non-renewal of lease continued. Therefore, the learned trial Court could not have dismissed the civil suit by invoking Order 7 Rule 11 C.P.C. and holding the civil suit to be barred by limitation. It was of course open for the defendants to raise objection of limitation which could have been decided by the learned trial Court after framing appropriate issue thereon and even deciding that issue as preliminary issue, but this Court is the considered opinion that the suit could not have been thrown out on the ground of limitation by invoking Order 7 Rule 11 C.P.C. as done in the present case as from a bare reading of the plaint, it is not ex-facie barred by limitation. 20. Consequently, this appeal is allowed and the impugned order of the trial Court dtd.19.2.2000 and that of the first appellate Court dated 10/10 30.1.2002 are set aside and the suit is restored to the trial Court for decision in accordance with law. No order as to costs. (Dr.VINEET KOTHARI)J. Ss/-