*HON'BLE SRI JUSTICE G. BHAVANI PRASAD + Civil Revision Petition No.2722 of 2007 % 24/06/2010 # C. Venkata Sreeramakrishna Rao, S/o Suryanarayana, ..... PETITIONER Vs. $ J.L. Narasimha Rao, S/o Subbaramaiah .....RESPONDENTS ! COUNSEL FOR THE PETITIONER: Sri D. Raghava Reddy ^ COUNSEL FOR THE RESPONDENT: None appeared < Gist : Ø Head Note: ? CITATIONS: 1. 1971 APLJ Short Notes of Recent Cases 53 2. 1980 (1) Andhra Law Times 488 3. AIR 1995 AP 43 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2722 of 2007 Between: C. Venkata Sreeramakrishna Rao .. Petitioner AND J.L. Narasimha Rao .. Respondent ORDER: The order passed by the Principal District Judge, Kadapa, dated 01-02-2007 in S.R.No.18140 of 2006 led the aggrieved plaintiff, whose plaint was rejected at the threshold, to approach this Court with this revision petition. The facts as alleged in the rejected plaint are that the defendant borrowed Rs.10,00,000/- on 03-11-2001 from the plaintiff under the suit promissory note on the even date and issued a post dated cheque dated 20-06-2003. The post dated cheque when presented for encashment bounced leading to S.T.C.No.80 of 2003 at the instance of the plaintiff against the defendant and the said case was pending, during which substituting the original promissory note filed therein with a certified copy, the original promissory note was taken return for the purpose of filing the suit on the original cause of action of the promissory note. The plaintiff pleaded in the plaint that the time taken between 29-04-2004 and 30-11-2006 in S.T.C.No.80 of 2003 should be excluded from calculating the limitation under Section 14 of the Limitation Act and the acknowledgment of the suit promissory note by the defendant by his suggestion to the plaintiff in the witness box in S.T.C.No.80 of 2003 also amounted to an acknowledgment under Section 18 of the Limitation Act. The cause of action was stated to have arisen on the date of the promissory note and issuance of the post dated cheque and on the subsequent dates, and hence, the suit was claimed to be within limitation. In the impugned order, the learned District Judge firstly observed that Section 14 of the Limitation Act has no application to the prosecution of criminal proceedings and secondly, noted that even the post dated cheque as on 20-06-2003 could have at best taken the period of limitation of three years for filing the suit for recovery of a debt to 20-06-2006, but the suit filed on 03-01-2007 cannot be saved from the bar of limitation. Therefore, the plaint was rejected. The revision petitioner claims herein that the suit ought not to have been rejected under Order VII Rule 11 of the Code of Civil Procedure as the question of bar of limitation is not a pure question of law, but a mixed question of fact and law, which ought to have been decided on merits of the case. Sri D. Raghava Reddy, learned counsel for the revision petitioner reiterated the claims of the revision petitioner and relied on precedents, which will be referred to in due course. The only point for consideration is whether the order of rejection is legal and proper? The learned counsel for the revision petitioner relied on Koduri Gayatri Devi v. Kamarsu Jogi Raju and others[1], wherein the rejection of plaint before numbering was held to be not proper in a case where the plaintiff failed to pay a higher court fee directed to be paid on the subject matter of the suit. The court observed that it will be open to the court to frame a proper issue as regards valuation, if the defendants raise the objection, after the suit was taken on file and therefore, the order of the trial Court rejecting the plaint was reversed. However, the present case is not one where the correctness of the valuation of the subject matter could have been in doubt and could have been resolved as a mixed question of law and fact in the suit. But, in the present case on the own allegations of the plaintiff in the rejected plaint, the Court passed the impugned order for which purpose it need not have waited for the determination of any mixed question of law and fact. Similarly, in Vedapalli Suryanarayana and another v. Poosarla Venkata Sanker Suryanarayana[2] relied on by the learned counsel for the revision petitioner, the plaint was held to be not liable to be rejected on the ground of limitation merely because the deficit court fee was paid after the expiry of the period of limitation although it was so paid before the time allowed by the court for payment of the deficit court fee. The basic logic behind the said decision was that the court had the power to grant time to make good the deficiency in court fee and if the deficiency was supplied even before the time fixed by the court, the question of bar of limitation would not arise and the limitation could not have been so considered and extended in the present suit on any such count with reference to any act or order of the Court itself. Similar is Khaja Quthubullah v. Government of Andhra Pradesh and others[3] wherein it was held that the question of limitation, which would be a mixed question of law and fact, could not have been decided as a preliminary issue in that case. As seen from the decision, the question therein was a mixed question of law and fact to be decided on merits ultimately at the end of trial and not beforehand, whereas in the present case, the unambiguous admissions of the plaintiff in the rejected plaint themselves are the basis of the order of rejection. It is seen from Section 14 of the Limitation Act 1963, that exclusion of time in respect of proceedings pursued bonafide in courts without jurisdiction was in respect of civil proceedings only obviously, but not by virtue of the pendency or proceeding with any criminal proceedings. The provision specifically refers to the prosecution of another civil proceeding in a court without jurisdiction or which suffers from defect of jurisdiction. The opinion of the learned District Judge that Section 14 has no application to the prosecution of criminal proceedings even in respect of the same transaction, therefore, is unassailable. Nextly, even the post dated cheque was also issued only on 03- 11-2001 and it is doubtful whether it could have been computed to have been an acknowledgment on 20-06-2003 to extend the period of limitation up to 20-06-2006. Even if such a liberal view was taken also, the suit filed on 03-01-2007 was stated by the learned judge to be not within time, which opinion is based on admitted facts. The plaint of course also refers to the implied admission of the defendant by the suggestions to the plaintiff when he was in the witness box in S.T.C.No.80 of 2003 about the execution of promissory note or obtaining the post dated cheque and the plaint seeks to construe the same as an acknowledgment under Section 18 of the Limitation Act. Section 18 of the Limitation Act obviously refers to an acknowledgment in writing and not by way of an answer to an oral suggestion and therefore, Section 18 of the Limitation Act has no application. It is also sought to be contended that Order VII Rule 11 does not cover any question of bar of limitation. But, it is clear from Order VII Rule 11 (d) that when the suit appears from the statement in the plaint to be barred by any law, the plaint is liable to be rejected. When the suit is barred by provisions of the Limitation Act, 1963 by the very statements appearing in the plaint, the rejection of plaint under Order VII Rule 11 is within the scope of the jurisdiction conferred on the Court under that provision. Under the circumstances, the suit filed on 03-01-2007 on the basis of the promissory note dated 03-11-2001 is patently barred by limitation and the order of rejection is not capable of being interfered with in this revision. Accordingly, the Civil Revision Petition is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 24-06-2010 Ksn [1] 1971 APLJ Short Notes of Recent Cases 53 [2] 1980 (1) Andhra Law Times 488 [3] AIR 1995 AP 43