RAGAM YELLAIAH Vs. CHINTHA SHANKARAIAH

JUDGEMENT

(1.) The Civil Miscellaneous Appeal is filed as against the order passed in C.F.R.No.63 of 2002 on the file of the Court of the Senior Civil Judge, Siddipet, dated 3-4-2002. The said order is made rejecting the plaint filed, under Order VII Rule ll(d) of the Code of Civil Procedure, hereinafter, in short, referred to as 'Code' for the purpose of convenience.

(2.) Smt. Pramada, counsel representingrespondent had raised a preliminary objection relating to the maintainability of the C.M.A. on the ground that the rejection of plaint is a decree within the meaning of Section 2(2) of the Code and hence a regular appeal alone has to be filed under Order 41 Rule 1 of the Code read with Section 96 of the Code. The learned counsel had placed strong reliance on Shamsher Singh v. Rajeinder Prasad , Vaditho Anantharao Naik v. Bhoomisetty Rajaiah and Kona Ramu v. The Payakaraopeta Primary Agricultural Co-operative Credit Society Limited3. Apart from the maintainability of the C.M.A. as against such an order, the learned counsel also had thoroughly taken me through the impugned order and had submitted mat in view of Article 58 of the Limitation Act, 1963, the suit should have been instituted within three years and so it is clearly barred by time and hence the impugned order is perfectly legal and valid. The learned counsel also had distinguished the decisions cited and referred to in the impugned order on the ground that on facts they are distinguishable. The learned counsel also had drawn my attention to Section 49 of the Andhra Pradesh Court Fee and Suit Valuation Act, 1956.

(3.) Per contra, Sri T. Veerabhadrayya,learned counsel representing the appellants with all vehemence had contended that the rejection of the plaint under Order 7 Rule 11(d) of the Code is only an order and though it is included in the definition of decree, at best it can be treated as a deemed decree and hence a C.M.A. alone is maintainable. The learned counsel further elaborating his submissions had drawn my attention to the provisions of Order 21 Rule 58 of the Code and also a decision of the Division Bench of this Court in B. Nookaraju v. M.S.N. Charities and contended that in the light of the binding decision of the Division Bench, the Civil Miscellaneous Appeal filed as against the impugned order is perfectly maintainable. Further, touching the merits of the matter the learned counsel had taken me through the impugned order and had contended that several of the aspects which are not necessary to be discussed at the time of entertaining the suit i.e., at the time of institution of the suit, had been discussed and these are all aspects which are to be gone into and decided on the respective pleadings of the parties and after the parties letting in evidence on both sides. The learned counsel further submitted that unless on the face of the allegations in the plaint the suit is barred, the plaint cannot be rejected by invoking Order 7 Rule 11 (d) of the Code. At any rate, the question of limitation always necessarily need not be a pure question of law, but it may be a mixed question of fact and law, and hence in this view of the matter, the rejection of the plaint at the threshold dealing with Articles 58 and 65 of the Limitation Act, 1963,'cannot be said to be legal or justified. The learned counsel also had drawn my attention to State of Maharashtra v. Pravin Jethalal Kamdar.