SHUBHALAYA VILLA Vs. VISHANDAS PARWANI

JUDGEMENT

(1.) This appeal is filed under Section 96 of the Code of Civil Procedure against the order dated 27.02.2017 passed by the District Judge, Bhopal in CS No.579-A/2016 thereby decided four applications filed by the defendants separately. Dealing with those applications, the District Judge has finally arrived at a conclusion that the application filed under Order VII Rule 11 read with Section 151 of CPC deserves to be allowed as the suit was not found maintainable in view of the provisions of Order VII Rule 11 (d) of CPC. The court below has found that the suit was barred by time and was also not maintainable in view of the provisions of Order II Rule 2 (3) of CPC.

(2.) The impugned order has been assailed by the appellants mainly on the ground that the Court below has failed to take note of the fact that the present suit is not hit by the provisions of Order II Rule 2 of CPC inasmuch as relief(s) claimed in the present suit are the same relief(s) which were claimed in the earlier suit and the cause of action is also same.

(3.) It is submitted by the learned counsel for the appellants that the trial Court has erred in holding that the present suit is hit by Order II Rule 2(3) of CPC and as such exercised the power under Order VII Rule 11(d) of CPC. It is also submitted by the learned counsel for the appellants that the Court below has failed to see that the suit could not have been dismissed because it is not barred as per the provisions of Order VII Rule 13 of CPC. It is further submitted by the learned counsel for the appellants that the Court below erred in holding that the suit is barred by limitation and as such misread and misinterpreted the Article 54 of the Limitation Act . As per the appellants, the cause of action for filing the present suit accrued on 17.01.2014 that is the date on which the plaintiff received summons of Civil Suit No.17-B/2014 filed by the defendants/respondents. As per the appellants, the limitation begins to run from 17.01.2014 and the question of limitation is mixed question of law and facts and that could have been decided only after recording the evidence.