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Kalepu Pala Subrahmanyam Vs. Tiguti Venkata Peddiraju and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 772 of 1969
Judge
Reported inAIR1971AP313
ActsLimitation Act, 1963 - Articles 65 and 113; Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 7, Rule 11
AppellantKalepu Pala Subrahmanyam
RespondentTiguti Venkata Peddiraju and ors.
Appellant AdvocateN. Rajeswara Rao, Adv.
Respondent AdvocateK.B. Krishnamurthy and ;M. Bhujanga Rao, Advs.
Excerpt:
property - rejection of plaint - articles 65 and 113 of limitation act, 1963 and section 151 and order 7 rule 11 of code of civil procedure, 1908 - suit for recovery of possession - trial court rejected plaint as regards some items of suit properties on ground of being barred by limitation period - plaint admitted as regards one other item of suit property - under order 7 rule 11 whole plaint is rejected and not any particular part of it - trial court erred in rejecting one part of plaint and accepting other part - entire plaint ordered to be rejected. - .....held that the suit was barred by time in respect of items 1, 2 (a), 2 (b), 2 (c) and 3 (a) of plaint b schedule and items 1 and 2 (a) of plaint c schedule. he, therefore, rejected the plaint in respect of those items. as far as item 4 of plaint b schedule was concerned, he directed the plaintiff to file an application to treat the relief regarding item 4 as one filed under section 47, civil p.c. the plaintiff has filed the above revision petition.the main contention of the petitioner is that the court below erred in holding that the suit was barred by limitation. the case of the plaintiff regarding most of the items is that the properties were brought to sale in execution proceedings and possession was taken by various defendants, on various dates. except in regard to items 3 (b).....
Judgment:
ORDER

1. The petitioner is the plaintiff in O.P. No.62 of 2965, Sub-Court, Kakinada, a suit filed in forma pauperis for recovery of possession of plaint A to C Schedule properties. The Court below by its order D/- 2-3-1968 held that he had means to pay and rejected his application to sue informa pauperis. This order was confirmed by the High Court in revision and thereafter, the petitioner restrict his right only to a half share and paid a court-fee of Rs. 2,602/-.

2. Again, by his order dated 25-2-1969 the learned Subordinate Judge held that the suit was barred by time in respect of items 1, 2 (a), 2 (b), 2 (c) and 3 (a) of plaint B Schedule and items 1 and 2 (a) of plaint C Schedule. he, therefore, rejected the plaint in respect of those items. As far as item 4 of plaint B Schedule was concerned, he directed the plaintiff to file an application to treat the relief regarding Item 4 as one filed under Section 47, Civil P.C. The plaintiff has filed the above revision petition.

The main contention of the petitioner is that the court below erred in holding that the suit was barred by limitation. The case of the plaintiff regarding most of the items is that the properties were brought to sale in execution proceedings and possession was taken by various defendants, on various dates. Except in regard to items 3 (b) and 4 of B Schedule and 2 (b) of C Schedule in all other cases the date of dispossession is more than three years prior to the date of the suit even according to the plaintiff who has given the dates of dispossession in the plaintiff itself with regard to each of these items, The Court below was therefore, right in holding that even taking the averments in the plaint into consideration the suit was barred by time in respect of those items.

In the order it is pointed out that the learned counsel for the petitioner was not in a position to say that the suit is in time. Even here the learned counsel for the petitioner was not able to satisfy me as to how the suit would, be in time. In view of the case set out in the plaint that the properties were brought to sale and purchased in court auction and the plaintiff was dispossessed, it is obvious that Article 65 of the Limitation Act which is referred to in the Grounds of Appeal has no application and that the proper article applicable is Article 113.

3. It was then argued that the suit is within time as the plaintiff was away in Hyderabad in 1958 and came to know of the fraud in obtaining of the decrees and in the execution proceedings only in May and June, 1965. This is not a relevant circumstance as according to his own case he was disposed on various dates in 1953, 1957, 1960 and so on. Ion the result, the court below was right in holding that the suit appeared to be barred by law (the law of limitation) as far as these items are concerned.

4. The Court, however, rejected the plaint only in respect of some of these items in regard to which it was of the view that the suit was barred by limitation and permitted the plaintiff to proceed with the suit in regard to other items and in respect of one item to file an application to convert it into proceeding under Section 47, Civil P. C. This procedure, in my view, is not warranted. When to be rejected in respect of a liable to be rejected in respect of a part it is incumbent on the court to reject the plaint as a whole. It has no jurisdiction to reject the plaint in part and permit the suit to be continued with regard to the rest.

This has been laid down in a number of cases, of which reference may be made only to V. R. Appa Rao V. Secy. of State, Air 1935 Mad 389 affirming the decision in Venkata Rangiah v. Secy. of Mad 175, Sundaram Chetty, J. following the decision in Ragubans Prui v. Jyotis Swarup, (1907) ILR 29 All 325 observed as follows:-

'It is not clear how there can be a partial rejection of the plaint in respect of a portion of the claim or as regards some of the parties. A similar question was considered by the Allahabad High Court in the case in (1907) ILR 29 All 325. Referring to Section 54 of the old Civil Procedure Code, the learned Judge states that that Section only provides for the rejection of a plaint in the event of any matters specified in that section not being complied with and it does not justify the rejection of any particular portion of a plaint. Section 54 now corresponds to Order 7, Rule 11, Civil P. C. The plaint meaning of that rule seems to be that if any of the defects mentioned therein is found to exist in any case, the plaint shall be rejected as a whole. it does not imply any reservation in the matter of the rejection of the plaint.'

The Bench which heard the appeal against this judgment agreed with this view and stated that 'provision (O. 7 R. 11) rejects the whole plaint and not any particular part of the plaint'. Therefore, in the instant case, the court should have rejected the plaint as a whole. It is true, that the defendants have not questioned the order of the lower court rejecting the plaint only in part and not rejecting it in its entirety. but as the matter has been brought to the notice of Court in proceedings under S. 115, Civil P. C. and as I am of the view that the entire plaint ought to have been rejected I direct the rejection of the entire plaint and not merely in part as has been done by the Court.

5. It this view it is unnecessary to go into the further question whether a suit lies in respect of some of the items or whether the proper remedy is by way of an application under Sec. 47 of Civil Procedure Code in view of the decision of the Supreme Court in Ramanna v. Nallaparaju, : [1955]2SCR938 .

6. The revision petition is dismissed, but as stated above, the order of the Court below is set aside and the plaint will be rejected in its entirety. There will be no order as to costs.

7. Petition dismissed.


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