Supreme Court of India
INDIAN EVANGELICAL LUTHERAN CHURCH TRUST ASSOCIATIONversusSRI BALA & CO.
- Citation
- 2025 INSC 42
- Decided
- 7 January 2025
- Disposal
- Appeal(s) allowed
- Bench
- B V NAGARATHNA
Holding
The second suit filed in 2007 is barred by limitation under Article 113 of the Limitation Act and must be rejected under Order VII Rule 11(d) of the CPC.
Summary
The plaintiff filed an unnumbered suit in 1993 for specific performance of a 1991 sale agreement, which was rejected in 1998 for non‑payment of court fees. The plaintiff then filed a second suit in 2007 seeking the same relief, invoking Order VII Rule 13 of the CPC to avoid the effect of the earlier rejection. The defendant moved to dismiss the 2007 suit under Order VII Rule 11(d) on the ground that it was barred by limitation. The Supreme Court held that the right to sue for the second suit arose only after the 1998 rejection, giving the plaintiff a three‑year window under Article 113 of the Limitation Act, which expired in January 2001; the 2007 suit was therefore time‑barred. Consequently, the Court allowed the application under Order VII Rule 11(d) and rejected the plaint in O.S. No.49/2007, setting aside the High Court and trial court orders. The appeal was allowed and costs were awarded to the parties.
Issues considered
- Whether the second suit filed in 2007 for specific performance is barred by limitation under Article 113 of the Limitation Act, 1963.
- Whether Order VII Rule 13 of the CPC permits a fresh suit after rejection of the earlier plaint without affecting the limitation period.
- Whether the plaint can be rejected under Order VII Rule 11(d) of the CPC on the ground of being barred by law.
Legislation cited
- Charitable and Religious Trust Act, 1921
- Code of Civil Procedure, 1908s. Order VII Rule 11(d), s. Order VII Rule 13
- Limitation Act, 1908
- Limitation Act, 1963s. Article 113, s. Article 54, s. Section 9
Subjects
Specific PerformanceRejection of plaintCause of ActionBarred by LimitationRes-JudicataOrder VII Rule 11 of Code of Civil Procedure, 1908Order VII Rule 13 of Code of Civil Procedure, 1908Article 54 of Limitation Act, 1963Article 113 of Limitation Act, 1963Right to sueResiduary ArticleOmnibus ArticleRight of plaintiff
Judgment
[2025] 1 S.C.R. 542 : 2025 INSC 42
Indian Evangelical Lutheran Church Trust Association
v.
Sri Bala & Co.
(Civil Appeal No. 1525 of 2023)
08 January 2025
[B.V. Nagarathna* and Nongmeikapam Kotiswar Singh, JJ.]
Issue for Consideration
Whether the plaint in the subsequent suit for specific performance
filed by the plaintiff, i.e., O.S. No. 49/2007, is liable to be rejected in
terms of Order VII Rule 11(d) of the Code of Civil Procedure, 1908
on the ground that the said suit is barred by the law of limitation.
Headnotes†
Code of Civil Procedure, 1908 – Or. VII, r.11(d) – Limitation Act,
1963 – Arts. 54 and 113 – The plaintiff filed an unnumbered suit
in the year 1993 for specific performance of the agreement to
sell dated 26.04.1991 – The said suit was rejected vide order
dated 12.01.1998 due to non-payment of requisite court-fees
by the plaintiff – Thereafter, plaintiff filed second suit O.S. No.
49/2007 in the year 2007 for specific performance of agreement
to sell dated 26.04.1991 – The defendant sought rejection of
the second suit by filing I.A. u/Or. VII, r.11(d) of the CPC, which
was dismissed by the Trial Court – The High Court confirmed
the order passed by the Trial Court – Correctness:
Held: In the instant case, the respondent/plaintiff had filed the suit
for specific performance of the agreement to sell dated 26.04.1991
in the year 1993 itself – The plaint in the said suit was rejected
on 12.01.1998 – The plaintiff could have filed the second suit on
or before 12.01.2001 as it got right to file the suit on 12.01.1998
on the rejection of the plaint in the earlier suit filed by it – This is
on the basis of Or. VII, r.13 of the Code – However, the limitation
period expired in January, 2001 itself and the second suit was filed
belatedly in the year 2007 – The cause of action by then faded and
paled into oblivion – The right to sue stood extinguished – The suit
was barred in law as being filed beyond the prescribed period of
limitation of three years as per Article 113 to the Schedule to the
Limitation Act – Hence the second suit is barred u/Or. VII, r.11(d)
of the Code – Therefore, the plaint in O.S No. 49/2007 filed by the
* Author
[2025] 1 S.C.R. 543
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
respondent herein is rejected – There is absence of any evidence
being recorded on the issue of limitation – This is on the admitted
facts – Thus, on the basis of Or. VII, r.11(d) of the Code r/w. Art.113
of the Limitation Act, the impugned orders of the High Court and
the Trial Court are set aside and the application filed u/Or. VII,
r.11(d) of the Code is allowed. [Para 9.12]
Limitation Act, 1963 – Nature and scope:
Held: The Limitation Act, 1963 consolidates and amends the law
of limitation of suits, appeals and applications and for purposes
connected therewith – The law of limitation is an adjective law
containing procedural rules and does not create any right in
favour of any person, but simply prescribes that the remedy can
be exercised only up to a certain period and not beyond – The
Limitation Act therefore does not confer any substantive right,
nor defines any right or cause of action – The law of limitation is
based on delay and laches – Unless there is a complete cause of
action, limitation cannot run and there cannot be a complete cause
of action unless there is a person who can sue and a person who
can be sued. [Para 9]
Law of Limitation – Right of plaintiff:
Held: The barring of the remedy under the law of limitation on the
expiry of the limitation period would not imply plaintiff’s right being
extinguished – Only the possibility of obtaining a judicial remedy
to enforce the right is taken away – However, in certain cases,
the expiry of the period of limitation would extinguish the plaintiff’s
right to seek remedy entirely. [Para 9.2]
Limitation Act, 1963 – Art. 113 – Residuary Article – Omnibus
Article:
Held: If a suit is not covered by any of the specific articles prescribing
a period of limitation, it must fall within the residuary article – The
purpose of the residuary article is to provide for cases which could
not be covered by any other provision in the Limitation Act – The
residuary article is applicable to every variety of suits not otherwise
provided for under the Limitation Act – It prescribes a period of
three years from the date when the “right to sue” accrues – Under
Article 120 of the erstwhile Limitation Act, 1908, it was six years,
which has been reduced to three years under Article 113 of the
present Act – Article 113 of the Limitation Act is an omnibus Article
544 [2025] 1 S.C.R.
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providing for a period of limitation not covered by any of the specific
Articles. [Paras 9.4, 9.6]
Limitation Act, 1963 – Art. 113 – When the ‘right to sue’ accrues:
Held: The right to sue under Article 113 of the Limitation Act
accrues when there is an accrual of rights asserted in the suit
and an unequivocal threat by the defendant to infringe the right
asserted by the plaintiff in the suit – Thus, “right to sue” means the
right to seek relief by means of legal procedure when the person
suing has a substantive and exclusive right to the claim asserted
by him and there is an invasion of it or a threat of invasion – When
the right to sue accrues, depends, to a large extent on the facts
and circumstances of a particular case keeping in view the relief
sought – It accrues only when a cause of action arises and for a
cause of action to arise, it must be clear that the averments in the
plaint, if found correct, should lead to a successful issue – The
use of the phrase “right to sue” is synonymous with the phrase
“cause of action” and would be in consonance when one uses the
word “arises” or “accrues” with it. [Para 9.8]
Limitation Act, 1963 – Arts. 54 and 113 – The second suit was
filed after rejection of the plaint in the earlier suit for seeking
specific performance of a contract – What is the period of
limitation of filing second suit:
Held: In the present case, the earlier suit was filed by the
respondent/plaintiff in July, 1993 on the basis of Article 54 and the
plaint in the said suit was rejected on 12.01.1998 – The second
suit being O.S. No. 49/2007 was filed on the strength of Order
VII Rule 13 of the Code for the very same cause of action and
for seeking the very same relief of specific performance of the
agreement dated 26.04.1991 as the plaint in the earlier suit was
rejected on 12.01.1998 – Therefore, it cannot be said that the
second suit namely O.S. No. 49/2007 was filed as per Article 54
of the Limitation Act – Since this is a suit filed for the second time
after the rejection of the plaint in the earlier suit, in view of this
Court, Article 54 of the Limitation Act does not apply to a second
suit filed for seeking specific performance of a contract – Then, the
question is, what is the limitation period for the filing of O.S. No.
49/2007 – One have to fall back on Article 113 of the Limitation
Act – Article 113 of the Limitation Act is an omnibus Article providing
for a period of limitation not covered by any of the specific Articles –
[2025] 1 S.C.R. 545
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
Article 113 of the Schedule to the Limitation Act provides for a
suit to be instituted within three years from the date when the
right to sue accrues. [Paras 9.6, 9.7, 9.9]
Case Law Cited
T. Arivandandam v. T.V. Satyapal [1978] 1 SCR 742 : (1977) 4
SCC 467; Sopan Sukhdeo Sable v. Assistant Charity Commissioner
[2004] 1 SCR 1004 : (2004) 3 SCC 137; Popat and Kotecha
Property v. State Bank of India Staff Association [2005] Supp.
2 SCR 1030 : (2005) 7 SCC 510; Roop Lal Sathi v. Nachhattar
Singh Gill [1983] 1 SCR 702 : (1982) 3 SCC 487; Raptakos Brett
& Co. Ltd. v. Ganesh Property [1998] Supp. 1 SCR 485 : (1998)
7 SCC 184; Saleem Bhai v. State of Maharashtra [2002] Supp. 5
SCR 491 : (2003) 1 SCC 557; R.K. Roja v. U.S. Rayudu [2016] 3
SCR 221 : (2016) 14 SCC 275; Kuldeep Singh Pathania v. Bikram
Singh Jaryal [2017] 1 SCR 915 : (2017) 5 SCC 345; Maqsud
Ahmad v. Mathra Datt & Co., AIR 1936 Lah 1021; Sejal Glass
Ltd. v. Navilan Merchants Private Ltd. [2017] 7 SCR 557 : (2018)
11 SCC 780; Madhav Prasad Aggarwal v. Axis Bank Ltd. [2019]
8 SCR 1058 : (2019) 7 SCC 158; Biswanath Banik v. Sulanga
Bose [2022] 3 SCR 302 : (2022) 7 SCC 731; Delhi Wakf Board v.
Jagdish Kumar Narang (1997) 10 SCC 192; A. Nawab John v. V.N.
Subramaniyam [2012] 6 SCR 369 : (2012) 7 SCC 738; Mannan
Lal v. Mst. Chhotaka Bibi, (Dead) by LRs. [1971] 1 SCR 253 : (1970)
1 SCC 769; Patil Automation Private Ltd. v. Rakheja Engineers
Private Ltd. (2022) 10 SCC 1; State of Punjab v. Gurdev Singh
[1991] 3 SCR 663 : (1991) 4 SCC 1; Shakti Bhog Food Industries
Ltd. v. Central Bank of India [2020] 6 SCR 538 : (2020) 17 SCC
260; M.V.S. Manikyala Rao v. M. Narasimhaswami [1966] 1 SCR
628 : AIR 1966 SC 470; N Narasimhiah v. State of Karnataka
[1996] 1 SCR 698 : (1996) 3 SCC 88 – referred to.
Pioneer Bank Ltd v. Ramdev Banerjee (1950) 54 Cal WN 710;
James Skinner v. Kunwar Naunihal Singh, ILR (1929) 51 All 367,
(PC) – referred to.
Books and Periodicals Cited
“Limitation Periods” by Andrew McGee, Barrister of Lincoln’s
Inn, published in 2002; Tagore Law Lectures, U N Mitra, Law of
Limitation and Prescription, Sixteenth Edition, Volume 1, Sections
1-32 & Articles 1-52.
546 [2025] 1 S.C.R.
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List of Acts
Charitable and Religious Trust Act, 1921; Limitation Act, 1963;
Limitation Act, 1908; Code of Civil Procedure, 1908.
List of Keywords
Specific Performance; Rejection of plaint; Cause of Action; Barred
by Limitation; Res-Judicata; Order VII Rule 11 of Code of Civil
Procedure, 1908, Order VII Rule 13 of Code of Civil Procedure,
1908; Article 54 of Limitation Act, 1963; Article 113 of Limitation
Act, 1963; Right to sue; Residuary Article; Omnibus Article; Right
of plaintiff.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1525 of 2023
From the Judgment and Order dated 15.03.2022 of the High
Court of Judicature at Madras at Madurai in CRPMD No. 1116
of 2011
Appearances for Parties
P.V. Balasubramaniam, Sr. Adv., Anish R. Shah, Ankit Sahu,
Advs. for the Appellant.
V. Giri, Sr. Adv., Mahesh Agarwal, Rishi Agrawala, Ankur Saigal,
Ms. S. Lakshmi Iyer, Ms. Sukriti Bhatnagar, Shaswat Singh,
E. C. Agrawala, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Nagarathna, J.
This appeal has been filed by assailing the order dated 15.03.2022
passed by the Madras High Court, Madurai Bench in C.R.P. (MD)
No.1116 of 2011 dismissing the Civil Revision Petition filed by the
appellant.
1.1. For the sake of convenience, the parties in the present appeal
are being referred to as per their status and positions before
the trial court.
[2025] 1 S.C.R. 547
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
Factual Background:
2. According to the plaintiff/respondent herein, the present dispute
pertains to land measuring 5.05-acre being a portion of a 6.48-acre
property known as Loch End at Kodaikanal, originally purchased
by American missionaries of the Lutheran Church Missouri Synod
and Missouri Evangelical Lutheran India Mission in 1912. The
Kodaikanal International School (seeking to implead in the suit) is
located across the road from Loch End. In 1975, an agreement was
made between the American missionaries and the India Evangelical
Lutheran Church Trust Association (defendant/ appellant herein) to
transfer various properties, including the Kodaikanal property, to the
defendant. This agreement was formalized through the joint filing of
O.P. No.101/1975 under Section 7 of the Charitable and Religious
Trust Act, 1921 before the District Judge, Madurai, leading to a
decree dated 26.11.1975, appointing the defendant as the trustee
of those properties for the objects of the Trust stated thereunder.
2.1. According to the plaintiff, the defendant being in need of funds
decided to sell a part of those properties, including the 5.05 acres
of Loch End, consisting of 12 out of 15 buildings (hereinafter
referred to as “suit scheduled property”). An agreement to sell
was executed on 26.04.1991 between the defendant and the
plaintiff, i.e., M/s. Sri Bala & Co., for the suit scheduled property,
on a total sale consideration fixed at Rs.3,02,00,000/- (Rupees
Three Crores and Two Lakhs only) and an advance payment
of Rs. 10,00,000/- (Rupees Ten Lakhs only) was made. Partial
possession of the property is said to have been handed over
to the plaintiff. At that time, the impleading party was allegedly
in possession of three of the twelve buildings on Loch End in
the capacity of a tenant.
2.2. The plaintiff filed an unnumbered suit in the year 1993 before
the Court of the Subordinate Judge, Dindigul Anna District for
specific performance of the agreement to sell dated 26.04.1991,
by seeking execution of the sale deed in respect of the suit
scheduled property and for placing the plaintiff in possession
of the property. The said suit was subsequently transferred to
the Court of the Subordinate Judge, Palani. But the said suit
was rejected vide order dated 12.01.1998 passed by the Court
of Subordinate Judge, Palani due to non-payment of requisite
court-fees by the plaintiff.
548 [2025] 1 S.C.R.
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2.3. The plaintiff thereafter filed O.S. No.49/2007 before the Court
of the Principal District Judge, Dindigul District, seeking specific
performance of the sale agreement dated 26.04.1991, with a
direction to the defendant to execute the sale deed in favour
of the plaintiff after receiving the balance sale consideration for
the suit scheduled property.
2.4. The defendant sought rejection of the second suit by filing
I.A. No.233/2007 under Order VII Rule 11(d) of the Code of
Civil Procedure, 1908 (for short, “Code”), on the ground that
the subsequent suit for specific performance is barred by the
principle of res judicata as the plaintiff had not filed any appeal
against the rejection of the plaint in the previous suit. The
defendant also contended that the subsequent suit for specific
performance was barred by the law of limitation since it was
filed after a gross delay of almost nine years and beyond the
period stipulated under Article 54 of the Limitation Act, 1963
(“Limitation Act”, for short).
2.5. The plaintiff filed its objections to the defendant’s application
for rejection of plaint and placed reliance on Order VII Rule
13 of the Code to argue that a rejection of a plaint does not
preclude the presentation of a fresh plaint for the same cause
of action. It was further contended by the plaintiff that as per
the sale agreement, the Kodaikanal International School,
which is in possession of part of the suit scheduled property
in the capacity of a tenant, has to be evicted and the vacant
possession ought to be handed over to the plaintiff. Since the
tenants had not been vacated from the property, the suit for
specific performance of the sale agreement is not barred by
Article 54 of the Limitation Act. Reliance was placed by the
Plaintiff on an extension letter dated 15.07.1991 executed by
the defendant’s Secretary-cum-Treasurer namely Reverent
A. Sundaram in favour of the plaintiff, which had extended
the period of the sale agreement in light of multiple pending
litigations with the impleading party.
2.6. The said application, i.e., I.A. No.233/2007, was dismissed by
the trial court vide order dated 16.09.2010, on the grounds
that the previous suit was not decided on merits and therefore
the principle of res judicata would not apply and further, the
[2025] 1 S.C.R. 549
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
issue of limitation period being extended to file the suit for
specific performance in light of the pending litigations with the
impleading party was a question of fact and the said issue had
to be adjudicated only after examination of proper witnesses
and documents during trial. Thus, the trial court refused to reject
the plaint at such an early stage.
2.7. Being aggrieved by the order of the trial court, defendant
preferred a civil revision petition before the High Court being
C.R.P. (MD) No.1116/2011. However, the High Court on
15.03.2022 dismissed the said Civil Revision Petition. The High
Court observed that the previous suit was neither registered
nor numbered and since the issues were not finally decided, it
was not hit by the principle of res judicata. Further, the question
of extension of the limitation period is a mixed question of
fact and law which can be decided only after the recording of
evidence and not at the stage of rejection of plaint. Thus, the
High Court confirmed the order dated 16.09.2010 passed by the
trial court on the application filed by the defendant for rejection
of the plaint. The said order of the High Court in C.R.P. (MD)
No.1116/2011 is under challenge in this appeal.
2.8. Two more orders arising out of the same set of facts were
passed by the Madras High Court, Madurai Bench on the same
date as that of the impugned order. The issues in those matters
dealt with impleadment and beneficiary rights of the impleading
party with respect to the suit scheduled property. This Court
granted leave in those matters as well and had tagged them
with the present matter. However, since the present appeal deals
with an issue more germane to the suit and the relevance of
those two appeals rests on the fate of the present appeal, the
present appeal was de-tagged by this Court from the other two
connected matters vide order dated 24.10.2024.
Submissions:
3. We have heard Sri P.V. Balasubramaniam, learned senior advocate
for the appellant/defendant and learned senior advocate Sri V. Giri
for the respondent/plaintiff and perused the material on record.
3.1. Sri Balasubramaniam, at the outset submitted that both the High
Court as well as the trial court were not right in dismissing the
550 [2025] 1 S.C.R.
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application filed by the appellant/defendant in the suit under
Order VII Rule 11(d) of the Code. No doubt, the respondent/
plaintiff in the suit had the right to file another suit on the
same cause of action after rejection of the plaint in the earlier
unnumbered suit filed by it in the year 1993 for the relief of
specific performance of the agreement to sell dated 26.04.1991
on the strength of Order VII Rule 13 of the Code. However, the
said suit had to be on the same cause of action as the earlier
suit and within the period of limitation as prescribed under the
Limitation Act, 1963. Thus, the rejection of the plaint in the
earlier suit filed by the respondent/plaintiff was not a bar to file
a fresh suit on the same cause of action. The law provides for
another opportunity to a plaintiff to reagitate on an identical
cause of action despite the rejection of the plaint in the earlier
suit filed by a plaintiff on the basis of Order VII Rule 13 of the
Code. However, the second suit which is on the same cause
of action must be maintainable in law and not hit by Order VII
Rule 11(d) of the Code.
3.2. Elaborating on the aforesaid contention, learned senior counsel
submitted that in the instant case, the first suit was filed in the
year 1993 to seek specific performance of the agreement to
sell dated 26.04.1991 which suit was filed within the period
of limitation as prescribed under Article 54 of the Limitation
Act. The plaint of the said suit was rejected vide order dated
12.01.1998 owing to non-payment of the requisite court-fees
by the plaintiff. If another suit had to be filed by the very same
plaintiff on the very same cause of action, then the second
suit had to be within the prescribed period of limitation and
otherwise not barred by law. In the instant case, the respondent/
plaintiff filed the second suit only in the year 2007 for specific
performance of agreement to sell dated 26.04.1991, when the
cause of action accrued to the respondent/plaintiff in the year
1993 itself, i.e., when the earlier suit was filed. Even if the period
of the pendency of the said earlier suit till the rejection of the
plaint on 12.01.1998 is excluded for the purpose of computing
the limitation period which had commenced as early as in the
year 1993, there is no explanation as to why the second suit
i.e., O.S. No.49/2007 was filed only in the year 2007. At best,
the limitation period could have extended for a period of three
[2025] 1 S.C.R. 551
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
years from 12.01.1998 for the filing of the second suit by the
respondent/plaintiff. That, the aforesaid facts are all admitted
by the respondent/plaintiff in the plaint itself and hence, on
that basis the trial court as well as the High Court ought to
have exercised their jurisdiction in rejecting the plaint in O.S.
No.49/2007 as the filing of the second suit in the year 2007 is
way beyond the prescribed period of limitation.
3.3. It was contended that when the earlier suit was filed by the
respondent/plaintiff, it was on the basis of the cause of action
that had accrued to the plaintiff. If the plaint in the earlier suit
was rejected on 12.01.1998, then the second suit ought to
have been filed immediately thereafter so as to maintain a
continuity in the cause of action or possibly within three years
from the date of the rejection of the plaint, which would mean
that the suit ought to have been filed by 12.01.2001. But, in the
instant case, the filing of the suit in the year 2007 gives rise
to an inference that the respondent/plaintiff had acquiesced to
the rejection of the plaint and thus had waived its right to seek
specific performance of the agreement to sell dated 26.04.1991.
Therefore, the filing of the second suit in the instant case is
only an afterthought, a chance and being speculative in nature,
ought to have resulted in rejection of the plaint on the basis of
Order VII Rule 11(d) of the Code as being hit by Article 54 of
the Limitation Act and therefore, barred in law.
3.4. It was therefore submitted that the plaint in O.S. No.49/2007
may be rejected by setting aside the impugned order and
allowing this appeal.
3.5. Per contra, learned senior counsel Sri Giri supported the
impugned orders rejecting the application filed by the appellant
herein under Order VII Rule 11(d) of the Code and contended that
there is no merit in this appeal. Elaborating on this submission,
Sri Giri contended that on the basis of Order VII Rule 13 of the
Code, the second suit, namely, O.S. No.49/2007 was filed. In
the plaint of the aforesaid suit, it has been categorically averred
that the letter dated 15.07.1991 which was executed by the
Secretary-cum-Treasurer Reverend, namely, A. Sundharam in
favour of the plaintiff clearly extended the period of limitation
owing to multiple litigations pending between the parties and the
552 [2025] 1 S.C.R.
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party seeking to implead in the said suit. Further, the question
of a suit being barred under Article 54 of the Limitation Act
is a mixed question of law and fact which cannot be decided
on mere averments made in the plaint. Hence, the trial court
as well the High Court rightly rejected the application filed by
the appellant herein for seeking rejection of the plaint. It was
contended that owing to the pendency of litigation between the
parties, the time for performance under the agreement dated
26.04.1991 was automatically extended and therefore, it was
only when the other litigation between the parties herein and
the impleading party in the suit concluded that the cause of
action for filing the second suit in the year 2007 resurfaced
as till then it was dormant and hence, there is no merit in this
appeal. It was contended that there was in fact no basis to
file the application under Order VII Rule 11(d) of the Code by
the appellant herein as the issue of limitation could have been
adjudicated upon on conclusion of the trial and along with the
other issues which arise in the suit. It was submitted that there
is no merit in this appeal and the same may be dismissed.
3.6. By way of reply, learned senior counsel for the appellant
contended that there is a contradiction in the submission of
the respondent/plaintiff inasmuch as when the earlier suit was
filed in the year 1993 it was on the basis of a cause of action
which had accrued to the plaintiff and there was no reference
to letter dated 15.07.1991 extending the time for performance
under the agreement or for that matter, resulting in extension of
time for the filing of the suit akin to Section 18 of the Limitation
Act. There is no reference to the letter dated 15.07.1991 in
the earlier suit filed by the respondent/plaintiff and the same
is also not admitted by the appellant herein. Even otherwise,
the pendency of other litigations vis-à-vis the suit scheduled
property could not have been a reason for filing the second suit
as late as in the year 2007 for seeking specific performance of
the agreement to sell dated 15.07.1991. On a comparison of
the earlier suit and the present suit and on a holistic reading
of the plaint in the second suit, the trial court as well as the
High Court ought to have allowed the application filed by the
appellant herein and rejected the plaint as being barred in law,
hit by the Limitation Act and thus, coming within the scope and
[2025] 1 S.C.R. 553
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
ambit of Order VII Rule 11(d) of the Code. Therefore, learned
senior counsel submitted that the present appeal may be
allowed with costs.
Points for Consideration:
4. The short issue before this Court in this appeal is, whether the plaint
in the subsequent suit for specific performance filed by the plaintiff,
i.e., O.S. No.49/2007, is liable to be rejected in terms of Order VII
Rule 11(d) of the Code on the ground that the said suit is barred by
the law of limitation. What order is to be passed?
5. The detailed narration of facts and contentions would not call for a
reiteration.
5.1. The undisputed facts of the case are that on 26.04.1991, the
appellant/defendant entered into an agreement to sell the
suit scheduled property to the respondent/plaintiff for a total
consideration of Rs.3,02,00,000/- (Rupees Three Crores and
Two Lakhs only) and an advance payment of Rs.10,00,000/-
(Rupees Ten Lakhs only) was made. There was a time schedule
for the payment of the balance in sale consideration within a
period of twenty-seven months from 26.04.1991 which is also
extracted in paragraph 4 of the plaint. Thus, within a period of
twenty-seven months from the date of the agreement, the entire
balance of sale consideration had to be paid by the respondent/
plaintiff to the appellant herein. However, as early as in 1993
itself, the suit for specific performance of the agreement to sell
was filed by the respondent/plaintiff, which was an unnumbered
suit, but the plaint in the said suit was rejected vide order dated
12.01.1998 passed by the trial court due to non-payment of the
requisite court fees by the respondent/plaintiff.
5.2. Thereafter, it was only in the year 2007 that the respondent/
plaintiff filed O.S. No.49/2007 seeking the very same relief of
specific performance of the sale agreement on receipt of the
balance sale consideration. This suit was filed on the strength
of Order VII Rule 13 of the Code. It is in this suit that the
appellant/defendant filed an application under Order VII Rule
11(d) of the Code on the ground that the said suit was barred
by the law of limitation since it was filed after a gross delay of
almost nine years from the date of rejection of the plaint in the
554 [2025] 1 S.C.R.
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earlier suit and the said suit not being maintainable as barred
in law. Consequently, the plaint was subject to rejection. The
trial court dismissed the application filed for seeking rejection
of the plaint by its order dated 16.09.2010 and the said order
has been sustained by the High Court by the impugned order.
Legal Framework:
Order VII Rule 11 of the Code:
6. Since the issue in this appeal pertains to the correctness or otherwise
of the impugned orders refusing rejection of the plaint, at this stage,
we deem it necessary to refer to Order VII Rule 11 of the Code which
deals with the grounds for rejection of a plaint:
“11. Rejection of plaint. - The plaint shall be rejected in
the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct
the valuation within a time to be fixed by the Court,
fails to do so;
(c) where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law:
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provision
of rule 9:
Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-paper
shall not be extended unless the Court, for reasons to
be recorded, is satisfied that the plaintiff was prevented
by any cause of an exceptional nature for correcting the
valuation or supplying the requisite stamp-paper, as the
[2025] 1 S.C.R. 555
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
case may be, within the time fixed by the Court and that
refusal to extend such time would cause grave injustice
to the plaintiff.”
6.1. In the instant case, an application was filed under Order VII
Rule 11(d) of the Code where the ground of rejection of the
plaint was that the suit appears from the statement in the
plaint to be barred by any law. In this regard, our attention
was drawn to various decisions of this Court with regard to
rejection of plaint under Order VII Rule 11 of the Code which
are as follows:
(i) In T. Arivandandam vs. T.V. Satyapal (1977) 4 SCC
467, this Court while examining the aforesaid provision
has held that the trial court must remember that if on a
meaningful and not a formal reading of the plaint it is
manifestly vexatious and meritless in the sense of not
disclosing a clear right to sue, it should exercise the
power under Order VII Rule 11 of the Code taking care
to see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first hearing
by examining the party searchingly under Order X of the
Code, as observed by Krishna Iyer, J.
(ii) The object of the said provision was laid down by this
Court in Sopan Sukhdeo Sable vs. Assistant Charity
Commissioner (2004) 3 SCC 137. Similarly, in Popat
and Kotecha Property vs. State Bank of India Staff
Association (2005) 7 SCC 510, this Court has culled out
the legal ambit of Order VII Rule 11 of the Code.
(iii) It is trite law that not any particular plea has to be
considered, but the whole plaint has to be read. As was
observed by this Court in Roop Lal Sathi vs. Nachhattar
Singh Gill (1982) 3 SCC 487, only a part of the plaint
cannot be rejected and if no cause of action is disclosed, the
plaint as a whole must be rejected. Similarly, in Raptakos
Brett & Co. Ltd. vs. Ganesh Property (1998) 7 SCC
184, it was observed that the averments in the plaint as
a whole have to be seen to find out whether clause (d) of
Rule 11 Order VII of the Code is applicable.
556 [2025] 1 S.C.R.
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(iv) It was further held with reference to Order VII Rule 11
of the Code in Saleem Bhai vs. State of Maharashtra
(2003) 1 SCC 557 that the relevant facts which need to
be looked into for deciding an application thereunder are
the averments in the plaint. The trial court can exercise the
power at any stage of the suit i.e. before registering the
plaint or after issuing summons to the defendant at any
time before the conclusion of the trial. For the purposes of
deciding an application under clauses (a) and (d) of Order
VII Rule 11 of the Code, the averments in the plaint are
germane; the pleas taken by the defendant in the written
statement would be wholly irrelevant at that stage.
(v) In R.K. Roja vs. U.S. Rayudu (2016) 14 SCC 275, it was
reiterated that the only restriction is that the consideration of
the application for rejection should not be on the basis of the
allegations made by the defendant in his written statement
or on the basis of the allegations in the application for
rejection of the plaint. The court has to consider only the
plaint as a whole, and in case the entire plaint comes
under the situations covered by Order VII Rules 11(a) to
(f) of the Code, the same has to be rejected.
(vi) In Kuldeep Singh Pathania vs. Bikram Singh Jaryal
(2017) 5 SCC 345, this Court observed that the court can
only see whether the plaint, or rather the pleadings of the
plaintiff, constitute a cause of action. Pleadings in the sense
where, even after the stage of written statement, if there
is a replication filed, in a given situation the same also
can be looked into to see whether there is any admission
on the part of the plaintiff. In other words, under Order
VII Rule 11, the court has to take a decision looking at
the pleadings of the plaintiff only and not on the rebuttal
made by the defendant or any other materials produced
by the defendant.
(vii) In an application under Order VII Rule 11 of the Code,
a plaint cannot be rejected in part. This principle is well
established and has been continuously followed since
the 1936 decision in Maqsud Ahmad vs. Mathra Datt &
Co. AIR 1936 Lah 1021. This principle is also explained
in another decision of this Court in Sejal Glass Ltd. vs.
[2025] 1 S.C.R. 557
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
Navilan Merchants Private Ltd. (2018) 11 SCC 780
which was again followed in Madhav Prasad Aggarwal
vs. Axis Bank Ltd. (2019) 7 SCC 158.
(viii) In Biswanath Banik vs. Sulanga Bose (2022) 7 SCC
731, this Court discussed the issue whether the suit can
be said to be barred by limitation or not, and observed
that at this stage, what is required to be considered is the
averments in the plaint. Only in a case where on the face
of it, it is seen that the suit is barred by limitation, then
and then only a plaint can be rejected under Order VII
Rule 11(d) of the Code on the ground of limitation. At this
stage what is required to be considered is the averments
in the plaint. For the aforesaid purpose, the Court has to
consider and read the averments in the plaint as a whole.
Order VII Rule 13 of the Code:
7. Order VII Rule 13 of the Code reads as under:
“13. Where rejection of plaint does not preclude
presentation of fresh plaint.- The rejection of the plaint
on any of the grounds hereinbefore mentioned shall not of
its own force preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action.”
7.1. This Court in Delhi Wakf Board vs. Jagdish Kumar Narang
(1997) 10 SCC 192 was dealing with a case where an earlier
suit had been rejected under Order VII Rule 11 of the Code in
the year 1984 and a fresh suit was instituted on the same cause
of action in the year 1986. The second suit was not allowed by
the trial court as well as by the High Court. This Court set aside
the orders of the trial court and the High Court and held that a
suit filed on the same cause of action subsequent to rejection
of the plaint in the previous suit under Rule 11 is not liable to
be dismissed on the ground of being barred by order rejecting
the plaint in the earlier suit.
7.2. In A. Nawab John vs. V.N. Subramaniyam (2012) 7 SCC 738,
this Court examined the applicability of Order VII Rule 11 of the
Code which requires a plaint to be rejected, inter alia, where
the relief claimed is undervalued and/or the plaint is written on
a paper insufficiently stamped, and, in either case, the plaintiff
558 [2025] 1 S.C.R.
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fails to either correct the valuation and/or pay the requisite
court fee by supplying the stamp paper within the time fixed
by the court. Rule 13 categorically declares that the rejection
of a plaint shall not of its own force preclude the plaintiff from
presenting a fresh plaint in respect of the same cause of action.
It was also observed that under Order VII Rule 11, a plaint,
which has not properly valued the relief claimed therein or is
insufficiently stamped, is liable to be rejected. However, under
Rule 13, such a rejection by itself does not preclude the plaintiff
from presenting a fresh plaint. It naturally follows that in a given
case where the plaint is rejected under Order VII Rule 11 of
the Code and the plaintiff chooses to present a fresh plaint,
necessarily the question arises whether such a fresh plaint is
within the period of limitation prescribed for the filing of the suit.
If it is to be found by the court that such a suit is barred by
limitation, once again it is required to be rejected under Order
VII Rule 11 clause (d).
7.3. However, Section 149 of the Code, as interpreted by this Court in
Mannan Lal vs. Mst. Chhotaka Bibi, (Dead) by LRs. (1970) 1
SCC 769, confers power on the court to accept the payment of
deficit court fee even beyond the period of limitation prescribed
for the filing of a suit, if the plaint is otherwise filed within the
period of limitation.
7.4. The case of Patil Automation Private Ltd. vs. Rakheja
Engineers Private Ltd. (2022) 10 SCC 1 further discussed
that under Order VII Rule 11 of the Code, the plaint can be
rejected on six grounds. They include failure to disclose the
cause of action, and where the suit appears from the statement
in the plaint to be barred. Order VII Rule 12 of the Code
provides that when a plaint is rejected, an order to that effect
with reasons must be recorded. Order VII Rule 13 provides
that rejection of the plaint mentioned in Order VII Rule 11
does not by itself preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action. Order VII of the
Code deals with various aspects about what is to be pleaded
in a plaint, the documents that should accompany and other
details. Order IV Rule 1 provides that a suit is instituted by
presentation of the plaint to the court or such officer as the
court appoints. By virtue of Order IV Rule 1(3), a plaint is to
[2025] 1 S.C.R. 559
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
be deemed as duly instituted only when it complies with the
requirements under Order VI and Order VII. Order V Rule 1
declares that when a suit has been duly instituted, a summon
may be issued to the defendant to answer the claim on a date
specified therein. It was therefore held that rejection of earlier
suit under Order VII Rule 11 does not bar fresh suit on the
same cause of action provided the right of action is not barred
by the law of limitation.
Averments in the plaint:
8. Since the plaint has to be read holistically in order to ascertain whether
it is barred by limitation and consequently, to decide if the suit itself
is not maintainable, we now embark on a meaningful reading of
the plaint in O.S. No.49/2007 which is sought to be rejected by the
appellant herein, as under:
(i) Paragraphs 1 and 2 of the plaint give details of the plaintiff
and defendant.
(ii) In paragraph 3 of the plaint, it has been averred that there was a
written agreement of sale executed on 26th April, 1991 with regard
to the suit scheduled property by the defendant/vendor as the
absolute owner of the property with the plaintiff/purchaser. The
sale price mutually agreed upon was Rs.3,02,00,000/- (Rupees
Three Crores and Two Lakhs only) and an advance amount of
Rs.10,00,000/- (Rupees Ten Lakhs only) was paid earlier on
26th March, 1991, a month prior to the written agreement being
executed, wherein a payment of Rs.9,00,000/- (Rupees Nine
Lakhs only) was made by demand draft of Canara Bank dated
23.03.1991 payable at Nagerkoil and Rs.1,00,000/- (Rupees
One Lakh only) by way of an account payee cheque of City
Union Bank, Madras.
(iii) Paragraph 4 of the plaint gives the time schedule for receipt
balance sale consideration of Rs.2,92,00,000/- (Rupees Two
Crores ninety-two lakhs only) in the following manner:
“(a) Rs.10,00,000/-, (Rupees Ten lakhs only) to be paid within
3 months from the date this agreement subject to the
condition that the vacant possession of the properties
occupied by tenants are handed over to the plaintiff on
or before 1.6.1991.
560 [2025] 1 S.C.R.
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(b) Rs.20,00,000/- (Rupees Twenty lakhs) to be paid within
9 months from the date of the agreement.
(c) Rs.30,00,000/- (Rupees Thirty lakhs) to be paid within 9
months from the date of the agreement.
(d) Rs.30,00,000/- (Rupees Thirty lakhs) to be paid within 12
months from the date of the agreement.
(e) Rs.40,00,000/- (Rupees Forty lakhs) to be paid within 15
months from the date of the agreement.
(f) Rs.40,00,000/- (Rupees Forty lakhs) to be paid within 15
months from the date of the agreement.
(g) Rs.40,00,000/- (Rupees Forty lakhs) to be paid within 21
months from the date of the agreement.
(h) Rs.40,00,000/- (Rupees Forty lakhs) to be paid within 24
months from the date of the agreement..
(i) Rs.42,00,000/- (Rupees Forty two lakhs) paid within 27
Months from the date of the agreement. The true copy of
the sale deed is submitted herewith and it may be read
as part of the plaint allegations.”
(iv) Paragraph 5 of the plaint avers that the entire balance
consideration has to be paid within 27 months, i.e., before
25.07.1993 but time is not the essence of the contract. Further,
there is a condition precedent that the vacant possession of
the properties occupied by the tenant are to be handed over
to the plaintiffs on or before 01.06.1991.
(v) In paragraph 6 it is stated that the suit scheduled property
and the adjacent property are popularly known as Loch End
property wherein there are 15 buildings in an extent of 6.48
acres, out of which the defendant agreed to sell 5.05 acres
consisting of 12 buildings. That at the time of agreement the
tenant was in occupation of three buildings and on the date
of the agreement the plaintiff was put in possession of nine
buildings detailed therein.
(vi) Paragraph 7 of the plaint states that at the time of the
agreement to sell, one Rev. J. Isaac Moon was the President
of the defendant company and the Board of Directors by its
[2025] 1 S.C.R. 561
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
Resolution/Proceedings, authorised the Secretary Treasurer
Rev. A. Sundharam to execute the agreement to sell and
the same was later ratified by the Board of Directors of the
defendant company.
(vii) Paragraphs 8 to 16, 18 and 20 of the plaint are extracted as
under:
“8. Rev. J. Isaac Moon for the reasons best known to him
did not like the suit property being sold to the plaintiff.
Therefore, he whipped up the religious sentiments. As
per the agreement to sell, the plaintiff was put in the
possession of the tenanted premises also on 1.7.1991
by the defendant. Bin Rev. J. Isaac Moon instigated the
tenant to proffer a false complaint against the personnel
of the defendant and the plaintiff and her husband before
the police as though the tenant was evicted by force
Therefore proceedings were initiated u/s 145 of the code
of Criminal Procedure in M.C. No. 1/1991 on the file of
the Sub-Divisional Magistrate-Cum-Revenue Divisional
Officer Kodaikanal.
9. The plaintiff was forced to file a suit for permanent injunction
against the tenant to protect possession in O.S.No.66 of
1991 on the file of the District Munsif Court Kodaikkanal
and obtained ad-interim orders in I.A.No.75/1991 also.
Again the tenant file a Writ petition before Hon’ble High
Court in W.P.No.9551/ 1991 seeing protection further
against the ad interim order in I.A.No.75/1991 the
tenant also filed Revision before Hon’ble High Court in
C.R.No.1846/1991 and obtained stay of operation of the
order. In the meantime, the Sub Divisional Magistrate-
cum-Revenue Divisional Office Kodaikanal on 9.12.1991
found possession only with the plaintiff and against which
also the tenant filed a Revision before the Hon’ble High
Court in Court in Crl. R.C. No.113/1992.
10. Since the defendant’s president Rev. J. Issac Moon,
without any authority was acting against the decisions /
resolutions / proceedings of the Board of Directors, the
defendant extended the time for performance of the contract
till the disposal of the all litigations on 15.07.1991. The true
562 [2025] 1 S.C.R.
Digital Supreme Court Reports
of copy, of the letter extending the time for performance
is also submitted herewith for better appreciation of facts.
11. In the meantime, the plaintiff also filed a suit with deficit
court fee for specific performance of the contract and the
same was allowed to be rejected for non-payment of dealt
court fee by the Hon’ble sub-court Palani. In the meantime
the tenant also filed several applications in O.P.No.
101/1975 in 1.A.No. 1500/92 and 1.A.No. 1501/92 on the
file of the District Court Dindigul questioning the validity of
the agreement to sell and also filed various suits in O.S.No
13/93 and in O.S.No. 108/93 on the file of the District Munsif
court Kodaikkanal for taking inventory and for permanent
injunction against the defendant from alienating the suit
property. In view of multiplicity of proceedings initiated by
the tenant, the plaintiff was advised not to proceed with the
suit for specific performance on the file of the Sub-Court
Palani at that time. It is needless to submit that under
order 7. Rule 13 of C.P.C. rejection of earlier plaint is not
a bar to the suit.
12. Subsequently the Hon’ble High Court passed a common
order setting aside the ad-interim orders passed in I.A.
No. 75/91 in O.S.No. 66/91 on the file of District Munsif
Court Kodaikanal and the order passed by SDK cum
RDO/ Kodaikkanal in MC 1/1991 in C.R.P, No. 1846/91
and Crl.R.C.No. 113/92 respectively, In view of the order
of the High court, the tenant with the help of police took
possession of not only the three tenanted premised but
also the other 9 buildings in the occupation of the plaintiff,
on 24.07.1997 with the help of Rev. Isaac Moon and the
local police.
13. The plaintiff preferred special Leave Petitions against the
orders of the Hon’ble High Court in W.P. No. 9551/1991,
C.R.P. No. 1846/1991 and Cri. R.C.No, 113/1992: The
Hon’ble Supreme Court in SI.O. (Crl) No.2037/97 (C) No.
2038/97 and 2039/97 set aside the order of the Hon’ble
High Court and remanded the same an 24.3.1998.
14. In the meantime, the tenant not pressed that suit in
O.S.No.13/93 and 108/96 on the file of the District:
[2025] 1 S.C.R. 563
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
Munsif Court Kodaikkanal besides 1.A. No.1501/92 in
O.P.101/1975 on the file of the District Court Dindigul.
15. Again, SUM Cum RDO Kodailcanal found the tenant to
be in possession in M.C.No. 1/1991 after remand of the
matter by the Hon’ble Supreme court of India, without
hearing the plaintiff. Against which the plaintiff also
preferred a Revision before Hon’ble High Court in Crl.
R.C.No.511/1999. The Hon’ble High Court dismissed the
Revision and titt7-51aintiff has also preferred, a special
Leave Petition before Hon’ble supreme Court of India in
SLP.No.1239/2005 and the same is still, pending along
with other SLPs filed by the plaintiff arising out of orders
dated 29.04.2003 in CRP.No.232/2003 by the Hon’ble
High Court against the orders in I.A. No. 59/2002 in
O.S.No. 66/1991 on the file of the District Munsif Court
Kodaikanal and against the orders in CRP No.649/2003
which was filed against taking on file IA.55/2003 in O.S.
No.66 of 1991 on the file of the District Munsif Court
Kodaikkanal.
16. In the meantime, on 25.4.2003 the Hon’ble District Judge
Dindigul dismissed I.A.No. 1500/1992 in O.P.No. 101/1975
holding that the agreement to sell dated 26.4.1991
between the plaintiff and the defendant is valid and
enforceable. The tenant also filed a memo exonerating,
the plaintiff and the tenant even filed I.A.No. 1500/2012
to delete the name of the plaintiff from the decretal and
orders in I.A. No. 1500/1992 after its dismissal. The
Hon’ble District, Judge dismissed 1.A. No.1575/2005
on 5.4.2007.
xxx
18. Further, there were various litigations over the election
of conveners of three Synods, and board of Directors to
the defendant company froth July 1992. An advocate -
Commissioner was appointed by the Hon’ble High Court
to conduct election to the defendant company. Therefore,
the plaintiff could not negotiate or deal with the defendant
for enforcement of the contract for sale as there was
confusion in the part of the plaintiff filing this suit. Even
564 [2025] 1 S.C.R.
Digital Supreme Court Reports
not there is no clear picture as to the election of Directors
to the Board of the defendant company, and the secretary
of the company.
xxx
20. As for as the suit for permanent injunction in O.S. No. 66
of 1991 on the file of the District Munsif Court Kodaikkanal
now stands transferred to the file of the District Munsif
chuft Dindigul and the same is still pending in O.S. No.
76/2005.”
The aforesaid paragraphs refer to various proceedings initiated
in the years 1991, 1992, 1993 and give the details of those
proceedings, some of which had been disposed while other/s
were pending on the date of the filing of the plaint or suit.
(viii) Paragraph 17 of the plaint reads as under:
“17. In view of the cantankerous attitude of the tenant and
vexatious litigation of the tenant, the plaintiff could not file
the suit for specific performance of contract earlier. The
plaintiff was always ready and willing to perform her part
of the contract.”
(ix) Paragraphs 19 and 21 of the plaint are extracted as under
with regard to the filing of the suit for specific performance and
cause of action for the same.
“19. Any how, the plaintiff has not been advised to file this
suit for specific performance. The plaintiff has paid urban
land Tax to the tune of Rs.35,670/- and property Tax for
Rs.6652/-.for the suit property. Further, the suit property
had been attached for the Income Tax due to the govt.
by the plaintiff.
xxx
21. Cause of action for the suite arose on 26.4.1991 when the
plaintiff and the Defendant entered into an agreement of
sale with regard to the schedule mentioned property herein
under on 15.07.1991 when the time for performance of
contract is extended till the disposal of litigations launched
at the instance of the president of the company through
the tenant, on 25.4.2003 when the Hon’ble District Judge
[2025] 1 S.C.R. 565
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
upheld the validity of the sale agreement dated 26.4.1991
and on 5.4.2007 when I.A.No.1515/2003 was dismissed to
delete the name of the plaintiff and at Kodaikanal Township
where the suit property situate within the jurisdiction of
this Hon’ble Court.”
8.1. What is significant to note is that in paragraphs 10 and 21,
there is a reference to a letter dated 15.07.1991 said to have
been issued by the defendant which is contended to be for
the purpose of extending the time for performance of the
contract till the disposal of litigation launched at the instance
of the President of the defendant through the tenant. Hence,
it is averred that the plaintiff was not advised to file the suit
for specific performance which was ultimately filed in the year
2007, being the second suit for the same cause of action, when
initially, (on the very same cause of action,) the unnumbered
suit was filed on 21.07.1993 wherein the plaint was rejected on
the ground that the court fee had not been tendered despite
several opportunities being given.
8.2. Further, in paragraph 17 of the plaint, it has been averred that
due to the cantankerous attitude and vexatious litigation of the
tenant, the plaintiff could not file the suit for specific performance
of the contract earlier, although the plaintiff was ready and willing
to perform her part of the contract. This averment is totally alien
to the filing of the second suit and has no bearing on the relief
sought inasmuch as the tenant is not a party to the agreement
dated 26.04.1991 and the filing and pendency of litigation vis-
à-vis the tenant was not an impediment at all to file the earlier
suit for specific performance of the aforesaid agreement.
8.3. We are conscious and mindful of the fact that while considering
the question of rejection of the plaint, it is the plaint alone
which has to be read meaningfully and not any averment
in the written statement. It is also necessary sometimes to
consider the documents annexed to the plaint for a holistic and
comprehensive reading of the plaint in order to decide whether
the plaint ought to be rejected or not. But the present case is not
a case where there is only one suit which has been filed by the
respondent/plaintiff on the same cause of action and therefore,
only a single plaint ought to be considered while deciding the
566 [2025] 1 S.C.R.
Digital Supreme Court Reports
issue of rejection of the plaint. This is a case where a second
suit has been filed after the rejection of the plaint in the earlier
suit filed on the very same cause of action and for the very
same relief of seeking specific performance of agreement to
sell dated 26.04.1991. In order to ascertain whether the plaint
in the second suit ought to be rejected on the ground that it is
barred by law such as the suit being filed beyond the prescribed
period of limitation and therefore, is barred within the meaning of
Order VII Rule 11(d) of the Code, we think it is useful to consider
the fact that an earlier suit was filed by the respondent/plaintiff
on the very same cause of action in the year 1993 itself which
resulted in the rejection of the plaint in the said suit owing to
non-payment of the court fee. This fact is pertinent when the
contention of the defendant/appellant herein is that the second
suit filed on the basis of Order VII Rule 13 of the Code is barred
as it has been filed beyond the prescribed period of limitation.
8.4. It is nobody’s case that the earlier suit was not filed in time. The
said suit was filed on 21.07.1993, on the basis of the cause of
action that arose for seeking the relief of specific performance
of the agreement to sell dated 26.04.1991. According to the
appellant/defendant, if the cause of action had occurred in the
year 1993 and therefore, the earlier suit was filed in time, without
any reference to the so-called letter dated 15.07.1991 (on the
basis of which extension of time for performance of the contract
is pleaded in the second suit), the rejection of the plaint in the
earlier suit, at best, could have extended the limitation period
by three years from the date of the rejection of the plaint in the
earlier suit so as to maintain a continuity in the cause of action
for filing the second suit. Significantly, in the earlier suit, the
plaintiff did not aver that time for performance of the contract had
been extended on the basis of the letter dated 15.07.1991 said
to have been issued by the defendant. In fact, the stand of the
respondent/plaintiff was to the contrary. It was to the effect that
in the absence of performance of the agreement to sell dated
26.04.1991 by the defendant, the plaintiff had a cause of action
to seek specific performance of the said agreement. Therefore,
the earlier suit was filed in July, 1993 itself on the basis that
the plaintiff had a cause of action to seek specific performance
of the agreement to sell dated 26.04.1991. But owing to non-
[2025] 1 S.C.R. 567
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
payment of requisite court fee, the plaint in the said suit was
rejected on 12.01.1998. There was also no reference to any
of the litigations which were pending between the parties prior
to the filing of the earlier suit which is said to have resulted in
postponement of the performance of the contract.
8.5. Thus, if really, the cause of action had arisen for the plaintiff
to file the earlier suit on 01.07.1993 and the plaint in the said
suit was rejected on 12.01.1998 owing to non-payment of the
requisite court fee, then, at best, a second suit on the very
same cause of action could have been filed by 12.01.2001
which would have been within three years from the date of
rejection of the plaint in the earlier suit. Therefore, the second
suit, namely O.S. No.49/2007, could not have been filed in the
year 2007 i.e., nine years after the rejection of the plaint in the
earlier suit. The second suit not having been filed within a period
of three years from 12.01.1998, which could be construed to
be within the meaning of the Limitation Act, we are of the view
that the second suit filed by the respondent/plaintiff is barred
by the law of limitation and is thus not maintainable.
8.6. To get over this lacuna, the respondent/plaintiff has introduced
the so-called communication/letter dated 12.07.1991 said
to have been issued by the defendant by stating that time
for performance of the contract had been extended till the
conclusion of all other litigations between the parties herein
and with the tenant. If reliance is now placed on the said letter
by the respondent/plaintiff so as to seek a continuity in the
cause of action, then the earlier suit could not have been filed
at all in the year 1993 as then no cause of action had arisen
to the plaintiff to file the earlier suit! But the fact remains that
the plaintiff/respondent herein did file the earlier suit in the
year 1993 on the ground that they had a cause of action to do
so and for the very same relief of specific performance of the
agreement to sell dated 26.04.1991 was sought but the plaint
in the earlier suit came to be rejected owing to non-payment
of the requisite court fee. Even after the rejection of the plaint
in the earlier suit, steps were not taken on time, i.e., prior to
12.01.2001 to file the second suit on the basis of Order VII
Rule 13 of the Code. Instead, the second suit has been filed
only in the year 2007 belatedly and possibly only to keep the
568 [2025] 1 S.C.R.
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litigation alive between the parties which, in our view, is to
make an unlawful gain from the speculative second suit by a
settlement or in any other manner.
8.7. We do not appreciate the conduct of the respondent/plaintiff in
filing of the second suit belatedly in the year 2007 when they
could have done so prior to 12.01.2001, if they were really
serious in seeking enforcement of the agreement to sell dated
26.04.1991. We say so on the basis of the action of the plaintiff
in seeking the relief of specific performance of the agreement to
sell dated 26.04.1991 by filing the earlier suit in the year 1993
itself. In the said suit there was no reference to the letter dated
26.07.1991. Moreover, litigation concerning the suit scheduled
property was not an impediment to file the earlier suit in the year
1993. Then, we ask, how could it become an impediment for
postponing the filing of the second suit till the year 2007? We
think that the reliance placed on the letter dated 26.07.1991 in
the second suit filed in the year 2007 (and the glaring omission
of any reference to the said letter in the earlier plaint filed in
the year 1993) is mischievous and cannot be considered to
hold that there was an extension of time for performance of the
contract. Therefore, the second suit filed by the respondent in
the year 2007 is not within the prescribed period of limitation
and not as sought to be contended by the plaintiff.
8.8. Thus, on a holistic reading of the plaint it could be rejected
as being barred by law of limitation. However, it is stated that
normally the question of limitation would be a mixed question
of law and fact. Hence, usually, on a reading of the plaint it is
not rejected as being barred by the law of limitation. However,
the above is not an inflexible rule. We wish to discuss the
relevant Article under the Limitation Act applicable to the facts
of the present case which is Article 113 for the second suit with
a preface on the law of limitation.
9. The Limitation Act, 1963 consolidates and amends the law of limitation
of suits, appeals and applications and for purposes connected
therewith. The law of limitation is an adjective law containing procedural
rules and does not create any right in favour of any person, but simply
prescribes that the remedy can be exercised only up to a certain period
and not beyond. The Limitation Act therefore does not confer any
[2025] 1 S.C.R. 569
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
substantive right, nor defines any right or cause of action. The law of
limitation is based on delay and laches. Unless there is a complete
cause of action, limitation cannot run and there cannot be a complete
cause of action unless there is a person who can sue and a person
who can be sued. There is also another important principle under
the Law of Limitation which is crystallized in the form of maxim that
“when once the time has begun to run, nothing stops it”.
9.1. In “Limitation Periods” by Andrew McGee, Barrister of Lincoln’s
Inn, published in 2002, the author says that, -
“Once time has begun to run it will run continuously,
except in certain situations. Time ceases to run when
the plaintiff commences legal proceedings in respect
of the cause of action in question. It is a general
principle of some importance that the bringing of an
action stops the running of time for the purposes of
that action only.”
9.2. It is further observed that the barring of the remedy under the
law of limitation on the expiry of the limitation period would not
imply plaintiff’s right being extinguished. Only the possibility
of obtaining a judicial remedy to enforce the right is taken
away. However, in certain cases, the expiry of the period of
limitation would extinguish the plaintiff’s right to seek remedy
entirely. Further, according to Andrew McGee, the policy and
justification for having a statute of limitation has been explained
in the following words:
“Policy issues arise in two major contexts. The
first concerns the justification for having statutes of
limitation at all and the particular limits that presently
exist. The second concerns the procedural rules
that apply after an action has been commenced.
Arguments with regard to the policy underlying
statutes of limitation fall into three main types. The
first relates to the position of the defendant. It is said
to be unfair that a defendant should have a claim
hanging over him for an indefinite period and it is
in this context that such enactments are sometimes
described as “statutes of peace”. The second looks
at the matter from a more objective point of view. It
570 [2025] 1 S.C.R.
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suggests that a time-limit is necessary because with
the lapse of time, proof of a claim becomes more
difficult-documentary evidence is likely to have been
destroyed and the memories of witnesses will fade.
The third relates to the conduct of the plaintiff, it being
thought right that a person who does not promptly
act to enforce his rights should lose them. All these
justifications have been considered by the courts.”
9.3. Further, to say that a suit is not governed by the law of
limitation runs foul of the Limitation Act. The statute of limitation
was intended to provide a time limit for all suits conceivable.
Section 3 of the Limitation Act provides that a suit, appeal or
application instituted after the prescribed “period of limitation”
must, subject to the provisions of Sections 4 to 24, be dismissed,
although limitation has not been set up as a defence. Section
2(j) defines the expression “period of limitation” to mean the
period of limitation prescribed in the Schedule for suit, appeal
or application. Section 2(j) also defines “prescribed period” to
mean the period of limitation computed in accordance with the
provisions of the Limitation Act. The court’s function on the
presentation of plaint is simply to examine, whether, on the
assumed facts, the plaintiff is within time. The court has to find
out when the “right to sue” accrued to the plaintiff.
9.4. Further, if a suit is not covered by any of the specific articles
prescribing a period of limitation, it must fall within the residuary
article. The purpose of the residuary article is to provide for
cases which could not be covered by any other provision in the
Limitation Act. The residuary article is applicable to every variety
of suits not otherwise provided for under the Limitation Act. It
prescribes a period of three years from the date when the “right
to sue” accrues. Under Article 120 of the erstwhile Limitation
Act, 1908, it was six years, which has been reduced to three
years under Article 113 of the present Act. According to the third
column in Article 113, time commences to run when the right
to sue accrues. The words “right to sue” ordinarily mean the
right to seek relief by means of legal proceedings. Generally,
the right to sue accrues only when the cause of action arises,
that is, the right to prosecute to obtain relief by legal means.
The suit must be instituted when the right asserted in the suit
[2025] 1 S.C.R. 571
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
is infringed or when there is a clear and unequivocal threat to
infringe that right by the defendant against whom the suit is
instituted [State of Punjab vs. Gurdev Singh (1991) 4 SCC 1].
9.5. This Court in Shakti Bhog Food Industries Ltd. vs. Central
Bank of India (2020) 17 SCC 260, stated that the expression
used in Article 113 of the 1963 Act is “when the right to sue
accrues”, which is markedly distinct from the expression used
in other Articles in First Division of the Schedule dealing with
suits, which unambiguously refer to the happening of a specified
event. Whereas Article 113, being a residuary clause, does
not specify happening of particular event as such, but merely
refers to the accrual of cause of action on the basis of which
the right to sue would accrue.
9.6. Article 113 of the Limitation Act reads as under:
“PART X – SUITS FOR WHICH THERE IS NO PRESCRIBED
PERIOD
Description of suit Period of Time from
limitation which period
begins to run
113. Any suit for which no Three When the
period of limitation is years right to sue
provided elsewhere in accrues.”
the Schedule.
Article 113 of the Limitation Act is an omnibus Article providing
for a period of limitation not covered by any of the specific
Articles. No doubt, Article 54 of the Schedule to the Limitation
Act is the Article providing for a limitation period for filing a suit
for specific performance of a contract. For immediate reference,
the said Article is extracted as under:
Description Period of Time from which period
of suit limitation begins to run
For specific Three The date fixed for the
performance years. performance, or, if no
54.
of a such date is fixed, when
contract. the plaintiff has notice that
performance is refused.
572 [2025] 1 S.C.R.
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9.7. In the present case, the earlier suit was filed by the respondent/
plaintiff in July, 1993 on the basis of Article 54 referred to above
and the plaint in the said suit was rejected on 12.01.1998. The
second suit being O.S. No.49/2007 was filed on the strength of
Order VII Rule 13 of the Code for the very same cause of action
and for seeking the very same relief of specific performance
of the agreement dated 26.04.1991 as the plaint in the earlier
suit was rejected on 12.01.1998. Therefore, it cannot be said
that the second suit namely O.S. No.49/2007 was filed as per
Article 54 of the Limitation Act. Since this is a suit filed for the
second time after the rejection of the plaint in the earlier suit,
in our view, Article 54 of the Limitation Act does not apply to a
second suit filed for seeking specific performance of a contract.
Then, the question is, what is the limitation period for the filing
of O.S. No.49/2007. We have to fall back on Article 113 of the
Limitation Act.
9.8. Under Article 113 of the Limitation Act, time commences to run
when the right to sue accrues. This is in contradistinction to Article
54 of the Limitation Act relating to a suit for specific performance
of a contract which is on the happening of an event. No doubt,
the second suit which is the present suit filed by the respondent/
plaintiff is also for specific performance of the contract but the
right to sue accrued to file the second suit is on the basis of
Order VII Rule 13 of the Code subsequent to the rejection of
the plaint in the earlier suit on 12.01.1998. Therefore, the right
to sue by means of a fresh suit was only after 12.01.1998. The
expression “when the right to sue accrues” in Article 113 of the
Limitation Act need not always mean “when the right to sue first
accrues”. For the right to sue to accrue, the right sought to be
vindicated in the suit should have already come into existence
and there should be an infringement of it or at least a serious
threat to infringe the same vide M.V.S. Manikyala Rao vs. M.
Narasimhaswami, AIR 1966 SC 470. Thus, the right to sue
under Article 113 of the Limitation Act accrues when there is
an accrual of rights asserted in the suit and an unequivocal
threat by the defendant to infringe the right asserted by the
plaintiff in the suit. Thus, “right to sue” means the right to seek
relief by means of legal procedure when the person suing has
a substantive and exclusive right to the claim asserted by him
[2025] 1 S.C.R. 573
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
and there is an invasion of it or a threat of invasion. When the
right to sue accrues, depends, to a large extent on the facts
and circumstances of a particular case keeping in view the relief
sought. It accrues only when a cause of action arises and for
a cause of action to arise, it must be clear that the averments
in the plaint, if found correct, should lead to a successful issue.
The use of the phrase “right to sue” is synonymous with the
phrase “cause of action” and would be in consonance when
one uses the word “arises” or “accrues” with it. In the instant
case, the right to sue first occurred in the year 1993 as the
respondent/plaintiff had filed the first suit then, which is on the
premise that it had a cause of action to do so. The said suit
was filed within the period of limitation as per Article 54 of the
Schedule to the Limitation Act.
9.9. Thus, generally speaking, the right to sue accrues only when
the cause of action arises, that is, the right to prosecute to
obtain relief by legal means. The suit must be instituted when
the right asserted in the suit is infringed or when there is a clear
and unequivocal threat to infringe that right by the defendant
against whom the suit is instituted. Article 113 of the Schedule
to the Limitation Act provides for a suit to be instituted within
three years from the date when the right to sue accrues and
not on the happening of an event as stated in Article 54 of the
Schedule to the Limitation Act.
9.10. In the facts and circumstances of the present case, it is also
necessary to apply Section 9 of the Limitation Act while applying
Article 113 thereto. Section 9 reads as under:
“9. Continuous running of time.—
Where once time has begun to run, no subsequent
disability or inability to institute a suit or make an
application stops it:
Provided that where letters of administration to the
estate of a creditor have been granted to his debtor,
the running of the period of limitation for a suit
to recover the debt shall be suspended while the
administration continues.”
574 [2025] 1 S.C.R.
Digital Supreme Court Reports
Section 9 is based on the general principle that when once
limitation has started to run, it will continue to do so unless it is
arrested by reason of any express statutory provision. Period of
limitation can be extended, inter alia, when cause of action was
cancelled such as by dismissal of a suit. Ordinarily, limitation
runs from the earliest time at which an action can be brought
and after it has commenced to run, there may be revival of a
right to sue where a previous satisfaction of a claim is nullified
with the result that the right to sue which has been suspended
is reanimated [Pioneer Bank Ltd vs. Ramdev Banerjee (1950)
54 Cal WN 710]. In that case, the court distinguished between
suspension and interruption of limitation period.
9.11. Once time has begun to run, it will run continuously but time
ceases to run when the plaintiff commences legal proceedings
in respect of the cause of action in question. It is a general
principle of some importance that bringing an action stops
running of time for the purpose of that action only [Andrew
McGee, Limitation Periods, 4th Edn., Sweet & Maxwell, chapter
2, para1]. The Indian law also follows the English law [James
Skinner vs. Kunwar Naunihal Singh ILR (1929) 51 All 367,
(PC)]. Intervention of court in proceedings would prevent the
period of limitation from running and date of courts’ final order
would be the date for start of limitation [N Narasimhiah vs.
State of Karnataka (1996) 3 SCC 88].
[Source: Tagore Law Lectures, U N Mitra, Law of Limitation
and Prescription, Sixteenth Edition, Volume 1, Sections
1-32 & Articles 1-52]
9.12. Applying the aforesaid dictum to the facts of the present case,
it is observed that the respondent/plaintiff had filed the suit for
specific performance of the agreement to sell dated 26.04.1991
in the year 1993 itself. The plaint in the said suit was rejected
on 12.01.1998. The plaintiff could have filed the second suit on
or before 12.01.2001 as it got right to file the suit on 12.01.1998
on the rejection of the plaint in the earlier suit filed by it. This
is on the basis of Order VII Rule 13 of the Code. However,
the limitation period expired in January, 2001 itself and the
second suit was filed belatedly in the year 2007. The cause of
action by then faded and paled into oblivion. The right to sue
[2025] 1 S.C.R. 575
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
stood extinguished. The suit was barred in law as being filed
beyond the prescribed period of limitation as per Article 113 to
the Schedule to the Limitation Act. Hence the second suit is
barred under Order VII Rule 11(d) of the Code. We therefore
have no hesitation in rejecting the plaint in O.S No.49/2007 filed
by the respondent herein even in the absence of any evidence
being recorded on the issue of limitation. This is on the admitted
facts. Thus, on the basis of Order VII Rule 11(d) of the Code
read with Article 113 of the Limitation Act by setting aside the
impugned orders of the High Court and the trial court and by
allowing the application filed under Order VII Rule 11(d) of the
Code. Consequently, this appeal is allowed.
Parties to bear their respective costs.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Ankit Gyan
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