Suit filed within prescribed period hence not burred by limitation.

Aggrieved over the order of the learned Principal District Judge, Thiruvallur, made in I.A.No:167 of 2006 in O.S.No.40 of 2006, this Civil Revision Petition is filed.

2. The brief facts of the case are as follows:-

The petitioner is the second defendant in the suit. The suit property belongs to the second defendant. On 24. 1995, the second defendant executed a power of attorney in favour of the first defendant to deal with his property. In pursuance of the said power of attorney, the first defendant entered into an agreement of sale with the respondents 1 and 2, the plaintiffs on 17. 1996 by paying Rs.10 Lakhs as advance. Thereafter, periodical payments to a total amount of Rs.17,25,000/= have been paid upto 19. 2002. Since the defendants failed to execute the sale deed, the plaintiffs filed the present suit for specific performance.

3. The petitioner has not yet filed his written statement. But he filed an application under Order 7 Rule 11(d) CPC to reject the Plaint on the following grounds (i) that the plaintiffs earlier filed another suit on 211. 1999 and abandoned the same and therefore the present suit is barred under Order 23 Rule 1 (4) CPC; (ii) the suit is barred by Art.54 of the Limitation Act. On these two grounds, the petitioner, second defendant wants the Plaint to be rejected.

4. For easy reference, Order XXIII, Rule 1 (4) as well as Order VII Rule 11(d) are extracted hereunder:-

"Order XXIII Rule 1(4):-

"Withdrawal of suit or abandonment of part of claim:-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

.(2) x x x x x

.(3) x x x x x

.(4) Where the plaintiff-

.(a) abandons any suit or part of claim under sub-rule (1), or

.(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded

from instituting any fresh suit in respect of such subject-matter or such part of the claim."

Order VII, Rule 11(d):-

11. Rejection of Plaint:- The plaint shall be rejected in the following cases:-

.(a) xx xx xx xx

.(b) xx xx xx xx

.(c) xx xx xx xx

.(d) Where the suit appears from the statement in the plaint to be barred by any law"

5. Mr.S.Y.Masood and M.S.Govindarajan learned counsels appearing for the revision petitioner would contend that the earlier suit was filed on 211. 1999 and the same was abandoned and therefore the present suit would not lie. They would also contend that as per the terms and conditions of the sale agreement, the sale deed should have been executed within Eleven months of the agreement, but the limitation period is over and therefore, the suit is barred by limitation as held in Article 54 of the Limitation Act.

6. Per contra, Ms.Navaneetha Rani, second plaintiff, party-in-person would contend that the Plaint filed on 211. 1999 is not a suit, the said Plaint was returned for insufficient court fee and because of the compromise talks between the defendants and the plaintiffs the Plaint was not represented and that does not mean that the plaintiffs have abandoned their claim. She would further contend that upto 19. 2002, the first defendant has been receiving sale considerations and so far a total sale consideration of Rs.17,25,000/= has been paid by the plaintiffs and they would also contend that they are ready at any time to pay the balance sale consideration as per sale agreement.

7. I gave my anxious consideration to rival contentions of both sides. I am of the opinion that the petitioner has misled himself about "What is Plaint? and What is Suit?. Suit is not defined in the Code. `Plaint is a written statement of facts which will give cause of action against other side. A `suit is instituted by presenting a plaint as per Section 26 CPC. A plaint presented in Court may be returned for several reasons, like, insufficient court fee, lack of jurisdiction, not enclos