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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.SUNDAR, J.
Ponnan – Appellant
Versus
Velmurugan – Respondent
S.A.No.410 of 2021
Decided on : 27-04-2021
Constitution of India,1950 - Article 133(1)(a) - Code of Civil Procedure, 1908 - Section 100 and 96 - Limitation Act - Section 3 - Declaration of title and injunction qua suit property which is punjai agricultural lands - Exchange of legal notices and this is proximate cause of action - whether a question of law raised in the case is substantial - whether it is of general public importance - whether it directly and substantially affects the rights of the parties - whether it is either an open question in the sense that it is not finally settled by this Court - Plaintiffs' case is that one plaintiffs 1 to 4, father-in-law of 5th plaintiff, grandfather of 6th plaintiff and Lakshmanan is father of 7th plaintiff) purchased the suit property from one Narayanasamy Chettiar under a sale deed dated 12.12.1939. There was some purported hindrance in 2014 from defendants qua suit property, there was exchange of legal notices and this is proximate cause of action for the suit is plaintiffs' case. The burden of song qua defendants pleading is, they do not dispute that the suit property was purchased by plaintiffs' ancestors Seetharaman and Lakshmanan on 12.12.1939 from one Narayanasamy Chettiar, but Seetharaman and Lakshmanan had conveyed the suit property for valuable consideration to defendants' predecessor – Held, proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law - LIMITATION has to be examined even if it is not set up as a defence as per Section 3 of Limitation Act. The first point for determination cannot but be answered against the appellants as contra pleadings cannot be looked into only in plaint rejection legal drill under Order VII Rule 11 CPC and legal drills akin to such applications, but that does not apply to a Order XIV Rule (2)(2)(b) exercise. With regard to the second point for determination regarding substantial question of law, this has been explained by long line of authorities the same is instructive as already alluded to supra and if those determinants and concomitants are applied, it follows as an inevitable sequittur that no substantial question of law arises in the case on hand as nothing debatable – Appeal is dismissed
JUDGMENT :
Plaintiffs who were concurrently non-suited by the trial Court and the first Appellate Court are before this Court by way of captioned second appeal under Section 100 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity). The life of this lis, as of today is more than half a decade as the plaint was presented in 'Principal District Munsif's Court, Ambur' (hereinafter 'trial Court' for the sake of brevity) on 25.09.2014 and the same was taken on file as O.S.No.145 of 2014.
2. The prayers in the plaint were inter alia for declaration of title and injunction qua suit property which is punjai agricultural lands. The defendants, who were served with suit summons, entered appearance through a counsel and filed a written statement dated 27.10.2014.
3. The plaintiffs' case is that one Seetharaman and one Lakhsmanan (Seetharaman is father of plaintiffs 1 to 4, father-in-law of 5th plaintiff, grandfather of 6th plaintiff and Lakshmanan is father of 7th plaintiff) purchased the suit property from one Narayanasamy Chettiar under a sale deed dated 12.12.1939. There was some purported hindrance in 2014 from defendants qua suit property, there was exchange of legal notices and this is proximate cause of action for the suit is plaintiffs' case. The burden of song qua defendants pleading is, they do not dispute that the suit property was purchased by plaintiffs' ancestors Seetharaman and Lakshmanan on 12.12.1939 from one Narayanasamy Chettiar, but Seetharaman and Lakshmanan had on 11.01.1946 conveyed the suit property for valuable consideration to defendants' predecessor.
4. What is of utmost significance is, the plaintiffs did not choose to file a replication and refute the pleadings in the written statement.
5. To be noted, at the time of filing of the suit, the original 1939 sale deed and encumbrance certificate were sought for, by way of objections for numbering the plaint, but the plaintiffs took the stand that it will be produced later.
6. In the trial Court judgment, there is a reference to I.A.No.474 of 2014. Mr.Kalayanaraman, learned counsel on record for appellants submits that this interlocutory application is under Order VII Rule 11 of CPC for rejection of plaint, but the same is not before this Court. It may not be necessary to embark upon that exercise as trial Court has framed two preliminary issues, answered both the preliminary issues against the plaintiffs and non-suited the plaintiffs. Two preliminary issues turn on abuse of process of law and limitation.
7. Mr.Kalayanaraman, learned counsel appearing on behalf of the counsel for appellants submits that trial Court, while deciding the preliminary issues, has looked into the pleadings of the defendants without trial which is impermissible. Whether a trial Court can frame a preliminary issue on the abuse of process of law question is left open and this Court is of the view that captioned second appeal can be disposed of leaving open this question as limitation has been framed as the other preliminary issue. Limitation can certainly be framed as preliminary issue under Clause (b) of Sub-Rule (2) of Rule 2 of Order XIV of CPC i.e., Order XIV Rule 2(2)(b) of CPC, which reads as follows:
8. The trial Court has proceeded on the basis that the plaintiffs having not filed a replication to the plea that plaintiffs' predecessor under whom plaintiffs are claiming had sold the property to defendants under sale deed dated 11.01.1946, the plaintiffs also not having chosen to produce the Encumbrance Certificate, though specifically asked for (obviously if the Encumbrance Certificate had been produced, this sale deed would have been reflected in the same, but without going into that arena which may
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