JUDGMENT

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

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

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

4. Per contra, the learned counsel for the respondents submitted that the impugned order has been rightly passed by the Court below and the benefit of Order VII Rule 13 of CPC has rightly been refused to the appellants because the same is available only under the circumstance when the previous suit is dismissed for curable defects and the subsequent suit can be maintained provided the defect is cured. It is contended by him that since in the present case, the previous suit is dismissed being barred by law, the subsequent suit for the same cause of action was not maintainable. Learned counsel for the respondents further submits that it is rightly held by the Court below that the instant suit was barred by law in terms of Order II Rule 2(3) of CPC because earlier suit i.e. CS No.439-A/2015 was in relation to specific performance of contract for the same subject matter of the property, between the same parties and compromise agreement dated 23.11.2012 was very much in existence at the time of filing earlier suit i.e. CS No.439-A/2015 but in the said suit no claim was made on the basis of agreement dated 23.11.2012 and as such, it was relinquished/waived by the plaintiffs and those subsequent suits on the basis of agreement dated 23.11.2012 was rightly held not maintainable and the application under Order VII Rule 11 (d) of CPC has rightly been allowed by the Court below. He relied upon various judgments ( Pramod Kumar and another Vs. Zalak Singh and others, (2019) 6 SCC 621) ; ( Virgo Industries (Eng.) Private Limited Vs. Venture Retech Solutions Private Limited, (2013) 1 SCC 625) ; ( Hardesh Ores (P) Ltd. Vs. Hede and Company, (2007) 5 SCC 614) ; ( N.V. Srinivasa Murthy and others Vs. Mariyamma and others, (2005) 5 SCC 548) ; ( Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, (2004) 3 SCC 137) ; ( I