The main legal point established in the judgment is that a suit must be commenced within the specified time limit as per Section 401(2) of the Act, 1956, and failure to do so can result in the rejection of the suit.

O R D E R

This revision petition has been filed by the applicants being aggrieved with the order dated 13.01.2021 passed by 4^th Civil Judge, Senior Division, Indore in Civil Suit No.424-A/2021 by which the application of the applicants/defendants no. 3 to 6 filed under Order 7 Rule 11 of the CPC was rejected.

02. As per the plaint averment, the plaintiffs case before the trial Court was that the respondents raised the construction of wall over the public road passing through Survey No.1314 and 1318 of village Khajrana which connects Saket Nagar to Telephone Nagar through Gulmohar Colony and the said illegal construction on the road by the private defendant was compounded by defendant no.1 on 13.03.2018 and has prayed that the decree of declaration be passed declaring that order dated 13.03.2018 passed by defendant no.1 is null & void and illegal and in any case is not binding upon the plaintiff and the decree of mandatory injunction thereby directing private defendants to remove the illegal encroachment of wall made upon said 12 meter wide road Signature Not Verified between Survey Nos.1314 and 1318 of village Khajrana and also for the permanent injunction to restraining the defendants from using the road for any other purpose except for public purpose.

03. In that suit, defendants no.3 to 6/applicants filed an application under Order 7 Rule 11 r/w Section 151 of the CPC on the ground that the plaintiff has filed the suit for declaration and permanent injunction claiming that the order dated 13.03.2018 passed by defendant no.1 be declared null & void as not binding upon the plaintiff. As per the plaint averment the plaintiff getting the knowledge of order dated 13.03.2018 being passed by defendant no.1 challenged it before Hon'ble High Court by preferring W.P.No.6573/2018 which was decided vide order dated 19.03.2018 directing the plaintiff to take appropriate recourse before the Civil Court. The plaintiff has issued a notice as required under Section 401 of the M.P. Municipal Corporation Act, 1956 (for short Act, 1956 to the defendants on 08.02.2021 before filing the present suit and filed the present suit on 12.03.2021. From the language of Section 401 of the Act, 1956 it is clear that the service of the notice as required under this section and filing of suit both has to be within a period of six months which is the outer limit for filing the suit from the day on which the cause of action accrued. On plaintiffs own showing the cause of action accrued on the date the Commissioner passed the impinged order dated 13.03.2018 because the plaintiff challenged the said order in W.P.No.6573/2018. Unless the cause of action had accrued, the plaintiff would not have challenged the order dated 13.03.2018 in the writ petition but the suit has not been filed within the six months from the cause of action. Hence, the suit is time barred and thus plaint be Signature Not Verified rejected under Order 7 Rule 11 of the CPC.

04. The plaintiff filed the reply of the said application has stated that the point of limitation is a mixed question of law and fact and no suit can be dismissed on the ground of limitation, it is more so in the case when Section 401 of the Act, 1956 does not provide for limitation but merely prescribe a date for commencement of proceedings, even otherwise Hon'ble Supreme Court of India in W.P.No.03/2020 regarding suo moto period of limitation has excluded the period of limitation for all proceedings till 31.03.2022 hence question of limitation is not involved in the present suit. It was further stated that the writ petition was disposed on 06.04.2018. The private defendant has himself stated that he will remove the illegal construction he waited sometime and when they have not removed the encroachment he served the notice to Municipal Corporation on 08.02.2021 and after expiry of one month, the plaint was presented.

05. The learned trial Court after hearing both the parties has dismissed the application filed under Order 7 R