C.R.P(MD)No.396 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 08.03.2021

CORAM:

THE HONOURABLE MRS.JUSTICE J.NISHA BANU

C.R.P(MD)No.396 of 2021

V.Radhika

... Petitioner / Plaintiff

vs.

A.Mani

... Respondent / Defendant

PRAYER: Civil Revision Petition filed under Article 227 of the

Constitution of India, against the order of rejection of unnumbered

plaint dated 19.01.2021 on the file of the District Munsif Court at

Periyakulam.

For Petitioner

: Mr.P.Muthu Vijaya Pandian

ORDER

This Civil Revision Petition has been filed against the order

of rejection of unnumbered plaint dated 19.01.2021 on the file of

the Principal District Court at Theni.

2.The petitioner has entered into a sale agreement dated

13.11.2014 with the respondent in respect of the suit property for a

sale consideration of Rs.15,00,000/- and a sum of Rs.10,00,000/- was

paid by the petitioner to the respondent on the date of agreement

itself and by endorsement dated 03.12.2015, balance amount of

Rs.5,00,000/- was paid to the respondent and on the same day,

possession was handed over to the petitioner and the same has also

been underwritten on the sale agreement. Despite the petitioner

requested the respondent on several occasions to perform his part of

contract by executing the sale deed, the respondent did not come

forward to execute the sale deed, whereas, he started to disturb the

peaceful possession and enjoyment of the petitioner over the suit

property on 10.11.2020 which was prevented by the plaintiff. Hence

the petitioner/plaintiff has filed the above unnumbered suit for the

relief of specific performance and permanent injunction restraining

the respondent from interfering with her peaceful possession over

the suit property or in the alternative, for refund of the sale

consideration of Rs.15,00,000/- with 24% interest from the date of

agreement and costs. The trial Court rejected the plaint stating

that the suit was not filed within the limitation period as such the

suit is barred by law of limitation, against which, this revision

petition is filed.

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C.R.P(MD)No.396 of 2021

3.The learned counsel for the petitioner would state that the

trial Court failed to note that on the date of second payment,

possession of the suit property was handed over to the

petitioner/plaintiff and the same has been underwritten in the

agreement. He would further state that limitation is a mixed

question of fact and law and the same has to be decided only after

numbering the suit and by giving opportunity to the parties to let

in evidence. It is also stated that in respect of the relief of

alternative prayer namely, for refund of advance amount, the learned

Judge has not answered the same. In respect of the alternative

prayer, Article 62 of the Limitation Act alone has to be applied and

not the limitation period fixed for specific performance and Article

62 of the Limitation Act grants 12 years time for enforcing payment

of money secured by a Mortgage or otherwise charged upon immovable

property. In support of his contention, he relied upon paragraphs

25 and 27 of the judgment reported in 2016 (6) CTC 740, P.Muthusamy

vs. K.Arumugam and others. Thus, he would pray for setting aside

the impugned return and for a direction to the Court below to number

the suit.

4.Heard the learned counsel for the petitioner. In view of the

order going to be passed, notice to the respondent is not necessary,

as no prejudice would be caused to him.

5.As rightly stated by the petitioner/plaintiff, the question

of limitation is a mixed question of law and fact. Rejection of

plaint on the ground of limitation without framing an issue on

limitation and without recording evidence is contrary to law. In

this case, it appears that the trial Court on its own took up the

ground of limitation and rejected the plaint. The Court below is

not justified