# Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co

- **Citation:** 2025 INSC 42
- **Court:** Supreme Court of India
- **Decided:** 2025-01-08
- **Case number:** Civil Appeal No. 1525 of 2023
- **Bench:** B.V. Nagarathna, Nongmeikapam Kotiswar Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-evangelical-lutheran-church-trust-association-v-sri-bala-co-38845
- **Pages:** 34

## Headnote

Whether the plaint in the subsequent suit for specific performance
filed by the plaintiff, i.e., O.S. No. 49/2007, is liable to be rejected in
terms of Order VII Rule 11(d) of the Code of Civil Procedure, 1908
on the ground that the said suit is barred by the law of limitation.
Headnotes†
Code of Civil Procedure, 1908 - Or. VII, r.11(d) - Limitation Act,
1963 - Arts. 54 and 113 - The plaintiff filed an unnumbered suit
in the year 1993 for specific performance of the agreement to
sell dated 26.04.1991 - The said suit was rejected vide order
dated 12.01.1998 due to non-payment of requisite court-fees
by the plaintiff - Thereafter, plaintiff filed second suit O.S. No.
49/2007 in the year 2007 for specific performance of agreement
to sell dated 26.04.1991 - The defendant sought rejection of
the second suit by filing I.A. u/Or. VII, r.11(d) of the CPC, which
was dismissed by the Trial Court - The High Court confirmed
the order passed by the Trial Court - Correctness:
Held: In the instant case, the respondent/plaintiff had filed the suit
for specific performance of the agreement to sell dated 26.04.1991
in the year 1993 itself - The plaint in the said suit was rejected
on 12.01.1998 - The plaintiff could have filed the second suit on
or before 12.01.2001 as it got right to file the suit on 12.01.1998
on the rejection of the plaint in the earlier suit filed by it - This is
on the basis of Or. VII, r.13 of the Code - However, the limitation
period expired in January, 2001 itself and the second suit was filed
belatedly in the year 2007 - The cause of action by then faded and
paled into oblivion - The right to sue stood extinguished - The suit
was barred in law as being filed beyond the prescribed period of
limitation of three years as per Article 113 to the Schedule to the
Limitation Act - Hence the second suit is barred u/Or. VII, r.11(d)
of the Code - Therefore, the plaint in O.S No. 49/2007 filed by the
* Author
[2025] 1 S.C.R.
543
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
respondent herein is rejected - There is absence of any evidence
being recorded on the issue of limitation - This is on the admitted
facts - Thus, on the basis of Or. VII, r.11(d) of the Code r/w. Art.113
of the Limitation Act, the impugned orders of the High Court and
the Trial Court are set aside and the application filed u/Or. VII,
r.11(d) of the Code is allowed. [Para 9.12]
Limitation Act, 1963 - Nature and scope:
Held: The Limitation Act, 1963 consolidates and amends the law
of limitation of suits, appeals and applications and for purposes
connected therewith - The law of limitation is an adjective law
containing procedural rules and does not create any right in
favour of any person, but simply prescribes that the remedy can
be exercised only up to a certain period and not beyond - The
Limitation Act therefore does not confer any substantive right,
nor defines any right or cause of action - The law of limitation is
based on delay and laches - Unless there is a complete cause of
action, limitation cannot run and there cannot be a complete cause
of action unless there is a person who can sue and a person who
can be sued. [Para 9]
Law of Limitation - Right of plaintiff:
Held: The barring of the remedy under the law of limitation on the
expiry of the limitation period would not imply plaintiff's right being
extinguished - Only the possibility of obtaining a judicial remedy
to enforce the right is taken away - However, in certain cases,
the expiry of the period of limitation would extinguish the plaintiff's
right to seek remedy entirely. [Para 9.2]
Limitation Act, 1963 - Art. 113 - Residuary Article - Omnibus
Article:
Held: If a suit is not covered by any of the specific articles prescribing
a period of limitation, it must fall within the residuary article - The
purpose of the residuary article is to provide for cases which could
not be covered by any other provision in the Limitation Act - The
residuary article is applicable to every

## Text

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[2025] 1 S.C.R. 542 : 2025 INSC 42
Indian Evangelical Lutheran Church Trust Association
v.
Sri Bala & Co.
(Civil Appeal No. 1525 of 2023)
08 January 2025
[B.V. Nagarathna* and Nongmeikapam Kotiswar Singh, JJ.]
Issue for Consideration
Whether the plaint in the subsequent suit for specific performance
filed by the plaintiff, i.e., O.S. No. 49/2007, is liable to be rejected in
terms of Order VII Rule 11(d) of the Code of Civil Procedure, 1908
on the ground that the said suit is barred by the law of limitation.
Headnotes†
Code of Civil Procedure, 1908 - Or. VII, r.11(d) - Limitation Act,
1963 - Arts. 54 and 113 - The plaintiff filed an unnumbered suit
in the year 1993 for specific performance of the agreement to
sell dated 26.04.1991 - The said suit was rejected vide order
dated 12.01.1998 due to non-payment of requisite court-fees
by the plaintiff - Thereafter, plaintiff filed second suit O.S. No.
49/2007 in the year 2007 for specific performance of agreement
to sell dated 26.04.1991 - The defendant sought rejection of
the second suit by filing I.A. u/Or. VII, r.11(d) of the CPC, which
was dismissed by the Trial Court - The High Court confirmed
the order passed by the Trial Court - Correctness:
Held: In the instant case, the respondent/plaintiff had filed the suit
for specific performance of the agreement to sell dated 26.04.1991
in the year 1993 itself - The plaint in the said suit was rejected
on 12.01.1998 - The plaintiff could have filed the second suit on
or before 12.01.2001 as it got right to file the suit on 12.01.1998
on the rejection of the plaint in the earlier suit filed by it - This is
on the basis of Or. VII, r.13 of the Code - However, the limitation
period expired in January, 2001 itself and the second suit was filed
belatedly in the year 2007 - The cause of action by then faded and
paled into oblivion - The right to sue stood extinguished - The suit
was barred in law as being filed beyond the prescribed period of
limitation of three years as per Article 113 to the Schedule to the
Limitation Act - Hence the second suit is barred u/Or. VII, r.11(d)
of the Code - Therefore, the plaint in O.S No. 49/2007 filed by the
* Author
[2025] 1 S.C.R.
543
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
respondent herein is rejected - There is absence of any evidence
being recorded on the issue of limitation - This is on the admitted
facts - Thus, on the basis of Or. VII, r.11(d) of the Code r/w. Art.113
of the Limitation Act, the impugned orders of the High Court and
the Trial Court are set aside and the application filed u/Or. VII,
r.11(d) of the Code is allowed. [Para 9.12]
Limitation Act, 1963 - Nature and scope:
Held: The Limitation Act, 1963 consolidates and amends the law
of limitation of suits, appeals and applications and for purposes
connected therewith - The law of limitation is an adjective law
containing procedural rules and does not create any right in
favour of any person, but simply prescribes that the remedy can
be exercised only up to a certain period and not beyond - The
Limitation Act therefore does not confer any substantive right,
nor defines any right or cause of action - The law of limitation is
based on delay and laches - Unless there is a complete cause of
action, limitation cannot run and there cannot be a complete cause
of action unless there is a person who can sue and a person who
can be sued. [Para 9]
Law of Limitation - Right of plaintiff:
Held: The barring of the remedy under the law of limitation on the
expiry of the limitation period would not imply plaintiff's right being
extinguished - Only the possibility of obtaining a judicial remedy
to enforce the right is taken away - However, in certain cases,
the expiry of the period of limitation would extinguish the plaintiff's
right to seek remedy entirely. [Para 9.2]
Limitation Act, 1963 - Art. 113 - Residuary Article - Omnibus
Article:
Held: If a suit is not covered by any of the specific articles prescribing
a period of limitation, it must fall within the residuary article - The
purpose of the residuary article is to provide for cases which could
not be covered by any other provision in the Limitation Act - The
residuary article is applicable to every variety of suits not otherwise
provided for under the Limitation Act - It prescribes a period of
three years from the date when the "right to sue" accrues - Under
Article 120 of the erstwhile Limitation Act, 1908, it was six years,
which has been reduced to three years under Article 113 of the
present Act - Article 113 of the Limitation Act is an omnibus Article
544
[2025] 1 S.C.R.
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providing for a period of limitation not covered by any of the specific
Articles. [Paras 9.4, 9.6]
Limitation Act, 1963 - Art. 113 - When the 'right to sue' accrues:
Held: The right to sue under Article 113 of the Limitation Act
accrues when there is an accrual of rights asserted in the suit
and an unequivocal threat by the defendant to infringe the right
asserted by the plaintiff in the suit - Thus, "right to sue" means the
right to seek relief by means of legal procedure when the person
suing has a substantive and exclusive right to the claim asserted
by him and there is an invasion of it or a threat of invasion - When
the right to sue accrues, depends, to a large extent on the facts
and circumstances of a particular case keeping in view the relief
sought - It accrues only when a cause of action arises and for a
cause of action to arise, it must be clear that the averments in the
plaint, if found correct, should lead to a successful issue - The
use of the phrase "right to sue" is synonymous with the phrase
"cause of action" and would be in consonance when one uses the
word "arises" or "accrues" with it. [Para 9.8]
Limitation Act, 1963 - Arts. 54 and 113 - The second suit was
filed after rejection of the plaint in the earlier suit for seeking
specific performance of a contract - What is the period of
limitation of filing second suit:
Held: In the present case, the earlier suit was filed by the
respondent/plaintiff in July, 1993 on the basis of Article 54 and the
plaint in the said suit was rejected on 12.01.1998 - The second
suit being O.S. No. 49/2007 was filed on the strength of Order
VII Rule 13 of the Code for the very same cause of action and
for seeking the very same relief of specific performance of the
agreement dated 26.04.1991 as the plaint in the earlier suit was
rejected on 12.01.1998 - Therefore, it cannot be said that the
second suit namely O.S. No. 49/2007 was filed as per Article 54
of the Limitation Act - Since this is a suit filed for the second time
after the rejection of the plaint in the earlier suit, in view of this
Court, Article 54 of the Limitation Act does not apply to a second
suit filed for seeking specific performance of a contract - Then, the
question is, what is the limitation period for the filing of O.S. No.
49/2007 - One have to fall back on Article 113 of the Limitation
Act - Article 113 of the Limitation Act is an omnibus Article providing
for a period of limitation not covered by any of the specific Articles -
[2025] 1 S.C.R.
545
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
Article 113 of the Schedule to the Limitation Act provides for a
suit to be instituted within three years from the date when the
right to sue accrues. [Paras 9.6, 9.7, 9.9]
Case Law Cited
T. Arivandandam v. T.V. Satyapal [1978] 1 SCR 742 : (1977) 4
SCC 467; Sopan Sukhdeo Sable v. Assistant Charity Commissioner
[2004] 1 SCR 1004 : (2004) 3 SCC 137; Popat and Kotecha
Property v. State Bank of India Staff Association [2005] Supp.
2 SCR 1030 : (2005) 7 SCC 510; Roop Lal Sathi v. Nachhattar
Singh Gill [1983] 1 SCR 702 : (1982) 3 SCC 487; Raptakos Brett
& Co. Ltd. v. Ganesh Property [1998] Supp. 1 SCR 485 : (1998)
7 SCC 184; Saleem Bhai v. State of Maharashtra [2002] Supp. 5
SCR 491 : (2003) 1 SCC 557; R.K. Roja v. U.S. Rayudu [2016] 3
SCR 221 : (2016) 14 SCC 275; Kuldeep Singh Pathania v. Bikram
Singh Jaryal [2017] 1 SCR 915 : (2017) 5 SCC 345; Maqsud
Ahmad v. Mathra Datt & Co., AIR 1936 Lah 1021; Sejal Glass
Ltd. v. Navilan Merchants Private Ltd. [2017] 7 SCR 557 : (2018)
11 SCC 780; Madhav Prasad Aggarwal v. Axis Bank Ltd. [2019]
8 SCR 1058 : (2019) 7 SCC 158; Biswanath Banik v. Sulanga
Bose [2022] 3 SCR 302 : (2022) 7 SCC 731; Delhi Wakf Board v.
Jagdish Kumar Narang (1997) 10 SCC 192; A. Nawab John v. V.N.
Subramaniyam [2012] 6 SCR 369 : (2012) 7 SCC 738; Mannan
Lal v. Mst. Chhotaka Bibi, (Dead) by LRs. [1971] 1 SCR 253 : (1970)
1 SCC 769; Patil Automation Private Ltd. v. Rakheja Engineers
Private Ltd. (2022) 10 SCC 1; State of Punjab v. Gurdev Singh
[1991] 3 SCR 663 : (1991) 4 SCC 1; Shakti Bhog Food Industries
Ltd. v. Central Bank of India [2020] 6 SCR 538 : (2020) 17 SCC
260; M.V.S. Manikyala Rao v. M. Narasimhaswami [1966] 1 SCR
628 : AIR 1966 SC 470; N Narasimhiah v. State of Karnataka
[1996] 1 SCR 698 : (1996) 3 SCC 88 - referred to.
Pioneer Bank Ltd v. Ramdev Banerjee (1950) 54 Cal WN 710;
James Skinner v. Kunwar Naunihal Singh, ILR (1929) 51 All 367,
(PC) - referred to.
Books and Periodicals Cited
"Limitation Periods" by Andrew McGee, Barrister of Lincoln's
Inn, published in 2002; Tagore Law Lectures, U N Mitra, Law of
Limitation and Prescription, Sixteenth Edition, Volume 1, Sections
1-32 & Articles 1-52.
546
[2025] 1 S.C.R.
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List of Acts
Charitable and Religious Trust Act, 1921; Limitation Act, 1963;
Limitation Act, 1908; Code of Civil Procedure, 1908.
List of Keywords
Specific Performance; Rejection of plaint; Cause of Action; Barred
by Limitation; Res-Judicata; Order VII Rule 11 of Code of Civil
Procedure, 1908, Order VII Rule 13 of Code of Civil Procedure,
1908; Article 54 of Limitation Act, 1963; Article 113 of Limitation
Act, 1963; Right to sue; Residuary Article; Omnibus Article; Right
of plaintiff.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1525 of 2023
From the Judgment and Order dated 15.03.2022 of the High
Court of Judicature at Madras at Madurai in CRPMD No. 1116
of 2011
Appearances for Parties
P.V. Balasubramaniam, Sr. Adv., Anish R. Shah, Ankit Sahu,
Advs. for the Appellant.
V. Giri, Sr. Adv., Mahesh Agarwal, Rishi Agrawala, Ankur Saigal,
Ms. S. Lakshmi Iyer, Ms. Sukriti Bhatnagar, Shaswat Singh,
E. C. Agrawala, Advs. for the Respondent.
Judgment / Order of the Supreme Court
Judgment
Nagarathna, J.
This appeal has been filed by assailing the order dated 15.03.2022
passed by the Madras High Court, Madurai Bench in C.R.P. (MD)
No.1116 of 2011 dismissing the Civil Revision Petition filed by the
appellant.
1.1. For the sake of convenience, the parties in the present appeal
are being referred to as per their status and positions before
the trial court.
[2025] 1 S.C.R.
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Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
Factual Background:
2.
According to the plaintiff/respondent herein, the present dispute
pertains to land measuring 5.05-acre being a portion of a 6.48-acre
property known as Loch End at Kodaikanal, originally purchased
by American missionaries of the Lutheran Church Missouri Synod
and Missouri Evangelical Lutheran India Mission in 1912. The
Kodaikanal International School (seeking to implead in the suit) is
located across the road from Loch End. In 1975, an agreement was
made between the American missionaries and the India Evangelical
Lutheran Church Trust Association (defendant/ appellant herein) to
transfer various properties, including the Kodaikanal property, to the
defendant. This agreement was formalized through the joint filing of
O.P. No.101/1975 under Section 7 of the Charitable and Religious
Trust Act, 1921 before the District Judge, Madurai, leading to a
decree dated 26.11.1975, appointing the defendant as the trustee
of those properties for the objects of the Trust stated thereunder.
2.1. According to the plaintiff, the defendant being in need of funds
decided to sell a part of those properties, including the 5.05 acres
of Loch End, consisting of 12 out of 15 buildings (hereinafter
referred to as "suit scheduled property"). An agreement to sell
was executed on 26.04.1991 between the defendant and the
plaintiff, i.e., M/s. Sri Bala & Co., for the suit scheduled property,
on a total sale consideration fixed at Rs.3,02,00,000/- (Rupees
Three Crores and Two Lakhs only) and an advance payment
of Rs. 10,00,000/- (Rupees Ten Lakhs only) was made. Partial
possession of the property is said to have been handed over
to the plaintiff. At that time, the impleading party was allegedly
in possession of three of the twelve buildings on Loch End in
the capacity of a tenant.
2.2. The plaintiff filed an unnumbered suit in the year 1993 before
the Court of the Subordinate Judge, Dindigul Anna District for
specific performance of the agreement to sell dated 26.04.1991,
by seeking execution of the sale deed in respect of the suit
scheduled property and for placing the plaintiff in possession
of the property. The said suit was subsequently transferred to
the Court of the Subordinate Judge, Palani. But the said suit
was rejected vide order dated 12.01.1998 passed by the Court
of Subordinate Judge, Palani due to non-payment of requisite
court-fees by the plaintiff.
548
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2.3. The plaintiff thereafter filed O.S. No.49/2007 before the Court
of the Principal District Judge, Dindigul District, seeking specific
performance of the sale agreement dated 26.04.1991, with a
direction to the defendant to execute the sale deed in favour
of the plaintiff after receiving the balance sale consideration for
the suit scheduled property.
2.4. The defendant sought rejection of the second suit by filing
I.A. No.233/2007 under Order VII Rule 11(d) of the Code of
Civil Procedure, 1908 (for short, "Code"), on the ground that
the subsequent suit for specific performance is barred by the
principle of res judicata as the plaintiff had not filed any appeal
against the rejection of the plaint in the previous suit. The
defendant also contended that the subsequent suit for specific
performance was barred by the law of limitation since it was
filed after a gross delay of almost nine years and beyond the
period stipulated under Article 54 of the Limitation Act, 1963
("Limitation Act", for short).
2.5. The plaintiff filed its objections to the defendant's application
for rejection of plaint and placed reliance on Order VII Rule
13 of the Code to argue that a rejection of a plaint does not
preclude the presentation of a fresh plaint for the same cause
of action. It was further contended by the plaintiff that as per
the sale agreement, the Kodaikanal International School,
which is in possession of part of the suit scheduled property
in the capacity of a tenant, has to be evicted and the vacant
possession ought to be handed over to the plaintiff. Since the
tenants had not been vacated from the property, the suit for
specific performance of the sale agreement is not barred by
Article 54 of the Limitation Act. Reliance was placed by the
Plaintiff on an extension letter dated 15.07.1991 executed by
the defendant's Secretary-cum-Treasurer namely Reverent
A. Sundaram in favour of the plaintiff, which had extended
the period of the sale agreement in light of multiple pending
litigations with the impleading party.
2.6. The said application, i.e., I.A. No.233/2007, was dismissed by
the trial court vide order dated 16.09.2010, on the grounds
that the previous suit was not decided on merits and therefore
the principle of res judicata would not apply and further, the
[2025] 1 S.C.R.
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Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
issue of limitation period being extended to file the suit for
specific performance in light of the pending litigations with the
impleading party was a question of fact and the said issue had
to be adjudicated only after examination of proper witnesses
and documents during trial. Thus, the trial court refused to reject
the plaint at such an early stage.
2.7. Being aggrieved by the order of the trial court, defendant
preferred a civil revision petition before the High Court being
C.R.P. (MD) No.1116/2011. However, the High Court on
15.03.2022 dismissed the said Civil Revision Petition. The High
Court observed that the previous suit was neither registered
nor numbered and since the issues were not finally decided, it
was not hit by the principle of res judicata. Further, the question
of extension of the limitation period is a mixed question of
fact and law which can be decided only after the recording of
evidence and not at the stage of rejection of plaint. Thus, the
High Court confirmed the order dated 16.09.2010 passed by the
trial court on the application filed by the defendant for rejection
of the plaint. The said order of the High Court in C.R.P. (MD)
No.1116/2011 is under challenge in this appeal.
2.8. Two more orders arising out of the same set of facts were
passed by the Madras High Court, Madurai Bench on the same
date as that of the impugned order. The issues in those matters
dealt with impleadment and beneficiary rights of the impleading
party with respect to the suit scheduled property. This Court
granted leave in those matters as well and had tagged them
with the present matter. However, since the present appeal deals
with an issue more germane to the suit and the relevance of
those two appeals rests on the fate of the present appeal, the
present appeal was de-tagged by this Court from the other two
connected matters vide order dated 24.10.2024.
Submissions:
3.
We have heard Sri P.V. Balasubramaniam, learned senior advocate
for the appellant/defendant and learned senior advocate Sri V. Giri
for the respondent/plaintiff and perused the material on record.
3.1. Sri Balasubramaniam, at the outset submitted that both the High
Court as well as the trial court were not right in dismissing the
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application filed by the appellant/defendant in the suit under
Order VII Rule 11(d) of the Code. No doubt, the respondent/
plaintiff in the suit had the right to file another suit on the
same cause of action after rejection of the plaint in the earlier
unnumbered suit filed by it in the year 1993 for the relief of
specific performance of the agreement to sell dated 26.04.1991
on the strength of Order VII Rule 13 of the Code. However, the
said suit had to be on the same cause of action as the earlier
suit and within the period of limitation as prescribed under the
Limitation Act, 1963. Thus, the rejection of the plaint in the
earlier suit filed by the respondent/plaintiff was not a bar to file
a fresh suit on the same cause of action. The law provides for
another opportunity to a plaintiff to reagitate on an identical
cause of action despite the rejection of the plaint in the earlier
suit filed by a plaintiff on the basis of Order VII Rule 13 of the
Code. However, the second suit which is on the same cause
of action must be maintainable in law and not hit by Order VII
Rule 11(d) of the Code.
3.2. Elaborating on the aforesaid contention, learned senior counsel
submitted that in the instant case, the first suit was filed in the
year 1993 to seek specific performance of the agreement to
sell dated 26.04.1991 which suit was filed within the period
of limitation as prescribed under Article 54 of the Limitation
Act. The plaint of the said suit was rejected vide order dated
12.01.1998 owing to non-payment of the requisite court-fees
by the plaintiff. If another suit had to be filed by the very same
plaintiff on the very same cause of action, then the second
suit had to be within the prescribed period of limitation and
otherwise not barred by law. In the instant case, the respondent/
plaintiff filed the second suit only in the year 2007 for specific
performance of agreement to sell dated 26.04.1991, when the
cause of action accrued to the respondent/plaintiff in the year
1993 itself, i.e., when the earlier suit was filed. Even if the period
of the pendency of the said earlier suit till the rejection of the
plaint on 12.01.1998 is excluded for the purpose of computing
the limitation period which had commenced as early as in the
year 1993, there is no explanation as to why the second suit
i.e., O.S. No.49/2007 was filed only in the year 2007. At best,
the limitation period could have extended for a period of three
[2025] 1 S.C.R.
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Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
years from 12.01.1998 for the filing of the second suit by the
respondent/plaintiff. That, the aforesaid facts are all admitted
by the respondent/plaintiff in the plaint itself and hence, on
that basis the trial court as well as the High Court ought to
have exercised their jurisdiction in rejecting the plaint in O.S.
No.49/2007 as the filing of the second suit in the year 2007 is
way beyond the prescribed period of limitation.
3.3. It was contended that when the earlier suit was filed by the
respondent/plaintiff, it was on the basis of the cause of action
that had accrued to the plaintiff. If the plaint in the earlier suit
was rejected on 12.01.1998, then the second suit ought to
have been filed immediately thereafter so as to maintain a
continuity in the cause of action or possibly within three years
from the date of the rejection of the plaint, which would mean
that the suit ought to have been filed by 12.01.2001. But, in the
instant case, the filing of the suit in the year 2007 gives rise
to an inference that the respondent/plaintiff had acquiesced to
the rejection of the plaint and thus had waived its right to seek
specific performance of the agreement to sell dated 26.04.1991.
Therefore, the filing of the second suit in the instant case is
only an afterthought, a chance and being speculative in nature,
ought to have resulted in rejection of the plaint on the basis of
Order VII Rule 11(d) of the Code as being hit by Article 54 of
the Limitation Act and therefore, barred in law.
3.4. It was therefore submitted that the plaint in O.S. No.49/2007
may be rejected by setting aside the impugned order and
allowing this appeal.
3.5. Per contra, learned senior counsel Sri Giri supported the
impugned orders rejecting the application filed by the appellant
herein under Order VII Rule 11(d) of the Code and contended that
there is no merit in this appeal. Elaborating on this submission,
Sri Giri contended that on the basis of Order VII Rule 13 of the
Code, the second suit, namely, O.S. No.49/2007 was filed. In
the plaint of the aforesaid suit, it has been categorically averred
that the letter dated 15.07.1991 which was executed by the
Secretary-cum-Treasurer Reverend, namely, A. Sundharam in
favour of the plaintiff clearly extended the period of limitation
owing to multiple litigations pending between the parties and the
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party seeking to implead in the said suit. Further, the question
of a suit being barred under Article 54 of the Limitation Act
is a mixed question of law and fact which cannot be decided
on mere averments made in the plaint. Hence, the trial court
as well the High Court rightly rejected the application filed by
the appellant herein for seeking rejection of the plaint. It was
contended that owing to the pendency of litigation between the
parties, the time for performance under the agreement dated
26.04.1991 was automatically extended and therefore, it was
only when the other litigation between the parties herein and
the impleading party in the suit concluded that the cause of
action for filing the second suit in the year 2007 resurfaced
as till then it was dormant and hence, there is no merit in this
appeal. It was contended that there was in fact no basis to
file the application under Order VII Rule 11(d) of the Code by
the appellant herein as the issue of limitation could have been
adjudicated upon on conclusion of the trial and along with the
other issues which arise in the suit. It was submitted that there
is no merit in this appeal and the same may be dismissed.
3.6. By way of reply, learned senior counsel for the appellant
contended that there is a contradiction in the submission of
the respondent/plaintiff inasmuch as when the earlier suit was
filed in the year 1993 it was on the basis of a cause of action
which had accrued to the plaintiff and there was no reference
to letter dated 15.07.1991 extending the time for performance
under the agreement or for that matter, resulting in extension of
time for the filing of the suit akin to Section 18 of the Limitation
Act. There is no reference to the letter dated 15.07.1991 in
the earlier suit filed by the respondent/plaintiff and the same
is also not admitted by the appellant herein. Even otherwise,
the pendency of other litigations vis-à-vis the suit scheduled
property could not have been a reason for filing the second suit
as late as in the year 2007 for seeking specific performance of
the agreement to sell dated 15.07.1991. On a comparison of
the earlier suit and the present suit and on a holistic reading
of the plaint in the second suit, the trial court as well as the
High Court ought to have allowed the application filed by the
appellant herein and rejected the plaint as being barred in law,
hit by the Limitation Act and thus, coming within the scope and
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Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
ambit of Order VII Rule 11(d) of the Code. Therefore, learned
senior counsel submitted that the present appeal may be
allowed with costs.
Points for Consideration:
4.
The short issue before this Court in this appeal is, whether the plaint
in the subsequent suit for specific performance filed by the plaintiff,
i.e., O.S. No.49/2007, is liable to be rejected in terms of Order VII
Rule 11(d) of the Code on the ground that the said suit is barred by
the law of limitation. What order is to be passed?
5.
The detailed narration of facts and contentions would not call for a
reiteration.
5.1. The undisputed facts of the case are that on 26.04.1991, the
appellant/defendant entered into an agreement to sell the
suit scheduled property to the respondent/plaintiff for a total
consideration of Rs.3,02,00,000/- (Rupees Three Crores and
Two Lakhs only) and an advance payment of Rs.10,00,000/-
(Rupees Ten Lakhs only) was made. There was a time schedule
for the payment of the balance in sale consideration within a
period of twenty-seven months from 26.04.1991 which is also
extracted in paragraph 4 of the plaint. Thus, within a period of
twenty-seven months from the date of the agreement, the entire
balance of sale consideration had to be paid by the respondent/
plaintiff to the appellant herein. However, as early as in 1993
itself, the suit for specific performance of the agreement to sell
was filed by the respondent/plaintiff, which was an unnumbered
suit, but the plaint in the said suit was rejected vide order dated
12.01.1998 passed by the trial court due to non-payment of the
requisite court fees by the respondent/plaintiff.
5.2. Thereafter, it was only in the year 2007 that the respondent/
plaintiff filed O.S. No.49/2007 seeking the very same relief of
specific performance of the sale agreement on receipt of the
balance sale consideration. This suit was filed on the strength
of Order VII Rule 13 of the Code. It is in this suit that the
appellant/defendant filed an application under Order VII Rule
11(d) of the Code on the ground that the said suit was barred
by the law of limitation since it was filed after a gross delay of
almost nine years from the date of rejection of the plaint in the
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earlier suit and the said suit not being maintainable as barred
in law. Consequently, the plaint was subject to rejection. The
trial court dismissed the application filed for seeking rejection
of the plaint by its order dated 16.09.2010 and the said order
has been sustained by the High Court by the impugned order.
Legal Framework:
Order VII Rule 11 of the Code:
6.
Since the issue in this appeal pertains to the correctness or otherwise
of the impugned orders refusing rejection of the plaint, at this stage,
we deem it necessary to refer to Order VII Rule 11 of the Code which
deals with the grounds for rejection of a plaint:
"11. Rejection of plaint. - The plaint shall be rejected in
the following cases-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the Court to correct
the valuation within a time to be fixed by the Court,
fails to do so;
(c)
where the relief claimed is properly valued, but the
plaint is written upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law:
(e) where it is not filed in duplicate;
(f)
where the plaintiff fails to comply with the provision
of rule 9:
Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-paper
shall not be extended unless the Court, for reasons to
be recorded, is satisfied that the plaintiff was prevented
by any cause of an exceptional nature for correcting the
valuation or supplying the requisite stamp-paper, as the
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Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
case may be, within the time fixed by the Court and that
refusal to extend such time would cause grave injustice
to the plaintiff."
6.1. In the instant case, an application was filed under Order VII
Rule 11(d) of the Code where the ground of rejection of the
plaint was that the suit appears from the statement in the
plaint to be barred by any law. In this regard, our attention
was drawn to various decisions of this Court with regard to
rejection of plaint under Order VII Rule 11 of the Code which
are as follows:
(i)
In T. Arivandandam vs. T.V. Satyapal (1977) 4 SCC
467, this Court while examining the aforesaid provision
has held that the trial court must remember that if on a
meaningful and not a formal reading of the plaint it is
manifestly vexatious and meritless in the sense of not
disclosing a clear right to sue, it should exercise the
power under Order VII Rule 11 of the Code taking care
to see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of
action, it has to be nipped in the bud at the first hearing
by examining the party searchingly under Order X of the
Code, as observed by Krishna Iyer, J.
(ii)
The object of the said provision was laid down by this
Court in Sopan Sukhdeo Sable vs. Assistant Charity
Commissioner (2004) 3 SCC 137. Similarly, in Popat
and Kotecha Property vs. State Bank of India Staff
Association (2005) 7 SCC 510, this Court has culled out
the legal ambit of Order VII Rule 11 of the Code.
(iii) It is trite law that not any particular plea has to be
considered, but the whole plaint has to be read. As was
observed by this Court in Roop Lal Sathi vs. Nachhattar
Singh Gill (1982) 3 SCC 487, only a part of the plaint
cannot be rejected and if no cause of action is disclosed, the
plaint as a whole must be rejected. Similarly, in Raptakos
Brett & Co. Ltd. vs. Ganesh Property (1998) 7 SCC
184, it was observed that the averments in the plaint as
a whole have to be seen to find out whether clause (d) of
Rule 11 Order VII of the Code is applicable.
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(iv) It was further held with reference to Order VII Rule 11
of the Code in Saleem Bhai vs. State of Maharashtra
(2003) 1 SCC 557 that the relevant facts which need to
be looked into for deciding an application thereunder are
the averments in the plaint. The trial court can exercise the
power at any stage of the suit i.e. before registering the
plaint or after issuing summons to the defendant at any
time before the conclusion of the trial. For the purposes of
deciding an application under clauses (a) and (d) of Order
VII Rule 11 of the Code, the averments in the plaint are
germane; the pleas taken by the defendant in the written
statement would be wholly irrelevant at that stage.
(v)
In R.K. Roja vs. U.S. Rayudu (2016) 14 SCC 275, it was
reiterated that the only restriction is that the consideration of
the application for rejection should not be on the basis of the
allegations made by the defendant in his written statement
or on the basis of the allegations in the application for
rejection of the plaint. The court has to consider only the
plaint as a whole, and in case the entire plaint comes
under the situations covered by Order VII Rules 11(a) to
(f) of the Code, the same has to be rejected.
(vi) In Kuldeep Singh Pathania vs. Bikram Singh Jaryal
(2017) 5 SCC 345, this Court observed that the court can
only see whether the plaint, or rather the pleadings of the
plaintiff, constitute a cause of action. Pleadings in the sense
where, even after the stage of written statement, if there
is a replication filed, in a given situation the same also
can be looked into to see whether there is any admission
on the part of the plaintiff. In other words, under Order
VII Rule 11, the court has to take a decision looking at
the pleadings of the plaintiff only and not on the rebuttal
made by the defendant or any other materials produced
by the defendant.
(vii) In an application under Order VII Rule 11 of the Code,
a plaint cannot be rejected in part. This principle is well
established and has been continuously followed since
the 1936 decision in Maqsud Ahmad vs. Mathra Datt &
Co. AIR 1936 Lah 1021. This principle is also explained
in another decision of this Court in Sejal Glass Ltd. vs.
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557
Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
Navilan Merchants Private Ltd. (2018) 11 SCC 780
which was again followed in Madhav Prasad Aggarwal
vs. Axis Bank Ltd. (2019) 7 SCC 158.
(viii) In Biswanath Banik vs. Sulanga Bose (2022) 7 SCC
731, this Court discussed the issue whether the suit can
be said to be barred by limitation or not, and observed
that at this stage, what is required to be considered is the
averments in the plaint. Only in a case where on the face
of it, it is seen that the suit is barred by limitation, then
and then only a plaint can be rejected under Order VII
Rule 11(d) of the Code on the ground of limitation. At this
stage what is required to be considered is the averments
in the plaint. For the aforesaid purpose, the Court has to
consider and read the averments in the plaint as a whole.
Order VII Rule 13 of the Code:
7.
Order VII Rule 13 of the Code reads as under:
"13. Where rejection of plaint does not preclude
presentation of fresh plaint.- The rejection of the plaint
on any of the grounds hereinbefore mentioned shall not of
its own force preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action."
7.1. This Court in Delhi Wakf Board vs. Jagdish Kumar Narang
(1997) 10 SCC 192 was dealing with a case where an earlier
suit had been rejected under Order VII Rule 11 of the Code in
the year 1984 and a fresh suit was instituted on the same cause
of action in the year 1986. The second suit was not allowed by
the trial court as well as by the High Court. This Court set aside
the orders of the trial court and the High Court and held that a
suit filed on the same cause of action subsequent to rejection
of the plaint in the previous suit under Rule 11 is not liable to
be dismissed on the ground of being barred by order rejecting
the plaint in the earlier suit.
7.2. In A. Nawab John vs. V.N. Subramaniyam (2012) 7 SCC 738,
this Court examined the applicability of Order VII Rule 11 of the
Code which requires a plaint to be rejected, inter alia, where
the relief claimed is undervalued and/or the plaint is written on
a paper insufficiently stamped, and, in either case, the plaintiff
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fails to either correct the valuation and/or pay the requisite
court fee by supplying the stamp paper within the time fixed
by the court. Rule 13 categorically declares that the rejection
of a plaint shall not of its own force preclude the plaintiff from
presenting a fresh plaint in respect of the same cause of action.
It was also observed that under Order VII Rule 11, a plaint,
which has not properly valued the relief claimed therein or is
insufficiently stamped, is liable to be rejected. However, under
Rule 13, such a rejection by itself does not preclude the plaintiff
from presenting a fresh plaint. It naturally follows that in a given
case where the plaint is rejected under Order VII Rule 11 of
the Code and the plaintiff chooses to present a fresh plaint,
necessarily the question arises whether such a fresh plaint is
within the period of limitation prescribed for the filing of the suit.
If it is to be found by the court that such a suit is barred by
limitation, once again it is required to be rejected under Order
VII Rule 11 clause (d).
7.3. However, Section 149 of the Code, as interpreted by this Court in
Mannan Lal vs. Mst. Chhotaka Bibi, (Dead) by LRs. (1970) 1
SCC 769, confers power on the court to accept the payment of
deficit court fee even beyond the period of limitation prescribed
for the filing of a suit, if the plaint is otherwise filed within the
period of limitation.
7.4. The case of Patil Automation Private Ltd. vs. Rakheja
Engineers Private Ltd. (2022) 10 SCC 1 further discussed
that under Order VII Rule 11 of the Code, the plaint can be
rejected on six grounds. They include failure to disclose the
cause of action, and where the suit appears from the statement
in the plaint to be barred. Order VII Rule 12 of the Code
provides that when a plaint is rejected, an order to that effect
with reasons must be recorded. Order VII Rule 13 provides
that rejection of the plaint mentioned in Order VII Rule 11
does not by itself preclude the plaintiff from presenting a fresh
plaint in respect of the same cause of action. Order VII of the
Code deals with various aspects about what is to be pleaded
in a plaint, the documents that should accompany and other
details. Order IV Rule 1 provides that a suit is instituted by
presentation of the plaint to the court or such officer as the
court appoints. By virtue of Order IV Rule 1(3), a plaint is to
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Indian Evangelical Lutheran Church Trust Association v.
Sri Bala & Co.
be deemed as duly instituted only when it complies with the
requirements under Order VI and Order VII. Order V Rule 1
declares that when a suit has been duly instituted, a summon
may be issued to the defendant to answer the claim on a date
specified therein. It was therefore held that rejection of earlier
suit under Order VII Rule 11 does not bar fresh suit on the
same cause of action provided the right of action is not barred
by the law of limitation.
Averments in the plaint:
8.
Since the plaint has to be read holistically in order to ascertain whether
it is barred by limitation and consequently, to decide if the suit itself
is not maintainable, we now embark on a meaningful reading of
the plaint in O.S. No.49/2007 which is sought to be rejected by the
appellant herein, as under:
(i)
Paragraphs 1 and 2 of the plaint give details of the plaintiff
and defendant.
(ii)
In paragraph 3 of the plaint, it has been averred that there was a
written agreement of sale executed on 26th April, 1991 with regard
to the suit scheduled property by the defendant/vendor as the
absolute owner of the property with the plaintiff/purchaser.