Second Suit for Specific Performance Is Barred as Limitation Ran from Rejection of Earlier Plaint

A bench of Justice B.V. Nagarathna and Justice Nongmeikapam Kotiswar Singh heard an appeal challenging the Madras High Court’s dismissal of a civil revision petition that had sought to set aside the trial court’s refusal to reject a plaint under Order VII Rule 11(d) of the Code of Civil Procedure. The narrow question before the Court was whether the subsequent suit filed in 2007 for specific performance was barred by limitation and liable to be rejected even though an earlier unnumbered suit on the same cause of action had been lodged in 1993 and its plaint rejected in 1998.

The Court allowed the appeal, set aside the impugned orders of the High Court and trial court, and held that the second suit (O.S. No.49/2007) was barred by limitation and therefore liable to rejection under Order VII Rule 11(d) read with Article 113 of the Limitation Act. The Court held that the plaintiff had filed the first suit in 1993 and the plaint was rejected on 12.01.1998, whereupon the right to file a fresh suit under Order VII Rule 13 accrued; the plaintiff could have filed within three years from rejection but instead filed only in 2007. The Court, in its reasoning, observed: “Applying the aforesaid dictum to the facts of the present case, it is observed that 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 Order VII Rule 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 as per Article 113 to the Schedule to the Limitation Act. Hence the second suit is barred under Order VII Rule 11(d) of the Code.” The Court further noted the maxim that “when once the time has begun to run, nothing stops it.”

Background The dispute concerned a 5.05-acre portion of the Loch End property at Kodaikanal, subject to an agreement to sell dated 26.04.1991 for Rs.3.02 crore. The purchaser paid an advance and obtained partial possession. An unnumbered suit for specific performance was filed in 1993 but its plaint was rejected on 12.01.1998 for non-payment of court-fees. The plaintiff then filed O.S. No.49/2007 seeking specific performance again under Order VII Rule 13. The vendor (appellant before the Supreme Court) moved under Order VII Rule 11(d) contending the later suit was time-barred; the trial court refused rejection and the Madras High Court dismissed the vendor’s civil revision petition.

The plaintiff relied on a contemporaneous communication said to have been issued on 15.07.1991 (or 26.07.1991 in parts of the record) that allegedly extended time for performance until disposal of various litigation; it also relied on numerous interlocutory proceedings involving tenants and third parties. The Supreme Court examined the plaint holistically and the material annexed thereto, applied the principles governing rejection under Order VII Rule 11 and the Limitation Act, and concluded that Article 113 (residuary three‑year period) governed the second suit because the right to sue for a fresh plaint accrued only upon rejection of the earlier plaint. The Court found that reliance on the extension letter, given its omission from the 1993 plaint, could not justify the seven‑year delay and described that reliance as impermissible in the circumstances. The ultimate result was that the plaint in O.S. No.49/2007 stood rejected and the appeal was allowed; parties were directed to bear their respective costs.

Case No.: CIVIL APPEAL NO.1525 OF 2023 Case Title: Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co. Appearances: For the Petitioner(s): Sri P.V. Balasubramaniam, Senior Advocate For the Respondent(s): Sri V. Giri, Senior Advocate