It appears claim is barred by limitation
2) file application under order VII for rejection of plaint as in rejoinder they themselves have admitted that photographs are of 2013
3) discharge in criminal case has no bearing on the civil case
Filing of appropriate application
Dear Sirs, I have filed a Civil Suit against my neighbor in year 2013 over their illegal constructions and the same is under trail for the past seven years.The suit is in evidence stage. As a counterblast, my neighbor has filed a Civil suit against us in 2017 alleging illegal constructions / leakage from my flat. We have filed an application Under Order 7, Rule 11 CPC alongwith Sec 151 since there was no cause of action mentioned in the suit and illegible documents provided to us. However, the Judge dismissed our petition but stated in the order that “ Moreover, WS has already been filed and Ld. Counsel for Defendant is always at liberty to move appropriate application for the said purpose or he can even inspect the court file”. We had also filed the WS after few months of the filing the application U/o VII, Rule 11. The Plaintiff has also filed their rejoinder for the same. In the suit which we have filed, the plaintiff alleged leakage from our flat/keeping flower pots in balcony etc and enclosed five photographs taken in year 2013 as proof. We have highlighted the enclosure of old photographs in our WS and the plaintiff has also admitted in their rejoinder filed in 2018 that the pics enclosed are the same as was enclosed in 2013 in their WS in our Civil Suit. Thereby, they have clearly admitted that the causes are of old and comes under Limitation act. Ideally, we should have filed the application U/o VII, Rule 11 after the getting the rejoinder. Now, since the Judge himself stated in the order that “move appropriate application” we wish to file another application. The neighbor who filed the civil suit has also colluded with another neighbor (who also made illegal constructions) and an ex police who filed a criminal case against us U/s 354(c),354 (d), 506, and given statement under sec 161. However, the MM Court discharged me while framing the charges and stated that “prima faice” no case is made out. We were informed that people approach the court should come under clean hands. Questions: 1. What does it mean “move appropriate application for the said purpose” mentioned in the order by the Judge while dismissing our U/o VII Rule 11 application? 2. Is it application under Limitation Act or any other application to be filed as new one? 3. If any other application, what is the name / type of application the Judge is referring? 4. Under which section of CPC, the application under Limitation act can be filed? 5. Some say that we should not have filed application U/s VII Rule 7 along with Sec 151 – either of them only should have been filed? Is it correct? 6. Can we file one more application U/o VII, Rule 11 citing Limitation act? 7. Can we mention about the discharge from Criminal case and their statement given under Sec 161 in our new petition? 8. Is there any way the suit can be dismissed top avoid a long trail? With regards, Rishi
Asked 3 years ago in Civil Law
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6 Answers
Order passed dismissing Order 7 Rule 11 application is contradictory. Once such application is dismissed there cannot be subsequent application for the same purpose, there can be only revision. Order 7 Rule 11 is to be filed without filing any ws to the plaint.
- As stated “move appropriate application for the said purpose,” is contradiction in terms as there cannot be subsequent application for the “said purpose” ie. for rejection of plaint.
- Said purpose indicate that it for the purpose of rejection of plaint.
- Your doubt arises out of hope that there is some other remedy suggested by the Court but that is not correct.
- Objections to limitation has to taken in the ws that is sufficient.
- There is no illegality in relying on two similar provisions.
- No second application can filed, only revision can be filed.
- You can mention about collusion between you plaintiff and neighbor in filing criminal case against you and your discharge. It will establish his malafide conduct.
- It has to dismissed on merit.
Mr. Rishi,
Kindly come up with the full file and the orders if available to discuss the case in detail. It would not be appropriate to advise without seeing the case file. You can approach via kanoon.com for the consultation.
1. Since the plaintiff in his suit already admitted that the pics enclosed are the same as was enclosed in 2013 in their WS in your Civil Suit , then his suit is not maintainable on many grounds , specially limitation ground.
- Further, as you have already filed application under 7 rule 11 , then moving another application not arise, so your query is not clear
2. There may possibility to move the same application afresh after mentioning other grounds of limitation.
- Further the said criminal case having no effect on a Civil suit.
1. You have been instructed to move the court with an application that would be suitable to the prevalent situation instead of the petition which has been filed now, you may ask your advocate about the application to be filed under the present situation.
2. The limitation act may not be invoked, you may file an application on the basis of the relief you expect through court.
3. Without knowing the actual case that he had filed against you and the situation prevailing at your place it would not be possible to render any proper opinion in this regard.
4. See the above answer.
5. The people around you would be giving free adviser only to misguide you, hence you better mention here your advocate's opinion on this issue.
6. The law of re judicata would apply hence you will be barred from filing the same application.
7. That will not have any impact to the civil case, hence your petition may not be entertained.
8. You may have to contest and get it dismissed on merits.
Dear Sir/Ma'am,
- In the order, the judge has instructed you to move the court with an application that would be suitable to the prevalent situation instead of the petition which has been filed now. Order passed dismissing application is contradictory. Once such application is dismissed under Order 7 Rule 11 there cannot be subsequent application for the same purpose, there can be only revision. Order 7 Rule 11 is to be filed without filing any written statement to the plaint.
- No, The limitation act may not be invoked in this case. It is advisable for you to file an application for the relief you are willing to seek from the court.
- Since the facts of the case and what claim was filed by you in your application is not clear, the statements in the judgment cannot be interpreted clearly.
- You can move a fresh application in the court by stating appropriate ground of limitation in your case.
- You don't need to file another application stating the same claims as it would constitute to the violation of the principle of res judicata. You can file for revision.
- It is added to your knowledge that your case has to be dismissed on merits only.
