(Prayer: PETITION under Article 227 of The Constitution of India against the order and decretal order dated 13.9.2021 in I.A.No.927 of 2018 in O.S.No.86 of 2018 on the file of Subordinate Court, Perundurai.)

1. This civil revision petition has been filed under Article 227 of The Constitution of India against the order dated 13.9.2021 in I.A.No.927 of 2018 in O.S.No.86 of 2018 on the file of Subordinate Court, Perundurai (for short, the Court below) wherein the application filed by defendants 1 and 2 – the original first petitioner and the second petitioner under Order VII Rule 11 of the Civil Procedure Code (CPC) to reject the plaint came to be rejected.

2. Heard the learned counsel for the petitioners and the learned counsel appearing for respondents 1 to 4. 3. This Court has also carefully considered the submissions of the learned counsel on either side and perused the materials available on record and more particularly the impugned order.

4. Respondents 1 to 4 herein are the plaintiffs in the said suit, in which, they sought for the relief of declaration of a right of easement and for permanent injunction. In the said suit, defendants 1 and 2 filed the said application for rejection of the plaint mainly on the ground that the relief sought for by the plaintiffs is clearly barred by limitation and that therefore, the plaint is liable to be rejected.

5. The Court below, on considering the said application, came to the conclusion that the issue of limitation that has been raised is a mixed question of fact and law and that therefore, it requires consideration only after a full-fledged trial and ultimately dismissed the said application. Aggrieved by that, the above civil revision petition has been filed before this Court.

6. In the case in hand, initially, respondents 1 and 2 herein were prosecuting S.A.No.1276 of 2000 before this Court that arose out of the judgment and decree dated 29.9.1999 passed in A.S.No. 86 of 1999 on the file of the Principal District Court, Erode confirming the judgment and decree dated 31.8.1998 made in O.S. No.155 of 1995 on the file of the District Munsif Court, Perundurai. Respondents 1 and 2 herein, as the appellants in the second appeal, filed a petition in CMP.No.3294 of 2018 under Order XXIII Rule 3(b) of the CPC seeking for permission of the Court to withdraw O.S.No. 155 of 1995 and to file a fresh suit on the same cause of action and permit them to claim easementary rights.

7. The said second appeal was disposed of by judgment dated 07.3.2018 wherein the relevant portions read thus:

                     “4. Mr.Lakshmi Narayanan, the learned counsel appearing for the respondent/defendant would submit that, initially the suit was filed for claiming his title over the property on par with the respondent/defendant. The Lower Appellate Court confirmed the title in favour of the defendant and rejected the claiming title by the plaintiff. Already both the Courts below arrived at a conclusion that the respondents have no title over the property. Now, the present petition is filed under Order 23 Rule 3 (b) on the same cause of action and it is not permissible one. However, the learned counsel accepted, that if the appellants/plaintiffs wants to file a fresh suit for establishing their right to use the pathway through easementary rights, it will be a different cause of action. Accordingly, permission may be granted to the appellant/ plaintiff to institute a fresh suit on different cause of action.

                     5. I have heard the rival submissions made by the learned counsel appearing for the appellants as well as the respondents and perused the present petition which has been filed by the appellant. After accepting the title in favour of the defendant, the decree of proof for claiming the easementay rights is a different cause of action and pleadings.

                     6. The learned Senior Counsel appearing for the appellant accepted the submission made by the learned counsel for the respondent. Accordingly, liberty is granted to the appellants to file a suit before the Competent Civil Court and liberty is granted to the respondents/ defendants to raise all their objections in the suit that is to be filed by the appellant, if cause of action arose.”

8. Pursuant to the said judgment of this Court dated 07.3.2018, O.S.No.86 of 2018 came to be filed before the Sub- Court, Perundurai. It will be relevant to take note of the cause of action paragraph in the present suit and for proper appreciation, the same is extracted as hereunder:





9. The main ground that was urged on the side of the petitioners is that liberty was obtained by respondents 1 and 2 to file a fresh suit on a different cause of action, that it will not save the period of limitation for the cause of action, which arose during the year 1992, that by merely mentioning one date as 28.5.2018, the present suit has been filed, that the same does not, in any way, save the suit from being barred by limitation and that the present suit is also barred by the principles of res judicata.

10. On a careful reading of the judgment dated 07.3.2018 passed in S.A.No.1276 of 2000, it is seen that this Court granted leave to file a fresh suit before the competent civil court and that the petitioners herein were also given the right to raise all the objections in the fresh suit. In such an event, there is no question of treating the subsequent suit as barred by the principles of res judicata.

11. The only issue to be considered is as to whether the present suit is barred by limitation.

12. It is now too well settled that the limitation is a mixed question of fact and law. A plaint can be rejected on the ground that it is barred by limitation only if, on a reading of the plaint and on the face of it, it is seen that it is barred by limitation.

13. In the case in hand, the Court below rendered a finding that a new cause of action has been incorporated in the pleadings as if it took place in 28.5.2018 and that if really any such cause of action had arisen, it can be decided only during the trial. This finding rendered by the Court below cannot be held to be perverse warranting the interference of this Court in exercise of its jurisdiction under Article 227 of The Constitution of India.

14. In the light of the above discussions, the impugned order passed by the Court below does not warrant the interference of this Court.

15. Accordingly, the above civil revision petition is dismissed. The impugned order dated 13.9.2021 in I.A.No.927 of 2018 in O.S. No.86 of 2018 on the file of Subordinate Court, Perundurai is confirmed. It is left open to the petitioners to raise all their defences before the Court below and the same shall be dealt with on their own merits and in accordance with law. The dispute between the parties has been going on from 1995 onwards. Hence, there shall be a direction to the Court below to dispose of O.S.No.86 of 2018 within a period of four months from the date of receipt of a copy of this order. It is made clear that this order will not have any bearing while deciding the suit on merits by the Court below. No costs. Consequently, the connected CMP is also dismissed.