rt`J9± THE HIGH COURT 0F SIKKIM : GANGTOK CFtp No.06 of 2007 i In the matter of a petition under Sect:ion 115 of the Code of Civil Procedure, 1908 and in the matter of Karma Doma Gyatso @ Babila Kazi, Sonam Building, Development Area, Gangtok, Sikkim Pet:itioner versus 1. 2. 3. 4. For Petitioner Mrs. Kesang Choden, W/o Mr. K. N. Pulger, Permanent residence at Tibet Road, Gangtok, Sikkim Present residence at Development Area, Gangtok, Sikkim Opposite party No.1/ Respondent No.1 Mr. Tashi Topden, S/o Late Libing Athing @ Rai Bahadur Sonam Topden, Libing House, Kazi Road, Gangtok, Sikkim Mrs. Gigi Wangyal, W/o Late Phurba Wangyal, Enchay Compound, Tibet Road, Gangtok, Sikkim Office of the Dist:rict Collectorate, East District, Gangtok, Sikkim For Respondent No.1 L~ or Respondent Nos.2 & 3 For Respondent No.4 Opposite Party No.2/ Respondent No.2 Opposite Party No.3/ Respondent No.3 Opposite Party No.4/ Respondent No.4 Mr. T. 8. Thapa and Mr. 8. R. Pradhan, Senior Advocates with Ms. Yangchen D. Gyatso, Advocat:e. Mr. Tashi Rabden Barfungpa and Mr. Jorgay Namka, Advocates. None appeal.s. Mr. Karma Thinlay, Government Advocate. PRESENT : THE HON'BLE MR. JUSTICE A. P. SUBBA, JUDGE. Last dat:e of hearing : 4th December, 2008 Date of Judgment : 8th April, 2009. JUDGMENT •L, A. P. SuBBA, J. This Revision Petition is directed against the Order dated loth August, 2007 passed by the learned Civil Judge, East Sikkim at Gangtok in Title Suit No.06 of 2006, whereby an application praying for rejection of plaint filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short `CPC') was re]-ected. 2. The facts of the case relevant for our present purpose are that the original plaintiff, i.e., the opposite party No.1 herein filed a suit for declaration, cancellation of records of rights, injunction and other consequential reliefs against the present petitioner and others in June, 2006. The case of the plaintiff was that the suit premises was given to her mother Late Libing Anyo by Late Libing Athing @ Rai Bahadur Sonam Topden out of love and affection towards his brother Late Dugda Kazi, husband of Libing Anyo as per the old custom and tradition. After the suit property was so handed over Libing Anyo, the mother of the plaintiff, moved into the premises with her daughter Kesang Choden, the present plaintiff, occupying the portion of the first floor. The rest of the premises were let out to tenants as they had no other source of income. Having thus entered int:o possession, Late Libing Anyo and after her demise, the plaintiff along with her husband and children continued to enjoy the suit premises as owner of the same without any int:erference. They paid all ground rent, electricity and water charges to the concerned authorit:ies as and when demands were raised. After some time, when the financial RI= condition of the plaintiff and her family improved, the plaintiff directed the tenants to pay the house rent in respect of the tenanted premises to Late Sonam Gyatso, i.e., the father of petitioner, i.e., defendant No.1 and his family as they were not financially sound at the relevant time. However, some time in the year 1990, Late Sonam Wangmoo, W/o Late Sonam Gyatso and mother of the defendant No.1 began claiming title over the suit premises on the plea that she had purchased the suit premises and the house was constructed by her. Accordingly, on 12th June, 1990 she served a notice upon Shri K. N. Puljer, husband of the plaintiff claiming that she was the owner of the suit premises and that the plaintiff being merely a tenant should vacate t:he premises. On enquiry from the concerned authorit:ies, the plaintiff came to know that the suit property was mut:ated in the name of t:he defendant No.1 on the basis of an application made by her mother Late Sonam Wangmoo and on the strength of a no objection issued by one Gigi Wangyal, wife of Late Phurba Wangyal Kazi. However, in spite of mutation of the suit properties in the name of defendant No.1, the plaintiff continued in possession of t:he suit premises. Only in the year 2005, the defendant No.1 in an attempt to take over possession entered the suit premises and damaged the toilet:-cum-bathroom and stairway of the plaintiff's suit premises and the plaintiff had to lodge an FIR. On the basis of the facts as narrated above, t:he plaintiff in paragraph 37 of t:he plaint stated that the cause of action first arose on 3rd January, 1990 and on several dates thereafter till 2006 and prayed for the reliefs as mentioned earlier. 3. Based on the above statement made in paragraph 37 of the plaint the defendant No.1, i.e., the present revisionist moved an application under Order VII Rule 11 CPC for re].ection of the plaint. After hearing the parties, the learned trial Court, however, came to the conclusion that the cause of action cannot be held to have arisen before the year 2005 when the defendant No.1 trespassed into the suit land in an attempt to dispossess the plaintiff and accordingly, rejected the petition. Aggrieved by this order, the defendant No.1 is before this Court in the present revision petition. 4. Mr. T. B. Thapa and Mr. Bhaskar Raj pradhan, learned senior counsel with Ms, Yangchen D. Gyatso, learned counsel appearing for the petitioner, Mr. Jorgay Namka and Mr. Tashi Rabden Barfungpa, learned counsel appearing for the respondent No.1 and Mr. Karma Thinlay, learned Government Advocate appearing for the State-respondent No.4 were heard. 5. Two questions that arise for consideration in this revision petition are:- i) Whet:her the cause of act:ion can be taken to have arisen on 3rd January, 1990 or on other subsequent dates? ii) Whether Article 58 of the Limitation Act applies and if so, whether the suit is barred by limit:ation. + So far as the question regarding t:he date on which the first cause of action arose is concerned, it is the submission of the Mr. T. 8. Thapa and Mr. 8. R. Pradhan, both learned counsel appearing for the petitioner that the clear stat:ement in paragraph 37 of t:he plaint being t:o the effect that t:he cause of action first arose on 3rd January, 1990 the same date has to be taken as the date of cause of action. In other words, it is the submission of the learned counsel that t:he plaintiff cannot be allowed to deviate from the date mentioned in the plaint as the date on which cause of action arose for the first time, and as such, the suit having been filed only in t:he year 2006 the same has to be t:reated as hopelessly barred by limit:ation. The question that requires to be determined is, when and on which date the cause of act:ion can be taken t:o have arisen in the circumstances of the present case. As per the statement made in this regard in the plaint, the first cause of action arose on 3rd January, 1990. The submission of the learned counsel for the petitioner as already noted above is that this dat:e which finds specific mention in the plaint cannot be deviated from for ascertaining the date of cause of action. The first decision relied on by the learned counsel for the petitioner in this regard •is Mohan Lal Sukhadia university, udaipur vs. Miss. Priya Soloman reported in AIR 1999 Raf ±02. The particular observation made by the Court on which much emphasis has been laid by the learned counsel for t:he petitioner is the following:- ``4 ............... Whether this st:at:ement is or is not correct: does not arise for consideration at this stage.................. Relying on this observation, the submission of the learned counsel for the petitioner is that the correctness or otherwise of the statement made in the plaint does not arise for consideration at the stage of consideration of an application for re].ection of plaint under Order VII Rule 11(d) CPC. Two more decisions relied on by the learned counsel for the petitioner on the point are - I. N. V. Srinivasa Murthy & Others vs. Mariyamma & Others reported .in (2005) 5 SCC 548 2.. Hardesh Ores (P) Ltd. vs. Hede and Company reported in (2007j 5 SCC 614 •i, While rv. V. Sr/.n/.vase "urthy case was referred to for the purpose of showing that the suit of the plaintiff in the said case was held to be hopelessly bared by limitation by reckoning the cause of action from the date mentioned in the plaint, t:he other case of #ardesh Ores fpj RE= ££d. was referred to in support of t:he proposition that t:he pleading has to be construed as it stands without addition or subtraction of words or change of it:s apparent grammatical sense. The point the learned counsel endeavoured to make by referring to the above decisions is that the st:atement made in the plaint regarding cause of action cannot be. deviated from. Further endeavour made by the learned counsel for the petitioner to strengthen the petitioner's stand on the point was to the effect that "ohan fa/ Sufrhadja case fswpraJ was examined by the Hon'ble Supreme Court in Ba/asar7.a Consfruc£/-on fpj frd. vs. Hanuman Seva Trust and Others reported .in (2006) 5 SCC 662 and Balasaria Construction (P) Itd. vs. Hanuman Seva Trust and Others reported in (2006J 5 SCC 658 but was not over-ruled, thereby suggesting that "bhan fa/ Sckhad;a case fsupraj was still a good law on the point. A perusal of these two judgments would, however, show that even though the case of "ohan fa/ Sukhad/.a case fsupraj came up before the Apex Court by way of reference in the above two cases, it was entirely on a different point. In (2006J 5 SCC 662 fsupraj it was noticed that there was a conflict of opinion of different High Courts on the question whether the words `bared by law' occurring in Order VII Rule 11(d) of CPC would also include the ground that it is barred by law of limitat:ion and since the question was considered to be of importance the matter was referred t:o a larger Bench. In the other case, i.e., (2006j 5 SCC 658 fsupraJ it was held that question of limitation is a mixed question of law and fact and ex fac/.e on reading the plaint a suit cannot be held to be barred by limitation. Thus, the point that the statement made in the plaint regarding cause of action must be adhered t:o without any reference to other part of pleadings does not figure anywhere in the discussion in both the judgments. It is thus obvious that the reliance of the learned counsel for the petitioner on the decision of ". V. Sr/-n/-vasa lREi "urffiy case (supraj is but misplaced. Same happens to be t:he case in respect of the reliance placed in the other decision, namely, Hardech cores case (supraj. This decision has been relied on in support of the proposition that the statement in plaint must be taken without addit:ion or substitution for t:he purpose of cause of action. Far from saying so, the observation in t:he ].udgment is to the effect that the averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII CPC is applicable and for this purpose, it is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. 6. Now coming to the stand taken by t:he respondent No.1 in this regard, it may be noted that even though Mr. Jorgay Namka and Mr. Tashi Rabden Barfungpa, learned counsel appearing for the respondent No.1 do not deny that the stat:ement made in the plaint does show that the ca\use of action arose for the first time on 3rd January, 1990, it is t:he contention of the learned counsel that it was so mentioned through inadvertence due t:o a genuine mistake on the part of the counsel. It is, however, the further submission of the learned counsel that it is the well- established law that an isolated stat:ement in the plaint cannot be taken as showing the cause of action. It is only on a reading of the whole plaint that one can come to the conclusion as to the date on which such cause of action arose. This submission of the learned counsel for the respondent No.1 is sought to be repelled by the learned counsel for the petitioner contending that such an approach will result in making out a case not even pleaded in the plaint and thus, it would be against the pleadings. Over and above, it is further submitted that the plaintiff (Opposite Party No.1) while moving an amendment of the plaint in the learned trial Court has clearly stated that the amendment if allowed would not change the nature and character of the suit as also the date of E cause of action which will remain 3rd January, 1990. It was on such submission that the learned trial Court had allowed the amendment duly recording the submission in the Order dated 12th December, 2006. Thus, having taken a benefit once already the plaintiff (Opposite Party No.1.) cannot now be allowed to take the plea that the ment:ion of date 3rd January, 1990 as the first date of cause of action was made inadvertently due to Advocat:e's mistake. To be specific, it is the contention of the learned counsel for the petitioner on the strength of two decisions, namely, Ashok Kapil vs. Sana ullah and Others reported .in (1996) 6 SCC 342 and Kusheshwar Prasad Singh vs. State of Bihar and Others reported in f2007) 11 SCC 447 that one who has taken advantage of a purported mistake and benefited therefrom should be estopped from subsequently resiling from t:he previous stand. The observation made in t:he above t:wo cases and sought to be relied by the learned counsel is that `No man can take advantage of his own wrong'. The observation no doubt lays down norms of propriety in general terms undoubtedly applicable to litigants as well. I, however, fail to see how this helps to further t:he petitioner's case. For, even if we bind down the plaintiff to the statement made in the plaint that the first cause of action arose on 3rd January, 1990 the position in law as already highlighted above is to the effect that well established rules of interpretation of pleadings require that such statement has to be considered in the light of other statements thereby taking the whole averments in the plaint. The following decisions relied on by t:he learned counsel for t:he respondent No.1 will make the issue more than clear. Ui) Sopan sukhdeo sable and others vs. Assistant charity Commissioner and Others reported .ln AIR 2004 SC 1801.I a"l) Popat and Kotecha Property vs. State Bank of India Staff Association reported .in (2005) 7 SCC 510., (iii) Ram Prakash Gupfa vs. Rajiv Kumar Gupta and Others reported in (2007) 10 SCC 59., and uiv) Hardesh Ores Pvt. Ltd. vs. M/s. Hede and Company reported in (2007j 7 SCALE 348. In Sopan Sukhdeo case, a two Judge Bench of t:he Apex Court observed that it is not permissible to cull out a sentence or a passage and to read it out of t:he context in isolation for the purpose of finding out the date of cause of action. In Popar and Kotecha Property case which was also a Division Bench decision, the Apex Court held that it is trite law that not any particular plea has to be considered but the whole plaint has to be read. So far as applicability of clause (d) of Order VII Rule 11 CPC is concerned, the Bench observed as follows :- ``10 .......... Disputed questions cannot be decided at the t:ime of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the stat:ement made by the plaintiff in the plaint, wit:hout any doubt or dispute shows that the suit is barred by any law in force." In Ram Prakash Gupfa case the Court agreeing with the view expressed in earlier two decisions, namely, Rapfakos Brefr & Co. [rd. vs. Ganesh Property reportec] .in (1998) 7 SCC 184 and Sopan Sukhdeo case (supra; held that the int:ention of the party concerned is to be gathered primarHy from the tenor and terms of his pleadings taken as a whole and t:he claims in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII was applicable. I.n Hardesh Ores Pvt. Ltd. case (supra) .it was observed as fol lows : - "21 ........... The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation." 7' 10 Thus, the correct approach to arrive at any conclusion about the date on which the cause of action arose is to read the plaint as a whole. So read as a whole the facts that emerge from the pleadings in the present case is that even though the suit land was mutated in the name of the defendant No.1 in the year 1990 the plaintiff continued in peaceful possession of the suit premises without being disturbed. It was only in the year 2005 that the defendant No.1 trespassed into the suit land with a view to take possession of the suit premises. These statements, according to the learned counsel for the respondent No.1, make it amply clear that even though the suit land was mutated in the name of the mother of the defendant No.1 in the year 1990 the possession of the plaintiff not being threatened she continued t:o remain in possession. In these circumstances, the content:ion that the cause of action must be taken to have arisen for the first time on 3rd January, 1990 on the basis of what is stated in the plaint cannot be accepted. 8. The following are some of the other relevant pronouncements of the Apex Court as well as several High Courts on the above point. Since these decisions throw further light on the question as to when and on what date cause of action can be taken as having arisen, it would be worthwhile to scan through them. The leading decision on the subject that can be referred to with advantage is the decision of the Judicial Committee in "L Bo/a vs. "f. Kok/an and Others reported in AJR 1930 PC 270. The observation of Sir Binod Mitter in the said case is to the following effect:- "There can be no `right t:o sue' until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infrinae that ric]ht bv the defendant aaainst whom the suit is instituted." [emphasis added] 11 Quoting with approval the above principle of law, the Apex Court in Mst. Rukhmabai vs. Lala Laxminarayan and Others reported .ir\ AIR 1960 SC 335 stated the legal position on t:he sub].ect as follows:- ``(33) The right to sue under Art. 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threat:ened to infringe the right asserted by the plaintiff in the suit. Everv threat bv a Dartv to such a riaht, however ineffective and innocuous it mav be, cannot be considered to be a clear and uneciuivocal threat so as to comDel him to file a suit. Whether a Dartioular threat aives rise to a comDulsorv cause of action deDends uDon the auestion whether that threat effectivelv invades or ieoDardizes the said riaht." [emphasis suppNI] Relying on the above law laid down by the Apex Court and few other decisions, the Andhra Pradesh High Court in Ramchander Wa;* vs. Linga Ramachanderiah and Others reported .in AIR 1971 A.P. 395 observed as follows:- "7 .................. We are, therefore, however, unable to agree that there was any such unequivocal threat to the plaintiff's right so as to constitute an infringement thereof more than six years prior to the date of the institution of the suit simply because it was averred in paragraph 5 of the plaint that the defendants were "trying to dispossess" the plaintiff for the last 7 years. It is not necessarv that the Plaintiff should rush to Court within 6 vears from the date of denial of riaht or threat irrespective of t:he nature of that denial or threat. It: is alwavs oDen t:o him to treat onlv such denial or threat: which. in his opinion, amounts to an effective and unequivocal invasion or infrinaement of his riaht as the startinci Point for comDutina the Period of limitat:ion." [emphasis suppiied] uE= ±n The State of Punjab and Others vs. Gurdev Singh Ashok Kumar report:ed in J7-Z99Z (3j S,C. 465 a three Judge Bench of the Apex Court observed as follows :- "4 ................ The suit must be inst:itut:ed when the right asserted in the suit is infringed or !4!befl t:here is a clear and unequivocal t:hreat to infrinae that: riaht bv the defendant aaainst whom the suit is instituted. " [eniphasls supplled] 12 The above decisions make it amply clear that there has to be a clear and unequivocal threat to the right claimed by the plaintiff. Such being the position in law the contention advanced by the learned counsel for the petitioner that the very fact of the suit land being recorded in the name of the defendant No.1 in the year 1990 followed by notice to vacate must be taken as clear and unequivocal threat to the right claimed by the plaintiff cannot be accepted. 9. The matter can also be looked at from another angle. It is the settled legal position that mere entry of one's name in the record-of- rights does not give rise to any effective cause of action. The following are some of the decisions on the point:- 1n Jagat Chandra Marak and Others vs. ulfat All Bhuiya and Orfiers reported in AIR 1970 7ripura 43, it has been held as follows:- "21 ........... A mere adverse entrv in the record of riahts does not aive rise to anv cause of action. But. when the defendant causes an infrinaement of the riaht of the Dlaintiff bv denvina his title or dispossessing him from the property on the basis of such an entry, then the cause of action arises from the date of the infrinaement. The Dlaintiff's knowledae of the adverse entrv does not start the oeriod of limitation." [emphasis suppiied] Similar is the principle of law laid down by Gauhati High Court in Harendra Chandra Nath and Others vs. Bijoy Krishna Nath and Others reported in AZR 1993 Gawhaff 52. Relying on the decision of Oudh Court .in the case oF Thakurain Chhabraj Kuer vs. Ram Deo S;ngh and Others reported in AJR 1942 0udh 346, it was held that !be right to. sue would not occur even if the name of the defendant is entered in the riahts of record. The Court observed that so long as an adverse entry in the revenue records does not injure the plaintiff, he need not come t:o Court at all, and hence a plaintiff in a suit for declaration that he is an under-proprietor is not out of time if he institutes the suit within the prescribed period of limitation after the injury. 13 The above decisions make it clear beyond any shadow of doubt that mere entry of name in the record-of-rights gives rise to no cause of action. Even though, such is the position in law, the learned counsel for the petitioner came up with the submission that in Sikkim parcha khatiyan have always been treated as