Case: Sri Biswanath Banik &amp; Anr Vs. Smt. Sulanga Bose &amp; Ors

2. The facts leading to the present appeal in nutshell are as under:-2.1 That the respondents herein – original plaintiffs had instituted a Title Suit No. 166 of 2010 against the respondents herein (original defendants) in the Court of Civil Judge, Sr. Division, Sealdah. The plaintiffs in the suit prayed for the following reliefs:-a) For declaration of right, title interest in the suit property and for confirmation of plaintiffs possession as part performance of contract dated 28.4.1995 as provided under Section 53A of the T.P. Act.aa) for enforcement of the agreement dated 28.4.1995 directing the Principal defendant to execute and register Deed of conveyance in favour of the plaintiffs;b) For a decree for permanent order of injunction restraining the aforesaid defendant and his men and agent from causing any interference and/or any obstruction to the peaceful enjoyment and possession of the suit property and further restraining the defendant from making any attempt to dispossess the plaintiffs forcefully and illegally from the suit property;c) For temporary injunction with ad-interim Rule on similar effect in terms of prayer (b);2.2 Having served with the suit notice, the defendants submitted an application before the trial court requesting to reject the plaint under Order VII Rule 11 CPC mainly on the ground that the suit is barred by limitation and that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act would not be maintainable. That the trial court rejected the said application and refused to reject the plaint in exercise of powers under Order VII Rule 11 CPC.2.3 Feeling aggrieved and dissatisfied with the order passed by the trial court refusing to reject the plaint under Order VII Rule 11 CPC, the original defendants preferred revision application/application before the High Court. By the impugned judgment and order, the High Court has quashed and set aside the order passed by the trial court and consequently has allowed the application under Order VII Rule 11 CPC and has rejected the plaint on the ground that the suit is barred by limitation and that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act would not be maintainable against the actual owner.2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court allowing the application under Order VII Rule 11 CPC and rejecting the plaint on the ground that the suit is barred by limitation as well as the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act would not be maintainable against the original owner, the original plaintiffs have preferred the present appeal.

Reasoning: As observed and held by this Court in the case of Ram Prakash Gupta (supra), rejection of a plaint under Order VII Rule 11(d) CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph 21, it is observed and held as under:-21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint.7.1 From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.7.2 Applying the law laid down by this Court in the case of Ram Prakash Gupta (supra) to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it. The necessary averments in the plaint on the cause of action are in paragraphs 6, 7 and 10, which read as under:-6. That the aforesaid defendant now consequent upon the escalation of the land value of the area has been more aggrieve to drive out the plaintiffs from the suit property by hook and crook and various insertion in the newspapers dated 10.8.2010, 24.8.2010 at the Ananda Bazar Patrika and on 22.8.2010 at The Telegraph, coming up from the different parts with intent to purchase and get transfer of the property by the third party.7. That the aforesaid defendant and his men and agent concretely on 29.8.2010 tried to forcefully enter into the suit property and manhandle the Durwan but owing to the resistance the defendant did not succeed in their attempt to dispossess, but defendant with his associate is determined to dispossess the plaintiffs from his lawful possession by any means even by using force and violence. That the proforma defendants have made parties in the suit without any claim against them but for proper adjudication of the said matter.10. That the cause of action for this suit arose on 29.08.2010 at Premises No. 3/3A, formerly 3, Gurudas Dutta Garden Lane, P.S. Ultadanga, Kolkata- 700067, which is within the jurisdiction of this Ld. Court.7.3 In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in paragraph 4 and has not considered the entire plaint averments.7.4 While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC.8. In view of the above and for the reasons stated above, the High Court has committed a grave error in allowing the application under Order VII Rule 11 CPC and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers under Order VII Rule 11 CPC. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts.