SRI BISWANATH BANIK & ANR. versus SMT. SULANGA BOSE & ORS.
[2022] 3 S.C.R. 302, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SUPREME COURT REPORTS
[2022] 3 S.C.R.
   [2022] 3 S.C.R. 302
302
SRI BISWANATH BANIK & ANR.
v.
SMT. SULANGA BOSE & ORS.
(Civil Appeal No. 1848 of 2022)
MARCH 14, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Code of Civil Procedure, 1908: Or.VII r.11 – Rejection of
plaint – Suit of declaration and permanent injunction – Defendants
seeking rejection of plaint on the ground that the suit is barred by
limitation and that the suit for a declaration simplicitor under s.53A
of TPA would not be maintainable – Trial court refused to reject
plaint under Or.VII r.11 – However, on revision, High Court allowed
Or.VII r.11 application – On appeal, held: Rejection of a plaint
under Or.VII r.11(d) by reading only few lines and passages and
ignoring the other relevant parts of the plaint is impermissible –
The Court has to consider and read the averments in the plaint as a
whole – 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 – 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, on facts, 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 s.53A of TPA 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 s.53A would not be maintainable at all – Plaint is not liable
to be rejected in exercise of powers under Or.VII r.11 CPC – Transfer
of Property Act, 1882 – s.53A.
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Allowing the appeal the Court
HELD: 1. So far as the issue whether the suit can be said
to be barred by limitation or not, at this stage, what is required to
be considered is the averments in the plaint. Only in a case where
on the face of it, it is seen that the suit is barred by limitation,
then and then only a plaint can be rejected under Order VII Rule
11(d) CPC on the ground of limitation. At this stage, what is
required to be considered is the averments in the plaint. For the
said purpose, the Court has to consider and read the averments
in the plaint as a whole. 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.
[Paras 7, 7.1][307-F-G; 308-E]
2. 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. 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.
[Paras 7.4, 8][309-E-H; 310-A-C]
Ram Prakash Gupta v. Rajiv Kumar Gupta and Ors.,
(2007) 10 SCC 59 : [2007] 10 SCR 520; Delhi Motor
SRI BISWANATH BANIK & ANR. v. SMT. SULANGA BOSE &
ORS.
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SUPREME COURT REPORTS
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Company v. U.A. Basrurkar, AIR 1968 SC 794 : [1968]
2 SCR 720 – relied on.
Case Law Reference
[2007] 10 SCR 520
relied on
Para 3.3
[1968] 2 SCR 720
relied on
Para 4.2
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1848
of 2022.
From the Judgment and Order dated 28.04.2017 of the High Court
of Calcutta at Kolkata in C.O. No.1417 of 2017.
Ankur Sood, Ms. Romila Mandal, Arnab Chatterjee, Advs. for
the Appellants.
Suman Kumar Dutt, Mrs. Manju Bhuteria, Pawanshree Agrawal,
Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Calcutta in C.O. No. 1417 of
2017 by which the High Court has allowed the said petition and has
quashed and set aside the order passed by the trial court refusing to
reject the plaint in exercise of powers under Order VII Rule 11 of Code
of Civil Procedure, 1908 (CPC) and consequently has rejected the plaint
under Order VII Rule 11 CPC mainly on the ground that the suit is
barred by limitation and that a suit for a declaration simpliciter under
Section 53A of the Transfer of Property Act would not be maintainable
as against the actual owner, the original plaintiffs have preferred the
present appeal.
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 plaintiff’s possession as part performance of
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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);
xxxxxxxxxx”
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
SRI BISWANATH BANIK & ANR. v. SMT. SULANGA BOSE &
ORS. [M. R. SHAH, J.]
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against the original owner, the original plaintiffs have preferred the present
appeal.
3. Shri Ankur Sood, learned counsel appearing on behalf of the
appellants has vehemently submitted that in the facts and circumstances
of the case, the High Court has erred in allowing the application under
Order VII Rule 11 CPC and rejecting the plaint on the ground that the
suit is barred by limitation. It is submitted that while holding that the suit
would be barred by limitation, the High Court has not at all considered
the entire suit averments and has not considered the averments in the
plaint as a whole.
3.1 It is contended that as per the averments in the plaint, the
cause of action had arisen on 10.08.2010 / 24.08.2010 on which date the
advertisement was given in the newspapers with an intent to transfer
the property by a third party. It is submitted that as such in the facts and
circumstances of the case, it can be said that the issue with respect to
limitation is a mixed question of law and facts and therefore, the High
Court ought not to have rejected the plaint on the ground that it is barred
by limitation.
3.2 It is further submitted that the High Court has not at all properly
appreciated the fact that the plaintiffs claimed the relief in the suit invoking
Section 53A of the Transfer of Property Act and also prayed for the
relief of permanent injunction. It is urged that whether the plaintiffs would
succeed in getting
the relief/reliefs under Section 53A of the Transfer of
Property Act would have to be considered at the time of trial. It is
submitted that however, it cannot be said that a suit for declaration under
Section 53A of the Transfer of Property Act would not be maintainable
at all.
3.3 Making above submissions and relying upon the decision of
this Court in the case of Ram Prakash Gupta Vs. Rajiv Kumar Gupta
and Ors., (2007) 10 SCC 59, it is vehemently submitted that in the
present case, the High Court has exceeded its jurisdiction to reject the
plaint under Order VII Rule 11 CPC.
4. Shri Suman Kumar Dutt, learned counsel appearing on behalf
of the original defendants has supported the impugned judgment and
order passed by the High Court.
4.1 It is submitted that in the facts and circumstances of the case,
the High Court has not committed any error in rejecting the plaint on the
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ground that the suit is barred by limitation. It is contended that even
according to the plaintiffs the cause of action had arisen in the year 2004
as averred in paragraph 4 of the plaint. It is submitted that therefore
when the cause of action had arisen in the month of April / May, 2004
and when the suit was filed in the year 2010, the same is clearly barred
by law of limitation. It is submitted that when once the suit was barred
by limitation, the same is liable to be rejected under Order VII Rule
11(d) of CPC.
4.2 Relying upon the decision of this Court in the case of Delhi
Motor Company Vs. U.A. Basrurkar, AIR 1968 SC 794 in which
this Court relied upon the Privy Council judgment, it is submitted that the
suit for a declaration simpliciter under Section 53A of the Transfer of
Property Act would not be maintainable. It is urged that the High Court
has not committed any error in allowing the application under Order VII
Rule 11 CPC and in rejecting the plaint.
5. We have heard the learned counsel appearing on behalf of the
respective parties at length.
6. At the outset, it is required to be noted that the trial court rejected
the application under Order VII Rule 11 CPC and refused to reject the
plaint. However, the High Court by the impugned judgment and order
has set aside the order passed by the trial court and allowed the application
under Order VII Rule 11 CPC and has rejected 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.
7. Now, so far as the issue whether the suit can be said to be
barred by limitation or not, at this stage, what is required to be considered
is the averments in the plaint. Only in a case where on the face of it, it is
seen that the suit is barred by limitation, then and then only a plaint can
be rejected under Order VII Rule 11(d) CPC on the ground of limitation.
At this stage what is required to be considered is the averments in the
plaint. For the aforesaid purpose, the Court has to consider and read the
averments in the plaint as a whole. 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:-
SRI BISWANATH BANIK & ANR. v. SMT. SULANGA BOSE &
ORS. [M. R. SHAH, J.]
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“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.
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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
SRI BISWANATH BANIK & ANR. v. SMT. SULANGA BOSE &
ORS. [M. R. SHAH, J.]
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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.
9. For the reasons stated hereinabove, the present appeal
succeeds. The impugned judgment and order passed by the High Court
allowing the C.O. and quashing and setting aside the order passed by
the trial court refusing to reject the plaint under Order VII Rule 11 CPC
and consequently rejecting the plaint under Order VII Rule 11 CPC is
hereby quashed and set aside. The application submitted by the original
defendants to reject the plaint under Order VII Rule 11 CPC stands
dismissed. The order passed by the trial court stands restored. Now, the
trial to proceed further in accordance with law and on its own merits.
However, it is observed that whatever observations are made by this
Court in the present order shall be confined to deciding the application
under Order VII Rule 11 CPC only and the trial court to finally decide
and dispose of the suit in accordance with law and
on its own merits and
on the basis of the evidence led.
Present appeal is allowed accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
Devika Gujral
Appeal allowed