Sri Biswanath Banik vs Sulanga Bose

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1848 OF 2022

Sri Biswanath Banik & Anr. …Appellant(s)

Versus

Smt. Sulanga Bose & Ors. …Respondent(s)

JUDGMENT

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.

Signature Not Verified Digitally signed by R Natarajan Date: 2022.03.14 16:59:21 IST Reason:

2. The facts leading to the present appeal in nutshell are as under:-

1

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 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 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.

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

3 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.

4 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

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

5 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

6 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:-

“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

7 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.”

8 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

9 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.

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

10 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.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. MARCH 14, 2022. [B.V. NAGARATHNA]

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