SRI BISWANATH BANIK & ANR. versus SMT. SULANGA BOSE & ORS.

[2022] 3 S.C.R.

SRI BISWANATH BANIK & ANR.

SMT. SULANGA BOSE & ORS.

(Civil Appeal No. 1848 of 2022)

BMARCH 14, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Code of Civil Procedure, 1908: Or.VII r.11 – Rejection ofplaint – Suit of declaration and permanent injunction – DefendantsCseeking rejection of plaint on the ground that the suit is barred bylimitation and that the suit for declaration simplicitor under s.53Aof TPA would not be maintainable – Trial court refused to rejectplaint under Or.VII r.11 – However, on revision, High Court allowedOr.VII r.11 application – On appeal, held: Rejection of plaintDunder Or.VII r.11(d) by reading only few lines and passages andignoring the other relevant parts of the plaint is impermissible –The Court has to consider and read the averments in the plaint as awhole – On going through the entire plaint averments, it cannot besaid at this stage that the suit is barred by limitation on the face ofEit – When the suit is for decree of permanent injunction and it isaverred that the plaintiffs are in possession of the suit propertypursuant to the agreement and thereafter, they have developed theland and that they are in continuous possession since more thantwelve years and they are also paying taxes to the Corporation, thecause of action can be said to have arisen on the date on which theFpossession is sought to be disturbed – If that be so, on facts, suitfor decree for permanent injunction cannot be said to be barred bylimitation – It is the settled proposition of law that the plaint cannotbe rejected partially – Even otherwise, the reliefs sought areinterconnected – Whether the plaintiffs shall be entitled to any reliefGunder 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 soughtunder s.53A would not be maintainable at all – Plaint is not liableto be rejected in exercise of powers under Or.VII r.11 CPC – Transferof Property Act, 1882 – s.53A.H

Allowing the appeal the Court

HELD: 1. So far as the issue whether the suit can be saidto be barred by limitation or not, at this stage, what is required tobe considered is the averments in the plaint. Only in case whereon the face of it, it is seen that the suit is barred by limitation,then and then only plaint can be rejected under Order VII Rule11(d) CPC on the ground of limitation. At this stage, what isrequired to be considered is the averments in the plaint. For thesaid purpose, the Court has to consider and read the avermentsin the plaint as whole. While considering an application underOrder VII Rule 11 CPC, the Court has to go through the entireplaint averments and cannot reject the plaint by reading only fewlines/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 decree of permanent injunctionand it is averred that the plaintiffs are in possession of the suitproperty pursuant to the agreement and thereafter, they havedeveloped the land and that they are in continuous possessionsince more than twelve years and they are also paying taxes tothe Corporation, the cause of action can be said to have arisenon the date on which the possession is sought to be disturbed. Ifthat be so, the suit for decree for permanent injunction cannot besaid to be barred by limitation. It is the settled proposition of lawthat the plaint cannot be rejected partially. Even otherwise, thereliefs sought are interconnected. Whether the plaintiffs shall beentitled to any relief under Section 53A of the Transfer of PropertyAct or not has to be considered at the time of trial, but at thisstage it cannot be said that the suit for the relief sought underSection 53A would not be maintainable at all and therefore theplaint is liable to be rejected in exercise of powers under OrderVII Rule 11 CPC. The High Court has exceeded in its jurisdictionin rejecting the plaint while exercising the powers under OrderVII Rule 11 CPC. The impugned judgment and order passed bythe 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

ACompany v. U.A. Basrurkar, AIR 1968 SC 794 : [1968]2 SCR 720 – relied on.

Case Law Reference

[2007] 10 SCR 520relied onPara 3.3B[1968] 2 SCR 720relied onPara 4.2CIVIL APPELLATE JURISDICTION : Civil Appeal No.1848of 2022.

From the Judgment and Order dated 28.04.2017 of the High Courtof Calcutta at Kolkata in C.O. No.1417 of 2017.

CAnkur Sood, Ms. Romila Mandal, Arnab Chatterjee, Advs. forthe Appellants.

Suman Kumar Dutt, Mrs. Manju Bhuteria, Pawanshree Agrawal,Advs. for the Respondents.

DThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Calcutta in C.O. No. 1417 of2017 by which the High Court has allowed the said petition and hasEquashed and set aside the order passed by the trial court refusing toreject the plaint in exercise of powers under Order VII Rule 11 of Codeof Civil Procedure, 1908 (CPC) and consequently has rejected the plaintunder Order VII Rule 11 CPC mainly on the ground that the suit isbarred by limitation and that suit for declaration simpliciter underFSection 53A of the Transfer of Property Act would not be maintainableas against the actual owner, the original plaintiffs have preferred thepresent appeal.

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

2.1 That the respondents herein – original plaintiffs had institutedGa Title Suit No. 166 of 2010 against the respondents herein (originaldefendants) in the Court of Civil Judge, Sr. Division, Sealdah. The plaintiffsin the suit prayed for the following reliefs:-

“a) For declaration of right, title interest in the suit property andfor confirmation of plaintiff’s possession as part performance of

contract dated 28.4.1995 as provided under Section 53A of theT.P. Act.

aa) for enforcement of the agreement dated 28.4.1995 directingthe Principal defendant to execute and register Deed ofconveyance in favour of the plaintiffs;

b) For decree for permanent order of injunction restraining theaforesaid defendant and his men and agent from causing anyinterference and/or any obstruction to the peaceful enjoyment andpossession of the suit property and further restraining the defendantfrom making any attempt to dispossess the plaintiffs forcefullyand illegally from the suit property;

c) For temporary injunction with ad-interim Rule on similar effectin terms of prayer (b);

xxxxxxxxxx”

2.2 Having served with the suit notice, the defendants submittedan application before the trial court requesting to reject the plaint underOrder VII Rule 11 CPC mainly on the ground that the suit is barred bylimitation and that the suit for declaration simpliciter under Section53A of the Transfer of Property Act would not be maintainable. Thatthe trial court rejected the said application and refused to reject theplaint in exercise of powers under Order VII Rule 11 CPC.

2.3 Feeling aggrieved and dissatisfied with the order passed bythe trial court refusing to reject the plaint under Order VII Rule 11 CPC,the original defendants preferred revision application/application beforethe High Court. By the impugned judgment and order, the High Courthas quashed and set aside the order passed by the trial court andconsequently has allowed the application under Order VII Rule 11 CPCand has rejected the plaint on the ground that the suit is barred by limitationand that the suit for declaration simpliciter under Section 53A of theTransfer of Property Act would not be maintainable against the actualowner.

2.4 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court allowing the application under OrderVII Rule 11 CPC and rejecting the plaint on the ground that the suit isbarred by limitation as well as the suit for declaration simpliciter underSection 53A of the Transfer of Property Act would not be maintainable

Aagainst the original owner, the original plaintiffs have preferred the presentappeal.

3. Shri Ankur Sood, learned counsel appearing on behalf of theappellants has vehemently submitted that in the facts and circumstancesof the case, the High Court has erred in allowing the application underBOrder VII Rule 11 CPC and rejecting the plaint on the ground that thesuit is barred by limitation. It is submitted that while holding that the suitwould be barred by limitation, the High Court has not at all consideredthe entire suit averments and has not considered the averments in theplaint as whole.

C3.1 It is contended that as per the averments in the plaint, thecause of action had arisen on 10.08.2010 / 24.08.2010 on which date theadvertisement was given in the newspapers with an intent to transferthe property by third party. It is submitted that as such in the facts andcircumstances of the case, it can be said that the issue with respect tolimitation is mixed question of law and facts and therefore, the HighDCourt ought not to have rejected the plaint on the ground that it is barredby limitation.

3.2 It is further submitted that the High Court has not at all properlyappreciated the fact that the plaintiffs claimed the relief in the suit invokingSection 53A of the Transfer of Property Act and also prayed for theErelief of permanent injunction. It is urged that whether the plaintiffs wouldsucceed in getting the relief/reliefs under Section 53A of the Transfer ofProperty Act would have to be considered at the time of trial. It issubmitted that however, it cannot be said that suit for declaration underSection 53A of the Transfer of Property Act would not be maintainableat all.F

3.3 Making above submissions and relying upon the decision ofthis Court in the case of Ram Prakash Gupta Vs. Rajiv Kumar Guptaand Ors., (2007) 10 SCC 59, it is vehemently submitted that in thepresent case, the High Court has exceeded its jurisdiction to reject theGplaint under Order VII Rule 11 CPC.

4. Shri Suman Kumar Dutt, learned counsel appearing on behalfof the original defendants has supported the impugned judgment andorder passed by the High Court.

4.1 It is submitted that in the facts and circumstances of the case,Hthe 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 evenaccording to the plaintiffs the cause of action had arisen in the year 2004as averred in paragraph 4 of the plaint. It is submitted that thereforewhen the cause of action had arisen in the month of April / May, 2004and when the suit was filed in the year 2010, the same is clearly barredby law of limitation. It is submitted that when once the suit was barredby limitation, the same is liable to be rejected under Order VII Rule11(d) of CPC.

4.2 Relying upon the decision of this Court in the case of DelhiMotor Company Vs. U.A. Basrurkar, AIR 1968 SC 794 in whichthis Court relied upon the Privy Council judgment, it is submitted that thesuit for declaration simpliciter under Section 53A of the Transfer ofProperty Act would not be maintainable. It is urged that the High Courthas not committed any error in allowing the application under Order VIIRule 11 CPC and in rejecting the plaint.

5. We have heard the learned counsel appearing on behalf of therespective parties at length.

6. At the outset, it is required to be noted that the trial court rejectedthe application under Order VII Rule 11 CPC and refused to reject theplaint. However, the High Court by the impugned judgment and orderhas set aside the order passed by the trial court and allowed the applicationunder Order VII Rule 11 CPC and has rejected the plaint on the groundthat the suit is barred by limitation as well as the suit for declarationsimpliciter under Section 53A of the Transfer of Property Act would notbe maintainable.

7. Now, so far as the issue whether the suit can be said to bebarred by limitation or not, at this stage, what is required to be consideredis the averments in the plaint. Only in case where on the face of it, it isseen that the suit is barred by limitation, then and then only plaint canbe 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 theplaint. For the aforesaid purpose, the Court has to consider and read theaverments in the plaint as whole. As observed and held by this Court inthe case of Ram Prakash Gupta (supra), rejection of plaint underOrder VII Rule 11(d) CPC by reading only few lines and passages andignoring the other relevant parts of the plaint is impermissible. In the saiddecision, in paragraph 21, it is observed and held as under:-

A“21. As observed earlier, before passing an order in an applicationfiled for rejection of the plaint under Order 7 Rule 11(d), it is butproper to verify the entire plaint averments. The abovementionedmaterials clearly show that the decree passed in Suit No. 183 of1974 came to the knowledge of the plaintiff in the year 1986,when Suit No. 424 of 1989 titled Assema Architect v. RamBPrakash was filed in which copy of the earlier decree wasplaced on record and thereafter he took steps at the earliest andfiled 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, suit ought to have been filed within period of three yearsCfrom the date of the knowledge. The knowledge mentioned in theplaint cannot be termed as inadequate and incomplete as observedby the High Court. While deciding the application under Order 7Rule 11, few lines or passage should not be read in isolation andthe pleadings have to be read as whole to ascertain its trueimport. We are of the view that both the trial court as well as theDHigh Court failed to advert to the relevant averments as stated inthe plaint.”

7.1 From the aforesaid decision and even otherwise as held bythis Court in catena of decisions, while considering an application underOrder VII Rule 11 CPC, the Court has to go through the entire plaintEaverments and cannot reject the plaint by reading only few lines/passagesand ignoring the other relevant parts of the plaint.

7.2 Applying the law laid down by this Court in the case of RamPrakash Gupta (supra) to the facts of the case on hand and on goingthrough the entire plaint averments, it cannot be said at this stage thatFthe suit is barred by limitation on the face of it. The necessary avermentsin the plaint on the cause of action are in paragraphs 6, 7 and 10, whichread as under:-

“6. That the aforesaid defendant now consequent upon theescalation of the land value of the area has been more aggrieve toGdrive out the plaintiffs from the suit property by hook and crookand various insertion in the newspapers dated 10.8.2010, 24.8.2010at the Ananda Bazar Patrika and on 22.8.2010 at The Telegraph,coming up from the different parts with intent to purchase and gettransfer of the property by the third party.

7. That the aforesaid defendant and his men and agent concretelyon 29.8.2010 tried to forcefully enter into the suit property andmanhandle the “Durwan” but owing to the resistance the defendantdid not succeed in their attempt to dispossess, but defendant withhis associate is determined to dispossess the plaintiffs from hislawful possession by any means even by using force and violence.That the proforma defendants have made parties in the suit withoutany claim against them but for proper adjudication of the saidmatter.

10. That the cause of action for this suit arose on 29.08.2010 atPremises No. 3/3A, formerly 3, Gurudas Dutta Garden Lane, P.S.Ultadanga, Kolkata- 700067, which is within the jurisdiction ofthis Ld. Court.”

7.3 In the present case, while holding that the suit is barred bylimitation, the High Court has considered only the averments made inparagraph 4 and has not considered the entire plaint averments.

7.4 While rejecting the plaint, the High Court has also observedand held that the suit for declaration simpliciter under Section 53A ofthe Transfer of Property Act against the original owner would not bemaintainable and for that reliance is placed upon the decision of thisCourt in the case of Delhi Motor Company (supra). However, it isrequired to be noted that even the plaintiffs have also prayed for thedecree for permanent injunction claiming to be in possession and thedeclaration and permanent injunction as such invoking Section 53A ofthe Transfer of Property Act. When the suit is for decree of permanentinjunction and it is averred that the plaintiffs are in possession of the suitproperty pursuant to the agreement and thereafter, they have developedthe land and that they are in continuous possession since more thantwelve years and they are also paying taxes to the Corporation, thecause of action can be said to have arisen on the date on which thepossession is sought to be disturbed. If that be so, the suit for decree forpermanent injunction cannot be said to be barred by limitation. It is thesettled proposition of law that the plaint cannot be rejected partially.Even otherwise, the reliefs sought are interconnected. Whether theplaintiffs shall be entitled to any relief under Section 53A of the Transferof Property Act or not has to be considered at the time of trial, but at thisstage it cannot be said that the suit for the relief sought under Section

A53A would not be maintainable at all and therefore the plaint is liable tobe rejected in exercise of powers under Order VII Rule 11 CPC.

8. In view of the above and for the reasons stated above, theHigh Court has committed grave error in allowing the application underOrder VII Rule 11 CPC and rejecting the plaint. The High Court hasBexceeded in its jurisdiction in rejecting the plaint while exercising thepowers under Order VII Rule 11 CPC. The impugned judgment andorder passed by the High Court is unsustainable both, on law as well ason facts.

9. For the reasons stated hereinabove, the present appealCsucceeds. The impugned judgment and order passed by the High Courtallowing the C.O. and quashing and setting aside the order passed bythe trial court refusing to reject the plaint under Order VII Rule 11 CPCand consequently rejecting the plaint under Order VII Rule 11 CPC ishereby quashed and set aside. The application submitted by the originaldefendants to reject the plaint under Order VII Rule 11 CPC standsDdismissed. The order passed by the trial court stands restored. Now, thetrial to proceed further in accordance with law and on its own merits.However, it is observed that whatever observations are made by thisCourt in the present order shall be confined to deciding the applicationunder Order VII Rule 11 CPC only and the trial court to finally decideEand dispose of the suit in accordance with law and on its own merits andon the basis of the evidence led.

Present appeal is allowed accordingly. However, in the facts andcircumstances of the case, there shall be no order as to costs.

FDevika Gujral

Appeal allowed