Sri Biswanath Banik vs Smt. Sulanga Bose

Sri Biswanath Banik  vs Smt. Sulanga Bose

REPORTABLE
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)
J U D G M E N T
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:-
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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.
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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
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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.
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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
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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
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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
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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.”
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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
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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
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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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