Tuesday, May 28, 2024

๐—๐˜‚๐—ฑ๐—ถ๐—ฐ๐—ถ๐—ฎ๐—น๐——๐—ฟ๐—ฒ๐—ฎ๐—บโ„ข

๐™ฐ๐™ต๐™ต๐™พ๐š๐™ณ๐™ฐ๐™ฑ๐™ป๐™ด & ๐™ฐ๐™ฒ๐™ฒ๐™ด๐š‚๐š‚๐™ธ๐™ฑ๐™ป๐™ด

CASE LAWSCPCLEGAL AFFAIRS

O VII R 11(d) CPC

Biswanath Banik vs Sulanga Bose, SC 2022

FACTS – The respondents herein โ€“ original plaintiffs had instituted a suit 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:- โ€œa) For declaration of right, title interest in the suit property and for confirmation of plaintiff’s possession as part performance of contract as provided under Section 53A of the T.P. Act. aa) for enforcement of the agreement 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.

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.

Feeling aggrieved and dissatisfied with the order passed by the trial court the original defendants preferred revision 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.

CAUSE – Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original plaintiffs have preferred the present appeal.

ARGUMENTSShri 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. 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.

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. It is submitted 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.

ISSUE – Whether the suit can be said to be barred by limitation or not,under Order VII Rule 11 CPC.

DECISION – 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 Vs. Rajiv Kumar Gupta and Ors., (2007) 10 SCC 59, 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.

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.

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. 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.

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.

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!