and Kotecha Property Vs. State Bank of India Staff Association  Insc 450 (29 August 2005)
Pasayat & H.K. Sema Arijit Pasayat, J.
calls in question legality of the judgment rendered by a Division Bench of the
Calcutta High Court holding that the plaint filed by the appellant was to be
rejected in terms of Order VII Rule 11 (d) of the Code of Civil Procedure, 1908
(in short the 'CPC') as the suit was barred by limitation. The order passed by
learned Single Judge holding that said provision was not applicable to the
facts of the case was set aside.
position in a nutshell is as follows:
and respondent entered into an agreement on 19th January, 1983 whereby the appellant agreed to build and develop the
property owned by the respondent-Association. A detailed agreement was
accordingly executed on 19th
January, 1983 which,
inter alia, provided for regulating relationship between the parties. Para 13
of the agreement stipulated that after construction of the entire building and
issuance of final completion certificate by two Chartered Engineers the
appellant shall by a notice to the respondent- Association call upon it to
execute a registered lease deed in its favour or in favour of its nominee
whereby a lease of the 2nd floor, 3rd floor, 4th floor, 5th floor and the roof
(collectively described as the demised premises) was to be granted. Several
stipulations were provided in detail. It is not in dispute that the building
was completed in the year 1984. Appellant claimed to have written a letter
dated 4.11.1984 calling upon the respondent to execute the lease deed in its favour.
Admittedly no lease deed has been executed. The suit was filed in July, 1990,
inter alia, with the following prayers:
Declaration that the plaintiff alone is entitled to let out the ground floor,
2nd, 3rd, 4th, 5th floor and the roof of the said premises shortly referred to
have as the 'Builders Block' and realize all rents, issues and profits therefrom
without any interference by the defendant.
Perpetual injunction restraining the defendant from executing any lease or
other documents in favour of persons in occupation of any portion of the
builders block referred to in prayers (a) or in relation to any part or portion
of the said block in consideration of any sum or from realizing any rent issues
or profit therefrom incumbent or otherwise deal with and exercise any control
or dominance over the same;
Decree for Rs.18,84,500/- (Rupees Eighteen lacs eighty four thousand five
hundred) only as pleaded in paragraphs 18 and 25 of the plaint.
Alternatively, an account of what is due and payable to the plaintiff by the
defendant in respect of all dealings and transactions by the defendant with the
person or persons in occupation of the builders block of the said premises and
a decree for such sum as may be found due and payable after taking such
All further proper accounts enquiries and directions;
Decree for specific performance of the Development Agreement dated 19th
January, 1983 be granted against the defendant in terms of Clause 16 of the
said Agreement requiring the defendant to execute Deed of Lease for a period of
51 years on terms and conditions contained in the said Clause;
Mandatory injunction directing the defendant to execute and register a Deed of
Lease, in favour of the plaintiff and/or its nominee or nominees in terms of
Clause 18 of the Development Agreement dated 19th January, 1983 in respect of
the Builders Block, being the 2nd, 3rd, 4th, 5th floor and roof as referred to
the event of the defendant failing to execute, register and deliver Deed of
Lease, the Registrar, Original Side of this Hon'ble Court be directed to settle
execute and register necessary Deed of Lease in respect of the Builders Block
as referred to above for and on behalf of the defendant.
Decree for Rs.80 lacs as damages as mentioned in paragraph 12 above in addition
to a decree for specific performance;
Alternatively, an enquiry, into loss and damage suffered by the plaintiff and a
decree for such sum as may be found due and payable upon such enquiry;
the event decree for specific performance as prayed for cannot be granted, a
decree for damages in terms of specific performance be granted against the
defendant at such rate or rates and on such basis as this Hon'ble Court may
deem fit and proper;
Further or other reliefs."
application was filed by the respondent under Order VII Rule 11 of CPC praying
for rejection of the plaint on the ground that the suit as is apparent from the
statement contained in the plaint itself was barred by limitation in the sense
that the suit was filed beyond the period prescribed in the Indian Limitation
Act, 1963 (in short 'Limitation Act').
Single Judge dismissed the application holding that the expression "barred
by any law" as occurring in the provision did not include the operation of
the Limitation Act. The Division Bench was of the view that the claims made in
the plaint revolve round the nucleus i.e. focal point of the execution of lease
deed which was to be done sometimes in 1985 and as the suit was filed in 1999,
it was clearly barred by limitation.
counsel for the appellant submitted that the approach of the Division Bench is
clearly erroneous. The High Court proceeded on the basis as if the only claim
related to execution of the lease deed. In fact, there were several other reliefs
like claim for damages, unauthorized collection of amounts in respect of the
building which admittedly were to be in possession of the present appellant
with full liberty to let out the premises. Clause 12 of the agreement clearly
stipulated that the appellant had the authority to let out the building without
any objection and without requiring consent from the respondent-Association.
Receiver appointed by the Court on the interlocutory application filed by the
applicant clearly noted that the defendant i.e. the respondent-Association had
executed lease deeds on 3.4.1988, 16.7.1988 and 19.4.1999. Prayer in the plaint
was to pass a decree of Rs.18,84,500/- which was the amount collected by the
respondent. The suit was by no stretch of imagination filed beyond the period
of limitation. By its conduct the respondent had acknowledged the claim of the
plaintiff-appellant and the period of limitation in any event would run from
the date of acknowledgement.
contra, learned counsel for the respondent submitted that though various claims
were made, as rightly observed by the High Court, focal point was non-execution
of lease deed. All the other claims had their matrix thereon and, therefore,
the Division Bench of the High Court was right in deciding in favour of the
present respondent. It was submitted that the collections made by the
respondent were for the period beyond 51 years from the date of agreement in
1983 and not for any period prior to that.
was no question of the period of limitation getting extended, even if there is
an acknowledgment beyond the prescribed period of limitation.
period of limitation is founded on public policy, its aim being to secure the
quiet of the community, to suppress fraud and perjury, to quicken diligence and
to prevent oppression. The statute i.e. Limitation Act is founded on the most
salutary principle of general and public policy and incorporates a principle of
great benefit to the community. It has, with great propriety, been termed a
statute of repose, peace and justice. The statute discourages litigation by
burying in one common receptacle all the accumulations of past times which are
unexplained and have not from lapse of time become inexplicable. It has been
said by John Voet, with singular felicity, that controversies are limited to a
fixed period of time, lest they should be immortal while men are mortal. (Also
See France B. Martins v. Mafalda Maria (1996
(6) SCC 627).
limitation does not obstruct the execution. It bars the remedy. (See V. Subba Rao
and Ors. v. Secretary to Govt. Panchayat Raj and Rural Development, Govt. of
A.P. and Ors. (1996 (7) SCC 626.) Rules of limitation are not meant to destroy
the rights of parties. They are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly. The object of providing a
legal remedy is to repair the damage caused by reason of legal injury. The law
of limitation fixes a life-span for such legal remedy for the redress of the
legal injury so suffered. Time is precious and wasted time would never revisit.
During the efflux of time, newer causes would sprout up necessitating newer
persons to seek legal remedy by approaching the courts. So, a life-span must be
fixed for each remedy. Unending period for launching the remedy may lead to
unending uncertainty and consequential anarchy. The law of limitation is thus
founded on public policy. It is enshrined in the maxim interest reipublicae ut
sit finis litium (it is for the general welfare that a period be put to
litigation). The idea is that every legal remedy must be kept alive for
legislatively fixed period of time. (See N. Balakrishanan v. M. Krishna Murthy
(1998 (7) SCC 123).
(d) of Order VII Rule 7 speaks of suit, as appears from the statement in the
plaint to be barred by any law. Disputed questions cannot be decided at the
time of considering an application filed under Order VII Rule 11 CPC. Clause
(d) of Rule 11 of Order VII applies in those cases only where the statement
made by the plaintiff in the plaint, without any doubt or dispute shows that
the suit is barred by any law in force.
VII Rule 11 of the Code reads as follows:
VII Rule 11: Rejection of plaint. The plaint shall be rejected in the
following cases :-
it does not disclose a cause of action;
the relief claimed is undervalued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the court, fails to
where the relief claims is properly valued but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be fixed by the Court, fails
to do so;
the suit appears from the statement in the plaint to be barred by any law;
it is not filed in duplicate;
the plaintiff fails to comply with the provisions of rule 9.
that the time fixed by the Court for the correction of the valuation or
supplying of the requisite stamp-paper shall not be extended unless the Court,
for reasons to be recorded, is satisfied that the plaintiff was prevented by
any cause of an exceptional nature for correcting the valuation or supplying
the requisite stamp- paper, as the case may be, within the time fixed by the
Court and that refusal to extend such time would cause grave injustice to the
plaintiff." In the present case the respondent has relied upon clause (d)
of Rule 11.
dealing with the factual scenario, the spectrum of Order VII Rule 11 in the
legal ambit needs to be noted.
Bhai and Ors. v. State of Maharashtra
and Ors. (2003 (1) SCC 557) it was held with reference to Order VII Rule 11 of
the Code that the relevant facts which need to be looked into for deciding an
application thereunder are the averments in the plaint. The trial Court can
exercise the power at any stage of the suit - before registering the plaint or
after issuing summons to the defendant at any time before the conclusion of the
trial. For the purposes of deciding an application under clauses (a) and (d) of
Order VII Rule 11 of the Code, the averments in the plaint are the germane; the
pleas taken by the defendant in the written statement would be wholly
irrelevant at that stage.
I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors. (1998 (2) SCC 70) it
was held that the basic question to be decided while dealing with an
application filed under Order VII Rule 11 of the Code is whether a real cause
of action has been set out in the plaint or something purely illusory has been
stated with a view to get out of Order VII Rule 11 of the Code.
trial Court must remember that if on a meaningful and not formal reading of the
plaint it is manifestly vexatious and meritless in the sense of not disclosing
a clear right to sue, it should exercise the power under Order VII Rule 11 of
the Code taking care to see that the ground mentioned therein is fulfilled. If
clever drafting has created the illusion of a cause of action, it has to be
nipped in the bud at the first hearing by examining the party searchingly under
Order X of the Code. (See T. Arivandandam v. T.V. Satyapal and Anr. (1977 (4)
SCC 467) It is trite law that not any particular plea has to be considered, and
the whole plaint has to be read. As was observed by this Court in Roop Lal Sathi
v. Nachhattar Singh Gill (1982 (3) SCC 487), only a part of the plaint cannot
be rejected and if no cause of action is disclosed, the plaint as a whole must
Brett & Co. Ltd. v. Ganesh Property (1998 (7) SCC 184) it was observed that
the averments in the plaint as a whole have to be seen to find out whether
clause (d) of Rule 11 of Order VII was applicable.
cannot be any compartmentalization, dissection, segregation and inversions of
the language of various paragraphs in the plaint. If such a course is adopted
it would run counter to the cardinal canon of interpretation according to which
a pleading has to be read as a whole to ascertain its true import. It is not
permissible to cull out a sentence or a passage and to read it out of the
context in isolation. Although it is the substance and not merely the form that
has to be looked into, the pleading has to be construed as it stands without
addition or subtraction of words or change of its apparent grammatical sense.
The intention of the party concerned is to be gathered primarily from the tenor
and terms of his pleadings taken as a whole.
same time it should be borne in mind that no pedantic approach should be
adopted to defeat justice on hair- splitting technicalities.
in view the aforesaid principles the reliefs sought for in the suit as quoted
supra have to be considered. The real object of Order VII Rule 11 of the Code
is to keep out of courts irresponsible law suits. Therefore, the Order X of the
Code is a tool in the hands of the Courts by resorting to which and by searching
examination of the party in case the Court is prima facie of the view that the
suit is an abuse of the process of the court in the sense that it is a bogus
and irresponsible litigation, the jurisdiction under Order VII Rule 11 of the
Code can be exercised.
VI Rule 2(1) of the Code states the basic and cardinal rule of pleadings and
declares that the pleading has to state material facts and not the evidence. It
mandates that every pleading shall contain, and contain only, a statement in a
concise form of the material facts on which the party pleading relies for his
claim or defence, as the case may be, but not the evidence by which they are to
is distinction between 'material facts' and 'particulars'. The words 'material
facts' show that the facts necessary to formulate a complete cause of action
must be stated. Omission of a single material fact leads to an incomplete cause
of action and the statement or plaint becomes bad. The distinction which has
been made between 'material facts' and 'particulars' was brought by Scott, L.J.
in Bruce v. Odhams Press Ltd. (1936) 1 KB 697 in the following passage:
11 of Order VII lays down an independent remedy made available to the defendant
to challenge the maintainability of the suit itself, irrespective of his right
to contest the same on merits. The law ostensibly does not contemplate at any
stage when the objections can be raised, and also does not say in express terms
about the filing of a written statement. Instead, the word 'shall' is used
clearly implying thereby that it casts a duty on the Court to perform its
obligations in rejecting the plaint when the same is hit by any of the
infirmities provided in the four clauses of Rule 11, even without intervention
of the defendant. In any event, rejection of the plaint under Rule 11 does not
preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.
above position was highlighted in Sopan Sukhdeo Sable and Ors. v. Assistant
Charity Commissioner and Ors. (2004 (3) SCC 137).
the averments in the plaint are considered in the background of the principles
set out in Sopan Sukhdeo's case (supra), the inevitable conclusion is that the
Division Bench was not right in holding that Order VII Rule 11 CPC was
applicable to the facts of the case. Diverse claims were made and the Division
Bench was wrong in proceeding with the assumption that only the non-execution
of lease deed was the basic issue. Even if it is accepted that the other claims
were relatable to it they have independent existence. Whether the collection of
amounts by the respondent was for a period beyond 51 years need evidence to be
adduced. It is not a case where the suit from statement in the plaint can be
said to be barred by law. The statement in the plaint without addition or
subtraction must show that is barred by any law to attract application of Order
VII Rule 11. This is not so in the present case.
not intend to go into various claims in detail as disputed questions in
relation to the issue of limitation are involved.
appeal is accordingly allowed with no order as to costs. We make it clear that
we have not expressed any opinion on the merits of the case which shall be gone
into in accordance with law by the Trial Court.