Pvt. Ltd. Vs. Union Bank of India  Insc
163 (11 March 2005)
R.C. Lahoti & G.P. Mathur R.C. Lahoti, Cji
respect of a property situated in the metropolitan city of Calcutta, a lease of
immovable property for a fixed term commencing 1.4.1964 and expiring on
24.6.1984 evidenced by a registered deed of lease dated 17.7.1964, came into
existence. The lessee entered into possession of the leased premises on
1.4.1964. On 26.9.1983, the lessor served a notice on the lessee informing the
lessee that the tenancy was to expire on 24.6.1984 and, therefore, on that day
the lessee must deliver vacant possession of the demised premises to the lessor.
On 8.11.1983, the lessee sent a reply taking a firm stand that he would not
vacate the demised premises in terms of the lease deed and the request
contained in the communication dated 8.11.1983. The lessee also disputed the
entitlement of the lessor to demand possession from the lessee on a plea that
the title of the lessor to claim possession had itself come to an end on
account of eviction by a paramount title- holder. On 16.4.1984, the present
suit was filed by the lessor against the lessee seeking the following reliefs:-
a declaration that the plaintiff is entitled to vacant and peaceful possession
of the said premises to be delivered by the defendant to the plaintiff on the
expiry of the term of the said lease dated July 17, 1964, i.e. on the expiry of
June 24, 1984.
perpetual injunction restraining the defendant, its agents and servants from
subletting, assigning or parting with possession of the said premises or any
party thereof during the said term of the said lease and from giving possession
of the said premises or any part thereof to any person other than the plaintiff
on the expiry of the said lease.
decree for vacant possession of the said premises on the expiry of the term of
the said lease as aforesaid.
decree for Rs.30,000/- for damages or alternatively, an enquiry into damages
and a decree for such as may be found due to the plaintiff.
and other reliefs." The suit was filed twelve weeks before the date on
which the lease was to expire by efflux of time within the meaning of clause
(a) of Section 111 of the Transfer of Property Act, 1882. The written statement
was filed on 24.8.1994. One of the pleas taken in the written statement was
that the suit was premature and hence was not maintainable.
January 1985, the lessor-plaintiff moved an application for amendment of the
plaint which was allowed by the order dated 27.2.1985. The plaintiff introduced
in the plaint further averments in support of his entitlement to possession
over the leased premises. To the reliefs which he had sought for earlier, the
following relief was further added:
profits at Rs.595/- per diem or at such other rate as to this Hon'ble Court may
seem fit and proper from 25th June, 1984, until vacant and peaceful possession
of the said demised premises is given to the plaintiff by the defendant;"
The defendant filed additional written statement.
judgment dated 12.2.1992 the High Court (Original Side) decreed the suit
holding the plaintiff entitled to decree of eviction with a preliminary decree
directing an enquiry to ascertain the mesne profits. The plea as to
non-maintainability of suit on account of its being premature was decided
against the defendant by the learned Single Judge of the High Court placing
reliance on (Mylavarapu) Rangayya Naidu v. Basana Simon and Ors. (AIR 1926
Madras 594). In the opinion of the learned Single Judge, no prejudice was
caused to the defendant on account of the suit having been filed a little
before the expiry of lease by efflux of time inasmuch as even if theoretically
the suit could have been disposed of before 24th June, 1984 it would still have
been open for the Court to pass a decree of eviction and make the decree
executable only after 24th June, 1984.
defendant preferred an intra-court appeal. The Division Bench has reversed the
judgment of the learned Single Judge and directed the suit to be dismissed
holding it premature, as it was based on a cause of action which was not ripe
on the date of the institution of the suit. Feeling aggrieved, the plaintiff
has filed this appeal by special leave.
sole question arising for decision in this appeal is whether the suit was
premature on the date of its institution and hence no relief could have been
allowed to the plaintiff in such a suit. It was conceded at the Bar that on the
answer to this question would depend whether the suit for eviction would be
decreed or not.
entitled to file a civil suit the plaintiff must be entitled to a relief and
the suit must be of a civil nature excepting suits of which their cognizance is
either expressly or impliedly barred (See Section 9 of the Code of Civil
Procedure, 1908). Section 3 of the Limitation Act, 1963 provides that a suit
filed after the prescribed period of limitation, shall be dismissed without
regard to the fact whether limitation has been set up as a defence or not.
However, there is no such provision (and none brought to our notice at the Bar
in spite of a specific query in that regard having been raised) which mandates
a premature suit being dismissed for this reason. The only relevant provision
is the one contained in Rule 11 of Order 7 of the CPC which provides for a
plaint being rejected where it does not disclose a cause of action. Though the
plaint is not rejected, yet a suit may be dismissed if the Court on trial holds
that the plaintiff was not entitled on the date of the institution of the suit
to the relief sought for in the plaint.
learned counsel for the plaintiff-appellant submitted that in the present case
the suit cannot be said to have been filed as premature on the date of its
institution. He submits that in the response dated 8.11.1983, the
defendant-respondent had clearly disputed the plaintiff's entitlement to evict
the defendant-respondent on 25.6.1984, the date of expiry of the lease and
therefore a cloud was cast on the title of the plaintiff. The plaintiff was
therefore fully justified in bringing the suit after the receipt of the reply
dated 8.11.1983. In the alternative, it was submitted that assuming that the
suit was premature on the date of its institution, it became ripe during its pendency
and was certainly so on the date on which the written statement was filed by
the defendant, and that the Court has the power to take notice of such event
and, therefore, to decree the suit.
opinion, a suit based on a plaint which discloses a cause of action is not
necessarily to be dismissed on trial solely because it was premature on the
date of its institution if by the time the written statement came to be filed
or by the time the Court is called upon to pass a decree, the plaintiff is found
entitled to the relief prayed for in the plaint. Though there is no direct
decision available on the point but a few cases showing the trend of judicial
opinion may be noticed.
Section 80 of the CPC no suit shall be instituted against the Government or a
public officer until the expiration of two months next after service of notice
in writing in the manner set out in the provision and if filed before the
expiry of said period, the suit is not maintainable because there is clearly a
public purpose underlying the provision. 'The object of the Section is the
advancement of justice and securing of public good by avoidance of unnecessary
litigation.' (See : Bihari Chowdhary and Another v. State of Bihar and Ors. (1984) 2 SCC 627). In (Vaddadi)
Butchiraju and Ors. v. Doddi Seetharamayya and Ors. (AIR 1926 Madras 377) the
suit was for a sum of money which had not become payable on the date of the
suit but became payable since. Visvanatha Sastri, J. (as His Lordship then was)
held that the Court could pass a decree for the recovery of money. Reliance was
placed on a Full Bench decision in A.T. Raghava Chariar v. O.M. Srinivasa Raghava
Chariar (1917) ILR 40 Mad. 308 and a few other cases. Here, in all fairness, it
may be mentioned that in (Mylavarapu) Rangayya Naidu v. Basana Simon and Ors.
(AIR 1926 Madras 594), Spencer, J. has held that if a suit is premature at the
date of institution, though not at the date of decision, a decree cannot be
granted and the only course in such cases is to dismiss the suit with liberty
to bring a fresh suit upon a proper cause of action. It is pertinent to note
that Butchiraju and Ors.'s case was decided on 5.10.1925 while Rangayya Naidu's
case was decided on 7.10.1925 but the former decision though of a prior date
was not brought to the notice of the Court deciding the latter case.
Chandra Das and Anr. v. Anukul Chandra Mukherjee (AIR 1946 Calcutta 118) is a
Division Bench decision of Calcutta High Court wherein the suit was declaratory
in nature filed under Section 42 of the Specific Relief Act, 1877. The
defendant sought the dismissal of the suit on the ground that the right
asserted by the plaintiff was not an existing right but a future and contingent
one and whether it would at all come into being or not was dependant upon an
uncertain event which might or might not happen. Justice B.K. Mukherjea (as His
Lordship then was) speaking for the Division Bench held that though the right
must be an existing one, it need not necessarily be a right which is vested
already. A person having even a contingent right in a property may sue for a
declaration. The Court in the exercise of its discretion may refuse to make
such declaration if it considers the claim to be too remote or if the
declaration given would be ineffectual and abortive. The question really is not
one of jurisdiction but one of discretion to be exercised by the Court.
Pillai v. Mathunni Ittiera (1958 KLT 220) the suit was for redemption of a
mortgage. The mortgage became redeemable on 12.10.1957 but the suit was filed
on 23.8.1952. The suit was undoubtedly premature when it was brought. The
Division Bench held that the mortgage having become subsequently redeemable it
would be unnecessary and unjust to drive the plaintiff to a separate suit. To
mitigate hardship of this kind and to shorten litigation the Court can take
notice of the subsequent event of the mortgage having become redeemable during
the pendency of the suit and grant relief provided the substantive rights of
the parties were not affected. The Court decreed the suit but directed the
plaintiff to bear the costs incurred by the defendant.
v. Lonappan (1969 KLT 334) was a suit for eviction filed under Section 11(3) of
the Kerala Buildings (Lease and Rent Control) Act, 1965. The suit could be
filed only one year after the date of transfer intervivos in favour of the
plaintiff. The plaintiff acquired title by purchase on 1st December, 1962 and
the proceedings for eviction were instituted on 11.6.1963. However, there was
no objection taken in the written statement to the maintainability of the suit.
When the case came up for hearing on 10th February, 1965 by which date more
than two years and three months had elapsed, the objection was urged. The
learned single Judge held that at that stage it was a matter of discretion
vesting in the Court and the Court could depart from the general rule that the
rights of parties must be determined as on the date of the institution of the
the Single Bench decision in Kathringa v. Lonappan (1969 KLT 334) was cited
before a Division Bench of Kerala High Court in Hameed v. Ittoop (1970 KLT 501)
and was overruled. The Division Bench formed the opinion that the statutory bar
enacted in Section 11(3) of Kerala Buildings Act pertains to jurisdiction of
the Court. The Court is deprived of power to entertain the petition for
eviction by the transferee-landlord filed before the expiry of one year of the
date of assignment in his favour. The Division Bench relied on the decision of
this Court in V.N. Sarin v. Ajit Kumar Poplai (AIR 1966 SC 432) wherein
interpreting a pari materia provision contained in Delhi Rent Control Act, this
Court held that the underlying object behind such a provision is to serve a
public purpose and is based on public policy to prevent the mischief of
unscrupulous landlords entering into transaction of transferring title to
property with a view to enable the purchaser to evict the tenant and thereby
defeat the legislative intention of protecting tenants from unmerited
Bench of Kerala High Court in Themmalapuram Bus Transport, Palghat v. Regional
Transport Authority, Palghat & Ors. (1967 KLT 122) reiterated the
well-settled principle that the general rule is that the relief claimed in the
suit must be confined to matters existing at the date when the suit was
instituted. But that is a rule of discretion and can be departed from in
certain circumstances except where such departure would cause manifest
advantage or disadvantage to one party.
Chetty v. Nachiar Ammal (1918) VII LW 403, money under the mortgage bond did
not become payable until a few days after the institution of the suit for its
recovery. In Zadba Sadasheo Balpande v. Maharashtra Revenue Tribunal and ors. 1964
Mh LJ 559, application for possession was filed 8 days before the date of
termination of lease. In both the cases, the respective Division Benches have
allowed relief to the plaintiff on the ground that driving the plaintiff to
institute another suit would be hardship and no prejudice was caused to the
opinion, the correct position of law flows from the above-noted decisions.
Singh v. Kedar Nath and Ors. 1987 Supp. SCC 663, this Court while dealing with
an election petition has held that the power to summarily reject conferred by
Order 7 Rule 11 of the Code of Civil Procedure can be exercised at the
threshold of the proceedings and is also available, in the absence of any
restriction statutorily placed, to be exercised at any stage of subsequent proceedings.
However, the Court has also emphasized the need of raising a preliminary
objection as to maintainability as early as possible though the power of the
Court to consider the same at a subsequent stage is not taken away. (1977) 1
SCC 791 it was held that the Court trying a premature suit does not suffer from
inability or incapacity to entertain the suit on the grounds of lack of
jurisdiction. Dealing with the 'narrower sense' and 'more comprehensive sense'
in which the expression 'cause of action' is at times employed, the Court has
indicated that the cause of action may suggest all those essential facts
without the proof of which the plaintiff must fail in his suit but 'right to
sue' may have a different connotation, the accrual of which need not necessarily
be treated as an ingredient of cause of action but would be more relevant for
the purpose of determining the commencement of the period of limitation.
amount of waiver or consent can confer jurisdiction on a Court which it
inherently lacks or where none exists. The filing of a suit when there is cause
of action though premature does not raise a jurisdictional question. The claim
may be well-merited and the Court does have jurisdiction to hear the suit and
grant the relief prayed for but for the fact that the plaintiff should have
waited a little more before entering the portals of the Court. In such a case
the question is one of discretion. In spite of the suit being premature on the
date of its institution the Court may still grant relief to the plaintiff if no
manifest injustice or prejudice is caused to the party proceeded against. Would
it serve any purpose, and do the ends of justice compel the plaintiff being
thrown out and then driven to the need of filing a fresh suit are pertinent
queries to be posed by the Court to itself.
the right to sue has not matured on the date of the institution of the suit an
objection in that regard must be promptly taken by the defendant. The Court may
reject the plaint if it does not disclose the cause of action. It may dismiss
the suit with liberty to the plaintiff to file a fresh suit on its maturity.
The plaintiff may himself withdraw the suit at that stage and such withdrawal
would not come in the way of the plaintiff in filing the suit on its maturity.
In either case, the plaintiff would not be prejudiced. On the other hand, if
the defendant by his inaction amounting to acquiescence or waiver allows the
suit to proceed ahead then he cannot be permitted to belatedly urge such a plea
as that would cause hardship, may be irreparable prejudice, to the plaintiff
because of lapse of time. If the suit proceeds ahead and at a much later stage
the Court is called upon to decide the plea as to non-maintainability of the
suit on account of its being premature, then the Court shall not necessarily
dismiss the suit. The Court would examine if any prejudice has been caused to
the defendant or any manifest injustice would result to the defendant if the
suit is to be decreed. The Court would also examine if in the facts and
circumstances of the case it is necessary to drive the plaintiff to the need of
filing a fresh suit or grant a decree in the same suit inasmuch as it would not
make any real difference at that stage if the suit would have to be filed again
on its having matured for filing.
now briefly sum up the correct position of law which is as follows :
of a civil nature disclosing a cause of action even if filed before the date on
which the plaintiff became actually entitled to sue and claim the relief
founded on such cause of action is not to be necessarily dismissed for such
reason. The question of suit being premature does not go to the root of
jurisdiction of the Court; the Court entertaining such a suit and passing
decree therein is not acting without jurisdiction but it is in the judicial
discretion of the Court to grant decree or not. The Court would examine whether
any irreparable prejudice was caused to the defendant on account of the suit
having been filed a little before the date on which the plaintiff's entitlement
to relief became due and whether by granting the relief in such suit a manifest
injustice would be caused to the defendant. Taking into consideration the
explanation offered by the plaintiff for filing the suit before the date of
maturity of cause of action, the Court may deny the plaintiff his costs or may
make such other order adjusting equities and satisfying the ends of justice as
it may deem fit in its discretion. The conduct of the parties and unmerited
advantage to plaintiff or disadvantage amounting to prejudice to the defendant,
if any, would be relevant factors. A plea as to non-maintainability of the suit
on the ground of its being premature should be promptly raised by the defendant
and pressed for decision. It will equally be the responsibility of the Court to
examine and promptly dispose of such a plea. The plea may not be permitted to
be raised at a belated stage of the suit. However, the Court shall not exercise
its discretion in favour of decreeing a premature suit in the following cases :
When there is a mandatory bar created by a statute which disables the plaintiff
from filing the suit on or before a particular date or the occurrence of a
the institution of the suit before the lapse of a particular time or occurrence
of a particular event would have the effect of defeating a public policy or
if such premature institution renders the presentation itself patently void and
the invalidity is incurable such as when it goes to the root of the Court's
the lis is not confined to parties alone and affects and involves persons other
than those arrayed as parties, such as in an election petition which affects
and involves the entire constituency. (See : Samar Singh v. Kedar Nath and Ors.
1987 Supp. SCC 663).
more category of suits which may be added to __ where leave of the Court or
some authority is mandatorily required to be obtained before the institution
and was not so obtained.
case at hand, the act of the plaintiff filing the suit before 25.6.1984 cannot
be said to be malicious or intended to overreach the Court. The defendant's
reply dated 8.11.1983 prompted the plaintiff in filing the suit inasmuch as the
plaintiff reasonably thought that a cloud was already cast on his entitlement
to recover the property and he should promptly approach the Court . True, the
defendant could have changed his mind and thought of delivering the possession
of the property to the plaintiff on or after 25.6.1984 the date whereafter
only the suit could ordinarily have been filed and in that case there would
have been no occasion at all for filing the suit. The defendant filed its
written statement much after that date. The objection as to maintainability of
the suit was taken in the written statement. If only it would have been pressed
for decision and the Court would have formed that opinion at the preliminary
stage then the plaintiff could have withdrawn the suit or the Court could have
dismissed the suit as premature. In either case, the plaintiff would have filed
a fresh suit based on the same cause of action soon after 25.6.1984. By the
time the suit came to be decided on 12.2.1992, the dismissal of the suit on the
ground of its being premature would have been a travesty of justice when the
plaintiff was found entitled to a decree otherwise.
learned Single Judge rightly overruled the defendant's objection and directed
the suit to be decreed. The Division Bench ought not to have interfered with
the judgment and decree passed by the learned Single Judge.
appeal is allowed. The judgment and decree passed by the Division Bench is set
aside and instead the judgment and decree dated 12.2.1992 passed by the learned
Single Judge is restored. However, the defendant is allowed time till 30.9.2005
for vacating the suit premises subject to the filing of the usual undertaking
in the High Court and clearing money part of the decree within a period of six
weeks from today. The plaintiff would not be entitled to costs in the suit.
Costs incurred by the plaintiff in appeal before Division Bench and in this
Court shall be borne by the defendant.