Full Judgment Text
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CASE NO.:
Appeal (civil) 2390 of 2002
PETITIONER:
Vithalbhai Pvt. Ltd.
RESPONDENT:
Union Bank of India
DATE OF JUDGMENT: 11/03/2005
BENCH:
CJI R.C. Lahoti & G.P. Mathur
JUDGMENT:
J U D G M E N T
R.C. Lahoti, CJI
In 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) 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.
b) 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.
c) a decree for vacant possession of the said
premises on the expiry of the term of the said lease
as aforesaid.
d) a 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.
e) Receiver;
f) Costs;
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g) further 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.
In 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:
"Mesne 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.
By 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.
The 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.
The 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.
To be 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.
The learned counsel for the plaintiff-appellant submitted that in
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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.
In our 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.
Under 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.
Tarak 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.
Sankara 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
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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.
Kathringa 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 action.
However, 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
evictions.
A Full 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.
In Subbaraya Chetty v. Nachiar Ammal \026 (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. \026
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 defendant.
In our opinion, the correct position of law flows from the
above-noted decisions.
In Samar Singh v. Kedar Nath and Ors. \026 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
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subsequent stage is not taken away.
In Gurdit Singh and Ors. Vs. Munsha Singh and Ors. \026
(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.
No 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 \026 are pertinent queries to be posed by the Court to
itself.
Where 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.
We may now briefly sum up the correct position of law which
is as follows :
A suit 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
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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 : (i) 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 particular event; (ii) when 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 public purpose; (iii) 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 jurisdiction, and (iv) where 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. \026
1987 Supp. SCC 663). One 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.
In the 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 \026 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.
The 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.
The 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.