Full Judgment Text
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CASE NO.:
Appeal (civil) 3460 of 2000
PETITIONER:
Popat and Kotecha Property
RESPONDENT:
State Bank of India Staff Association
DATE OF JUDGMENT: 29/08/2005
BENCH:
ARIJIT PASAYAT & H.K. SEMA
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Appellant 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.
Factual position in a nutshell is as follows:
Appellant 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:
"(a) 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.
(b) 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
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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;
(c) 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.
(d) 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 account;
(e) All further proper accounts enquiries
and directions;
(f) 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;
(g) 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 above;
(h) In 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.
(i) Decree for Rs.80 lacs as damages as
mentioned in paragraph 12 above in addition
to a decree for specific performance;
(j) 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;
(k) In 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;
(l) Costs;
(m) Further or other reliefs."
An 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’).
Learned Single Judge dismissed the application holding
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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.
Learned 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.
The 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.
Per 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.
There was no question of the period of limitation getting
extended, even if there is an acknowledgment beyond the
prescribed period of limitation.
The 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).
Bar of 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.)
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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).
Clause (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.
Order VII Rule 11 of the Code reads as follows:
Order VII Rule 11: Rejection of plaint. \026 The
plaint shall be rejected in the following
cases :-
(a) where it does not disclose a cause of
action;
(b) where 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 do so;
(c) 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;
(d) where the suit appears from the
statement in the plaint to be barred by any
law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with
the provisions of rule 9.
Provided 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
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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.
Before dealing with the factual scenario, the spectrum
of Order VII Rule 11 in the legal ambit needs to be noted.
In Saleem 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.
In 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.
The 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 be rejected.
In Raptakos 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.
There 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
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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.
At the same time it should be borne in mind that no pedantic
approach should be adopted to defeat justice on hair-
splitting technicalities.
Keeping 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.
Order 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
be proved.
There 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:
Rule 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.
The above position was highlighted in Sopan Sukhdeo
Sable and Ors. v. Assistant Charity Commissioner and Ors.
(2004 (3) SCC 137).
When 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
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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.
We do not intend to go into various claims in detail as
disputed questions in relation to the issue of limitation
are involved.
The 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.