Head Note:
After perusing the order passed
by the High Court and the reasoning given therein, it appears to us that the
High Court has correctly perused the plaint in its entirety and after deletion
of the name of plaintiff No.1 from the said Title Suit, held that the plaint discloses
no cause of action after taking into account the fact that the very purpose of
the suit has become infructuous in view of the order passed by the High Court to
hand over the possession of the rooms in question. Therefore, the foundation of
the suit was not subsisting after the handing over of possession to the
defendant by plaintiff No.1 in terms of the order.
Now,
it is necessary for us to find out whether the plaint discloses any cause of
action, after deletion of the name of plaintiff
No. 1 in Title Suit No. 2430 of 2007. We have gone through the averments made
in the said plaint. After perusing the averments and on the basis of its
entirety and considering that the statements made in the plaint are correct, it
appears to us that the plaint discloses no cause of action and thereby it
attracts the provisions of Order VII Rule 11(a) of the Code, and accordingly we
hold that the High Court has correctly ascertained the position and allowed the
said application reversing the order of the City Civil Court at Calcutta.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 4003 of 2014
(Arising out of Special Leave Petition (Civil)
No.8578 of 2011)
Soumik Sil …
Appellant
vs.
Subhas Chandra Sil …
Respondent
J
U D G M E N T : Pinaki Chandra Ghose, J.
1.
Leave granted.
2.
This appeal is
directed against an order passed by the High Court dated February 10, 2011
whereby the application filed by the respondent herein under Order VII Rule 11
of the Code of Civil Procedure (for short ‘the Code’) was allowed and the
plaint was rejected. The High Court set aside the order passed by the Trial
Court refusing such prayer.
3.
The facts of the
case, briefly, are as follows :
3.1.
A suit was
filed for declaration and injunction by the appellant along with Smt. Ashima
Sen, mother of the present appellant. The appellant herein and plaintiff No.1
(the mother) filed a suit being Title Suit being No.2430 of 2007 before the
City Civil Court at Calcutta, and the following reliefs were prayed for in the
said suit :
“a) For a decree for declaration that the
defendant, his men and agents have no right to obstruct the user of the suit
flat by the plaintiffs by any means prejudicial to the interest of the
plaintiffs.
b) For a decree permanent injunction
restraining the defendants, their men, agents and associated from causing any
obstruction towards free ingress and egress of the plaintiffs, for use and
occupation of the suit flat at 5, Netai Babu Lane, Kolkata- 700012, in any
manner prejudicial to the interst of the plaintiffs.
c) Temporary injunction with ad-interim order
in terms of prayer (b) above;
d) Commission;
e) Costs of the suit
f) Any other relief or reliefs as the Ld.
Court may deem fit and proper”
3.2.
The said suit
was filed on the facts stated in the plaint that plaintiff No. 1 (Smt. Sen) and
the defendant – Subhas Chandra Sil were married on 2nd
June, 1986. Out of the said wedlock, plaintiff No.2 – Soumik Sil
was born on 20th April, 1989.
Admittedly, the mother and son resided in the two rooms in the first floor of
the premises No.5, Netai Babu Lane, Kolkata-700 012, being the matrimonial home
of plaintiff No. 1.
3.3.
Admittedly, the
defendant was a joint owner of the said premises along with his two brothers.
Subsequently, the eldest brother gifted his 1/3rd share in the said premises to his two brothers, and thereby the
defendant and one of his brothers became the owners of the said premises in
equal shares. On December 17, 1993 the said property was partitioned between them
and the portions were demarcated between the two brothers.
4.
The defendant
filed a suit for dissolution of marriage in the City Civil Court at Calcutta
which was transferred before the Family Court and on 15th
July, 1998 a decree for dissolution of marriage was passed by the
Family Court against plaintiff No.1. Being aggrieved, she preferred an appeal
before the High Court which, in turn, was pleased to pass the following order :
“In the facts of the
present case, we are of the view that a sum of Rs.4,00,000/- should be paid by
the husband to the wife provided the wife hands over the vacant possession of
the rooms over which she has already filed a suit in the City Civil Court to
the husband within a month from today. Simultaneously, with the surrender of
possession, the husband will pay a sum of Rs.2,00,000/- by account payee cheque
of any nationalised bank in the name of the wife to be handed over to the
learned Advocate for the appellant and will pay the balance amount of
Rs.2,00,000/- by March, 2009. If the first instalment of Rs.2,00,000/- is paid,
from that moment, the husband will pay the monthly alimony at the rate of
Rs.2,500/- instead of the existing alimony of Rs.5,000/-. The moment the
balance amount of Rs.2,00,000/- will be paid, the husband will not be required
to pay any further monthly sum as alimony. If the wife fails to deliver vacant
possession of the rooms mentioned above within a month from today, this part of
the order granting permanent alimony will stand recalled and the wife would be
free to initiate fresh proceedings for fixation of permanent alimony on the basis
of the then income of the husband after taking into consideration the conduct
of the wife as provided in Section 25 of the Act.
The decree for divorce is, thus,
affirmed with the aforesaid additional direction as regards permanent alimony.”
5.
In these
circumstances, in accordance with the said order the wife duly gave effect to
the order of the High Court and filed an application before the City Civil
Court, Calcutta, for deletion of her name as the plaintiff No.1 from the said
suit. In the wake of the above, an application for rejection of plaint under
Order VII Rule 11(a) of the Code of Civil Procedure was filed by the defendant
(husband/father) and it was stated that the remaining plaintiff had no cause of
action to institute the suit against the defendant and that the plaint does not
disclose any cause of action.
6.
After hearing
the parties, the City Civil Court at Calcutta was pleased to reject the said
application on 13th December, 2010. Being
aggrieved and dissatisfied with the said order, a revision petition was filed
against the said order by Subhas Chandra Sil, being the defendant in the said
suit before the High Court. The High Court after perusing the facts as stated
hereinabove, and after considering the averments made in the plaint held that after
deleting the name of plaintiff No.1 from the plaint, it is clear from the
averments that the plaint discloses no cause of action, and accordingly held
that plaintiff No.2 has no independent cause of action to proceed with the suit
and the handing over of possession of the suit premises is nothing but to carry
out an order passed by the High Court and thereby plaintiff No.2 being the son,
cannot have any cause of action in the matter. In view of the above, the High
Court reversed the order of the trial court, allowed the application and
rejected the plaint. Being aggrieved, this appeal has been filed on the ground
that the said property is a trust property and that the appellant has a right
to reside there as one of the trustees, and that he as a legal heir and son of
the respondent, is entitled to reside in the suit property in terms of the
trust deed.
7.
It is also to be
noted that to assert such right, the appellant herein has already filed a suit
before the City Civil Court at Calcutta, being T.S. No. 2451/2008, being a suit
for declaration, accounts and permanent injunction and thereby it appears to us
that the appellant has already taken steps in the matter to assert his rights
and title in respect of the said property in the said suit.
8.
The sole
question which arises for our consideration is whether the High Court was right
in rejecting the plaint holding that the plaint does not disclose any cause of
action.
9.
Learned counsel
appearing on behalf of the appellant submitted that the appellant is the son of
the respondent and is a trustee of the said trust property and he used to
reside at the said premises with his mother. It is further submitted that he has
a right to occupy the said premises in terms of the registered deed of
settlement. He further stated that in accordance with the deed of settlement,
after the death of the original settlor Mrinalini Dassi, the trust property
would devolve for the use and benefit of her male heir in the male line in equal
shares absolutely and for ever. Therefore, it is contended that he has a right
to stay in the said premises, and accordingly submitted that the plaint
discloses no cause of action.
10.
Per contra, it
is submitted that the possession was handed over by the mother and son pursuant
to the directions given by the High Court and the premises were vacated in
compliance with the said order. After handing over the possession in terms of
the order dated 22nd August, 2008,
there was no cause of action subsisting in Title Suit No.2430 of 2007. In these
circumstances, it is submitted that the order passed by the City Civil Court,
Calcutta, rejecting the said application of the respondent under Order VII Rule
11 is wrong. The ground that the said trial court did not consider that the
cause of action in the suit was in connection with the possession of the rooms
in question and the said rooms were handed over pursuant to the order passed by
the High Court. Therefore, the said cause of action as pleaded in the plaint by
the plaintiffs and/or by the son was not subsisting after the order of the High
Court. In these circumstances, the High Court correctly reversed the said order
by allowing the said application in favour of the respondent after perusing the
averments in the plaint. It is further submitted that the appellant is in gross
suppression of material facts from this Court that the appellant did institute
a suit on the basis of the rights claimed under the said trust deed which is
pending for adjudication before the City Civil Court at Calcutta, being Title
Suit No.2451/2008. In the plaint the plaintiffs/appellants did not aver that
their rights flow from the trust deed as they tried to point out here.
11.
It is necessary
for us at this stage to set out the relevant provisions of Order VII Rule 11 of
the Code :
“11. Rejection of plaint
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 claimed 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 sub-rule (2) 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 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.”
12. After perusing the order passed by the High
Court and the reasoning given therein, it appears to us that the High Court has
correctly perused the plaint in its entirety and after deletion of the name of
plaintiff No.1 from the said Title Suit, held that the plaint discloses no
cause of action after taking into account the fact that the very purpose of the
suit has become infructuous in view of the order passed by the High Court to
hand over the possession of the rooms in question. Therefore, the foundation of
the suit was not subsisting after the handing over of possession to the
defendant by plaintiff No.1 in terms of the order. Hence, in these circumstances,
the High Court held that the plaint discloses no cause of action.
13. Now, it is necessary for us to find out
whether the plaint discloses any cause of action, after deletion of the name of
plaintiff No. 1 in Title Suit No. 2430 of 2007. We have gone through the averments
made in the said plaint. After perusing the averments and on the basis of its
entirety and considering that the statements made in the plaint are correct, it
appears to us that the plaint discloses no cause of action and thereby it
attracts the provisions of Order VII Rule 11(a) of the Code, and accordingly we
hold that the High Court has correctly ascertained the position and allowed the
said application reversing the order of the City Civil Court at Calcutta.
14. In these circumstances, we do not find any
infirmity in the order passed by the High Court. We find no merit in the appeal
and the same is, accordingly, dismissed.
…………………………….J.
(Gyan Sudha Misra)
......…………………………J
(Pinaki Chandra Ghose)
New Delhi;
March 25, 2014.
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