2005 Supreme(SC) 453

2005(2) Supreme 518
Supreme Court of India
(From Calcutta High Court)
R.C. Lahoti, CJI & G.P. Mathur, J.
Vithalbhai Pvt. Ltd. —Appellant
versus
Union of India —Respondent
Civil Appeal No. 2390 of 2002
Decided on 11-3-2005
Counsel for the Parties :
For the Appellant : Ramesh Singh, Ms. Bela Maheshwari, Dipesh Aneja, P.L. Khaitan, Advocates for M/s. O.P. Khaitan & Co., Advocates.
For the Respondent : Hemant Chaudhri and Sanjeev Malhotra, Advocates.

Important point
A suit of a civil nature disclosing cause of action even if filed before the date on which plaintiff became actually entitled to sue and claim relief founded on such a cause of action is not to be necessarily dismissed for such reason.

Headnote:Transfer of Property Act, 1882—Section 111(a)—Civil Procedure Code, 1908—Order 7, Rule 11—Suit for eviction after determining the lease of respondent-tenant-lessee—Eviction decree passed by Single Judge was set aside in appeal by Division Bench holding suit premature as it was based on a cause of action which was not ripe on the date of institution of suit—Appeal—Lease in question was a fixed term commencing 1.4.1964 and expiring on 24.6.1984—Appellant-lessor served a notice on lessee on 26.9.1983 informing that tenancy was to expire on 24.6.1984 and lessee must vacate premises to lessor on 24.6.1984—Lessee sent a reply stating that he would not vacate premises and disputed entitlement of lessor to demand possession—Suit was filed on 16.4.1984—Question whether suit was premature on the date of its institution and hence no relief could have been allowed to plaintiff?—No provision which mandates a premature suit being dismissed for that reason—Filing of a suit when there was cause of action though pre-mature did not raise a jurisdictional question—Court entertaining such suit and passing decree therein would not be acting without jurisdiction—It would be in judicial discretion of Court to grant decree or not—Act of plaintiff in filing suit before 25.6.1984 could not be said to be malicious or intended to overreach the Court—Single Judge rightly decreed the suit.

       Held : 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. (Paras 6 & 7)

       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. (Para 9)

       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 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 the 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. - 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 - 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. (Paras 22 and 23)