Important point
Disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 CPC and provision applies in those cases only where statement made by plaintiff in plaint without any doubt or dispute shows that suit is barred by any law in force.

Headnote:Civil Procedure Code, 1908—Order 7 Rule 11(d)—Rejection of plaint holding suit barred by limitation—Appellant agreed to build and develop the property owned by respondent and building was completed in 1984—Appellant called upon respondent by notice dt. 4-11-1984 to execute lease deed in respect of certain floor in building in its favour in terms of agreement—No lease deed was executed—Suit was filed in July 1990 claiming various reliefs—Defendant’s application for rejection of plaint as barred by limitation was dismissed by Single Judge—Division Bench set aside the order in appeal—Appeal—Rules of limitation are not meant to destroy the rights of parties—Disputed questions cannot be decided at the time of considering an application u/o 7 Rule 11 CPC—For deciding such an application, averments in plaint are germane and pleas taken by defendant in written statement would be wholly irrelevant—Division Bench was not right in holding that Order VII Rule 11 CPC was attracted—Diverse claims were made and Division Bench was wrong in proceeding with assumption that only non-execution of lease deed was basic issue—Impugned order was liable to be set aside.
Held : 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 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. (Paras 23 to 25)

Judgement Key Points

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Judgment

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.

2. 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 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

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2005 Supreme(SC) 1091

Important pointDisputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 CPC and provision applies in those cases only where statement made by plaintiff in plaint without any doubt or dispute shows that suit is barred by any law in force.

Cases Referred (9)

Important point
Disputed questions cannot be decided at the time of considering an application filed under Order VII Rule 11 CPC and provision applies in those cases only where statement made by plaintiff in plaint without any doubt or dispute shows that suit is barred by any law in force.