The period of limitation for a suit for cancellation of a deed starts from the date of knowledge of fraud and Section 34 of the Specific Relief Act, 1963 does not bar a suit but only the relief claimed if other relief that the plaintiff could claim has not been claimed.

1. THE opposite party no.1 instituted Title Suit No. 811 of 1998 in the City Civil Court at Calcutta praying for a declaration that a purported gift deed, executed on March 27, 1965, has been made fraudulently and is forged and void, and also for cancellation of such deed. THE learned Judge of the 7th Bench of the said Court is in seisin thereof.

2. PETITIONERS, who are the defendants 4 and 5 in the suit, made an application on December 13, 2010 praying for rejection of the plaint of the aforesaid suit in terms of provisions contained in Order 7 Rule 11, Code of Civil Procedure (hereafter the Code). The learned Judge of the trial Court by order no. 33 dated January 29, 2011 rejected the prayer for rejection of the plaint on contest. Feeling aggrieved thereby, the petitioners have invoked the revisional jurisdiction of this Court under Article 227 of the Constitution by preferring the instant application. Mr. Roy Chowdhury, learned senior advocate for the petitioners, placed the entirety of the plaint and contended that the plaint ought to have been rejected by the learned trial Judge and he grossly erred in this regard. He contended that the suit filed by the opposite party no. 1 is barred by limitation as well as the provisions of Section 34 of the Specific Relief Act, 1963 (hereafter the Act) and the learned Judge has no territorial jurisdiction to entertain the suit in view of Section 16 of the Code.

3. ACCORDING to Mr. Roy Chowdhury, the right to sue accrued to the opposite party no.1 in 1992 but she delayed her approach till the suit was instituted in 1998. It has been contended that the laws of limitation ordain that a suit of the present nature ought to be instituted within three years from date the facts entitling the plaintiff to have the instrument cancelled or set aside first became known to him/her, and the suit being clearly time barred, the learned Judge exercised jurisdiction illegally.

4. INSOFAR as applicability of Section 34 of the Act is concerned, he contended that neither had the opposite party no.1 claimed relief in respect of the subsequent deeds by which the title in respect of the property in dispute passed on to the subsequent purchasers and ultimately to the petitioners, nor was any relief for recovery of possession of such property claimed. Section 34, he submitted, contemplates that in a case where the decree passed on the basis of the relief claimed in the plaint would be abortive for all practical purposes and intent due to omission of the plaintiff to seek further relief that could have been claimed by her, discretion should be exercised to nip the action in the bud so as to avoid harassment of the defendant(s). The learned Judge, it was contended, exercised discretion erroneously in refusing the prayer of the petitioners. Finally, he referred to the fact that the suit property is situated at Deoghar. According to him, Section 16 of the Code would have overriding effect in view of clause (d) therein and that in a case where Sections 16 to 19 of the Code apply, Section 20 thereof shall not apply. In view of the specific provisions contained in the Code regarding the place of suing in respect of right to or interest in immovable property, he contended that the suit ought to have been held to be not maintainable in the trial Court.

5. HE, accordingly, prayed for an order to set aside the impugned order and for rejection of the plaint.

6. MR. Chatterjee, learned advocate for the opposite party no.1, opposed the application. He contended that the learned Judge of the trial Court was right in not granting the prayer of the petitioners for rejection of the plaint. According to Mr. Chatterjee, the facts disentitling the opposite party no. 1 to claim mutation based on the deed of gift, registered in the office of the Registrar of Assurances, Calcutta (executed on March 27, 1965), first became known in course of hearing before the competent authority of Deoghar Municipality, whereafter the certifie