The main legal point established in the judgment is the significance of disclosing a cause of action and the bar of limitation in the context of filing a suit, as well as the requirement to establish a clear right to sue.

JUDGMENT :

The revisional application arises out of an order dated May 18, 2022 passed by the learned Judge, 9th Bench, City Civil Court at Calcutta, in Title Suit No.668 of 2019. By the order impugned, the learned Judge rejected an application filed under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure on behalf of the defendant.

2. The defendant contended that the suit did not disclose any cause of action and the suit was also barred by limitation. The defendant relies on the decision of Dahiben vs. Arvindbhai Kalyanji Bhanusali through I.R.s, reported in (2020) 7 SCC 366 and submits that the date of obtaining certified copy of the deed of conveyance dated April 30, 2012 could not constitute the cause of action. It is clear from the pleadings and paragraph 6 of the plaint, that the plaintiffs were aware of the alleged execution of the deed of conveyance through court, in Title Suit No.529 of 2002. The suit ought to have been filed within three years from execution of the deed and such challenge would have to be preceded by a challenge to the decree itself.

3. Learned Counsel for the plaintiffs submits that the question whether the plaintiffs had knowledge of the alleged conveyance was a matter of trial. It was for the plaintiffs to prove their case and maintainability of the suit. Such issues being mixed question of law and fact, were to be determined by leading evidence. The plaintiffs submit that the revisional application should be dismissed and the parties should be directed to participate in the trial of the suit.

4. From the order impugned, it appears that the learned court was of the view that the plea of limitation taken by the defendant under Order VII Rule 11 of the Code can be analysed only after full-fledged trial, since the parties must be allowed to admit or deny contents referred in the pleadings. Whether the cause of action pleaded and the date of knowledge as per the paragraph dealing with cause of action were correct or not, would have to be decided at the trial and the prayer for rejection of the plaint was premature and illegal. It was not competent for the court to go into the correctness or otherwise of the alleged cause of action and the correctness and otherwise of the statements and allegations constituting the cause of action, would be decided in the suit. The issue of limitation would have to be tried along with other issues. By the said order, the learned court allowed the application for amendment of the plaint and the plaintiffs were allowed to incorporate two paragraphs dealing with fraud and misrepresentation.

5. This Court is not inclined to deal with the order by which the amendment was allowed. The amendments which were allowed do not in any way affect the issues raised by the defendant in the application under Order VII Rule 11(d) of the Code of Civil Procedure.

6. From the plaint case, it appears that the plaintiffs claim to be the heirs and legal representatives of Madhuri Ghosh, who was the heir and legal representative of Sudhir Chandra Dutta. Undivided one-third portion of one Sushil Chandra Dutta in Premises No.54/B, Surendra Nath Banerjee Road, had been transferred to the predecessor of Madhuri Ghosh sometime in 1962 and there was a rectification sometime in 1972 by a deed of rectification executed between Sushil and Sudhir. The plaintiffs’ mother (Madhuri) was entitled to the entire second floor and one room on the ground floor of the premises. Upon death of Madhuri Ghosh and her husband, the plaintiffs became absolute owners of the property in question. Such pleadings are available from paragraph 1 to 5.

7. In paragraph 6, the plaintiffs suddenly start assailing a deed dated April 30, 2012 and in the sub-paragraphs thereto, the plaintiffs have alleged how the said deed is bad in law. From a comprehensive reading of the plaint, this Court is unable to decide how the deed dated April 30, 2012 has given rise to a cause of action thereby depriving the plaintiffs of the