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Wednesday, March 26, 2014

Or.7 Rule 11 C.P.C. - Rejection of plaint as the cause of action was ceased to exists - mother and son filed a suit for declaration and injunction against the her husband etc., - in divorce proceedings the high court order to pay Rs.4 lakhs to the mother and in turn she has to deliver the possession of plaint schedule properties - mother complied the high court order after receiving 4 lakhs from her husband and filed an application to delete her name in the suit - once her name was deleted , the defendant filed an application under Or.7 Rule 11 C.P.C. as there is no cause of action remains - Trial court dismissed the application but High court allowed the same - Apex court held that the high court correctly allowed the rejection petition as the son alone can not maintain any cause of action against his father etc., and dismissed the appeal = Soumik Sil … Appellant vs. Subhas Chandra Sil … Respondent= 2014 (March. Part ) judis.nic.in/supremecourt/filename=41337

    Or.7 Rule 11 C.P.C. - Rejection of plaint as the cause of action was ceased to  exists -  mother and son filed a suit for declaration and injunction against the her husband etc., - in divorce proceedings the high court order to pay Rs.4 lakhs to the mother and in turn she has to deliver the possession of plaint schedule properties - mother complied the high court order after receiving 4 lakhs from her husband and filed an application to delete her name in the suit - once her name was deleted , the defendant filed an application under Or.7 Rule 11 C.P.C. as there is no cause of action remains - Trial court dismissed the application but High court allowed the same - Apex court held that the high court correctly allowed the rejection petition as the son alone can not maintain any cause of action against his father etc., and dismissed the appeal =

 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.=

“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.


   2014 (March. Part ) judis.nic.in/supremecourt/filename=41337
GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE
                                                            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-  700
          012, 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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