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.
-----------------------
9
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.
-----------------------
9
