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.
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
vs.
Subhas Chandra Sil
Pinaki Chandra Ghose, J.
Citation;(2015) 5 SCC732
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 :
Page 1
2
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
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3
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
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4
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
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defendant
(husband/father)
5
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 13 th 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
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6
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
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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;
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9
(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)
Page 10
1
....................................J
(Pinaki Chandra Ghose)
New Delhi;
March 25, 2014.
Page 11
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