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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 :

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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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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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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)  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  

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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  

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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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(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  

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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)

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......…………………………J                        (Pinaki Chandra Ghose)

New Delhi;      March 25, 2014.

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