Supreme Court: The Division Bench of Dhananjaya Y Chandrachud* and M R Shah, JJ., affirmed the judgment of Bombay High Court wherein the Single Judge had held that where the suit appears from the statements in the plaint to be barred by any law, the defects are not curable.
The case of the appellant-plaintiff was that he had purchased the suit property by obtaining loans from defendant 1 and defendant 2 on the condition that the sale deed for plot 23A and 24 would be executed and registered in the names of the first and second defendants, while the sale deed for the remaining plots would be in the joint names of the first and second defendants and the plaintiff. The plaintiff claimed to have been placed in exclusive possession of the entire suit property and it was his case that the names of the first and second defendants were incorporated in the sale deed only for security for the repayment of the loan. According to the plaintiff, the defendants had illegally given beat/assault and had interfered with peaceful possession of the plaintiff. It was contended that though certain amounts were paid to the first and second defendants pursuant to a compromise, they had refused to execute a sale deed in return and had recovered an amount of Rs. 50 lacs from him under the garb of a compromise.
Rejection of Suit under Order 7 Rule 11 (b) and (d)
The suit instituted by the appellant-plaintiff before the Trial Court had been rejected under clauses (b) and (d) of Order 7 Rule 11 of the CPC on the ground that the plaintiff had admitted the execution of sale deeds in favour of the first and second defendants. Despite this, no declaration of invalidity had been sought in regard to the sale deeds as the plaintiff did not seek the cancellation of the sale deeds on the ground that they were executed only as a security for the loan transaction. Further, no declaration was sought by the plaintiff to the effect that the sale deeds did not confer any right, title or interest on the defendants. Hence, the suit would be barred by Section 34 of the Specific Relief Act 1963.
The moot issue of the case was, though the Trial Court allowed the application filed by defendant 1 under clauses (b) and (d) of Order 7 Rule 11 of the CPC, however, while doing so, the appellant was “directed to seek proper relief and pay court fee thereon within 15 days, otherwise appropriate order will be passed”.
Findings of the High Court
The impugned order of the Trial Judge, insofar as it permitted the appellant to carry out an amendment for seeking appropriate reliefs was assailed before the High Court of Judicature at Bombay in a revision application by the defendants. Also, the plaintiff-appellant had challenged the order of the Trial Court allowing the application under Order 7 Rule 11 of the CPC by a writ petition.
The High Court decided both the civil revision application and the writ petition by a common judgment. The Single Judge held that since the plaint was rejected under Order 7 Rule 11(d) there was no occasion to direct that an amendment be made to the plaint. Therefore, the revision application was allowed and the writ petition filed by the appellant was held to be an “after thought and belated” and no relief was granted to the appellant. The High Court, by its impugned judgment and order held that:
- “It was necessary for the plaintiff to seek a declaration that the sale deeds were executed merely as a security for the repayment of the loan and a failure to seek such a declaration would come within the purview of the proviso to Section 34 of the Specific Relief Act 1963;
- The Trial Court having allowed the application under Order 7 Rule 11(d) of the CPC committed an error in granting time to the plaintiff to amend the plaint to seek proper relief and pay court fees. Where the rejection of the plaint takes place under Order 7 Rule 11(d), there would be no question of granting time to the plaintiff to rectify the defects in the plaint. Where the suit appears from the statements in the plaint to be barred by any law, the defects are not curable; and
- The challenge by the plaintiff to the order rejecting the plaint under Order 7 Rule 11(d) is without substance.”
Whether Mere Consequential Reliefs can be sought in a Property Suit without Claiming Declaration of Title?
Pointing out Section 342 of the Specific Relief Act which indicates that, “under the proviso, no court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so; the appellant contended that the proviso to Section 34 applies to a situation where a plaintiff has sought a mere declaration of title but omits to seek further or consequential relief. Therefore, when the suit had been instituted to protect his possession without claiming a declaration of title, the same should not be rejected as seeking a declaration of title is not mandatory: the appellant contended that the proviso to Section 34 provides that seeking a mere declaration of title without seeking further relief is impermissible.
Therefore, the appellant urged that the suit could not be held to be barred by Section 34 of the Specific Relief Act. It was further urged by the appellant that whether the suit would be maintainable in the absence seeking a declaration of title was a distinct question, but it could not be held to be barred by any law within the meaning of Order 7 Rule 11(d).
Analysis and Findings by the Court
Proviso of Order 7 Rule 11 provides that,
“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 from 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.”
Opining that the proviso of Order 7 Rule 11 deals with a situation where time has been fixed by the Court for the correction of the valuation or for supplying of the requisite stamp paper and that it evidently covers the cases falling within the ambit of clauses (b) and (c) but has no application to a rejection of a plaint under Order 7 Rule 11(d); the Bench stated that in such circumstances, the High Court was justified in coming to the conclusion that the further direction that was issued by the Trial Judge was not in consonance with law. Accordingly, the Bench affirmed the judgment of the High Court and rejected the writ petition.
However, taking note of Order 7 Rule 13, which provides that the rejection of the plaint “on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action” and that the definition of “decree” in Section 2(2) deemed to include the rejection of a plaint, the Bench held that the order of the Trial Court rejecting the plaint is subject to a first appeal under Section 96 of the CPC. Hence, the Bench left it open for the appellant to pursue the remedy available in law.[Sayyed Ayaz Ali v. Prakash G Goyal, 2021 SCC OnLine SC 472, decided on 20-07-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
*Judgment by: Justice Dhananjaya Y. Chandrachud
For the Appellant: Sr. Adv. Vinay Navare
For the Respondents: Adv. Pankaj