SOUMIK SILversusSUBHAS CHANDRA SIL

                      [2014] 3 S.C.R. 821


                          SOUMIK SIL                                  A
                                V.
                   SUBHAS CHANDRA SIL
                Civil Appeal No. 4003 of 2014

                                     .
                       MARCH . 25, 2014
                                                                      B
                [GYAN SUDHA MISRA AND
              PINAKI CHANDRA GHOSE, JJ.]

     CODE OF CIVIL PROCEDURE, 1908:
                                                                      c
     0. 7, r. 11- Rejection of plaint -- Title suit by mother and
son for declaration and permanent injunction in respect of a
flat - In a different matrimonial case, High Court ordered the
mother to vacate the premises in lieu of the amount to be
paid by her husband- Application by mother in title suit under
                                                                      0
0. 7, r. 11 -- Rejected by trial court, allowed by High Court --
Held: High Court has correctly perused the plaint in its entilety
and after deletion of name of first plaintiff from title suit, held
that plaint discloses no cause of action, as the very purpose
of the suit has become infructuous in view of the order passed        E
by High Court to hand over possession of the flat in question
- Thus, provisions of 0. 7,r. 11 (a) are attracted.

      In a title suit for declaration and permanent injunction
filed by mother and son against the husband, who was
a joint owner of the flat in question, the mother, plaintiff          F
no.1, filed an application under 0.7, r.11 of the Code of
Civil Procedure, 1908 for deletion of her name from the
 plaint, in order to give effect to another order of the High
Court in the matrimonial case by which she was required
to handover the possession of the suit flat in lieu of the            G
money to be paid by her husband. The trial court rejected
the application, but on a revision petition by the
defendant, the High Court allowed the application holding
lthat handing over of possession of the flat was to carry
                               821                                    H
    822      SUPREME COURT REPORTS               [2014} 3 S.C.R.


A out the order of the High Court in the matrimonial case
  and plaintiff no.2, being the son, had no cause of action
  in the matter.

          Dismissing the appeal, the Court

B      HELD: 1.1 The High Court perused the plaint in Its
  entirety and after deletion of the name of plaintiff No.1
  from the said title suit, has correctly held that the plaint
  discloses no cause of action, as the very purpose of the
  suit has become infructuous in view of the order passed
C by the High Court to hand over the possession of the flat
  in question. [para 12] [828-E-G]

       1.2 The plaint discloses no cause of action and
  thereby it attracts the provisions of 0. 7, r.11 (a) of the
  Code and, accordingly, the High Court has correctly
0
  ascertained the position and allowed the said application
  reversing the order of the trial court. There Is no infirmity
  in the order passed by the High Court. [para 13-14] [829-
    B-C]
E       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4003 of 2014.
        From the Judgment and Order dated 10.02.2011 of the
    High Court of Calcutta in Co. No. 104 of 2011.

F         Ranjan Mukherjee, S.C. Ghosh, S. Bhoumick, R.P. Yadav
    for the Appellant.
        C. Mukund, Pankaj Jain, P.V. Saravana Raja, Firdouse
    Qutbwani, Bijoy Kumar Jain for the Respondents.
G         The Judgment of the Court was delivered by
          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
H filed by the respondent herein under Order VII Rule 11 of the
           SOUMIK SIL v. SUBHAS CHANDRA SIL                    823
              [PINAKI CHANDRA GHOSE, J.]
Code of Civil Procedure (for short 'the Code') was allowed and A
the plaint was rejected. The High Court set aside the orde(
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      B
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 :                                          C

      "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.           D
      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,   E
              in any manner prejudicial to the interst of the
              plaintiffs.

      c)      Temporary injunction with ad-interim order in terms
              of prayer (b) above;                                     F
      d)      Commission;

      e)      Costs of the suit

      f)      Any other relief or reliefs as the Ld. Court may deem    G
              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
                                                                       H
    824      SUPREME COURT REPORTS                  (2014] 3 S.C.R.

A 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.
B
       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
C 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
D 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
E 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
F         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
G         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
H         balance amount of Rs.2,00,000/- will be paid, the husband
        SOUMIK SIL v. SUBHAS CHANDRA SIL                       825
           [PINAKI CHANDRA GHOSE, J.]
     will not be required to pay any further monthly sum as            A
    ·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        B
     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           C
     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,        D
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   E
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          F
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    G
plaint, it is clear from the averments that the plaint discloses
no cause ofaction, 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         H
    826      SUPREME COURT REPORTS                  [2014] 3 S.C.R.


A 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
B 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
C 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.
D
       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.

E        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
F accordance with the deed of settlement, after the death of the
   original settler 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
G 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
H compliance with the said order. After handing over the
       SOUMIK SIL v. SUBHAS CHANDRA SIL                         827
          [PINAKI CHANDRA GHOSE, J.]
possession in terms of the order dated 22nd August, 2008,               A
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 VI I Rule 11 · is wrong.
The ground that the said trial court did not consider that the          B
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     c
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
                                                                        0
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        E
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                                           F
     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           G
             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
                                                                        H
    828          SUPREME COURT REPORTS                   [2014] 3 S.C.R.

A                  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
B
                   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
c                  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
D         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."
E
        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
F 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
G 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
H
        SOl)MIK SIL v. SUBHAS CHANDRA SIL                     829
            [PINAKI CHANDRA GHOSE, J.]
 plaintiff No. 1 in Title Suit No. 2430 of 2007. We have gone        A
 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   B
 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     C
the order passed by the High Court. We find no merit in the
appeal and the same is, accordingly, dismissed.

R.P.                                         Appeal dismissed.