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TMI Blog2022 (3) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... I Rule 11(d) Code of Civil Procedure by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application Under Order VII Rule 11 Code of Civil Procedure, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint. Applying the law laid down by this Court in the case of Ram Prakash Gupta to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter Under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company [ 1968 (1) TMI 62 - SUPREME COURT ]. However, it is required to be noted that even the Plaintiffs have also prayed for the decree for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of powers Under Order VII Rule 11 of Code of Civil Procedure, 1908 (CPC) and consequently has rejected the plaint Under Order VII Rule 11 Code of Civil Procedure mainly on the ground that the suit is barred by limitation and that a suit for a declaration simpliciter Under Section 53A of the Transfer of Property Act would not be maintainable as against the actual owner, the original Plaintiffs have preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: 2.1 That the Respondents herein - original Plaintiffs had instituted a Title Suit No. 166 of 2010 against the Respondents herein (original Defendants) in the Court of Civil Judge, Sr. Division, Sealdah. The Plaintiffs in the suit prayed for the following reliefs: a) For declaration of right, title interest in the suit property and for confirmation of Plaintiff's possession as part performance of contract dated 28.4.1995 as provided Under Section 53A of the T.P. Act. aa) for enforcement of the agreement dated 28.4.1995 directing the Principal Defendant to execute and register Deed of conveyance in favour of the Plaintiffs; b) For a decree for permanent order of injunction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit is barred by limitation. It is submitted that while holding that the suit would be barred by limitation, the High Court has not at all considered the entire suit averments and has not considered the averments in the plaint as a whole. 3.1. It is contended that as per the averments in the plaint, the cause of action had arisen on 10.08.2010/24.08.2010 on which date the advertisement was given in the newspapers with an intent to transfer the property by a third party. It is submitted that as such in the facts and circumstances of the case, it can be said that the issue with respect to limitation is a mixed question of law and facts and therefore, the High Court ought not to have rejected the plaint on the ground that it is barred by limitation. 3.2. It is further submitted that the High Court has not at all properly appreciated the fact that the Plaintiffs claimed the relief in the suit invoking Section 53A of the Transfer of Property Act and also prayed for the relief of permanent injunction. It is urged that whether the Plaintiffs would succeed in getting the relief/reliefs Under Section 53A of the Transfer of Property Act would have to be considered at the time of tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Under Section 53A of the Transfer of Property Act would not be maintainable. 7. Now, so far as the issue whether the suit can be said to be barred by limitation or not, at this stage, what is required to be considered is the averments in the plaint. Only in a case where on the face of it, it is seen that the suit is barred by limitation, then and then only a plaint can be rejected Under Order VII Rule 11(d) Code of Civil Procedure on the ground of limitation. At this stage what is required to be considered is the averments in the plaint. For the aforesaid purpose, the Court has to consider and read the averments in the plaint as a whole. As observed and held by this Court in the case of Ram Prakash Gupta (supra), rejection of a plaint Under Order VII Rule 11(d) Code of Civil Procedure by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph 21, it is observed and held as under: 21. As observed earlier, before passing an order in an application filed for rejection of the plaint Under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with his associate is determined to dispossess the Plaintiffs from his lawful possession by any means even by using force and violence. That the proforma Defendants have made parties in the suit without any claim against them but for proper adjudication of the said matter. 10. That the cause of action for this suit arose on 29.08.2010 at Premises No. 3/3A, formerly 3, Gurudas Dutta Garden Lane, P.S. Ultadanga, Kolkata- 700067, which is within the jurisdiction of this Ld. Court. 7.3. In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in paragraph 4 and has not considered the entire plaint averments. 7.4. While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter Under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the Plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and perma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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