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CASE NO.: Appeal (civil)  2390 of 2002

PETITIONER: Vithalbhai Pvt. Ltd.

RESPONDENT: Union Bank of India

DATE OF JUDGMENT: 11/03/2005

BENCH: CJI R.C. Lahoti & G.P. Mathur

JUDGMENT: J U D G M E N T

R.C. Lahoti, CJI

       In respect of a property situated in the metropolitan city of  Calcutta, a lease of immovable property for a fixed term commencing  1.4.1964 and expiring on 24.6.1984 evidenced by a registered deed of  lease dated 17.7.1964, came into existence.  The lessee entered into  possession of the leased premises on 1.4.1964.  On 26.9.1983, the  lessor served a notice on the lessee informing the lessee that the  tenancy was to expire on 24.6.1984 and, therefore, on that day the  lessee must deliver vacant possession of the demised premises to the  lessor.  On 8.11.1983, the lessee sent a reply taking a firm stand that  he would not vacate the demised premises in terms of the lease deed  and the request contained in the communication dated 8.11.1983.  The  lessee also disputed the entitlement of the lessor to demand possession  from the lessee on a plea that the title of the lessor to claim possession  had itself come to an end on account of eviction by a paramount title- holder.  On 16.4.1984, the present suit was filed by the lessor against  the lessee seeking the following reliefs:- "a)     a declaration that the plaintiff is entitled to  vacant and peaceful possession of the said  premises to be delivered by the defendant to the  plaintiff on the expiry of the term of the said lease  dated July 17, 1964, i.e. on the expiry of June 24,  1984.

b)      perpetual injunction restraining the  defendant, its agents and servants from subletting,  assigning or parting with possession of the said  premises or any party thereof during the said term  of the said lease and from giving possession of the  said premises or any part thereof to any person  other than the plaintiff on the expiry of the said  lease.

c)      a decree for vacant possession of the said  premises on the expiry of the term of the said lease  as aforesaid.

d)      a decree for Rs.30,000/- for damages or  alternatively, an enquiry into damages and a decree  for such as may be found due to the plaintiff.

e)      Receiver;

f)      Costs;

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g)      further and other reliefs."

       The suit was filed twelve weeks before the date on which the  lease was to expire by efflux of time within the meaning of clause (a)  of Section 111 of the Transfer of Property Act, 1882. The written  statement was filed on 24.8.1994.  One of the pleas taken in the  written statement was that the suit was premature and hence was not  maintainable.           In January 1985, the lessor-plaintiff moved an application for  amendment of the plaint which was allowed by the order dated  27.2.1985.  The plaintiff introduced in the plaint further averments in  support of his entitlement to possession over the leased premises.  To  the reliefs which he had sought for earlier, the following relief was  further added:         "Mesne profits at Rs.595/- per diem or at  such other rate as to this Hon’ble Court may seem  fit and proper from 25th June, 1984, until vacant  and peaceful possession of the said demised  premises is given to the plaintiff by the defendant;"

       The defendant filed additional written statement.

       By judgment dated 12.2.1992 the High Court (Original Side)  decreed the suit holding the plaintiff entitled to decree of eviction with  a preliminary decree directing an enquiry to ascertain the mesne  profits. The plea as to non-maintainability of suit on account of its  being premature was decided against the defendant by the learned  Single Judge of the High Court placing reliance on  (Mylavarapu)  Rangayya Naidu v. Basana Simon and Ors.  (AIR 1926 Madras  594).  In the opinion of the learned Single Judge, no prejudice was  caused to the defendant on account of the suit having been filed a little  before the expiry of lease by efflux of time inasmuch as even if  theoretically the suit could have been disposed of before 24th June,  1984 it would still have been open for the Court to pass a decree of  eviction and make the decree executable only after 24th June, 1984. The defendant preferred an intra-court appeal.  The Division  Bench has reversed the judgment of the learned Single Judge and  directed the suit to be dismissed holding it premature, as it was based  on a cause of action which was not ripe on the date of the institution  of the suit. Feeling aggrieved, the plaintiff has filed this appeal by  special leave.          The sole question arising for decision in this appeal is whether  the suit was premature on the date of its institution and hence no relief  could have been allowed to the plaintiff in such a suit.  It was  conceded at the Bar that on the answer to this question would depend  whether the suit for eviction would be decreed or not.         To be entitled to file a civil suit the plaintiff must be entitled to  a relief and the suit must be of a civil nature excepting suits of which  their cognizance is either expressly or impliedly barred (See Section 9  of the Code of Civil Procedure, 1908).  Section 3 of the Limitation  Act, 1963 provides that a suit filed after the prescribed period of  limitation, shall be dismissed without regard to the fact whether  limitation has been set up as a defence or not.  However, there is no  such provision (and none brought to our notice at the Bar in spite of a  specific query in that regard having been raised) which mandates a  premature suit being dismissed for this reason.  The only relevant  provision is the one contained in Rule 11 of Order 7 of the CPC which  provides for a plaint being rejected where it does not disclose a cause  of action.  Though the plaint is not rejected, yet a suit may be  dismissed if the Court on trial holds that the plaintiff was not entitled  on the date of the institution of the suit to the relief sought for in the  plaint.         The learned counsel for the plaintiff-appellant submitted that in

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the present case the suit cannot be said to have been filed as premature  on the date of its institution.  He submits that in the response dated  8.11.1983, the defendant-respondent had clearly disputed the  plaintiff’s entitlement to evict the defendant-respondent on 25.6.1984,  the date of expiry of the lease and therefore a cloud was cast on the  title of the plaintiff.  The plaintiff was therefore fully justified in  bringing the suit after the receipt of the reply dated 8.11.1983. In the  alternative, it was submitted that assuming that the suit was premature  on the date of its institution, it became ripe during its pendency and  was certainly so on the date on which the written statement was filed  by the defendant, and that the Court has the power to take notice of  such event and, therefore, to decree the suit.         In our opinion, a suit based on a plaint which discloses a cause  of action is not necessarily to be dismissed on trial solely because it  was premature on the date of its institution if by the time the written  statement came to be filed or by the time the Court is called upon to  pass a decree, the plaintiff is found entitled to the relief prayed for in  the plaint. Though there is no direct decision available on the point  but a few cases showing the trend of judicial opinion may be noticed.         Under Section 80 of the CPC no suit shall be instituted against  the Government or a public officer until the expiration of two months  next after service of notice in writing in the manner set out in the  provision and if filed before the expiry of said period,  the suit is not  maintainable because there is clearly a public purpose underlying the  provision.  ’The object of the Section is the advancement of justice  and securing of public good by avoidance of unnecessary litigation.’    ( See :   Bihari Chowdhary and Another  v.  State of Bihar and Ors.   (1984) 2 SCC 627).  In (Vaddadi) Butchiraju and Ors. v. Doddi  Seetharamayya and Ors. (AIR 1926 Madras 377) the suit was for a  sum of money which had not become payable on the date of the suit  but became payable since.  Visvanatha Sastri, J. (as His Lordship then  was) held that the Court could pass a decree for the recovery of  money. Reliance was placed on a Full Bench decision in A.T.  Raghava Chariar v. O.M. Srinivasa Raghava Chariar (1917) ILR 40  Mad. 308 and a few other cases.  Here, in all fairness, it may be  mentioned that in (Mylavarapu) Rangayya Naidu  v.  Basana Simon  and Ors.  (AIR 1926 Madras 594), Spencer, J. has held that if a suit is  premature at the date of institution, though not at the date of decision,  a decree cannot be granted and the only course in such cases is to  dismiss the suit with liberty to bring a fresh suit upon a proper cause  of action. It is pertinent to note that Butchiraju and Ors.’s case was  decided on 5.10.1925 while Rangayya Naidu’s case was decided on  7.10.1925 but the former decision though of a prior date was not  brought to the notice of the Court deciding the latter case.         Tarak Chandra Das and Anr. v. Anukul Chandra Mukherjee  (AIR 1946 Calcutta 118) is a Division Bench decision of Calcutta  High Court wherein the suit was declaratory in nature filed under  Section 42 of the Specific Relief Act, 1877.  The defendant sought the  dismissal of the suit on the ground that the right asserted by the  plaintiff was not an existing right but a future and contingent one and  whether it would at all come into being or not was dependant upon an  uncertain event which might or might not happen.  Justice B.K.  Mukherjea (as His Lordship then was) speaking for the Division  Bench held that though the right must be an existing one, it need not  necessarily be a right which is vested already.  A person having even a  contingent right in a property may sue for a declaration.  The Court in  the exercise of its discretion may refuse to make such declaration if it  considers the claim to be too remote or if the declaration given would  be ineffectual and abortive. The question really is not one of  jurisdiction but one of discretion to be exercised by the Court.         Sankara Pillai v. Mathunni Ittiera  (1958 KLT 220) the suit  was for redemption of a mortgage.  The mortgage became redeemable  on 12.10.1957 but the suit was filed on 23.8.1952.  The suit was  undoubtedly premature when it was brought.  The Division Bench  held that the mortgage having become subsequently redeemable it

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would be unnecessary and unjust to drive the plaintiff to a separate  suit.  To mitigate hardship of this kind and to shorten litigation the  Court can take notice of the subsequent event of the mortgage having  become redeemable during the pendency of the suit and grant relief  provided the substantive rights of the parties were not affected.  The  Court decreed the suit but directed the plaintiff to bear the costs  incurred by the defendant.           Kathringa v. Lonappan  (1969 KLT 334) was a suit for  eviction filed under Section 11(3) of the Kerala Buildings (Lease and  Rent Control)  Act, 1965.  The suit could  be filed only one year after  the date of transfer intervivos  in favour of the plaintiff. The plaintiff  acquired title by purchase on 1st December, 1962 and the proceedings  for eviction were instituted on 11.6.1963.  However, there was no  objection taken in the written statement to the maintainability of the  suit.  When the case came up for hearing on 10th February, 1965 by  which date more than two years and three months had elapsed, the  objection was urged.  The learned single Judge held that at that stage  it was a matter of discretion vesting in the Court and the Court could  depart from the general rule that the rights of parties must be  determined as on the date of the institution of the action.         However, the Single Bench decision in Kathringa v. Lonappan   (1969 KLT 334) was cited before a Division Bench of Kerala High  Court in Hameed v. Ittoop  (1970 KLT 501) and was overruled.  The  Division Bench formed the opinion that the statutory bar enacted in  Section 11(3) of Kerala Buildings Act pertains to jurisdiction of the  Court.  The Court is deprived of power to entertain the petition for  eviction by the transferee-landlord filed before the expiry of one year  of the date of assignment in his favour.  The Division Bench relied on  the decision of this Court in V.N. Sarin v. Ajit Kumar Poplai   (AIR  1966 SC 432) wherein interpreting a pari  materia provision  contained in Delhi Rent Control Act, this Court held that the  underlying object behind such a provision is to serve a public purpose  and is based on public policy to prevent the mischief of unscrupulous   landlords entering into transaction of transferring title to property with  a view to enable the purchaser to evict the tenant and thereby defeat  the legislative intention of protecting tenants from unmerited  evictions.         A Full Bench of Kerala High Court in Themmalapuram Bus  Transport, Palghat v. Regional Transport Authority, Palghat & Ors.   (1967 KLT 122) reiterated the well-settled principle that the general  rule is that the relief claimed in the suit must be confined to matters  existing at the date when the suit was instituted.  But that is a rule of  discretion and can be departed from in certain circumstances except  where such departure would cause manifest advantage or  disadvantage to one party.         In Subbaraya Chetty  v.  Nachiar Ammal \026 (1918) VII LW  403, money under the mortgage bond did not become payable until a  few days after the institution of the suit for its recovery.  In Zadba  Sadasheo Balpande   v.   Maharashtra Revenue Tribunal and ors.  \026  1964 Mh LJ 559, application for possession was filed 8 days before  the date of termination of lease. In both the cases, the respective  Division Benches have allowed relief to the plaintiff on the ground  that driving the plaintiff to institute another suit would be hardship  and no prejudice was caused to the defendant.         In our opinion, the correct position of law flows from the  above-noted decisions.         In Samar Singh v. Kedar Nath and Ors. \026 1987 Supp. SCC  663, this Court while dealing with an election petition has held that  the power to summarily reject conferred by Order 7 Rule 11 of the  Code of Civil Procedure can be exercised at the threshold of the  proceedings and is also available, in the absence of any restriction  statutorily placed, to be exercised at any stage of subsequent  proceedings.  However, the Court has also emphasized the need of  raising a preliminary objection as to maintainability as early as  possible though the power of the Court to consider the same at a

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subsequent stage is not taken away.         In Gurdit Singh and Ors. Vs. Munsha Singh and Ors. \026  (1977) 1 SCC 791 it was held that the Court trying a premature suit  does not suffer from inability or incapacity to entertain the suit on the  grounds of lack of jurisdiction.  Dealing with the ’narrower sense’ and  ’more comprehensive sense’ in which the expression ’cause of action’  is at times employed, the Court has indicated that the cause of action  may suggest all those essential facts without the proof of which the  plaintiff must fail in his suit but ’right to sue’ may have a different  connotation, the accrual of which need not necessarily be treated as an  ingredient of cause of action but would be more relevant for the  purpose of determining the commencement of the period of limitation. No amount of waiver or consent can confer jurisdiction on a  Court which it inherently lacks or where none exists.  The filing of a  suit when there is cause of action though premature does not raise a  jurisdictional question.  The claim may be well-merited and the Court  does have jurisdiction to hear the suit and grant the relief prayed for  but for the fact that the plaintiff should have waited a little more  before entering the portals of the Court.  In such a case the question is  one of discretion.  In spite of the suit being premature on the date of  its institution the Court may still grant relief to the plaintiff if no  manifest injustice or prejudice is caused to the party proceeded  against.  Would it serve any purpose, and do the ends of justice  compel the plaintiff being thrown out and then driven to the need of  filing a fresh suit \026 are pertinent queries to be posed by the Court to  itself.   

Where the right to sue has not matured on the date of the  institution of the suit an objection in that regard must be promptly  taken by the defendant.  The Court may reject the plaint if it does not  disclose the cause of action.  It may dismiss the suit with liberty to the  plaintiff to file a fresh suit on its maturity.  The plaintiff may himself  withdraw the suit at that stage and such withdrawal would not come in  the way of the plaintiff in filing the suit on its maturity. In either case,  the plaintiff would not be prejudiced. On the other hand, if the  defendant by his inaction amounting to acquiescence or waiver allows  the suit to proceed ahead then he cannot be permitted to belatedly urge  such a plea as that would cause hardship, may be irreparable  prejudice, to the plaintiff because of lapse of time.  If the suit proceeds  ahead and at a much later stage  the Court is called upon to decide the  plea as to non-maintainability of the suit on account of its being  premature, then the Court shall not necessarily dismiss the suit.  The  Court would examine if any prejudice has been caused to the  defendant or any manifest injustice would result to the defendant if  the suit is to be decreed.  The Court would also examine if in the facts  and circumstances of the case it is necessary to drive the plaintiff to  the need of filing a fresh suit or grant a decree in the same suit  inasmuch as it would not make any real difference at that stage if the  suit would have to be filed again on its having matured for filing.           We may now briefly sum up the correct position of law which  is as follows :

       A suit of a civil nature disclosing a cause of action even if filed  before the date on which the plaintiff became actually entitled to sue  and claim the relief founded on such cause of action is not to be  necessarily dismissed for such reason.  The question of suit being  premature does not go to the root of jurisdiction of the Court; the  Court entertaining such a suit and passing decree therein is not acting  without jurisdiction but it is in the judicial discretion of the Court to  grant decree or not. The Court would examine whether any irreparable  prejudice was caused to the defendant on account of the suit having  been filed a little before the date on which the plaintiff’s entitlement  to relief became due and whether by granting the relief in such suit a  manifest injustice would be caused to the defendant. Taking into  consideration the explanation offered by the plaintiff for filing the suit

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before the date of maturity of cause of action, the Court may deny the  plaintiff his costs or may make such other order adjusting equities and  satisfying the ends of justice as it may deem fit in its discretion. The  conduct of the parties and unmerited advantage to plaintiff or  disadvantage amounting to prejudice to the defendant, if any, would  be relevant factors.  A plea as to non-maintainability of the suit on the  ground of its being premature should be promptly raised by the  defendant and pressed for decision. It will equally be the  responsibility of the Court to examine and promptly dispose of such  a  plea.  The plea may not be permitted to be raised at a belated stage of  the suit.  However, the Court shall not exercise its discretion in favour  of decreeing a premature suit in the following cases :  (i)     When there  is a mandatory bar created by a statute which disables the plaintiff  from filing the suit on or before a particular date or the occurrence of  a particular event; (ii) when the institution of the suit before the lapse  of a particular time or occurrence of a particular  event would have the  effect of defeating a public policy or public purpose; (iii) if such  premature institution renders the presentation itself patently void and  the invalidity is incurable such as when it goes to the root of the  Court’s jurisdiction, and (iv) where the lis is not confined to parties  alone and affects and involves persons other than those arrayed as  parties, such as in an election petition which affects and involves the  entire constituency.  (See : Samar Singh v. Kedar Nath and Ors. \026  1987 Supp. SCC 663).  One more category of suits which may be  added to  __  where leave of the Court or some authority is mandatorily  required to be obtained before the institution and was not so obtained. In the case at hand, the act of the plaintiff filing the suit before  25.6.1984 cannot be said to be malicious or intended to overreach the  Court.  The defendant’s reply dated 8.11.1983 prompted the plaintiff  in filing the suit inasmuch as the plaintiff reasonably thought that a  cloud was already cast on his entitlement to recover the property and  he should promptly approach the Court .  True, the defendant could  have changed his mind and thought of delivering the possession of the  property to the plaintiff on or after 25.6.1984 \026 the date whereafter  only the suit could ordinarily have been filed and in that case there  would have been no occasion at all for filing the suit.  The defendant  filed its written statement much after that date.  The objection as to  maintainability of the suit was taken in the written statement.  If only  it would have been pressed for decision and the Court would have  formed that opinion at the preliminary stage then the plaintiff could  have withdrawn the suit or the Court could have dismissed the suit as  premature. In either case, the plaintiff would have filed a fresh suit  based on the same cause of action soon after 25.6.1984.  By the time  the suit came to be decided on 12.2.1992, the dismissal of the suit on  the ground of its being premature would have been a travesty of  justice when the plaintiff was found entitled to a decree otherwise.   The learned Single Judge rightly overruled the defendant’s objection  and directed the suit to be decreed.  The Division Bench ought not to  have interfered with the judgment and decree passed by the learned  Single Judge.  The appeal is allowed.  The judgment and decree passed by the  Division Bench is set aside and instead the judgment and decree dated  12.2.1992 passed by the learned Single Judge is restored.  However,  the defendant is allowed time till 30.9.2005 for vacating the suit  premises subject to the filing of the usual undertaking in the High  Court and clearing money part of the decree within a period of six  weeks from today.  The plaintiff would not be entitled to costs in the  suit.  Costs incurred by the plaintiff in appeal before Division Bench  and in this Court shall be borne by the defendant.