Order VII Rule 11(d), Interim Injunction and the Missing Relief of Possession
On 20 February 2024, Kamla filed Suit No. 47 of 2024 before the Civil Judge (Senior Division), Rohtak, seeking a declaration that the registered sale deed dated 12 March 2009 executed by her father-in-law Raghubir in favour of his younger son is null and void, and a permanent injunction restraining that son from dispossessing her from 0.25 acre of agricultural land in Khasra No. 84/2. The plaint values the suit at Rs 8,00,000 for jurisdiction and court fee and pays fee under Section 7(iv)(c) of the Court Fees Act, 1870. The defendant, in possession since 2009, has applied under Order VII Rule 11(d) CPC, pleading limitation, asserting that Kamla was present when the deed was registered, and adding that the suit is undervalued. Kamla also moved under Order XXXIX Rules 1 and 2 CPC, averring that the defendant obstructed her on 5 January 2024; that application was filed on 29 February 2024. The defendant's reply says she has been out of possession since 2009 and that the suit is a counterblast to his pending partition suit.
1. What is the correct judicial course on the Order VII Rule 11(d) application? Can limitation and undervaluation be decided from the plaint alone?
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1. The permissible material. Order VII Rule 11 requires the court to look at the plaint and the documents filed with it, and nothing else; the written statement, the reply and the defendant's assertions cannot be used to reject the plaint (Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557; R.K. Roja v. U.S. Rayudu, (2016) 14 SCC 275).
2. Limitation. Rejection under Rule 11(d) is confined to cases where the bar is self-evident from the plaint's own allegations. Where limitation turns on when the plaintiff acquired knowledge, or on the effect of a registered instrument, it is a mixed question of fact and law requiring trial (Balasaria Construction v. Hanuman Prasad, (2006) 5 SCC 658; Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557 permits deciding limitation under Rule 11(d) only on a demurrer, without a trial). Here the plaint pleads that Kamla was not a party to the deed and learnt of it on 5 January 2024; the assertion that she was present at registration is a defence plea, disputed and untriable at this stage. The suit is therefore within three years of the pleaded knowledge on the face of the plaint.
3. Undervaluation. Rule 11(b) applies only after the court requires the plaintiff to correct the valuation and she fails to do so within the time fixed. A valuation under Section 7(iv)(c) is normally accepted unless it is arbitrary or unreasonable; the proper course is to frame an issue and, if necessary, hold an inquiry under Section 8 of the Suits Valuation Act.
Order: dismiss the Rule 11 application, frame issues on limitation and valuation, and proceed to trial.
2. How should the court deal with the Order XXXIX application, given the delay of about three weeks and the defendant's possession since 2009? What order best fits the case?
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The three tests are prima facie case, balance of convenience and irreparable injury (Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719); no single factor is decisive.
Prima facie case: the plaint and the registered deed disclose a triable issue about the circumstances of the 2009 transfer and the plaintiff's knowledge. The threshold is low; a mini-trial is impermissible.
Delay: the obstruction is dated 5 January 2024 and the application 29 February 2024 - about eight weeks. Delay of this length is not fatal; it goes to the weight of the urgency pleaded, not to jurisdiction (Gujarat Bottling v. Coca Cola, (1995) 6 SCC 545).
Balance of convenience and irreparable injury: the defendant asserts long possession, but an injunction cannot be used to grant the plaintiff possession or to alter the status quo; equally, a person in settled possession cannot be thrown out otherwise than by due process (Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769). The court should avoid making findings on the very disputed question of possession that is the subject of the suit.
Order that fits: the appropriate operative direction is status quo as to possession of Khasra No. 84/2 as on the date of the order, to be maintained by both parties till disposal of the suit, with the plaintiff restrained from interfering and the defendant restrained from dispossessing her without due process. Refusing relief entirely would allow a self-help eviction; granting an absolute injunction would decide the suit at an interlocutory stage. Costs in the cause.
3. If the evidence ultimately shows that Kamla has been out of possession since 2009, what happens to a suit confined to a bare declaration? What relief should she have claimed?
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Section 34 of the Specific Relief Act permits a declaratory decree only where the plaintiff is entitled to a legal character or to a right to property and is not, in the alternative, in a position to seek consequential relief. The proviso requires that any further relief to which the plaintiff is entitled and which is necessary to make the declaration effective must be claimed.
Where the plaintiff is out of possession and the defendant is in possession under the impugned instrument, a bare declaration that the instrument is void is not maintainable; the plaintiff must sue for possession as well. A declaration alone would leave her with an unenforceable paper decree - she would still not recover the land, and a second suit for possession while the first is pending would be barred.
Consequence: if the evidence shows she has been out of possession since 2009, the suit as framed is liable to be dismissed on that ground. The correct relief is a declaration coupled with recovery of possession, valuing the relief of possession for jurisdiction and court fee under Section 7(v) of the Court Fees Act on the market value of the land, and subject to the twelve-year period under Article 65 of the Limitation Act, which runs from dispossession.
Course the court may adopt: at an appropriate stage, and before the trial is concluded, the court may permit an amendment under Order VI Rule 17 CPC to add the relief of possession, and direct payment of the deficient court fee; after the trial has commenced, the proviso requires the court to be satisfied that the party could not have raised the matter earlier despite due diligence. If amendment is refused, dismissal for non-claim of the necessary consequential relief is the correct result.