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2014 DIGILAW 1040 (CAL)

Banke Bihari Enclave Pvt. Ltd. v. Prasanta Mondal @ Prasanta Kumar Mondal

2014-11-10

HARISH TANDON

body2014
JUDGMENT : Harish Tandon, J. The petitioner has assailed the order No. 18 dated April 4, 2014 passed by learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No. 453 of 2013 by which the application under Order 7 Rule 11 of the Civil Procedure Code is rejected. 2. The opposite party no.1 filed a suit for declaration that the agreement dated December 2, 2002 executed by the opposite party No.2 in his favour is legal, valid and binding upon the parties with additional prayer that the purported registered sale deed no. 3206 is invalid, illegal and void ab initio. 3. It is averred in the plaint of the said suit that the opposite party no.2 being the admitted owner of part and parcel of land measuring 9 cottahs and odd comprised in R.S. Dag No. 414, R.S. Khatian No. 217, Mouza- Nonadanga, J.L. No. 10, Touzi No. 1298/2833 in Ward No. 107 of Police Station, Kasba, agreed to sale, transfer and convey the said property unto and in favour of the opposite party no. 1 at a consideration of Rs. 3 lakhs per cottahs. The terms and conditions were reduced in writing in the form of an agreement dated December 2, 2002 and it is further recorded therein that a sum of Rs. 1,25,000/- was received as a by way of an earnest money. It is further averred that another sum of Rs. 55,000/- was paid to the said admitted owner who subsequently delivered the possession of the said property. The opposite party no. 1 claimed to have received the possession in the year 2005 and erected a boundary wall by spending a further sum of Rs. 80,000/- and is in exclusive possession thereof. It can further be noticed from the statements made in the plaint that a notice was published on 27th May, 2007 at the instance of the opposite party no.1 in the newspaper signifying the existence and continuance of the said agreement. The said notice came to be published for avoidance of the opposite party no.2 in execution of the sale deed. The opposite party no.2 subsequently sold, transferred and conveyed the said property by executing a sale deed no. 3206 on 9th October, 2012 which was also registered with the Additional Sub Registrar, Sealdah on the same date. 4. The said notice came to be published for avoidance of the opposite party no.2 in execution of the sale deed. The opposite party no.2 subsequently sold, transferred and conveyed the said property by executing a sale deed no. 3206 on 9th October, 2012 which was also registered with the Additional Sub Registrar, Sealdah on the same date. 4. It is alleged that the factum of execution and registration of the purported sale deed was brought to the knowledge of the opposite party no. 1 on September 11, 2013 when an attempt was made to take possession of the said property by demolishing the boundary wall. 5. In the backdrop of the aforesaid facts, the reliefs as indicated above are sought together with the decree for permanent injunction restraining the defendants/opposite parties from interfering with and/or disturbing the peaceful possession of the plaintiff and also from giving effect to the purported sale deed. The petitioners who subsequently purchased the suit property from the opposite party No. 2 filed an application under Order 7 Rule 11 of the Code of Civil Procedure seeking the rejection of the plaint on the following grounds : (I) The opposite party No. 1 have no right in the property in question and a mere declaration that the agreement is valid, can not be granted. (II) The suit to enforce the rights under the agreement is valued at Rs. 200/- when the consideration money therein is Rs. 27,65,5000/-. (III) The plaint does not disclose the cause of action against the petitioners who are the bonafide purchasers for value without notice. (IV) The description of the property is vague and ambiguous. (V) The suit is an outcome of the abuse of the process of law and is required to be nipped in the bud. (VI) The suit as it stand is not maintainable as no relief for specific performance of an agreement dated December 2, 2002 is claimed and is, therefore, hit by Section 34 of the Specific Relief Act. 6. The objection to the said application for rejection of the plaint which runs in several pages is basically founded on the denial of the averments made in the said application with assertion that the suit is otherwise maintainable. 7. 6. The objection to the said application for rejection of the plaint which runs in several pages is basically founded on the denial of the averments made in the said application with assertion that the suit is otherwise maintainable. 7. The Trial Court rejected the said application negativing the points agitated in the said application and gave an opportunity to the opposite party No1 to amend the plaint incorporating the relief of specific performance in the plaint. 8. Before proceeding to decide the submissions advanced by the respective counsels it would be profitable to remind the scope of Order 7 Rule 11 of the Code. 9. The object underlying the incorporation of the provision relating to the rejection of the plaint at any stage of the proceeding is to avoid the unnecessary hassles which the defendant would suffer to unmeritorious, vexatious suit which is liable to fail on the reading of the plaint. If they suffer for the infirmities as indicated therein, the Court shall not allow such suit to continue if the parameters set forth in the said provision is satisfied. The plaint is liable to be rejected on the ground that it does not disclose a cause of action; where the relief claimed is undervalued and correct valuation has not been shown despite the order of the Court; where the relief though claimed is properly valued but in sufficient stamp is put in the plaint and despite the order of Court, the requisite stamp paper was not filed and where the suit from the statement of the plaint appears to be barred by any law. By virtue of the subsequent amendment having brought in the Civil Procedure Code, two more grounds were incorporated viz. where the plaints are not filed in duplicate and the plaintiff failed to comply with the provision of Rule 9 Order 7 of the Code. 10. It is no longer res integra that the Court at the time of invocation of the said provision shall confine its perusal to the averment made in the plaint and shall not embark its journey to other pleadings or the documents. The aforesaid proposition can be fortified from a judgment of the Apex Court rendered in case of Bhau Ram v. Janak Singh & Ors; reported in (2012) 8 SCC 701 in these words : "15. The aforesaid proposition can be fortified from a judgment of the Apex Court rendered in case of Bhau Ram v. Janak Singh & Ors; reported in (2012) 8 SCC 701 in these words : "15. The law has been settled by this Court in various decisions that while considering an application under Order 7 Rule 11 CPC, the court has to examine the averments in the plaint and the pleas taken by the defendant in the written statement would be irrelevant [vide C. Natrajan v. Ashim Bai, Ram Prakash Gupta v. Rajiv Kumar Gupta, Hardesh Ores (P) Ltd. v. Hede and Co., Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, Sopan Sukhdeo Sable v. Asstt. Charity Commr. and Saleem Bhai v. State of Maharashtra]. The above view has been once again reiterated in the recent decision of this Court in Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust." 11. Though parameters for rejection of the plaint is engrafted in Order 7 Rule 11of the Code but the same is not exhaustive and conclusive as the Court can still reject the plaint which is manifestly vexatious and meritless and does not disclose the clear right to sue. In this regard reliance can be conveniently placed upon a judgment of the Supreme Court in case of T. Arivandandam v. T.V. Satyapal & another reported in AIR 1977 SC 2421 where the Supreme Court tersely rejected the plaint wherein a clever draftsmanship have created an illusory cause of action in following words : "5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII R. 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. The learned Munsif must remember that if on a meaningful - not formal- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII R. 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O. X. C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi "It is dangerous to be too good." 12. The aforesaid proposition is reiterated in paragraph 16 by the Supreme Court in case of I.T.C. Limited v. Debts Recovery Appellate Tribunal & Ors; reported in (1998) 2 SCC 70 which reads thus : "16. The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint." 13. The cause of action is not a stray fact but should be deciphered from the meaningful reading of the facts averred in the plaint. The facts assimilated if discloses the right to sue and proved by cogent evidence, may entitle the plaintiff to get the relief claimed therein. The foundational facts should be discernable from the meaningful reading without adding and or subtracting any words thereto. 14. The plaintiff has specifically averred in the plaint that by virtue of an agreement for sale entered into between him and the defendant No 1, the property in question was agreed to be sold, transferred and conveyed at a consideration mentioned therein. 14. The plaintiff has specifically averred in the plaint that by virtue of an agreement for sale entered into between him and the defendant No 1, the property in question was agreed to be sold, transferred and conveyed at a consideration mentioned therein. The decree for permanent injunction was also sought on specific averments that the defendants No 2 are trying to interfere with the possession which was obtained in pursuance of the said agreement. 15. Mr. S.P. Roy Chowdhury, the learned Senior Advocate challenges the impugned order by contending that the unmeritorious, vexatious and frivolous suit based on illusory cause of action should be nipped in the bud as held in case of T. Arivandandam v. T.V. Satyapal & another reported in AIR 1977 SC 2421 and I.T.C. Limited v. Debts Recovery Appellate Tribunal & Ors; reported in (1998) 2 SCC 70 . 16. By drawing an aspiration from the Division Bench judgment rendered in case of Manthan Brand Band Services Pvt. Ltd and Another v. C.K.T. Communications Pvt. Ltd; reported in AIR 2005 Cal 317 , Mr Roy Chowdhury would submit that the suit is grossly undervalued in relation to the subject matter of alleged agreement for the purpose of creating a pecuniary jurisdiction which is clearly impermissible. He audaciously submits that the meaningful reading of the plaint would reveal that the relief is based on the alleged agreement where the consideration is more than 27 lakhs which is beyond pecuniary jurisdiction of the Court in which the suit is instituted. He further submits that proviso to Section 34 of the Specific Relief Act put an embargo on the Court to grant declaratory relief in absence of consequential reliefs and relied upon a judgment of the Supreme Court in case of Muni Lal v. Oriental Fire & General Insurance Co. Ltd & another reported in (1996) 1 SCC 90 . Lastly it is submitted that the suit is hit by Article 54 of the Limitation Act having filed beyond three years from the date of refusal and in support thereof, he placed reliance upon a judgment of the Supreme Court in case of T.L. Muddukrishana & another v. Lalitha Ramchandra Rao reported in (1997) 2 SCC 611 . He thus concludes that in whichever angle, the plaint is looked at, it is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure. 17. He thus concludes that in whichever angle, the plaint is looked at, it is liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure. 17. Mr. Sudhis Das Gupta, the learned Senior Advocate appearing for the opposite party no.1, submits that the Court should confine its perusal to the Court at the stage of rejection of plaint and should not venture to travel beyond it. He further submits that the plaint should be looked into for the limited purposes of satisfying whether there is a disclosure of cause of action or the suit is otherwise barred by law. 18. On the meaningful reading of the plaint, if the cause of action can be deciphered, the plaint cannot be rejected under Order 7 Rule 11 of the Code. In support of the aforesaid contentions, he relied upon a judgment of the Supreme Court in case of Kamala & Ors; v. K.T. Eshwara Sa & Ors; reported in (2008) 12 SCC 661 , Bhau Ram v. Janak Singh & Ors; reported in (2012) 8 SCC 701 and Hardesh Ores (P) Ltd v. Hede and Company reported in (2007) 5 SCC 614 . He would further submit that the limitation is a mixed question of fact and law and in absence of pleadings, issues and the depositions, the plaint should not be rejected as held in case of Balasaria Construction (P) Ltd. v. Hanuman Seva Trust & Ors; reported in (2006) 5 SCC 658 . To elaborate further he submits that once a question of limitation is debatable and their appears to be uncertainty as to the applicability of particular provision of the Limitation Act, the Court should not reject the plaint but should wait till the trial as held in case of C. Natrajan v. Ashim Bai & Anr; reported in (2007) 14 SCC 183 . He succinctly submits that in absence of specific method of valueing the declaratory relief, the insertion of the valuation by the plaintiff of his own does not render the suit improper, invalid and liable to be rejected. According to him, the relief for specific performance of an agreement is not otherwise barred by law of limitation, which is capable of being introduced in the pleading by way of amendment. According to him, the relief for specific performance of an agreement is not otherwise barred by law of limitation, which is capable of being introduced in the pleading by way of amendment. Lastly he submits that an application for amendment seeking to incorporate the relief for specific performance of an agreement has been taken out, which if allowed, would cure the infirmity, if there by any. He lastly submits that in the event, the application for amendment is allowed and the Court before whom the suit is instituted lacks pecuniary jurisdiction, it would return the plaint after allowing the amendment to be presented before the appropriate Court having jurisdiction. 19. The proviso to Section 34 of the Specific Relief Act is deterrent to grant declaration where the plaintiff omits to seek further relief than a mere declaration of title. The Co-ordinate Bench in case of Smt; Anjana (C.O. 402 of 2010 decided on 16.03.2010) supports the aforesaid proposition. It is held therein that mere declaration for subsistence of an agreement without a prayer for specific performance is barred under Section 34 of the said Act. The proviso to Section 34 of the said Act restricts the power of the Court in making declaration as to the entitlement of legal character or right as to any property in favour of any person if he is otherwise able to seek further relief than mere declaration of title omits to do so. Section 34 of the said Act is a discretionary provision. The exercise of the discretion is controlled by the proviso inserted thereto. It is impediment on the part of the Court in refusing to exercise discretion if the case falls squarely under the proviso which can be pressed in action only, when on the meaningful reading of the plaint, it is evinced that further relief than mere declaration of title is required to be sought. If the omission is allowed to continue during the carriage of the proceedings and the further relief becomes unavailable being hit by law of limitation, the Court has no choice but to dismiss the suit by invoking Section 34 of the Act. If the relief of the specific performance is still available to the plaintiff, the Court instead of proceeding to reject the plaint, should permit the plaintiff to amend the pleading by incorporating the said relief. If the relief of the specific performance is still available to the plaintiff, the Court instead of proceeding to reject the plaint, should permit the plaintiff to amend the pleading by incorporating the said relief. The rejection of a plaint at the stage of Order 7 Rule 11 of the Code only on the ground that further relief than mere declaration of title is not claim in the suit would only invite the another suit to occupy the docket of the Court provided the claims are not barred by limitation. The judgment of the Supreme Court rendered in case of Muni Lal (supra) as relied by the contesting opposite party is distinguishable on facts . In the said judgment, a suit for declaration that the Insurance Company is liable for the total loss of the truck without any consequential relief for payment of compensation. The suit was ultimately dismissed by the Trial Court having hit by proviso to Section 34 of the Act which was carried further to the Appellate Court. An amendment of the plaint was sought before the Appellate Court which was ultimately rejected. The said order of rejection was further carried to the Supreme Court and it is held that the relief claim by way of a proposed amendment is hit by law of limitation and should not be allowed to be incorporated in the pleadings. The Paragraph 6 of the said judgment can be conveniently quoted as under: "6. On a consideration of this case in its proper perspective, we are of the view that granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate court or the second appellate court. Considered from this perspective, we are of the opinion that the District Court and the High Court were right in refusing the prayer of amendment of the suit and the courts below had not committed any error of law warranting interference." 20. The aforesaid judgment is not pointer to an issue where the further relief or consequential relief than mere declaration of title is not otherwise barred by law of limitation. The aforesaid judgment is not pointer to an issue where the further relief or consequential relief than mere declaration of title is not otherwise barred by law of limitation. It is not in dispute that in the instant case, an application for amendment of the plaint has been taken out which is still pending. It would be premature, at this stage, to reject the plaint by applying proviso to Section 34 of the Specific Relief Act. In the unreported judgment rendered in case of Anjana Gupta (supra), the Co-ordinate Bench was not confronted with the situation where an application for amendment of the plaint has been taken out. Nor the judgment of Muni Lal (supra) was cited wherein the Apex Court held that the alternative remedy which was available at the time of institution of the suit has become barred by limitation, no amendment of the pleadings should be allowed. In other words, it can be logically deduced that the alternative remedy during the period of limitation should be allowed to be incorporated by way of an amendment in stead of rejecting the plaint at the threshold. 21. The plea of limitation is essentially a mixed question of fact of law. The Court shall reject the plaint under Order 7 Rule 11 (d) of the Code when the relief is apparently barred by law. If something more than the bare reading of the plaint is required to decipher whether the relief is barred by limitation, it is not proper to take off the plaint from the record. Article 54 of the Limitation Act is applicable for seeking a relief of specific performance of agreement where a suit is required to be filed within three years from the date of the agreement where the time is fixed or where no time is fixed where the plaintiff has knowledge of the refusal of the purpose by the defendant. 22. Much emphasis is made on the averment made in paragraph 6 of the plaint where the plaintiff stated that the avoidance to execute the sale deed amounts to the refusal to perform. The expression 'avoidance' and 'refusal' are not synonymous and does not necessarily convey the same meaning. The expression 'refusal' in its grammatical meaning indicates unwillingness or decline to do something. The expression 'avoidance' grammatically conveys keeping away from escape, evade. The expression 'avoidance' and 'refusal' are not synonymous and does not necessarily convey the same meaning. The expression 'refusal' in its grammatical meaning indicates unwillingness or decline to do something. The expression 'avoidance' grammatically conveys keeping away from escape, evade. Though in the context of Income Tax Act, the word 'avoidance' has been interpreted not to mean evaded and has been used in the sense of escapement in case of Mansukh Lal v. C.I.T reported in AIR 1969 SC 835 . The Apex Court in case of State of West Bengal v. National Builders reported in (1994) 1 SCC 235 interpreted the word "refusal" to mean denial to do something which one is obliged to do under the law. In Advanced Law Lexicon, 3rd Edition, has been given the meaning to escape, to evade, to keep out of way, to make void, to annul, to spelt out, to refute, to cancel, to destroy the efficacy of anything. The refusal implies the positive denial of a command or at least, a mental determination not to comply. The refusal is a result of a positive intention to disobey which is distinct from avoidance. Therefore, the word "avoidance" is remotedly connected with the word "refusal" but depends upon the intention and conduct of the parties. There may be certain eventualities which may lead to the avoidance of doing the one thing leading to the postponement of the same which cannot be inferred to have refused. At this stage, it cannot be said with certainty that the avoidance leads to refusal after parties lead evidence and the intention and/or conduct conclusively proves the refusal. Something more than the bare reading of the plaint is required to arrive at the finding that such avoidance was intended as refusal and rejection of plaint at this stage should not be encouraged. 23. In case of T. L. Muddukrishana (supra), a suit for mandatory injunction was filed on 21.04.1992 and an application for amendment incorporating the necessary averment seeking specific performance of the contract was filed on 05.11.1992. The agreement was entered into on 16.03.1889 for sale of the plot stipulating its performances on or before 28.05.1989. A point arose whether such relief is hit by Article 54 of the Limitation Act when the date was fixed for performance of an agreement. The agreement was entered into on 16.03.1889 for sale of the plot stipulating its performances on or before 28.05.1989. A point arose whether such relief is hit by Article 54 of the Limitation Act when the date was fixed for performance of an agreement. It is held that the limitation would began from the date fixed for performance of the contract and the amendment having taken out after expiration of the period of limitation is impermissible in these words: "7. Under these circumstances, it must be held that for the purpose of limitation, what is material is that the limitation begins to run from the date the parties have stipulated for performance of the contract. The suit is required to be filed within three years from the date fixed by the parties under the contract. Since the application for amendment of the plaint came to be filed after the expiry of three years, certainly it changed the cause of action as required to be specified in the plaint. The suit for mandatory injunction is filed and the specific performance was sought for by way of an amendment. The cause of action is required to be stated initially in the plaint but it was not pleaded. It was sought to be amended, along with an application for specific performance which, as stated earlier, was rejected. Under these circumstances, even by the date of filing of the application, namely, 5-11-1992, the suit was barred by limitation. The High Court, therefore, was right in refusing to permit the amendment of the plaint." 24. Article 54 of the Limitation Act not only postulates that limitation would began from the date fixed for performance thereof but also in absence of such date having fixed from the date when the performance is refused. It is an admitted position that there is no stipulation of time fixed in the contract. It is too early to say that the avoidance is to be interpreted as refusal in absence of the counter pleading of the defendant and the evidences to be adduced by the respective parties. In case of Hardesh Ores Pvt Ltd; (supra), the Supreme Court held that any addition or subtraction or reading of the plaint in isolated manner to find out whether the suit is hit under Order 7 Rule 11 (d) of the Civil Procedure Code, should be avoided and observed: "25. In case of Hardesh Ores Pvt Ltd; (supra), the Supreme Court held that any addition or subtraction or reading of the plaint in isolated manner to find out whether the suit is hit under Order 7 Rule 11 (d) of the Civil Procedure Code, should be avoided and observed: "25. The language of Order 7 Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that "law" within the meaning of clause (d) of Order 7 Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 Order 7 is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. As observed earlier, the language of clause (d) is quite clear but if any authority is required, one may usefully refer to the judgments of this Court in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I and Popat and Kotecha Property v. State Bank of India Staff Assn." 25. Prior to the above decisions, the Supreme Court in case of Balasaria Construction Pvt Ltd; (supra) observed that the question of limitation is essentially a mixed question of fact and law as under: "8. Ltd. v. M.V. Sea Success I and Popat and Kotecha Property v. State Bank of India Staff Assn." 25. Prior to the above decisions, the Supreme Court in case of Balasaria Construction Pvt Ltd; (supra) observed that the question of limitation is essentially a mixed question of fact and law as under: "8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time. The findings recorded by the High Court touching upon the merits of the dispute are set aside but the conclusion arrived at by the High Court is affirmed. We agree with the view taken by the trial court that a plaint cannot be rejected under Order 7 Rule 11(d) of the Civil Procedure Code." 26. In case of Natarajan (supra), it is held that where an application is made for rejection of the plaint on the ground that the suit is barred by law, the proper course to be adopted in such cases is to treat the averments made in the plaint to be correct and then to find out whether it is hit by law. It would be apt to refer Paragraphs 8 & 9 of the said judgment which runs thus: "8. An application for rejection of the plaint can be filed if the allegations made in the plaint even if given face value and taken to be correct in their entirety appear to be barred by any law. The question as to whether a suit is barred by limitation or not would, therefore, depend upon the facts and circumstances of each case. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. (See Popat and Kotecha Property v. SBI Staff Assn.) 9. For the said purpose, only the averments made in the plaint are relevant. At this stage, the court would not be entitled to consider the case of the defence. (See Popat and Kotecha Property v. SBI Staff Assn.) 9. Applicability of one or the other provision of the Limitation Act per se cannot be decisive for the purpose of determining the question as to whether the suit is barred under one or the other article contained in the Schedule appended to the Limitation Act." 27. The principles have been reiterated by the Supreme Court in case of Bhau Ram (supra) in these words: "13. In order to ascertain an answer for the above question, we have to consider whether the application under Order 7 Rule 11 CPC filed by the defendant can be decided merely on the basis of the plaint and whether the other materials filed by the defendant in support of the application can also be looked into. The trial court allowed the application of the appellant-Defendant 1 filed under Order 7 Rule 11 CPC on the ground that the plaint was barred under the provisions of Order 9 Rules 8 and 9 CPC and Order 23 Rules 1(3) and 1(4)(b) CPC. The said order of the trial court was set aside by the first appellate court on the ground that the trial court had taken the pleas from the written statement of the defendant which is not permissible under Order 7 Rule 11 CPC and the High Court in the second appeal confirmed the judgment of the first appellate court." 28. The law enunciated above are uniform that the Court should confine its consideration when the plaint is sought to be rejected in Order 7 Rule 11(d) of the Code to the averments in the plaint which should be read as a whole without addition and/or subtraction of any word averred therein. In order to arrive at the finding that the plaint is barred by law something more than the mere meaningful reading of the plaint is necessary, the plaint should not be rejected at threshold. 29. It is seriously contended that the suit has been undervalued in relation to an agreement where the consideration money is more than 27 lakhs and odd. It is said that the valuation or suit at Rs. 29. It is seriously contended that the suit has been undervalued in relation to an agreement where the consideration money is more than 27 lakhs and odd. It is said that the valuation or suit at Rs. 200/- in respect of the agreement for sale where the entire consideration was agreed at Rs. 27 Lakhs is liable to be rejected. 30. The reliance is placed heavily on a Division Bench judgment of this Court in case of Manthan Brand Band Services Pvt. Ltd and another v. C.K.T Communications Pvt Ltd; reported in AIR 2005 Cal 317 . A suit for declaration that the defendants therein have no right to change the position and frequency of the channel of the plaintiff in terms of the agreement dated November 5, 2009 and further declaration that the defendants are not entitled to claim a sum of Rs. 24 Lakhs per annum towards promotional charges without assigning any reasonable and concrete reason. The suit therein was valued at Rs. 100/-. Challenging an order of the mandatory injunction filed therein, the appeal came to be filed before this Court and a point is taken that when a demand of Rs. 24 Lakhs was the subject matter of the suit, the same ought to have been valued at Rs. 24 Lakhs and not at Rs. 100/-. In the above perspective, it is held: "16. After going through the aforesaid averments made in paragraphs 51 and 52 of the plaint it is clear that on its own showing, the plaintiff alleged that the cause of action arose finally on February 22, 2005 when in spite of receipt of sum of Rs. 85,850/- the defendants demanded a further sum of Rs. 24 lakh per annum from the plaintiffs and threatened to disconnect the transmission of the plaintiffs' channel. 17. Therefore, in a suit alleging the aforesaid cause of action there was no just cause of valuing the suit at Rs. 50 for declaration and a further sum of Rs. 50 for injunction. On the basis of the averments made in the plaint itself, the suit should have been valued at least Rs. 24 lakh and if that be so, the City Civil Court at Calcutta had no pecuniary jurisdiction to entertain the suit. 50 for declaration and a further sum of Rs. 50 for injunction. On the basis of the averments made in the plaint itself, the suit should have been valued at least Rs. 24 lakh and if that be so, the City Civil Court at Calcutta had no pecuniary jurisdiction to entertain the suit. Therefore, on the face of the plaint allegations, the suit is grossly undervalued and thus, we find substance in the contention of learned advocate for the appellants that the learned Trial Judge should not have entertained the application for temporary prohibitory injunction or mandatory injunction but in stead, ought to have returned the plaint for presentation before appropriate forum." 31. Section 7 (iv) of the West Bengal Court Fees Act, 1970 requires the suit for declaration to be valued on an amount at which the plaintiff values the relief sought. There is no standard mode of valuation for such declaratory decree otherwise provided in the said section. Some freedom is given to the plaintiff to value the relief. Section 7 (xii) of the West Bengal Court Fees Act makes it imperative to value the suit for specific performance of a contract for sale according to the amount of consideration. There is essentially a distinction between the suit which is apparently undervalued in relation to the subject dispute and a suit which is otherwise correctly valued but by allowing an amendment of the pleading, the valuation would exceed the pecuniary jurisdiction of the Court. In former case, the Court lacking pecuniary jurisdiction shall not entertain an application for amendment even by abandoning the part of the claim or incorporation of further relief which is required to be valued under the West Bengal Court Fees Act. [See Mst Zohra Khatoon v. Janab Mohammad Jane Alam & Ors; reported in AIR 1978 Cal 133 (DD) and Md. Ali v. R. Bibi reported in 1983 (2) CHN 7 (DD)]. It would be proper for the Court to return the plaint as well as an application for amendment to be presented before the appropriate Court having jurisdiction. In later case, the Court shall allow an application for amendment and, thereafter, shall return the plaint for being presented before the Court having jurisdiction. 32. It would be proper for the Court to return the plaint as well as an application for amendment to be presented before the appropriate Court having jurisdiction. In later case, the Court shall allow an application for amendment and, thereafter, shall return the plaint for being presented before the Court having jurisdiction. 32. The declaration which is sought in the present case is mere declaration of the subsistence of an agreement for sale and an application seeking relief of specific performance of such agreement is still pending. In case of any inconsistency in valuing the suit, the Court can make an inquiry and determine the correct valuation under Section 11 of the West Bengal Court Fees Act. Where the plaintiff has stated the amount at which he values the relief claim, the Court would not ordinarily interfere with such valuation unless the valuation is palpably absurd, manifestly illegal or arithmetically wrong. 33. All the points, so canvassed, did not find the favour of the petitioner. The Trial Court, in my opinion, has not committed any error in rejecting an application under Order 7 Rule 11 of the Code. None of the points taken before this Court warrants the interference with the impugned order. 34. The revisional application, therefore, fails. 35. However, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.