VITHALBHAI PVT. LTD.versusUNION OF INDIA

A                             VITHALBHAI PVT. LTD.                                       ~
                                           v.
                                  UNION OF INDIA

                                  MARCH 11, 2005
B
                    [R.C. LAHOTI, CJ. AND G.P. MATHUR, J.]


          Code of Civil Procedure, 1908:

        Premature suit-Power of Courts to entertain-Held: The power is
c discretionary-Court can entertain the premature suit if on the date offiling
    of written statement or passing of decree the plaintiff is found entitled to the
    relief prayed for in the plaint and no prejudice is caused to the defendant-
    However, if the defendant by acquiescence or waiver allows the suit to proceed
    ahead then he cannot be permitted to raise such a plea belatedly as that
D   would cause hardship, may be irreparable prejudice, to the plaintiff because
    of lapse of time.

          Plaintiff-lessor gave on lease an immovable property to the defendant
    for a fixed term expiring on 24.6.1984. Plaintiff sent a notice dt.26.9.1983 to
    the defendant to deliver the vacant possession ofleased property on 24.6.1984.
E   The defendant disputed the entitlement of plaintiff to demand possession.
    Thereafter, plaintiff filed suit for possession on 16.4.1984, twelve weeks before
    the date on which lease was to expire. The defendant filed written statement
    on 24.8.1984 pleading that the suit was premature and hence not maintainable.
    Single judge of the High Court decreed the suit. However, Division Bench            ~·
    reversed the judgment holding that suit was premature as it was based on
F   the cause of action, which w::is not ripe on the date of institution of the suit.
    Feeling aggrieved, the plaintiff filed the present appeal by special leave.

          Allowing the appeal, the Court

           HELD: 1. A suit based on a plaint which discloses a cause of action is
G   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. (686-A-BJ

          Bihari Chowdhary and Anr. v. State of Bihar and Ors., (1984] 2 SCC 6,27;
                                                                                        -
H                                         680                                            t
                        VITHALBHAI PVT. LTD. v. U.0.1.                        681

(Vaddadi) Butchiraju and Ors. v. Doddi Seetharamayya and Ors., AIR (1926)             A
Madras 377; A. T. Raghava Chariar v. O.M Srinivasa Raghava Chariar, (1917)
ILR 40 Mad. 308; (Mylavarapu) Rangayya Naidu v. Basana Simon and Ors.,
AIR (1926) Madras 594; Tarak Chandra Das and Anr. v. Anukul Chandra
Mukherjee, AIR (1946) Calcutta 118; Sankara Pillai v. Mathunni lttiera, (1958)
KLT 220; Kathringa v. Lonappan, (1969) KLT 334; Hameed v. lttoop, (1970)
KLT 501; V.N. Sarin v. Ajit Kumar Poplai, AIR (1966) SC 432; Themmalapuram            B
Bus Transport, Pa/ghat v. Regional Transport Authority, Pa/ghat and Ors., (1967)
KLT 122; Subbaraya Chetty v. Nachiar Ammal, (1918) VII LW 403; Zadba
Sadasheo Balpande v. Maharashtra Revenue Tribunal and Ors., (1964) Mh Ll
559 and Gurdit Singh and Ors. v. Munsha Singh and Ors., (197711 SCC 791,
referred to.                                                                          c
      2.1. 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   D
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.
                                                                        (689-B-DJ
                                                                                      E
       2.2. 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         F
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      G
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 has to 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 and if in the facts and
circumstances of the case it is necessary to drive the plaintiff to the need of       H
    682                     SUPREME COURT REPORTS                    (2005] 2 S.C.R.

A filing a fresh suit or grant a decree in the same suit. (689-E-HJ
          2.3. 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;
B   (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
                                                                                        ~··
C   confined to parties alone and affects and involves persons other than those         I
    arrayed as parties, such as in an election petition which affects and involves
    the entire constituency. One more category of suits which may be added to
    the above is : where leave of the Court or some authority is mandatorily
    required to be obtained before the institution of the suit and was not so
    obtained. (690-F-H; 691-A)
D
          Samar Singh v. Kedar Nath and Ors., [1987) Supp. SCC 663, relied on

          3. The act of the plaintiff filing the suit before 25.6.1984 cannot be said
    to br 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
E   plaintiff reasonably thought that a cloud was already cast on his entitlement
    to recover the property and he should promptly approach the Court. The
    defendant could have delivered the possession of the property to the plaintiff
    on or after 25.6.1984 - 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
F   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 pla_intiff 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
G   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 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 Single Judge.
H                                                                          (691-A-El
                   VITHALBHAI PVT. LTD. v. U.0.1. [LAHOTI, CJ.]                 683
         CIVIL AP PELLATE JURISDICTION : Civil Appeal No. 2390 of 2002.                A
         From the Judgment and Order dated 6.8.200 I of the Calcutta High
    Court in A. No. 352 of 1992.

         Ramesh Singh, Ms. Bela Maheshwari, Dipesh Aneja, P.L. Khaitan and
    O.P. Khaitan & Co. for the Appellant.                                              B
          Hemant Chaudhri and Sanjeev Malhotra for the Respondent.

          The Judgment of the Court was delivered by


-          R.C. LAHOTI, CJ. In respect of a property situated in the metropolitan
    city of Calcutta, a lease of immovable property for a fixed term commencing
     l.4.1964 and expiring on 24.6. I 984 evidenced by a registered deed of lease
                                                                                       C

    dated 17. 7. l 964, came into existence. The lessee entered into possession of
    the leased premises on l.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. I 984
    and, therefore, on that day the lessee must deliver vacant possession of the       D
    demised premises to the lessor. On 8. I I .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     E
    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        p
            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         G
           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.                                 H
    684                     SUPREME COURT REPORTS                   [2005] 2 S.C.R.

A           (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;

B           (f) Costs;

            (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
C   24.8.1984. One of the pleas taken in the written statement was that the suit
    was premature and hence vyas 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
D 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
E           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
F   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 (l 926)
    Madras 594). In the opinion of the learned Single Judge, no prejudice was
G   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 executabie
    only after 24th June, 1934.
H
                VITHALBHAI PVT. LTD. v. U.0.1. [LAHOTI, CJ.)                    685

      The defendant preferred an intra-court appeal. The Division Bench has             A
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          B
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   C
and the suit must be ofa civil nature excepting suits of which their cognizance
is either expressly or impliedly barred (See Section 9 of the Code of Civil
Procedure, I 908). Section 3 of the Limitation Act, I 963 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.              D
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 I I 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           E
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 the
present case the suit cannot be said to have been filed as premature on the             F
date of its institution. He submits that in the response dated 8.11.1983, the
defendant-respondent had clearly disputed the plaintiffs 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. rn the alternative, it was submitted that assuming that the suit was         G
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.

                                                                                        H
     686                     SUPREME COURT REPORTS                     [2005] 2 S.C.R.

A·         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
B    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
C    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 Anr. 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
D    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,
E    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
F                                                     ..
     while Rangayya Naidu 's case was decided on 7 .10. I 925 but the former
     decision though of ~ 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
G    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'riot happen.
H    Justice B.K. Mukherjea (as His Lordship then was) speaking for the Division
                VITHALBHAI PVT. LTD. v. U.0.1. [LAHOTI, CJ.]                687

Bench held that though the right must be an existing one, it need not necessarily   A
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    B
by the Court.

      Sankara Pillai v. Mathunni lttiera, (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               C
become subsequently redeemable it 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   D
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 l st        E
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        F
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 detennined as
on the date of the institution of the action.

       However, the Single Bench decision in Kathringa v. Lonappan, (1969)
KL T 334 was cited before a Division Bench of Kerala High Court in Hameed           G
v. lttoop, ( 1970) KL T 50 I and was overruled. The Division Bench fonned
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            H
    688                     SUPREME COURT REPORTS                    (2005] 2 S.C.R.

A   Bench relied on the decision of this Court in V.N. Sarin v. Ajit Kumar Pop/ai,
    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
B   tenant and thereby defeat the legislative intention of protecting tenants from
    unmerited evictions.

           A Full Bench of Kerala High Court in Themmalapuram Bus Transport,
    Pa/ghat v. Regional Transport Authority, Pa/ghat and Ors., (1967) KL T 122
C   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.

D              In Subbaraya Chetty v. Nachiar Amma/, (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., (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
E   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.
F         In Samar Singh v. Kedar Nath and Ors., [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
G   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 subsequent stage is
    not taken away.

          In Gurdit Singh and Ors. v. Munsha Singh and Ors., [1977] 1 SCC 791
H   it was held that the Court trying a premature suit does not suffer from inability
                VITHALBHAI PVT.LTD. v. U.0.1. [LAHOTI, CJ.]                   689

or incapacity to entertain the suit on the grounds of lack of jurisdiction.           A
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        B
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 jurisdii::tion 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.         C
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       D
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 - 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. E
The Court may reject the plaiot 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 F
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 G
shall not necessarily dismiss the suit. The Court would examine if any prejudice
has been caus~d 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 sl!it or grant a decree in the same suit inasmuch as it H .
    690                      SUPREME COURT REPORTS                    [2005] 2 S.C.R.

A 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 :

B          A suit of a civil nature disclosing a cause of action even if filed b~fore
    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
C   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 a!ly
    irreparable prejudice was caused to the defendant on account of the suit
    having been filed a little before the date on which the plaintiffs 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
D   explanation offered by the plaintiff for filing the suit 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
E   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
F   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
G   invalidity is incurable such as when it goes to the root of the Court's
    jurisdiction, and (iv) where the !is 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., [1987] Supp. SCC 663. One more category
H   of suits which may be added to the above is: - where leave of the Court or
                VITHALBHAI PVT. LTD. v. U.0.1. [LAHOTI, CJ.]                     691
some authority is mimdatorily required to be obtained before the institution             A
of the suit 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. l l.l 983 prompted the plaintiff in filing the suit
inasmuch as the plaintiff reasonably thought that a cloud was already cast on            B
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
- 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         C
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           D
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         E
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         p
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.

D.G.                                                              Appeal allowed.        G