Supreme Court Clarifies Principles Governing Plea Of Demurrer

In a detailed pronouncement, the Supreme Court has crystallised the governing principles on the plea of demurrer - a legal plea that tests the sufficiency of a claim in law without questioning the truth of the facts pleaded. In other words, by taking a plea of demurrer, the other party questions the validity of the legal claim, on the assumption that the facts pleaded are correct. The bench comprising Justice JB Pardiwala and Justice KV Viswanathan held that a demurrer is a legitimate procedural tool to challenge the legal sufficiency of a claim at the outset, but it must be confined to pure questions of law apparent on the face of the pleadings. Questions of fact, or mixed questions of fact and law cannot be decided based on demurrer. The decision on an issue like limitation, when it is a mixed question of facts and law, on demurrer, will not foreclose a subsequent re-opening of the issue for a determination on merits.The judgment authored by Justice Pardiwala summarised the position of law prevailing in India on demurrer as follows :(i) The plea of demurrer is an act of objecting or taking exception or a protest. It is a pleading made by one party which “assumes” the truth of the matter as alleged by the opposite party, but sets up that it is insufficient in law to sustain the claim, or that there is some other defect in the pleadings which constitutes a legal reason as to why the suit must not be allowed to proceed further. In other words, that even assuming those facts as pleaded are true, the court does not have jurisdiction as a matter of law. The party raising the plea challenges legal sufficiency of a complaint/plaint/action rather than its factual accuracy. (ii) To put it simply, a decision on demurrer has to be determined ex-facie the plaint.(iii) The decision of this Court in Man Roland Druckimachinen AG v. Multicolour Offset Ltd. and Another reported in (2004) 7 SCC 447 brought to the fore an important perspective – that only certain objections are capable of being decided by way of demurrer. Only those objections which do not involve questions of facts nor the adducing of any further evidence, could be decided by way of demurrer.(iv) The rule that when a mixed question of law and fact is decided on the basis of a demurrer, the issue would not be permanently foreclosed was also inherent in the decision of this Court in Indian Mineral & Chemical Co. and Others v. Deutsche Bank reported in (2004) 12 SCC 376(v) This Court in Ramesh B. Desai and Others v. Bipin Vadilal Mehta and Others reported in (2006) 5 SCC 638 was directly concerned with the issue of limitation being decided by way of demurrer and it directed attention to the mandate under Order XIV Rule 2 which provides that only if the court is of the opinion that the case or any part thereof may be disposed of on a pure issue of law alone, it may try that issue first. This issue of law can very well be whether the suit is barred by limitation or not,but, provided that such a question of limitation is purely an issue of law.(vi) The parallel between an issue of limitation raised by way of demurrer and an application for rejection of plaint under Order VII Rule 11(d) CPC was drawn for the first time in Ramesh B. Desai (supra). Disputed questions cannot, as a matter of rule, be decided while considering an application filed under Order VII Rule 11(d). What has to be decided is whether on the face of it, the averments made in the plaint, without any doubt or dispute, show that the suit is or is not barred by limitation or any other law in force. (vii) This Court in Ramesh B. Desai (supra) went on to discuss the nature of a plea of limitation. It was stated that “a plea of limitation cannot be decided as an abstract principle of law divorced from facts, as in every case, the starting point of limitation has to be ascertained, which is entirely a question of fact”. Therefore, it was reiterated that, more often than not, a plea of limitation would be a mixed question of law and fact. Therefore, there may arise situations wherein it cannot be decided whether the suit could be dismissed as barred by limitation or not without the aid of proper pleadings, the framing of an issue of limitation and the taking of evidence. In other words, it cannot be decided ex-facie the plaint. (viii) Therefore, it is inherent in the nature of a decision as regards the rejection of a plaint that, if the court deems it fit to not reject the plaint at the threshold upon an examination of the averments in the plaint, the ground that the suit is still barred by any law can be taken by the defendant in the course of the suit proceedings, after leading evidence. (ix) This is because the defendant is not given an opportunity to put forward his defence as regards the issue that the suit is barred by any law, on record, during the Order VII Rule 11(d) stage. Even if he does, the court would not look into the defendant's written statements or any evidence which he may want to...

Supreme Court Clarifies Principles Governing Plea Of Demurrer

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