Institute of Legal and Management Studies

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 adduce. Therefore, a decision which goes against him, at the preliminary stage, without giving him an opportunity to properly defend it, must not be to his detriment. Since a plea of demurrer is akin to an application made under Order VII Rule 11(d), the same principles must apply.

(x) It cannot be said that at the stage of rejection of plaint, the defendant/respondent chooses to waive his right to plead and instead, adopts the course of only testing the sufficiency of the plaint in law. At this stage, there is no choice between either pleading or demurring and the defendant/respondent cannot be taken to have elected to demur instead of pleading. This is simply because, there exists no burden of proof on him, at that stage, to plead. He can simply pause or wait for the plaintiff to prove the sufficiency of his claim in law, without affecting his right to plead or lead evidence in the future.

(xi) In Kanhaya Lal v. The National Bank of India Ltd. reported in 1913 SCC OnLine PC 4, the Privy Council clarified that, while the decision on the objection or the plea raised by way of demurrer would be given assuming that the averments of the plaint are true, the defendant, would simultaneously reserve the right to show that these allegations are either wholly or partially false in the further stages of the action, should his objection be overruled. However, insofar as the decision on the objection which is raised as a preliminary point is concerned, everything stated in the plaint would be taken as true. In other words, the Privy Council had unequivocally and clearly stated that a decision on a mixed point of law and fact, taken by way of demurrer, would not be foreclosed in a situation where the party taking such a plea is unsuccessful.

(xii) The Calcutta High Court in Angelo Brothers Limited v. Bennett, Coleman and Co. Ltd. & Anr. reported in 2017 SCC OnLine Cal 7682 also buttressed that when a defendant/respondent raises a plea by way of demurrer, it cannot be said that it constitutes an admission of the facts in the suit or the application, whose dismissal is sought for, for all times to come. In other words, the assumption made while seeking a decision on a preliminary point cannot be said to have the consequence of such an applicant forfeiting his right to contest the case later. Such an assertion cannot be made by adverting to the principles contained in Order VIII because a decision herein is sought for on a point of maintainability and not on the merits of the matter.

Also from the judgment - Decision On Limitation Made On Demurrer Not Final; Party Autonomy In Arbitration Cannot Override Statute: Supreme Court

Case Title: Urban Infrastructure Real Estate Fund v. Neelkanth Realty Pvt. Ltd. & Ors.

Citation: 2025 LiveLaw (SC) 1028

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