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2000 DIGILAW 152 (CAL)

UCO Bank v. Poddar & Sharof

2000-03-28

KALYAN JYOTI SENGUPTA

body2000
JUDGMENT 1. This Motion has been taken out by the defendant No.4 who was subsequently added as a party defendant for dismissal of the aforesaid suit on the ground that the suit has become infructuous and further the plaintiff has not taken proper steps in the suit for its hearing though it is an old one as it was filed on 4th May, 1983. 2. Mr. Das, learned Senior Counsel, in support of this Motion submits that the plaintiff filed a suit for specific performance of an agreement dated 10th February, 1976 for execution and registration of lease in favour of the plaintiff for use and occupation of the ground floor and basement measuring 2,170 squire fit and 510 squire fit respectively of carpet area together with strong room in the premises No.10, Belvedere Road, Alipore, Calcutta for a period of 10 years with option for renewal a further period of 10 years. The further relief has been prayed for in the suit in terms of the aforesaid agreement, in the nature of declaration of rights and obligations of the parties in connection with repayment of loan and for payment of rent. 3. Mr. Das argues that during pendency of this suit for more than 20 years, the rights in terms of the aforesaid agreement for obtaining lease for 20 years at the longest, has now stood extinguished in view of passage of time. The plaintiff admittedly in terms of the aforesaid agreement has already adjusted the agreed amount of rent as against the loan amount together with interest, payable by the original defendants. So, in substance nothing remains for trial and/or adjudication of this suit. In the aforesaid situation it is useless to keep the suit pending and precisely for this reason the plaintiff has not taken any step forgetting the suit heard either by discovering any documents or otherwise. 4. The learned Master placed the matter for disposal of the suit by this Court in view of the aforesaid failure of the plaintiff. In support of his submission Mr. Das has relied on a decision of the Supreme Court reported in 1976 (1) SCC 112 . 5. Mr. Ajoy Krishna Chatterjee, learned Counsel, while opposing this Motion contends that it is true that 20 years have gone by but there are valid reasons for not taking step. In support of his submission Mr. Das has relied on a decision of the Supreme Court reported in 1976 (1) SCC 112 . 5. Mr. Ajoy Krishna Chatterjee, learned Counsel, while opposing this Motion contends that it is true that 20 years have gone by but there are valid reasons for not taking step. The relief for specific performance for execution and registration of conveyance of lease is not the only relief asked for in the plaint, other reliefs are there for adjudication. Moreover, the adverse decision of this suit in this summary procedure will adversely affect the defence of his client taken in the ejectment suit which has been transferred to this Court for its trial. He draws my attention to the other reliefs claimed in the plaint for ascertainment of liability and obligation of the defendant No.1 and direction upon the defendants to liquidate the loan amount together with interest and also for declaration of mutual rights and obligations of the parties herein under clauses 8 and 9 of the said agreement. As regards failure to discover document on part of the plaintiff is concerned, he argues, the present petitioner has been added as a defendant lately in 1995 and the other defendants have not however been contesting the suit as they have washed off their hands by assigning their interest in favour of the present defendant. Strictly, speaking the defendant No.4 being the petitioner herein is only the contesting defendant and so the present suit is deemed to have been filed against this petitioner in 1995. So, there is no inordinately delay so to say as wrongly highlighted. In any event, the Court has discretion if the suit is placed under special list, either to dismiss or to pass appropriate order. His client has already taken steps for discovering documents by filing an application and the same is pending. Besides there is no provision under the law for dismissal of the suit in this manner. This application has not been taken out either under Order VII Rule 11 of the Code of Civil Procedure or under any provision of the law. The inherent power of the Court under Section 151 cannot be stretched too far to ignore the expressed provision of the law. 6. I have heard the respective submissions of the learned Counsels. Mr. This application has not been taken out either under Order VII Rule 11 of the Code of Civil Procedure or under any provision of the law. The inherent power of the Court under Section 151 cannot be stretched too far to ignore the expressed provision of the law. 6. I have heard the respective submissions of the learned Counsels. Mr. Chatterjee has raised a question of procedural irregularity for entertaining this application and the same requires my first consideration. 7. It is true that this application has not been taken out under Order VII Rule 11 of the Code of Civil Procedure for rejection of plaint. But, I am dealing with this suit for passing appropriate orders since it has been placed under special list under the Rules of this Court. Admittedly, there is a failure on part of the plaintiff in taking proper steps for getting the suit heard. Once the suit is placed under the special list under Chapter X Rule 35 of Original Side, the Court has discretion either to dismiss the suit or to pass appropriate order without dismissing the suit. The language of Rule 35 of Chapter X of this Court is clear enough for me to come to above conclusion. My above view is supported by a decision of this Court rendered while dealing with an appeal and reported in AIR 1986 Cal 298 . The Division Bench of this Court has laid down in its Paragraph 24 as follows: – "Rule 35 of Chapter X (wrongly mentioned as 31) of the Rules empowers the Judge to dismiss the suit for default unless good cause is shown to (he contrary or to otherwise deal with the matter as the Judge may think proper. Disposal of suits for want of prosecution. Marginal note makes it clear that proposal does not mean only dismissal." 8. While applying the aforesaid principle I am to examine on the facts and circumstances of this case whether I should dismiss this suit or should pass appropriate orders on the given facts and circumstances of this case in totality. 9. The defendant No.4 has stated on oath in Paragraphs 25 and 26 of the petition that there nothing remains for granting any relief to the plaintiff because of the passage of time. It appears to me that the plaintiff has not taken any step for getting the suit heard expeditiously. 9. The defendant No.4 has stated on oath in Paragraphs 25 and 26 of the petition that there nothing remains for granting any relief to the plaintiff because of the passage of time. It appears to me that the plaintiff has not taken any step for getting the suit heard expeditiously. At the belated stage, the plaintiff of course has taken out an application for discovery of documents. Therefore, the inaction for a long period of more than 20 years cannot be termed to be a diligent conduct on part of the plaintiff. The Court will exercise discretion in favour of litigant not dismissing the suit where the litigant is not at fault nor does lack diligence. But, in this case apart from the question of diligence I am to examine from the plaint and other attendant facts and circumstances whether there is any substance in claim and contention of the plaintiff on a changed circumstances which has taken place during pendency of the suit. If at any time before the suit is taken up for final hearing, it is brought to the notice of the Court that there is no prospect of granting any relief then Court should not and shall not wait for formal trial. The Apex Court in a case reported in 1976 (1) SCC 112 , has observed in Paragraph 10 that question of granting reliefs by way execution of lease, which had become infructuous because of passage of time does not and cannot arise. 10. In this case it appears subject-matter of the agreement, the specific performance of which has been asked for relates to execution and registration of lease for 10 years with option for renewal for another period of 10 years from the date of execution of the aforesaid agreement, and the other reliefs relate to repayment of the loan with interest and/or adjustment of the rent payable by the plaintiff against the aforesaid loan amount. The aforesaid repayment of loan and adjustment of rent as against the loan amount have been provided in clauses 8 and 9 of the said agreement. The suit has been filed in the year 1983 with hope of getting a decree for specific performance of an agreement for execution of lease upto 1997 even, at the highest, adding renewal period of ten years. The suit has been filed in the year 1983 with hope of getting a decree for specific performance of an agreement for execution of lease upto 1997 even, at the highest, adding renewal period of ten years. So, as on today by passage of time granting of this relief is out of question. This case has been precisely made out in Paragraph 25 of the petition. The plaintiff, however, has merely denied and disputed such averment. It has been pleaded in Paragraph 26 so far other reliefs in the nature of declaration of the respective rights and obligations as regards repayment of loan and/or adjustment of loan as against the loan amount arising out of clauses 8 and 9 of the agreement are concerned, the same stand extinguished and/or discharged. The plaintiff, however, has not denied and disputed it specifically in its affidavit-in-opposition. In the affidavit in fact the plaintiff has not highlighted any issue or claim is left for trial or adjudication. On the aforesaid factual backdrop it appears to me that there remains nothing to be tried or adjudicated by this Court. So, if the suit is allowed to be kept alive for final hearing in formal way, the same would be an idle formality. All the law Courts in our country are overburdened with several lacs of litigations for various reasons. One of the reasons is the lackadaisical conduct of the indolent litigant. In this case plaintiff remains completely silent till January 2000 until the matter was placed under special list. Although there is no express provision to entertain this kind of application under law, but inherent power of the Court under Section 151 of the Code of Civil Procedure will come in aid to deal with this matter. It is a fit case, in exercise of my inherent power, I should not keep this suit alive till formal and final hearing. As such the suit is liable to be and be dismissed. Accordingly, there will be an order in terms of prayer (a). There will be no order as to costs.