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2007 DIGILAW 594 (CAL)

JASPAL SINGH v. DWINDER PAL SINGH

2007-08-03

MANIK MOHAN SARKAR

body2007
( 1 ) THIS application under Article 227 of the Constitution of India has been preferred against Order No. 59 dated 16. 11. 2006 passed by Sri P. K. Chakraborty, learned Judge, Bench II, City Civil Court, Calcutta. ( 2 ) THE applicants' case is that the opposite party initiated Title Suit being No. 409/2006 in the City Civil Court, Calcutta as a plaintiff and prayed for a preliminary decree for partition of his one-third share of the schedule property in the plaint by claiming those properties as left by their father being sole owner and specifically on the death of their father, the opposite party became the owner in respect of one-third share therein. The applicants appeared in the suit and filed application under Order 7 Rule 10 read with Order 7 Rule 11 of the Code of Civil Procedure for return or rejection of the plaint alleging that the property situated at Delhi originally belonged to Viranwali Anand who before her death executed her last Will and Te. stament on October 20, 1986 bequeathing the said Delhi property in favour of the petitioners who subsequently obtained probate thereon after contested hearing in M. P. C. Case No. 129/2001, subsequently re-numbered as M. P. C. Case No. 151/2003 in the Court of learned Additional district Judge at Delhi and thereby the petitioners became joint owner of the said properties. Petitioners further claimed that in their application that other properties are tenanted properties and the tenancy cannot be partitioned and, moreover, those properties under tenancy were also transferred in favour of the petitioners within the knowledge of the opposite party. Petitioners further claimed that under the said facts and circumstances, the averments made in the plaint by the opposite party does not disclose any cause of action against the petitioners to initiate the said partition suit and for that reason the petitioners prayed in the said application in the suit for rejection of the plaint. Petitioners further claimed that under the said facts and circumstances, the averments made in the plaint by the opposite party does not disclose any cause of action against the petitioners to initiate the said partition suit and for that reason the petitioners prayed in the said application in the suit for rejection of the plaint. The opposite party in course of contest in the probate proceeding in Delhi Court by filing objection thereto, and the plea was taken by him that they filed the suit for partition before the City Civil Court, Calcutta and also took the plea that the said will was manipulated document at the behest of the petitioners and before granting probate in the Will left by Viranwali Anand all those pleas of the opposite party were considered by the Probate Court. ( 3 ) PETITIONERS alleged that the learned Judge of the City Civil Court, calcutta without considering and discussing all those points raised in the said application under Order 7 Rule 11 of the C. P. C. , rejected the said application by order dated November 16, 2006 and being aggrieved thereon, the present application has been filed. ( 4 ) MR. M. L. Podder, learned Lawyer for the petitioners submitted by referring to the copy of the application under Order 7 Rule 11 of the C. P. C. that among the properties mentioned in the schedule of plaint, those mentioned in item Nos. 1, 2 and 3 in the schedule, were the tenancy right in respect of civil tenancies which cannot comeout within the purview of the partition suit since the tenancies are not partible under the law. Mr. Podder further referred to the properties in other items of the schedule of the plaint and among them the business of M/s. Goodwill Automobile originally was a partnership firm in which the father of the present applicants and the opposite party were the partners and after retirement of the opposite party another business at 19/1 A, Goabagan Street devolved upon the petitioners and the opposite party. Mr. Podder further stated that the opposite party was enjoying exclusively the tenancy at 6, Mangoe Lane by carrying one business therein under the name and style of 'manjit Auto parts' and these applicants are in exclusive use and enjoyment of the tenancy at 19/1 A, Goabagan Street. ( 5 ) MR. Mr. Podder further stated that the opposite party was enjoying exclusively the tenancy at 6, Mangoe Lane by carrying one business therein under the name and style of 'manjit Auto parts' and these applicants are in exclusive use and enjoyment of the tenancy at 19/1 A, Goabagan Street. ( 5 ) MR. Podder further submitted that since the business under the name and style as M/s. Anand Brothers is a partnership firm with the applicants as partners, such partnership business cannot be subject of any partition suit and the learned Trial Court has no jurisdiction to the claim of partition of such partnership firm of which the opposite party was not a partner ever. Mr. Podder submitted that since the properties are not partible, the suit filed by the opposite party is barred under the law of partition and for that reason the applicants claimed before the learned trial Court for rejecting the plaint under the provision of law under Order 7 rule 11 (d) of the Code. ( 6 ) MR. Podder further submitted that if the entire plaint cannot be rejected, a partial rejection of the same may be made in. respect of the properties which is under tenancy of the parties since the tenancy is not partible and cannot be the subject-matter of a partition suit. It is claimed by Mr. Podder that such partial rejection of plaint is permissible in law and thereupon made reliance over a decision reported in 2006 (4) CHN 833 of a Division Bench of this Hon'ble Court and submitted that in the said decision two causes of action in the same suit raised the question of maintainability in the suit itself and on the not pressing of one of the causes of action by a party, the suit was held to be maintainable in the said decision. ( 7 ) MR. Probal Kumar Mukherjee, learned Advocate for the opposite party submitted that the petitioners filed the application under Order 7 rule 10 read with Order 7 Rule 11 (d) of the Code of Civil Procedure, praying for an alternative relief for rejection of the plaint or return of the same and it is specifically submitted by Mr. ( 7 ) MR. Probal Kumar Mukherjee, learned Advocate for the opposite party submitted that the petitioners filed the application under Order 7 rule 10 read with Order 7 Rule 11 (d) of the Code of Civil Procedure, praying for an alternative relief for rejection of the plaint or return of the same and it is specifically submitted by Mr. Mukherjee that the grounds taken in the said application do not attract the provision of Order 7 Rule 11 (d) of the Code and essentially the contention on merits was pertaining to the jurisdiction only. Mr. Mukherjee further submitted that the claim of the applicants for rejection of the plaint should not be entertained since the relief under Order 7 Rule 11 goes either way, by way of rejection of the entire plaint or to entertain it fully. Part rejection has not been encouraged under the provision of law. ( 8 ) IN this context, Mr. Mukherjee relied upon a decision reported in 2004 (3) SCC 137 , Sopan Sukhdeo Sable and Ors. v. Assistant Charity commissioner and Ors. Wherein the Hon'ble Apex Court held:-"it is trite law that not any particular plea has to be considered, and the whole plaint has to be read. As was observed by this Court in Roop Lai Sathi v. Nachhattar Singh Gill only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. " ( 9 ) MR. Mukherjee referred further observation by the Hon'ble Apex court in the said decision in the following manner:-"as noted supra, Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with "striking out pleadings. " It has three clauses permitting the Court at any stage of the proceeding to strike out or amend any matter in any pleading i. e. (a) which may be unnecessary, scandalous, frivolous or vexations, or, (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or, (c)which is otherwise an abuse of the process of the Court. " ( 10 ) IN course of his submission, Mr. " ( 10 ) IN course of his submission, Mr. Mukherjee further relied upon another decision reported in 2005 (7) SCC 510 , Popat and Kotecha property v. State Bank of India Staff Association and referred to the observation by the Hon'ble Apex Court in the said decision as following:-"the trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexations and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. " ( 11 ) MR. Mukherjee further submitted that the Hon'ble Apex Court in the said decision observed that:-"there cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as'a whole to ascertain its true import. 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. " ( 12 ) MR. Mukherjee concluded his submission by claiming that the plea of the applicants about the absence of any right or title of the present opposite party in any of the properties mentioned in the schedule of the plaint, or any other property therein being not partible, can be taken in their pleading in the style of written statement and not otherwise to defeat the claim of the present opposite party in the partition suit and that the applicants cannot take the plea of rejection of the plaint under Order 7 rule 11 (d) of the Code either wholly or partly. ( 13 ) MR. Mukherjee submitted that besides claiming partition of the properties in the schedule of the plaint, the opposite party as plaintiff in the suit, also prayed for inventory of the properties and decree for accounts. ( 14 ) I have considered the submission of the respective parties in the present application. ( 13 ) MR. Mukherjee submitted that besides claiming partition of the properties in the schedule of the plaint, the opposite party as plaintiff in the suit, also prayed for inventory of the properties and decree for accounts. ( 14 ) I have considered the submission of the respective parties in the present application. The provision of Order 7 Rule 11 (d) of the Code provides:-" (d) Where the suit appears from the statement in the plaint to be barred by any law. " ( 15 ) THIS provision of rejection of the plaint is not extended to the question on jurisdiction or limitation of the plaint but this provision has been attracted only in those cases where the submission of a plaint has been specifically barred by any provision of law. It may be the absence of compliance of any statutory or mandatory provision before filing a plaint like giving any statutory notice under different provisions of law or where the specific provision has been given to a particular forum for presentation of plaint and it has filed to some other forum having no statutory or mandatory jurisdiction like a suit under Section 92 of the C. P. C. if filed before a Court of the learned Civil Judge. ( 16 ) FURTHER rejection of plaint may be entertained in those suits where return of the plaint as per provision of Order 7 Rule 10 is hot possible for want of proper jurisdiction of the Court. The absence of a positive statement in the plaint to make the suit barred by any law, cannot lead a plaint to be rejected by simple plea from the contesting opposite party that the plaintiff has no right in the relief claimed in the suit. That right is to be defended in course of hearing of the suit by presentation of the positive case on the side of the contesting defendant through pleading. ( 17 ) I have also considered the submissions made on behalf of the applicants by Mr. Podder that some of the properties in Delhi belonged to the applicants by virtue of a property on a Will left by their mother in their favour. ( 17 ) I have also considered the submissions made on behalf of the applicants by Mr. Podder that some of the properties in Delhi belonged to the applicants by virtue of a property on a Will left by their mother in their favour. Exclusion of right over a joint property by way of particular documentation cannot lead to the claim by the defendant in a suit for rejection of the plaint but he can employ his defence and produce the positive evidence in his favour over acquisition of such title to exclude the plaintiff from the claim of the partition of the share out of the said property. ( 18 ) I have gone through the order passed by the learned Trial Judge and I am also of the same view of the learned Trial Judge that in the midst of claim and counter-claim of the property in a partition suit being partible or not partible, cannot be decided in the application under Order 7 Rule 11 of the C. P. C. , since the scope of the said application is different from such investigation. I am also of the same view with the learned Trial Judge that the present applicants being defendants in the suit could not produce any provision of law which bars presentation of the plaint in view of the provision of Order 7 Rule 11 (d) of the Code. ( 19 ) IN consideration of the decision referred by the respective parties, i am of the view that the decision relied upon by the applicants reported in 2006 (4) CHN 833 is not at all applicable in the present context. In consideration of the claim of the applicants that if the entire plaint cannot be rejected, at least the portion of the relief claimed in respect of the partition of the tenancy to be rejected, following the decision relied upon by the opposite party in 2004 (3) SCC 510, I am also of the same opinion that if a plaint is to be rejected, it should be done as above and it cannot be done by way of dissection and compartmentalization. ( 20 ) SO, I do not find any reason to interfere with the finding of the learned Trial Judge in rejecting the application under Order 7 Rule 10 read with Order 7 Rule 11 of the C. P. C. since there is no reason for return of the plaint or rejection of the same. Thus, the present application is dismissed.