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2010 DIGILAW 1352 (CAL)

Vinay Krishna Arora v. A. N. G. Estate Developers

2010-11-24

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THIS application under Article 227 of the Constitution of India is directed against an order being No.28 dated 19th February, 2010 passed by the Learned Civil Judge, Senior Division, Second Court at Barasat in title Suit No.220 of 2007 by which the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant no.1, was rejected on contest. The said defendant is aggrieved by the said order. Hence the instant application was filed by the defendant before this court. 2. HEARD Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner and Mr. Banerjee, learned Senior Counsel, appearing for the plaintiffs/opposite parties. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. The plaintiffs filed a suit for specific performance of contract against the defendants. Various other reliefs were claimed by the plaintiffs in the said suit apart from the relief for specific performance of the contract. The reliefs which were claimed by the plaintiffs in the said suit are as follows: a) A decree for specific performance of contract in respect of 53% of the land area with proportionate structure standing thereon as per contract at the scheduled property. b) A decree for specified portion allowing 53% of schedule property according to flats along with common area and facilities granting absolute interest to the plaintiffs to that extent. c) A decree declaring that none of the defendants have right title or interest in respect of 53% of the schedule land and building constructed thereon or that any document executed thereby affecting 53% of the property is not binding on the plaintiffs. d) A decree declaring that such deed or deeds if found to have been executed be cancelled and delivered up. e) A decree declaring that the plaintiffs as partners have acquired a good and equitable right title and interest upon the 53% of schedule land and building thereon. f) A decree declaring that the plaintiffs have acquired right to enjoy the schedule property to the extent of 53% thereof including right to re-transfer. g) A decree declaring that the plaintiffs are entitled to refund of Rs.21 Lakhs kept as refundable security with the defendants on a declaration of charge of 47% of the property in suit. f) A decree declaring that the plaintiffs have acquired right to enjoy the schedule property to the extent of 53% thereof including right to re-transfer. g) A decree declaring that the plaintiffs are entitled to refund of Rs.21 Lakhs kept as refundable security with the defendants on a declaration of charge of 47% of the property in suit. h) A decree for permanent injunction confirming the possession of the plaintiffs as well as restraining the defendants from transferring alienating or encumbering the schedule property in any manner whatsoever and/or to deliver possession thereof without the consent of the plaintiffs. i) A further decree for permanent injunction restraining the defendants from causing any construction or change of nature and character in any manner whatsoever without knowledge and consent of the plaintiffs. j) A temporary injunction in the manner as prayed for above; k) Appointment of receiver; l) Attachment before judgment; m) Cost of the suit; n) Any other relief or relief for which plaintiff is entitle to. 3. AFTER filing said suit, the plaintiffs filed an application for temporary injunction. The said application was allowed by the Learned Trial Judge by an order being No.6 dated 16th April, 2008. 4. SUBSEQUENTLY the defendant No.1 filed an application for modification of the said order. The application for modification of the said order, was rejected by the Learned Trial Judge on 7th July, 2008 vide order No.13. Both the aforesaid orders were challenged by the defendant no.1 by filing an appeal being F.M.A. No. 1456 of 2008 before this Hon’ble Court. The said appeal as well as a connected application being C.A.N. No.6395 of 208 were disposed of by the Division Bench of this Hon’ble Court on 10th June, 2009 whereby both the parties were restrained from transferring, alienating or encumbering the suit property in any manner with a further rider that there should not be any further construction in the suit premises till the disposal of the suit. While disposing of the said appeal, the Division Bench of this Hon’ble Court expressed its prima facie view about the bar of law in granting the relief for specific performance of contract in such a suit in view of the provision contained in Section 14(3)(C) of the Specific Relief Act, 1963. While disposing of the said appeal, the Division Bench of this Hon’ble Court expressed its prima facie view about the bar of law in granting the relief for specific performance of contract in such a suit in view of the provision contained in Section 14(3)(C) of the Specific Relief Act, 1963. While expressing their prima facie view regarding the bar of law in granting relief for specific performance of contract in such a suit, Their Lordships also noted that the relief by way of specific performance of contract was not the only relief which was claimed in the said suit, as the plaintiff has also prayed for declaration and permanent injunction apart from the relief for specific performance of contract. On the prayer of the learned Advocate, appearing on behalf of the respondent in the said appeal, liberty was given to the plaintiffs to file appropriate application for amendment of plaint with a rider that such application must be filed within a month from the date of disposal of the said appeal. This Court is informed by Mr. Banerjee, learned Senior Counsel, appearing for the plaintiffs/opposite parties that pursuant to the leave granted by the Division Bench of this Hon’ble Court, as aforesaid, an application for amendment of the plaint was filed by his client and the said application was also allowed and nobody has challenged the propriety of the said order before any Higher Forum. Thus according to Mr. Banerjee, the pleadings of the amended plaint are required to be considered for ascertaining the application filed by the defendant no.1 for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. I accept such submission of Mr. Banerjee. 5. ON perusal of the said application for rejection of plaint filed by the defendant no.1, this court finds that the said defendant prayed for rejection of the plaint on two-fold grounds, viz. (i) for non-disclosure of sufficient cause of action for the reliefs claimed in the suit and (ii) bar of law in maintaining the said suit, so far as the relief claimed in the said suit by way of a specific performance of contract is concerned. 6. (i) for non-disclosure of sufficient cause of action for the reliefs claimed in the suit and (ii) bar of law in maintaining the said suit, so far as the relief claimed in the said suit by way of a specific performance of contract is concerned. 6. THE defendants said application was rejected by the Learned Trial Judge by the impugned order being No. 28 dated 19th February, 2010 by referring to the order passed by the Division Bench of this Hon’ble Court in the Miscellaneous appeal being F.M.A. No. 1456 of 2008, as aforesaid. THE Learned Trial Judge held that since the Division Bench of this Hon’ble Court, while disposing of the said Miscellaneous Appeal passed an order of injunction till the disposal of the suit, the Learned Trial Judge did not find any cogent merit for rejection of the plaint. THE propriety of the said order is under challenged in this application. Let me now consider as to how far the Learned Trial Judge was justified in passing the impugned order in the facts of the instant case. It is no doubt true that while disposing of the said Miscellaneous Appeal, the Division Bench of this Hon’ble Court expressed its prima facie view about the bar of law in granting the relief for specific performance of contract in such a suit but at the same time the said Division Bench took note of the other reliefs claimed in the said suit apart from the relief by way of a specific performance of contract and passed the aforesaid interim injunction. 7. IT is settled law that an application for temporary injunction is considered on the basis of the prima facie case made out by the plaintiff in his said application. Thus the findings which were arrived at by the Court while disposing of an application of temporary injunction are tentative in nature and those findings are not conclusively binding upon the parties either at the time trial of the suit or at the time of disposal of the defendants application under Order 7 Rule 11 of the Code of Civil Procedure. Thus even if the Division Bench of this Hon’ble Court expressed its prima facie view with regard to the bar of law in granting relief for specific performance of contract in such a suit, such prima facie finding of the Division Bench of this Hon’ble Court is not conclusive and as such the same can not be a decisive factor for determining the merit of the defendants application for rejection of the plaint. 8. THIS Court holds that the prima facie view which was arrived at by the Division Bench of this Hon’ble court while disposing of the said appeal, is not at all relevant for the purpose consideration of the defendants application for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. While considering the defendants such application for rejection of plaint, Court is required to consider the pleadings made out by the plaintiffs in the plaint for ascertaining as to whether the pleadings made out therein constitute cause of action for the said suit, or not; or the suit is barred under any provision of law or not and if on consideration of the pleadings of the plaint only, the Court can come to the conclusion that the cause of action for the said suit has not been disclosed in the plaint or the suit as a whole is barred under the provision of any law then the Court has to reject the plaint. This test has not been applied by the Learned Trial Judge while dealing with the defendants said application under Order 7 Rule 11 of the Code of Civil Procedure. Neither the Learned Trial Judge considered as to whether the cause of action for the reliefs claimed in the said suit has been disclosed or not nor the maintainability of the said suit as a whole on the ground of bar of any law was considered by the Learned Trial Judge while disposing of the defendants said application under Order 7 Rule 11 of the Code of Civil Procedure. Without considering the merit of the defendants said application in the light of the discussion, as aforesaid, the Learned Trial Judge rejected the defendants said application by relying upon a tentative findings of the Division Bench of this Hon’ble Court regarding bar of law in granting one of the reliefs claimed in the said suit i.e. relief for specific performance of contact and that too with a wrong impression that as if the aforesaid prima facie finding which was arrived by the Division bench of this Hon’ble Court while disposing of the aforesaid miscellaneous appeal is the decisive factor for deciding the defendants application for rejection of plaint. 9. THE findings which were thus recorded by the Learned Trial Judge in support of its conclusion in the impugned order cannot be supported as the merit of the said application was not considered by the Learned Trial Judge at all. On the contrary the Learned Trial Judge was influenced by order passed by the Division Bench of this Court in the aforesaid appeal though the said order has nothing to do with the merit of defendants application under Order 7 Rule 11 of the Code of Civil Procedure. 10. UNDER such circumstances, this Court holds that the impugned order cannot be retained on record. The impugned order is thus set aside. The Learned Trial Judge is thus directed to reconsider the defendants said application under Order 7 Rule 11 of the Code of Civil Procedure in the light of the observation made herein above. The revisional application is thus disposed of. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.