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2010 DIGILAW 1428 (CAL)

Golok Lall Seal v. Dsk Real Estate Limited

2010-12-10

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THIS application under Article 227 of the Constitution of India is directed against an order dated 24th June, 2010, passed by the Learned Civil Judge, Senior Division, Eighth Court at Alipore, in Title Suit No. 1673 of 2009 by which the application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint filed by the defendant no.2 was rejected by the Learned Trial Judge. The said defendant is aggrieved. Hence he has come before this Court with this application. 2. HEARD Mr. Bagchi, learned Advocate for the petitioner and Mr. Ray Choudhury, learned Senior Counsel for the plaintiff/opposite party. Considered the materials on record including the order impugned. 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 well-settled that while considering an application under Order 7 Rule 11 of the Code of Civil Procedure, the Court is required to consider the pleadings made out by the plaintiff in the plaint alone and if on such consideration, the Court finds that any of the conditions as mentioned in Order 7 Rule 11 of the Code of Civil Procedure is attracted, the plaint can be rejected. Here is the case where the defendant no.2 prayed for rejection of the plaint on the ground that the suit is barred by law. As such the Court is required to consider the pleadings of the plaintiff for ascertaining as to whether the said suit is barred by any law or not. In fact, the instant suit was filed by the plaintiff seeking enforcement of the contract by specific performance against the defendant no.1. The plaintiff has also prayed for several reliefs by way of declaration and injunction against all the defendants/ opposite parties herein including some of the defendants with whom admittedly there was no contract with the plaintiff, in the following set of facts:- (i) Admittedly the suit property being premises No.35 Diamond Harbour Road, Kolkata-27 comprising of an area of 12 bigha, 2 kata, 3 chatak and 25 square feet of land was owned by the defendant no.1, 2 and predecessor in interest of the remaining defendants, namely, Gaganlal Seal, having 1/3rd share each in the said property. A suit for partition was filed by one of the said co-owners against the other co-owners in the Court of the Civil Judge, Senior Division, 1st Court at Alipore. The said suit which was registered as Title Suit no.7 of 1995 was decreed in the preliminary form on 26th May, 1997 declaring 1/3rd share of each of the said three brothers. By the said preliminary decree, the parties were given four months time to partition the suit property by meets and bounds, according to such declared share. Parties failed to partition the suit property by meets and bounds as per the said preliminary decree. Hence an application was filed for drawing up the final decree in the said partition suit. An Advocate Commission was appointed. He submitted his report in the said partition suit allotting the B schedule property in favour of the defendant no.1 and the remaining portion on the Northern side of the suit property was allotted in favour of the defendant no.2 and his other brother namely Gaganlal Seal. Finally the decree in the partition suit has not yet been drawn up. (ii) Before drawing up the final decree in the partition suit, an agreement to lease was entered into between the defendant no.1 and the plaintiff on 24th August, 2006 by which the defendant no.1 agreed to lease out the said B schedule property comprising of 25000 square feet of land on the Southern side of the suit property to the plaintiff for a period of 71 years with a right of renewal of the said lease. Pursuant to the said agreement of lease, a sum of Rs.5 lakh 51 thousand had already been paid by the plaintiff to the defendant no.1 by way of part payment of the consideration money and/or on account of the premium and on receipt of the said part payment of the premium money, the possession of the B schedule was given to the plaintiff and the plaintiff has erected several constructions on the said property. (iii) It is further agreed in the said agreement that the lease deed will be executed by the defendant no.1 in favour of the plaintiff immediately after the final decree is drawn up by the Court subject to payment of the balance premium money of Rs.69 lakhs 49 thousand to defendant No. 1. (iii) It is further agreed in the said agreement that the lease deed will be executed by the defendant no.1 in favour of the plaintiff immediately after the final decree is drawn up by the Court subject to payment of the balance premium money of Rs.69 lakhs 49 thousand to defendant No. 1. (iv) The plaintiff claimed that the said agreement was entered into between the plaintiff and the defendant no.1 with the knowledge and consent of the remaining defendants but the defendant no.1 with the active connivance of the remaining defendants are not taking any step for drawing up the final decree in the said suit in order to frustrate the plaintiffs right under the said agreement for lease. Apprehending that the defendants in collusion with each other may disturb the possession of the plaintiff and/or may also transfer the same in favour of the a stranger, the aforesaid suit was filed praying for a decree for specific performance of contract against the defendant no.1 and for declaration that the said agreement for lease dated 24th August, 2006 is binding on the other defendants and the lease which will be executed in terms of the said agreement in favour of the plaintiff by the defendant no.1 would also be binding on the other defendants. A decree for perpetual injunction was prayed for restraining the defendant no.1 and the other defendants their men, agents and servants from dealing with or disposing of or encumbering the suit property in any manner contrary to or inconsistent with the agreement for lease dated 24th August, 2006. A decree for perpetual injunction for restraining the defendant no.1 his servants, men and agents from dealing with and/or disposing of or encumbering and/or creating any third party interest in the suit property was also prayed for in the said suit. 3. MR. Bagchi, learned Advocate, appearing for the petitioner, submitted that the instant suit is not maintainable as the said suit was filed on a premature cause of action. 3. MR. Bagchi, learned Advocate, appearing for the petitioner, submitted that the instant suit is not maintainable as the said suit was filed on a premature cause of action. He contended that since the plaintiff itself admitted in this plaint that as per the said agreement the defendant no.1 was required to execute the lease deed in favour of the plaintiff after the final decree is drawn up in the partition suit, the cause of action for the said suit has not yet matured as admittedly final decree has not been passed in the partition as yet. 4. MR. Bagchi further contended that the instant suit is barred under Section 22 of the Specific Relief Act as the plaintiff has not prayed for any decree for partition in such a suit for specific performance of contract where admittedly relief for specific performance of contract cannot be granted unless the suit is partitioned by meets and bounds. Mr. Bagchi further contended that since admittedly the defendant no.2 and the predecessor in interest of the defendant nos. 3 to 6 were not parties to the agreement for sale and the suit property has not been partitioned by meets and bonds as yet, relief which is claimed in the plaint against those non-contracting defendants cannot be granted in this suit and the plaint of the instant suit so far as those defendants are concerned, being a vexatious one, should be rejected. 5. THESE are the three points urged by Mr. Bagchi, in support of his clients prayer for rejection of plaint. Mr. Roy Choudhury, learned Senior Counsel, appearing for the plaintiff/opposite party, refuted such submission of Mr. Bagchi by reading the entire pleadings made by the plaintiff in the plaint as well as the relief claimed therein. Mr. Roy Choudhury contended that the plaint will show that the plaintiff claimed several reliefs against the defendants. He contended that the relief by way of specific performance of contract is not the only relief which was claimed by the plaintiff in the said suit. He further contended that apart from the relief for specific performance of contract claimed against the defendant no.1, the plaintiff has also prayed for declaration and injunction against all the defendants concerning the said contract and/or to protect the plaintiffs right in the said property arising out of the said contract. He further contended that apart from the relief for specific performance of contract claimed against the defendant no.1, the plaintiff has also prayed for declaration and injunction against all the defendants concerning the said contract and/or to protect the plaintiffs right in the said property arising out of the said contract. He thus contended that if in a suit, it is found that one of the reliefs which was claimed by the plaintiff cannot be granted for any reason whatsoever, the plaint as a whole, cannot be rejected under Order 7 Rule 11 of the Code of Civil Procedure particularly when the sufficient cause of action has been made out in the said suit in support of the reliefs claimed by the plaintiff against the defendants therein. He thus contended that since in the instant suit sufficient cause of action has been made out by the plaintiff against all the defendants for several reliefs apart from the relief for specific performance of contract, the plaint of the instant suit cannot be rejected on the ground of its prematurity as contended by Mr. Bagchi. 6. WITH regard to the contention of Mr. Bagchi regarding the bar of law in maintaining this suit for not claiming any relief for partition in the suit for specific performance of contract, Mr. Roy Choudhury drew my attention to the proviso to Sub-Section 2 of Section 22 of the Specific Relief Act which provides that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceedings, allow him to amend the plaint on such term as may be just for including such relief in the suit. By referring to the said proviso Mr. Roy Choudhury submitted that this is too earlier a stage for concluding that for not claiming the reliefs for partition in such suit for specific performance of the contract, the plaint can be rejected at the initial stage of trial of the suit, in view of the proviso to Section 22(2) of the specific relief Act which provides that even at the stage of hearing of the suit, if the Court finds that relief for partition is necessary in such a suit, the Court may grant leave to the plaintiff to amend his plaint accordingly, instead of dismissing the said suit. Thus Mr. Thus Mr. Roy Choudhury submitted that the plaint cannot be rejected on this score also. Mr. Roy Choudhury further submitted that if the pleading made out in the plaint is read as a whole, it will be apparent from the plaint that allegations have been made against all the defendants including the contracting and non-contracting defendants and reliefs have also been claimed against both of them, as such it cannot be said that the suit is not maintainable for want of cause of action against the non-contracting defendants. Thus Mr. Roy Choudhury submitted that the revisional application is devoid of any merit and he also prayed for rejection of the same. 7. LET me now consider the submission of the learned Counsel of the respective parties in the facts of the instant case. It is rightly pointed out by Mr. Roy Choudhury that the instant suit was not filed by the plaintiff for enforcement of the contract only. The plaintiff claimed several other reliefs against both the contracting and non-contracting defendants on the basis of a definite cause of action for such reliefs. This Court is of the view that even if it is ultimately found that the relief for specific performance of contract cannot be granted in such a suit because of its prematurity but still then the relief which was claimed by the plaintiff against the defendants by way of declaration and injunction cannot be held to be based on premature cause of action. This Court fully agrees with the submission of Mr. Roy Choudhury that if in a suit, some reliefs can be granted and some reliefs cannot be granted because of any bar of any nature, plaint cannot be rejected. Thus this Court does not find any substance in the first contention of Mr. Bagchi as recorded above. 8. WITH regard to second contention of Mr. Bagchi regarding Section 22 of the Specific Relief Act, this Court holds that claiming relief for partition in a suit for specific performance of contract by the plaintiff is not mandatory under Section 22 of the Specific Relief Act as the said provision incorporates the expression may instead of shall therein. The use of the expression may in the said provision indicates that claiming such a relief for partition in a suit for specific performance of contract is not mandatory; rather it is obligatory on the part of the plaintiff. The use of the expression may in the said provision indicates that claiming such a relief for partition in a suit for specific performance of contract is not mandatory; rather it is obligatory on the part of the plaintiff. Then again the proviso to Sub-Section 2 of Section 22 of the said Act also makes it clear that the plaint cannot be rejected for not claiming the relief for partition in such a suit for specific performance of contract at this initial stage as the said proviso makes it clear that at the stage of the trial of the suit, if the Court finds that such a relief is necessary in the suit and in absence of such relief, decree for specific performance of contract cannot be granted effectively, then Court can give such leave to the plaintiff to amend his plaint. As such this Court also does not find any substance in such submission of Mr. Bagchi. With regard to the third contention of Mr. Bagchi this Court also does not find any substance in his said contention, as on reading the pleadings in the plaint, this Court finds that apart from the relief by way specific performance of contract, the plaintiff has also claimed several other reliefs on the basis of specific and definite cause of action for such reliefs against both the contracting and non-contracting defendants. When a definite cause of action has been made out by the plaintiff against all the defendants for the reliefs claimed in the said suit, this Court cannot reject the plaint by holding that the suit is vexatious, so far as the non-contracting defendants are concerned. 9. UNDER such circumstance, this Court holds that the revisional application deserves no merit for consideration. The revisional application thus stands rejected.