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2010 DIGILAW 836 (CAL)

Rina Mukherjee v. Sabita Mukherjee

2010-07-20

TARUN KUMAR GUPTA

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Judgment :- Tarun Kumar Gupta, J.:- This revisional application under Article 227 of the Constitution of India is directed against Order No.12 dated April 18, 2005 passed by Sri A.K. Laha, Civil Judge (Senior Division) 1st Court, Krishnanagore in Title Suit No.159 of 2003. By the impugned order learned Trial Court rejected the application filed by the present petitioner/defendants praying for return of plaint under Order 7 Rule 10 read with 151 C.P.C. and also kept pending an application under Order 14 Rule 2 read with 151 C.P.C. filed by the present petitioner/defendants praying for framing a preliminary issue whether said Court had any territorial jurisdiction to try the suit. It is the case of the petitioner/defendants that the present plaintiff/O.P.s. claimed to be alleged first wife and son of late Ram Kinkar Mukherjee and approached his office West Bengal Agro Industries Corporation Limited for payment of his G.P.F. and other money to the O.P./palintiffs and that there were writ cases over the issue and that present defendant No.1 being the nominee was allowed to receive payment of G.P.F. and other dues of late Ram Kinar Mukherjee by the Hon’ble Court vide order dated 04.08.2003 as O.P./plaintiffs failed to bring any succession certificate or any decree of Court showing their entitlement to said money of Ram Kinkar Mukherjee. It is a case of the petitioner/defendants that the instant suit being Title Suit No.159 of 2003 in the Court of Krishnanagore was filed praying for declaring O.P./plaintiffs as married wife and son of late Ram Kinkar Mukherjee and also other reliefs against office of late Ram Kinkar Mukherjee alleging that the cause of action lastly arose on 04.08.2003 and subsequently thereafter within the jurisdiction of said Court. Learned Advocate Mr. Asit Kumar Bhattacharya for the petitioner/O.P.s. has submitted that no part of cause of action arose within the jurisdiction of said Court of Krishnanagore and accordingly those two petitions namely one for return of plaint and other for framing a preliminary issue as to the territorial jurisdiction of the Court and disposal of the same were filed and the learned Trial Court without any basis rejected the earlier petition and kept pending the second one. According to him the impugned order was bad in law and should be set aside by the Court of revision. Learned Advocate Mr. According to him the impugned order was bad in law and should be set aside by the Court of revision. Learned Advocate Mr. Tapas Bhattacharya for the O.P./plaintiffs on the other hand has submitted that cause of action is a bundle of facts and that it cannot be said that O.P./plaintiffs had no cause of action for filing said declaratory suit at Krishnanagore being their place of residence. According to him the petition filed by the present petitioner/defendants for framing of preliminary issue for lack of territorial jurisdiction by said Court has not yet been disposed of and has been kept pending with a direction for filing W.S. by the petitioner/defendants and that at this stage there is no scope of interference with said order. I have carefully considered submissions made by learned Advocates of both sides. Perused the petition and annexed documents. Admittedly, cause of action is a bundle of facts and it may not be possible in every case to fix up a specific date for arising of cause of action. As per plaint the cause of action arose lastly on 04.08.2003 and subsequently thereafter which only indicate that cause of action for said suit arose earlier also though the specific date was not stated therein. As both the applications namely application under Order 7 Rule 10 read with 151 C.P.C. praying for return of plaint on the ground of absence of territorial jurisdiction and the other petition under Order 14 Rule 2 read with 151 C.P.C. for framing a preliminary issue as to lack of territorial jurisdiction were interlinked, Learned Trial Court should have kept pending both the petitions and after filing of W.S. should have disposed of both the petitions. Accordingly, I am of the opinion that the impugned order 12 dated 18th April, 2005 is not sustainable so far as it relates to straightway rejection of petition filed by the present petitioner/defendants under Order 7 Rule 10 read with 151 C.P.C. when the other petition on similar point namely under Order 14 Rule 2 read with 151 C.P.C. was kept pending. In view of the above discussion the impugned order No.12 dated 18th April, 2005 passed by A.K. Laha, Civil Judge (Senior Division), First Court, Krishnanagore in Title Suit No.159 of 2003 is set aside in part so far as it relates to rejection of petition filed by the petitioner/defendants under Order 7 Rule 10 read with 151 C.P.C. Learned Trial Court is hereby directed to hear out both the petitions namely under Order 7 Rule 10 read with 151 C.P.C. as well as under Order 14 Rule 2 read with 151 C.P.C. after filing of W.S. by the petitioner/defendants, as per law. C.O. No.2074 of 2005 is accordingly disposed of. Let a copy of the order be forwarded to the learned Trial Court expeditiously for necessary compliance. Urgent xerox certified copy of this judgment be supplied to the learned Counsels of party / parties, if applied for.