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2010 DIGILAW 984 (CAL)

Sunder Lal Sarda v. Praduman Sarda

2010-08-13

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THIS application under Article 227 of the Constitution of India is directed against an order being NO. 31 dated 7th September, 2009 passed by the Learned Civil Judge (Senior Division) First Court at Barasat, North 24 Parganas, in Title suit No. 287 of 2010 by which the application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1, was rejected on contest. The defendant No.1 is aggrieved by the said order. Hence the said defendant has come before this Court with this application under Article 227 of the Constitution of India. 2. HEARD Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner and Mr. Chatterjee, learned Advocate, appearing for the plaintiff/opposite party. 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 plaintiff has filed a suit for partition against the petitioner herein as well as the opposite parties No. 2 to 26 claiming his 1/21st share in the properties described in Schedules 'F' to 'H' and 1/42nd share in the properties described in the Schedule 'A' to 'E' of the plaint. It is stated by the plaintiff that all the properties excepting 'A' schedule property, are lying in different states beyond the territorial jurisdiction of the learned Trial Judge. Only the 'A' schedule property which is situated at Madhyamgram, P.S. Barasat in North 24 Parganas, is within the territorial jurisdiction of the learned Trial Judge. In fact, the jurisdiction of the learned Trial Judge was invoked by taking the location of the said 'A' schedule property which is within the territorial jurisdiction of the learned Trial Judge. 3. IT is further stated by the plaintiff that the properties mentioned in schedules 'F' to 'H' of the plaint were the joint family properties in which the grandfather of the plaintiff was a member and since the parties are governed by the Mitakshar School of Hindu Law, the plaintiff claims to have inherited 1/21st share in those properties. IT was further stated by the plaintiff that the properties described in schedules 'A' to 'E' of the plaint were seized and possessed of by Sundarlal Sarda and his brother Kanailal Sarda as joint owners having half share each therein. The plaintiff also claims 1/42nd share in those properties by inheritance. IT was further stated by the plaintiff that the properties described in schedules 'A' to 'E' of the plaint were seized and possessed of by Sundarlal Sarda and his brother Kanailal Sarda as joint owners having half share each therein. The plaintiff also claims 1/42nd share in those properties by inheritance. IT is further stated therein that since the plaintiff was feeling inconvenience in possessing those properties jointly, the plaintiff demanded partition from the defendant on several occasions and lastly on 25th April, 2007 but since the defendants have refused to partition the said property amicably, the instant suit was filed for partition. 4. THE defendant No.1 has appeared in the said suit and filed an application under Order 7 Rule 11 of the Code of Civil Procedure inter alia praying for rejection of the plaint on the ground that since the Madhyamgram property which is described in schedule 'A' of the plaint is not a Hindu Joint Family property, the plaintiff cannot claim any share in the said property during the life time of his grandfather, namely, defendant No.1. The said defendant claims that since the 'A' schedule property was the self acquired property of the defendant No.1 and his brother Kanailal Sarda, the plaintiff cannot claim any interest in the said property by birth. The defendant thus claims that since admittedly the other properties are not located within the territorial jurisdiction of the learned Trial Judge and further since the plaintiff has no interest in 'A' schedule property, no part of the cause of action for the said suit had arisen within the territorial jurisdiction of the said Court. As such the jurisdiction of the learned Trial Judge cannot be invoked even though the 'A' schedule property is situated within its jurisdiction. The learned Trial Judge rejected the defendant's said application under Order 7 Rule 11 of the Code of Civil Procedure by holding inter alia that though the defendant No.1 contended that the property mentioned in schedule 'A' of the plaint is his self acquired property but he himself declared the said property before the Income Tax and/or Wealth Tax Authority as karta of Sundarlal Sarda HUF. As such it cannot be decided at this stage as to whether the plaintiff has any share in the said property or not? Mr. As such it cannot be decided at this stage as to whether the plaintiff has any share in the said property or not? Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner, submitted that while considering the defendant's application under Order 7 Rule 11 of the Code of Civil Procedure, the Court cannot consider any other document save and except the averments made in the plaint. He further submitted that if on consideration of the averments made in the plaint, it appears that the plaint does not disclose any cause of action for the suit, then the plaint is liable to be rejected. Mr. Ray Chowdhury thus invited this Court to consider the averments made in the plaint to ascertain as to whether any cause of action for the said suit has been disclosed in the plaint or not? By referring to the pleadings made out in the plaint Mr. Ray Chowdhury submitted that admittedly all the properties excepting the property at Madhyamgram, P.S. Barasat, are lying in different states beyond the territorial jurisdiction of the learned Trial Judge. As such the jurisdiction of the learned Trial Judge cannot be invoked with reference to those properties. He further submitted that, in fact, the plaintiff invoked the jurisdiction of the said Court as the 'A' schedule property i.e. the Madhyamgram property is situated within the territorial jurisdiction of the learned Trial Judge. He however submitted that if on reading the plaint it is found that the plaintiff has any share in 'A' schedule property then certainly he can maintain the said suit at Barasat by including the other properties also in the said suit, even though those are situated beyond the territorial jurisdiction of the Court. But if it is found that the plaintiff has no share in the 'A' schedule property then the Court has no other alternative but to hold that cause of action for the said partition suit has not been disclosed in the plaint. By referring to the averment made in the plaint Mr. Ray Chowdhury pointed out that the 'A' schedule property is not the joint family property belonging to the members of the Undivided Hindu Joint Family governed by the Mitakshar School of Hindu Law. By referring to the averment made in the plaint Mr. Ray Chowdhury pointed out that the 'A' schedule property is not the joint family property belonging to the members of the Undivided Hindu Joint Family governed by the Mitakshar School of Hindu Law. He contended that the 'A' schedule property was the self acquired property of the defendant No.1 and his brother Kanailal Sarda and since the defendant No.1 is still alive the plaintiff cannot inherit any share in the said property during his life time and as such the learned Trial Judge ought to have rejected the plaint as the plaint does not disclose any cause of action for the said suit. 5. MR. Chatterjee, learned Advocate, appearing for the plaintiff/opposite party, refuted such submission of MR. Ray Chowdhury by submitting that the application under Order 7 Rule 11 of the Code of Civil Procedure which was filed by the defendant No.1 is a misconceived application. MR. Chatterjee contended that the objection regarding the competency of the Court to entertain the suit due to lack of its territorial jurisdiction, can be raised under Section 21 of the Code of Civil Procedure Code and if such an objection is raised by the defendant, the Court has to consider as to whether the property mentioned in schedule 'A' of the plaint situates within the territorial jurisdiction of the said Court or not and if ultimately it is found that the said property is not situated within the territorial jurisdiction of the said Court, then the Court has no other alternative but to return the plaint to the plaintiff under Order 7 Rule 10 of the Code of Civil Procedure for the presentation of the said plaint before the Court having jurisdiction. 6. MR. Chatterjee further contended that it is rightly pointed out by MR. Ray Chowdhury that while considering the defendant's application under Order 7 Order 11 of the Code of Civil Procedure, the Court cannot consider any other document save and except the plaint, itself and if on scrutiny of the plaint the Court finds that the cause of action for the said suit has not been disclosed, then this Court can reject the plaint. By referring to the pleadings of the plaint MR. By referring to the pleadings of the plaint MR. Chatterjee pointed out that the plaintiff has claimed his definite and defined share in respect of all the properties including the properties as mentioned in schedule 'A' of the plaint. He further contended that while considering the defendant's application under Order 7 Rule 11 of the Code of Civil Procedure, the Court will have to accept that all the pleadings made out in the plaint are true and correct. He further contended that in a case where the Court finds that passing of a decree in the suit in favour of the plaintiff on the basis of the cause of action pleaded in the plaint is practically impossible even if the plaintiff succeeds in proving each and every averment made by him in the plaint, then only the Court can reject the plaint. Mr. Chatterjee pointed out from the plaint that all the basic ingredients for maintaining a suit for partition are very much present in the plaint. The plaintiff stated therein that he has definite share in all the properties including the 'A' schedule property. He also stated that one of such joint properties being 'A' schedule property is situated within the territorial jurisdiction of the Court. He further contended that he requested his co-sharers to partition the suit property by metes and bounds as he was feeling inconvenience in joint possession thereof but since the defendants refused to partition the said property, the instant suit was filed. Thus by referring to the aforesaid pleading of the plaint, Mr. Chatterjee contended that it cannot be said that the cause of action for the said suit has not been disclosed in the plaint. 7. MR. Chatterjee further contended that whether the plaintiff, in fact, has any share in the 'A' schedule property or not, cannot be decided without trial on evidence and if ultimately it is found that the plaintiff has no share in the 'A' schedule property then the plaint, at best, can be returned to the plaintiff under Order 7 Rule 10 of the Code of Civil Procedure for want of territorial jurisdiction of the Court to try the said suit. But the plaint cannot be rejected under Order 7 Rule 11 of the Civil Procedure Code on the ground that no part of the cause of action has arisen within the territorial jurisdiction of the Court. 8. But the plaint cannot be rejected under Order 7 Rule 11 of the Civil Procedure Code on the ground that no part of the cause of action has arisen within the territorial jurisdiction of the Court. 8. AFTER hearing the learned Advocates of the parties and after considering the materials on record, this Court finds much substance in the submission of Mr. Chatterjee. It is rightly pointed out by both the learned Counsel of the parties that while considering the defendant's application under Order 7 Rule 11 of the Code of Civil Procedure no other document can be looked into excepting the plaint. Thus if on scrutiny of the averments made in the plaint it is found that the cause of action for the said suit has not been disclosed then the Court can reject the plaint. Cause of action has not been defined in the Civil Procedure Code. It is a bundle of facts on which relief is claimed by the plaintiff. In the instant case the plaintiff claimed that the plaintiff is a member of Hindu Joint Family governed by Mistakshar School of Hindu Law. The plaintiff further claimed that he has inherited some share in the suit properties including in the 'A' schedule property. The plaintiff further claimed that one of such suit properties which is lying at Madhyamgram i.e. 'A' schedule property is situated within the territorial jurisdiction of the learned Trial Court. As such the learned Trial Judge has jurisdiction to entertain the said partition suit. It is further disclosed therein that the plaintiff demanded partition from his other co-sharers as he was feeling inconvenience in possessing the suit property jointly and since his other co-sharers have refused to partition the suit properties by metes and bounds, the instant suit was filed. Thus this Court cannot hold that the cause of action for the partition suit has not been disclosed in the plaint. It is rightly pointed out by Mr. Chatterjee that the plaintiff never admitted in the plaint that the properties mentioned in the schedules 'A' of the plaint was the self acquired property of the defendant No.1 and his brother Kanailal Sarda. On the contrary the plaintiff claimed to have inherited some share in the 'A' schedule property by birth. It is rightly pointed out by Mr. Chatterjee that the plaintiff never admitted in the plaint that the properties mentioned in the schedules 'A' of the plaint was the self acquired property of the defendant No.1 and his brother Kanailal Sarda. On the contrary the plaintiff claimed to have inherited some share in the 'A' schedule property by birth. This part of the pleadings shows that he claimed the said 'A' schedule property is a part the joint properties belonging to Hindu Undivided Family governed by the Mitakshar School of Hindu Law. The plaintiff also stated in the plaint that the defendant No.1 and his brother Kanailal Sarda had half share each in the 'A' schedule property. Such statement gives some indication that the said 'A' property is the self acquired property of those two brothers. Of course, some apparent contradictioin is noticed in the claim of the plaintiff with regard to 'A' schedule property. But no definite conclusion can be drawn on such gray arena without trial on evidence and if ultimately it is found in course of trial of the suit that the 'A' schedule property is the self acquired property of the defendant No.1 and the defendant No.9 then the Court may hold that the plaintiff has not acquired any interest in the 'A' schedule property as his grandfather viz. the defendant No.1 is still alive and as such he cannot claim partition in respect of the 'A' schedule property. Under such circumstances the Court will have no other alternative but to return the plaint to the plaintiff for its presentation before the Court of competent jurisdiction where any of the joint properties in which the plaintiff has some share, is located. Thus this Court holds that this is not a case where the plaint is liable to be rejected for want of cause of action as this Court has held above that the cause of action for the said suit has been disclosed in the plaint as the defendants who are co-shares of the plaintiff have allegedly refused to partition their joint properties by metes and bounds which constitutes a cause of action for the partition suit. 9. THIS Court thus does not find any merit in the revisional application. The revisional application thus stands rejected. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.