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2011 DIGILAW 1068 (CAL)

Competent Authority v. David Mantosh

2011-08-10

DIPANKAR DATTA

body2011
JUDGMENT 1. THE petitioners in this revisional application under Article 227 of the Constitution are the defendants 3 and 4 in Title Suit No.87 of 2007 (since renumbered T.S No.6 of 2010), pending on the file of the learned Judge, Small Causes Court, Sealdah. Challenge in this application is to order no. 47 dated 6/10/2010 passed by the learned Judge, whereby two petitions filed by the petitioners, one under Order 7 Rule 11, Civil Procedure Code (hereafter the Code) and the other under Order 2 Rule 2 thereof, were rejected. 2. MR. Rabindra Narayan Dutta, learned advocate for the petitioners contended that the learned Judge erred in the exercise of his jurisdiction in rejecting the petitions. He invited the Court"s attention to the facts pleaded in the plaint, referred to relevant provisions of the Code as well as the Limitation Act (hereafter the Act) and relied on a host of decisions to buttress his contention that the plaintiffs (opposite parties 1 to 7) have grossly abused the process of law and the Court and the plaint filed by them was liable to be rejected, and in not so rejecting, the learned Judge has added to the woes of the petitioners in contesting the suit, which is barred by limitation and by res judicata and/or principles analogous thereto as well as principles underlying Order 2 Rule 2 of the Code. He, accordingly, prayed for setting aside of the order impugned and for rejection of the plaint. Mr. Sanjib Kumar Mal, learned advocate representing the opposite party no. 8 (defendant no.1 in the suit) supported Mr. Datta and in addition to his submissions, advanced further arguments and relied on several other decisions to urge the Court to allow the revisional application by setting aside the order impugned and rejecting the plaint. 3. PER contra, Mr. Saptangshu Basu, learned senior advocate for the plaintiffs, contended that the revisional application does not merit interference. According to him, this Court in exercise of power under Article 227 of the Constitution ought not to interfere with the impugned order particularly having regard to the fact that issues had been framed for a decision on the suit, of which one relates to maintainability of the suit, and that it should be left to the trial Court to give its decision on such issue. Even otherwise, by referring to the relevant provisions of the Code and the Act and by placing reliance on several decisions of the Supreme Court, he assiduously contended that no case for rejection of plaint had been set up by the petitioners and, therefore, the learned Judge was right in rejecting the petitions by the order under challenge. 4. IN the petition under Order 7 Rule 11 of the Code, the sole contention raised is that having regard to the allegation of the plaintiffs that the predecessor-in-interest of the defendant no. 1 had trespassed in the suit property on 25/1/1992, the suit ought to have been filed within 12 years from that date and hence it was barred in view of the provisions of Articles 64 and 65 of the Act. In the petition under Order 2 Rule 2 of the Code, the petitioners had referred to a previous suit instituted by the predecessor-in-interest of the plaintiffs, being T.S. No.101 of 1998 (since renumbered T.S. No.4 of 2005), wherein she had questioned the actions of the petitioners in acquiring a different property belonging to her, viz. 73, Canal Circular Road, Kolkata under the self-same notification, issued in connection with proceedings initiated under the Urban Land (Ceiling and Regulation) Act (hereafter the ULC Act) by which the suit property had been acquired. It was also pleaded that since the predecessor-in-interest of the plaintiffs had instituted T.S. No.101 of 1998 in respect of the property bearing no.73, Canal Circular Road, Kolkata availing the leave granted by the Division Bench of this Court by order dated 3/4/1997, the suit instituted by the plaintiffs is hit by Order 2 Rule 2 of the Code. 5. IT appears from the impugned order that the petition under Order 7 Rule 11 filed by the petitioners was rejected on the ground that whether or not the suit is barred under Articles 64 and 65 of the Act, as urged therein, was a mixed question of law and fact and as such it can not be decided without the evidence of the parties. Insofar as the petition under Order 2 Rule 2 of the Code was concerned, the learned Judge was of the view that the question as to whether the present claim of the plaintiffs comes within the ambit of the earlier suit or not can only be decided after trial. 6. Insofar as the petition under Order 2 Rule 2 of the Code was concerned, the learned Judge was of the view that the question as to whether the present claim of the plaintiffs comes within the ambit of the earlier suit or not can only be decided after trial. 6. PROPRIETY of this order has to be examined now. It is settled law that while the Court proceeds to consider whether a plant is liable to be rejected under Order 7 Rule 11(d) of the Code on the ground that it is barred by any law, it must confine itself to the statements made in the plaint to determine whether the suit is so barred and ought not to look into any other material. Keeping this principle in mind, it requires a decision on a reading of the plaint filed by the plaintiffs as to whether the same ought to have been rejected, as claimed by Mr. Dutta and Mr. Mal. It appears from the plaint that it is a suit for declaration, recovery of possession, mesne profit and injunction. The subject matter of the suit is municipal premises no.60, Canal Circular Road, Kolkata (hereafter the suit property). According to the plaintiffs, their predecessor-in-interest Ms. Daisy Mantosh (since deceased) had purchased the suit property from one Rakhal Chandra Pal by an indenture dated December 14, 1963. A will had been executed by the said Daisy Mantosh bequeathing the suit property alongwith other properties belonging to her in favour of the plaintiffs. She passed away on 13/6/2003. Probate of such will was granted by the competent Court, pursuant whereto the plaintiffs became the absolute owners of the suit property. On or about 25/1/1992, the predecessor-ininterest of the defendant no.1 trespassed into the suit property claiming that it had purchased the suit property pursuant to an order passed by the State of West Bengal, the petitioner no.2 herein, and forceful possession of the suit property was taken over. Subsequent enquiries revealed that proceedings had been initiated under the ULC Act in pursuance whereof the suit property along with other properties, belonging to the said Daisy Mantosh, had been acquired by the petitioner no.2 under the provisions of Section 10(3) thereof. Subsequent enquiries revealed that proceedings had been initiated under the ULC Act in pursuance whereof the suit property along with other properties, belonging to the said Daisy Mantosh, had been acquired by the petitioner no.2 under the provisions of Section 10(3) thereof. A writ petition had been presented before this Hon"ble Court by the said Daisy Mantosh to quash the orders passed under the ULC Act for acquisition of the suit property and other properties. The writ petition was allowed by judgment and order dated 26/8/1992 passed by a learned Judge of this Court. The matter was carried in appeal by the defendant no. 1 and by judgment and order dated 3/4/1997, the appeal was allowed by the Division Bench with liberty to the said Daisy Mantosh to avail the remedy of filing a suit for adjudication of right, title and interest in respect of the properties forming subject matter of the writ petition, including the suit property. A special leave petition was moved before the Supreme Court of India which was dismissed. After serving notice to the petitioner no.2 under Section 80 of the Code, the plaintiffs had instituted the suit on 7/9/2007 seeking, inter alia, a declaration that they are the owners of the suit property and that the defendants have no right, title and interest in respect thereof, declaration that notification dated 12/2/1990 is illegal, collusive, fraudulent and void, and a decree for recovery of possession after evicting the defendant no. 1 from the suit property. 7. CONSIDERING the arguments advanced by learned advocates for the parties and on perusal of the plaint, I am of the firm opinion that no case for interference under Article 227 of the Constitution has been set up by the petitioners. It is settled law that power of judicial superintendence of the High Court under Article 227 is to be exercised most sparingly and only in exceptional cases, where the trial Court acts beyond the bounds of its authority or in flagrant abuse of fundamental principles of law and justice or passes an order that is perverse, causing failure of justice. 8. IT is no doubt true that the cause of action to seek remedy before the competent Court of law, in respect of the suit property, arose in favour of the said Daisy Mantosh on 25/1/1992 when she was dispossessed therefrom. 8. IT is no doubt true that the cause of action to seek remedy before the competent Court of law, in respect of the suit property, arose in favour of the said Daisy Mantosh on 25/1/1992 when she was dispossessed therefrom. A suit claiming declaration other than those mentioned in Articles 56 and 57 would be governed by Article 58. IT is noted that the plaintiffs prayed for recovery of possession of the suit property too and, therefore, the limitation to sue would be 12 (twelve) years from 25/1/1992. The limitation to institute the suit would commence on and from that day and considering the date of institution of the suit, it appears to be barred by limitation. However, the submission of Mr. Basu that the plaintiffs are entitled to the benefit of Section 14 of the Act has substance. The said Daisy Mantosh, it has been ascertained from the department, presented the writ petition before this Court on 19/6/1992 and the same was allowed by judgment and order dated 26/8/1992. The writ appeal filed against the said judgment and order was decided on 3/4/1997 and the special leave petition was dismissed on 28/7/1997. Reliance placed by Mr. Basu on the decision of the Supreme Court reported in AIR 2009 SC 1200 (M/s. Shakti Tubes Ltd. v. State of Bihar and ors.) is apt. There, the Court was considering the true purport of the words "or other cause of a like nature" appearing in Section 14 of the Act. Taking note of the earlier decisions of the Supreme Court referred to therein, the Court was of the view that the words "or other cause of a like nature" must be construed liberally and in the facts of the case before it held that the provision of Section 14 of the Act would be applicable. In my considered view, the entire period from 19/6/1992 i.e. the date of institution of the writ petition till 28/7/1997 i.e. the date when the special leave petition was dismissed ought to be excluded for computing the period of limitation; so excluded, the suit having been instituted in 2007 does not appear to me to be barred by limitation. The point that the suit is barred by limitation cannot also be accepted, viewed from a different angle. The point that the suit is barred by limitation cannot also be accepted, viewed from a different angle. The plaintiffs have thrown a challenge to the notification dated 12/2/1990 issued in connection with the proceedings initiated under the ULC Act, whereby the suit property was acquired. Unless and until the notification is set aside, there is no question of the plaintiffs being entitled to any relief in the suit and, therefore, the provisions of Article 100 of the Act would, in ordinary circumstances, be attracted. The suit not having been instituted within the period mentioned in Article 12, it would be vulnerable to a challenge that it is barred by limitation. However, it is the specific plea in the plaint that the said notification dated 12/2/1990, issued in connection with the proceedings initiated under the ULC Act, is void ab initio. 9. A similar question came up for consideration before the Supreme Court in its decision reported in AIR 1991 SC 1600 (Ajudh Raj and ors. v. Moti, S/o Mussadi). In paragraph 5 of the said decision, it was ruled as follows: "The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well settled. If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted and if no particular Article of the Limitation Act is applicable the suit must be governed by the residuary Article 113, prescribing a period of three years. Therefore, in a suit for title to an immovable property which has been the subject-matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he must get it cleared before proceeding further. On the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65." 10. On the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65." 10. REGARD being had to the law laid down by the Supreme Court (supra) and the frame of the suit setting up a plea that the notification dated 12/2/1990 is void ab initio together with entitlement of the plaintiffs" to have the period spent before this Court and the Supreme Court while pursuing constitutional remedies excluded, the suit cannot either be held to be barred by Article 100. It is not a case where the plaintiffs have omitted to claim the foundational relief and have claimed the consequential relief only to overcome the bar of limitation. The suit in such circumstances could be governed by Article 65 and if the same does govern it, the plaint would not be liable to rejection as time-barred. However, whether Article 65 would apply or not or some other Article would apply is a different question altogether and a finding as to whether the suit is barred by limitation or not can only be given after receiving evidence and I do not feel inclined to hold that the learned Judge acted illegally in the exercise of his jurisdiction in rejecting the petition under Order 7 Rule 11. In so far as the objection raised by the petitioners that the suit is barred by Order 2 Rule 2 of the Code is concerned, it does not appear from the plaint that there is any reference to the earlier suit filed by the said Daisy Mantosh, which was dismissed. Mr. Basu is again right in his contention that unless the judgment and decree in such suit is admitted in evidence and marked as an exhibit, the trial Court has no power to look into its contents. I am of the further considered view that the learned Judge by observing that the issue of maintainability of the suit, in the light of provisions of Order 2 Rule 2 of the Code must be decided after recording evidence, acted within jurisdiction. 11. I have considered the authorities cited by Mr. Dutta. I am of the further considered view that the learned Judge by observing that the issue of maintainability of the suit, in the light of provisions of Order 2 Rule 2 of the Code must be decided after recording evidence, acted within jurisdiction. 11. I have considered the authorities cited by Mr. Dutta. The propositions of law laid down therein are beyond dispute but the fact situation here does not fit in with the fact situations of the decisions on which reliance have been placed and, therefore, do not assist me in allowing the revisional application. 12. AT this stage, I may deal with a side argument of Mr. Mal. Relying on the decision of the Supreme Court reported in (2003) 1 SCC 488 (Abdul Rahman v. Prasony Bai and anr.), he contended that I ought to exercise my power to withdraw the pending suit from the subordinate Court for disposal taking into consideration the judgment and decree in the previous suit instituted by the said Daisy Mantosh to uphold the principle that litigation should be allowed to attain finality in public interest. I have considered the said decision in Abdul Rahman (supra). It appears from paragraph 28 of the decision that the Supreme Court did not consider withdrawal of the suit by the learned Judge of the High Court from the subordinate Court and disposal thereof on the admitted facts, in the peculiar facts and circumstances, to be illegal. At the same time, in paragraph 33 of the decision, the Court expressed that no case for interference under Article 136 of the Constitution had been set up "even it be held that the High Court had committed some illegalities in withdrawing the suit and disposing of the same". It is also noted that the Court in paragraph 21 observed that the issues of res judicata and/or constructive res judicata as also maintainability of the suit could be adjudicated upon as preliminary issues. 13. ALTHOUGH there can be no dispute that in terms of Section 24 of the Code the High Court enjoys the power to withdraw a suit to its file and adjudicate itself all or any of the issues involved therein, such power is available to be exercised only in exceptional situations and not in a routine manner. 13. ALTHOUGH there can be no dispute that in terms of Section 24 of the Code the High Court enjoys the power to withdraw a suit to its file and adjudicate itself all or any of the issues involved therein, such power is available to be exercised only in exceptional situations and not in a routine manner. The High Court ought not to substitute itself for the trial Court and render a decision which, ordinarily, it is within the province of the trial Court to make. I have not found any exceptional situation here to exercise power under Section 24 of the Code suo motu. I have noted that issues in the suit have been framed which includes an issue regarding maintainability of the suit and, therefore, I do not find any justification to accept the submission of Mr. Mal. 14. THE revisional application is devoid of merit and, therefore, stands dismissed. THE parties shall bear their own costs. It is made clear that views expressed hereinabove on the question of maintainability of the suit are prima facie and should not be construed as binding at the trial on merits. 15. HOWEVER, for the purpose of guidance of the trial Court, I may observe that if it considers it to be just and proper in the circumstances, the trial Court may decide the point of maintainability of the suit as a preliminary issue to ascertain whether the statutory bar under clause (b) of sub-rule 2 of Rule 2 of Order 14 of the Code is attracted or not and in the process may also, to facilitate its decision on the preliminary issue, take recourse to the procedure provided in Rules 1 and 2 of Order 10 of the Code. The trial Court is encouraged to proceed with utmost expedition. Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.