Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 188 (CAL)

Subhas Chandra Sil v. Sumik Sil

2011-02-10

PRASENJIT MANDAL

body2011
JUDGMENT Prasenjit Mandal, J. 1. This application is at the instance of the defendant and is directed against the order no.38 dated December 13, 2010 passed by the learned Judge, Thirteenth Bench, City Civil Court, Calcutta in Title Suit No.2430 of 2007 thereby rejecting an application under Order 7 Rule 11 of the C.P.C. 2. The short fact is that the plaintiff/opposite party and Smt. Ashima Sen filed a title suit being Title Suit No.2430 of 2007 for declaration and permanent injunction. In that suit, the defendant/petitioner herein appeared and filed an application under Order 7 Rule 11 of the C.P.C. for rejection of the plaint. That application was rejected by the learned Trial Judge by the impugned order. Being aggrieved, this application has been preferred by the defendant no.2. The short question in the matter is that whether the learned Trial Judge is justified in rejecting the application under Order 7 Rule 11 of the C.P.C. filed by the petitioner. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that that the said title suit being Title Suit No.2430 of 2007 arose out of an matrimonial obligation between the petitioner and his wife, namely, Smt. Ashima Sen. 3. Admittedly, the petitioner and Smt. Ashima Sen were married according to Hindu rites and customs on June 2, 1986 and one son namely, the opposite party herein was born in the wedlock. The said son is now a student and he has attained majority. Smt. Ashima Sen and her son, opposite party herein, resided in two rooms in the first floor at 5, Netaibabu Lane, Kolkata - 700 012. This is the suit premises in the said suit. Admittedly, the suit premises along with other premises belonged to the petitioner and his two brothers in equal shares. The eldest brother, Raj Kumar Sil gifted his 1/3rd share to his other two brothers, namely, Naba Kumar Sil and the defendant in equal shares. Thereafter, by a Deed of Partition dated December 17, 1993, the defendant became the owner of the suit premises along with other properties. The eldest brother, Raj Kumar Sil gifted his 1/3rd share to his other two brothers, namely, Naba Kumar Sil and the defendant in equal shares. Thereafter, by a Deed of Partition dated December 17, 1993, the defendant became the owner of the suit premises along with other properties. It is the contention of Smt. Ashima Sen and her son that the suit premises is possessed by both of them and that after annual examination of the son when they were out of the room for three days from March 10, 2005 by keeping the said premises under lock and key, the defendant /petitioner herein forcibly put another padlock on the same. 4. It may be mentioned herein that in the month of May, 2005, the defendant filed a title suit being Title Suit No.779 of 2005 against the plaintiff no.1 of the instant suit. In that suit, both the plaintiff and the defendant (plaintiff no.1 of this suit) filed separate applications for injunction. Upon hearing both the sides, the learned Trial Judge, Thirteenth Bench, City Civil Court, Calcutta disposed of the said two applications by a consolidated order dated March 8, 2006 by allowing the application of the plaintiff no.1 of the instant suit and directing the parties to maintain status quo with regard to the premises in suit. It was directed that the son of the plaintiff no.1, that is, the opposite party no.1 herein would be at liberty to decide where to live after attaining the majority. Thereafter, since the plaintiff of the instant suit could get their access to the premises in suit, there was no other way but to file the instant suit for declaration and injunction. For proper appreciation of the matter, the reliefs sought for in the instant suit are stated below:- "a. For a decree for declaration that the defendant, his men and agents have no right to obstruct the user of the suit flat by the plaintiffs by any means prejudicial to the interest of the plaintiffs. b. For a decree permanent injunction restraining the defendants, their men, agents and associates from causing any obstruction towards free ingress an egress of the plaintiffs, for use and occupation of the suit flat at 5, Netai Babu Lane, Kolkata - 700 012, in any manner prejudicial to the interest of the plaintiffs. b. For a decree permanent injunction restraining the defendants, their men, agents and associates from causing any obstruction towards free ingress an egress of the plaintiffs, for use and occupation of the suit flat at 5, Netai Babu Lane, Kolkata - 700 012, in any manner prejudicial to the interest of the plaintiffs. c. temporary injunction with ad-interim order in terms of prayer (b) above; d. Commission; e. Costs of the suit; f. Any other relief or reliefs as the Ld. Court may deem fit and proper." Admittedly, during the pendency of the suit, the plaintiff no.1 filed an application for deleting her name from the plaint and that prayer was granted by an order dated June 15, 2009 (vide page no.27 of the application). So, after passing of the order dated June 15, 2009 that suit becomes a suit between a son against his father. In the given circumstances, I am to consider whether the learned Trial Judge was justified in rejecting the application under Order 7 Rule 11 of the C.P.C. No doubt, in order to consider that the plaint can be rejected under the provisions of Order 7 Rule 11 of the C.P.C., the Court is to consider the averments made in the plaint and there is no scope to consider the written statement or any document filed on behalf of the defendant. In order to appreciate the situation, I will be proper to note what was the cause of action in filing of the instant suit. For better appreciation, the relevant clause of the plaint is quoted below:- "14. The cause of action for this suit arose on 05.02.2007 when in course of local inspection the plaintiff no.1 found that her lock put at the entrance of the suit flat could not be opened with her keys. The said cause of action also arose on various other diverse dates and the same is continuing day to day at premises no.5, Netai Babu Lane, P.S. Muchipara, Kolkata 700 012, within the jurisdiction of this Learned Court. I have stated above that the name of the plaintiff no.1 has been deleted from the plaint. So, if the words "plaintiff no.1" are kept out of the view of the plaint, it will appear from the body of the plaint that the plaint has become a meaningless plaint in the true sense. I have stated above that the name of the plaintiff no.1 has been deleted from the plaint. So, if the words "plaintiff no.1" are kept out of the view of the plaint, it will appear from the body of the plaint that the plaint has become a meaningless plaint in the true sense. I have stated earlier that the instant suit arose out of the matrimonial obligation between the plaintiff no.1 and the defendant and the relief sought for is based on the basis of such marital obligation. So, though the cause of action is a bundle of facts and it has been mentioned in paragraph no.14 that cause of action also arose on various other diverse dates, yet, as soon as the name of the "plaintiff no.1" is deleted from the body of the plaint whenever they appear in the plaint, I am of the view that the plaint case is without any cause of action for the plaintiff no.2 to proceed with the suit. So, the plaint case falls through. 5. I have stated above that, in the other suit, namely, the Title Suit No.779 of 2005 wherein the parties were directed to maintain status quo with regard to the suit premises between the plaintiff no.1 and the defendant of the instant suit with liberty upon the son, namely, Soumik Sil, to decide where to live upon attaining the majority, the status of the plaintiff no.2 with regard to the suit premises has been changed. Whatever the defence may be for the plaintiff no.2 in consideration of the plaint case of the instant suit, his status with regard to the suit premises is, prima facie nothing but a licencee. He was given liberty to decide where to live in the Title Suit No.779 of 2005. So, he is not remediless. Admittedly, the relationship between the plaintiff no.1 and 6. The defendant broke down by a decree of dissolution of marriage. The matter went up to the learned appellate court and as a condition for the decree of dissolution of marriage, the husband had to pay Rs.4 lakh to the plaintiff no.1 on condition that she should have to vacate the suit premises. Accordingly, the plaintiff no.1 prayed for deletion of her name from the plaint in consequence of compliance of direction of the learned Appellate Court over the dissolution of marriage. Accordingly, the plaintiff no.1 prayed for deletion of her name from the plaint in consequence of compliance of direction of the learned Appellate Court over the dissolution of marriage. Therefore, the deletion of the name from the plaint has been done as a condition for dissolution of the marriage tie between the plaintiff no.1 and the defendant in the matrimonial proceeding. The effect is that the plaintiff no.1 has delivered possession of the suit premises in favour of the defendant/petitioner herein. Under the circumstances, the plaint case so far as the plaintiff no.2 is concerned has no legs to stand on. In such a situation, I am of the view that after deletion of the name of the plaintiff no.1 from the plaint, the plaintiff no.2 has no independent cause of action to proceed with the suit as it stands now. For that reason, I am of the view that the application under Order 7 Rule 11 of the C.P.C. should have been allowed by the learned Trial Judge. He has failed to exercise the jurisdiction vested in him. The impugned order cannot be supported. It must be set aside. The application, therefore, succeeds. So, the application is allowed. The impugned order is hereby set aside. The application dated June 21, 2010 filed by the defendant/petitioner herein under Order 7 Rule 11 of the C.P.C. stands allowed. As a result, the plaint stands rejected. Considering the circumstances, there will be no order as to costs. 7. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.