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2013 DIGILAW 245 (CAL)

Partha Majumdar v. Mrityunjay Khara

2013-05-08

HARISH TANDON

body2013
Judgment :- Harish Tandon, J. The defendant no.11 in Title Suit No. 32 of 2010 pending before the learned Civil Judge (Junior Division), 1st Court, Barasat has assailed the Order No. 27 dated September 26, 2012 passed in the said suit, by which, the applications under Order 7 Rule 11 of the Code of Civil Procedure filed by the said defendant as well as the defendant nos. 13 to 17 and defendant nos. 24 to 26 are dismissed. The Opposite Party No.2 traced her title in respect of the suit property by way of inheritance from her mother namely Sushila Bala Dasi, since deceased, who was the absolute owner thereof. As per the plaint case, it appears that the suit property originally belonged to one Sourav Moni Dasi who sold, transferred and conveyed the same by executive a deed of sale dated 9th October, 1940 in favour of the mother of the Opposite Party No.2 namely Sushila Bala Dasi since deceased. The said owner (Sushila Bala Dasi) was illiterate and had only one daughter namely the Opposite Party No.2. Taking advantage of the illiteracy of the Opposite Party No.2, one Subal Chandra Mondal being the relative, manufactured a deed of gift executed on 20th January, 1960 in favour of his sons purported to have been executed by the Opposite Party No.2. Taking advantage of the illiteracy of the Opposite Party No.2 and keeping her in dark about the execution of the purported deed of gift, the said Subal Chandra Mondal executed several deeds divesting the suit property and have also initiated several proceedings in different Courts and obtained favourable orders therefrom. The said Subal Chandra Mondal got the names mutated in the L.R. record of rights behind the back with the opposite party no.2. Subsequently, she appointed the opposite party no.1 as constituted Attorney to look after the said properties who on searches came to know the said Subal Chandra Mondal has manufactured a forged and fabricated deed of gift and had executed several deeds on the strength thereof and the persons, who are beneficiary to the aforesaid transactions, are in possession therein. The cause of action as it appears has been pleaded to accrue on May 24, 2009, when the plaintiffs/opposite parties were resisted by the defendants at the time of recovery of the suit property. The cause of action as it appears has been pleaded to accrue on May 24, 2009, when the plaintiffs/opposite parties were resisted by the defendants at the time of recovery of the suit property. On the strength of the aforesaid proceedings, the plaintiffs/opposite parties claimed a relief in the form of a decree for declaration of their title in respect of the suit property and permanent injunction restraining the defendants from transferring, alienating and/or encumbering the suit property. Two sets of application under Order 7 Rule 11 of the Code of Civil Procedure were filed; one by the defendant nos. 13 to 17 and 24 to 26 and other by the defendant no.11. The application for rejection of plaint filed by the defendant no.11/petitioner is based upon the assertion that the present suit is barred by the law of limitation. It is further averred that the plaintiffs/opposite parties have themselves asserted in Paragraph 6 of the plaint that there was an execution of a deed of gift in the year 1960 by the mother of the opposite party no.2 and several proceedings were initiated in different Courts and the decrees passed therein have not been set aside and therefore, the present suit is not maintainable. In written objection to the said application, the plaintiffs/opposite parties specifically pleaded that the entire proceeding either before the Land Reforms and Tenancy Tribunal or the Court were decided behind the back of the opposite party no.2 as she was not made party therein and, therefore, the suit cannot be said to be barred. The application for rejection of plaint filed by the defendant nos.13 to 17 and 24 to 26 is founded on the assertion that there is no disclosure of the cause of action, bad for non-joinder and mis-joinder of parties and the Court lacks jurisdiction to pass an order for rectification of a record of rights. The plaintiffs/opposite parties reiterated their stand as made in the written objection filed to an application for rejection of plaint by the defendant no.11/petitioner and ultimately says that the suit is maintainable and the Court is competent to grant the relief. The Trial Court rejected the said applications that the suit based on fraud cannot be dismissed at the stage of Order 7 Rule 11 of the Code. The Trial Court rejected the said applications that the suit based on fraud cannot be dismissed at the stage of Order 7 Rule 11 of the Code. The Trial Court further held that when a question as to the legality of the deed of gift is involved in the suit, the same is required to be determined after full-fledged trial. Mr. Mainak Bose, the learned Advocate appearing for the petitioner vehemently submits that there is no clear right to sue disclosed in the plaint nor there is any disclosure of the cause of action except by inserting a date without any corroborative pleadings in relation thereto. He vehemently submits that the plaint is liable to be rejected in absence of any prayer for cancellation of the deed of gift executed on 20th January, 1960. He further submits that the relief claimed in the plaint cannot be granted in absence of express prayer for declaration of the decrees passed in a different proceedings, on the basis whereof the record of right was corrected, to be illegal and not binding upon the plaintiffs/opposite parties; the plaint as it stand is not maintainable. Lastly, he submits that the instant suit is vexatious and there is a clear suppression of the material facts and is liable to be rejected at the threshold and placed reliance upon a judgment of the Apex Court in case of Pearlite Liners Pvt. Ltd., -vs- Manorama Sirsi reported in (2004) 3 SCC 172 . Mr. Tridip Kumar Sarkar, the learned Advocate appearing for the plaintiffs/opposite parties refuted the contention of the petitioner and submits that the suit is maintainable as the plaint contains full disclosure of the material facts. He further submits that the plaint discloses the clear right to sue and it cannot be rejected under Order 7 Rule 11 (d) of the Code having barred by limitation. He vehemently submits that the cause of action has been disclosed in the plaint and, therefore, the plaint cannot be rejected on such score. Lastly he submits that whether the plaintiffs/opposite parties would ultimately succeed in a suit or not, can only be decided after the parties are permitted to adduce evidence and not at the stage of Order 7 Rule 11 of the Code. Lastly he submits that whether the plaintiffs/opposite parties would ultimately succeed in a suit or not, can only be decided after the parties are permitted to adduce evidence and not at the stage of Order 7 Rule 11 of the Code. Having considered the respective submissions, it is pertinent to record that two independent applications under Order 7 Rule 11 of the Code filed by the respective defendants, as indicated herein above, are rejected by the Trial Court by common order. The defendant nos.13 to 17 and 24 to 26 have not assailed the impugned order but the defendant no.1 has challenged the order by filing the instant revisional application. The entire gamut of disputes raised in this revisional application broadly rest upon two points; firstly, the plaint is barred by limitation and secondly, the plaint does not disclose the material facts and the plaintiffs/opposite parties have grossly suppressed the facts and such frivolous suit should be nipped in the bud. While considering an application under Order 7 Rule 11 (d) of the Code of Civil Procedure, the Court should confine its scrutiny to the averments made in the plaint and should not look into any other averments or the documents produced by the defendants. The salient feature of the plaint has already been adumbrated in the early part of this judgment and does not require reiteration. The plaintiffs/opposite parties as it appears from the tenet of the plaint, have laid their foundation of the title on inheritance. According to her, her mother was the admitted owner in respect of the suit premises and she being the sole surviving heir inherited the property under the general law of succession. The plaintiffs/opposite parties have categorically asserted that the record of right based on the strength of the decrees passed in the several proceedings are erroneous and not binding because of the fact that the plaintiff no.2/opposite party no.2 was not made party therein. The plaintiff discloses the knowledge of the purported, forged and manufactured deed when she and the constituted Attorney went to the suit premises to recover the possession and the suit, having been filed within three years from the date of the said knowledge, cannot be thrown on the touchstone of the law of limitation. The plaintiff discloses the knowledge of the purported, forged and manufactured deed when she and the constituted Attorney went to the suit premises to recover the possession and the suit, having been filed within three years from the date of the said knowledge, cannot be thrown on the touchstone of the law of limitation. The petitioner has categorically asserted in his application that the judgment passed in the different suits relating to the suit property are binding upon the plaintiffs/opposite parties and, therefore, the instant suit is not maintainable. What could be culled out from the aforesaid stand taken by the petitioner in his application that the judgments and decrees passed in a different suit shall operate as res judicata in the present proceeding. Unless, it is clearly discernible from the averments made in the plaint that the judgment passed in an earlier proceeding shall operate as res judicata, the plaint should be rejected. The question of res judicata is a mixed question of fact and law. The plea of law is somehow connected with the merit of the claim, such plea is required to be tried along with the other issues. It has been held in Pearlite Liners Pvt. Ltd. (Supra) that if on meaningful reading of the averments made in the plaint, the relief claim is manifestly barred by law, such plaint should be rejected at the threshold. In the above report, the relief claimed in the plaint was nothing but the enforcement of a contract of personal service, which is otherwise barred under the law. The Apex Court held that such a suit is bound to be dismissed for want of jurisdiction to grant the relief prayed for in these words: “10. The question arises as to whether in the background of the facts already stated, such reliefs can be granted to the plaintiff. Unless there is a term to the contrary in the contract of service, a transfer order is a normal incidence of service. Further, it is to be considered that if the plaintiff does not comply with the transfer order, it may ultimately lead to termination of service. Therefore, a declaration that the transfer order is illegal and void, in fact amounts to imposing the plaintiff on the defendant in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the management of the defendant Company. Therefore, a declaration that the transfer order is illegal and void, in fact amounts to imposing the plaintiff on the defendant in spite of the fact that the plaintiff allegedly does not obey order of her superiors in the management of the defendant Company. Such a relief cannot be granted. Next relief sought in the plaint is for a declaration that she continues to be in service of the defendant Company. Such a declaration again amounts to enforcing a contract of personal service which is barred under the law. The third relief sought by the plaintiff is a permanent injunction to restrain the defendant from holding an enquiry against her. If the management feels that the plaintiff is not complying with its directions it has a right to decide to hold an enquiry against her. The management cannot be restrained from exercising its discretion in this behalf. Ultimately, this relief, if granted, would indirectly mean that the court is assisting the plaintiff in continuing with her employment with the defendant Company, which is nothing but enforcing a contract of personal service. Thus, none of the reliefs sought in the plaint can be granted to the plaintiff under the law. The question then arises as to whether such a suit should be allowed to continue and go for trial. The answer in our view is clear, that is, such a suit should be thrown out at the threshold. Why should a suit which is bound to be dismissed for want of jurisdiction of a court to grant the reliefs prayed for, be tried at all? Accordingly, we hold that the trial court was absolutely right in rejecting the plaint and the lower appellate court rightly affirmed the decision of the trial court in this behalf. The High Court was clearly in error in passing the impugned judgment whereby the suit was restored and remanded to the trial court for being decided on merits. The judgment of the High Court is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected.” The present suit is not one, which should be dismissed at the nascent stage of the proceeding without waiting for the trial. The judgment of the High Court is hereby set aside and the judgments of the courts below, that is, the trial court and the lower appellate court are restored. The plaint in the suit stands rejected.” The present suit is not one, which should be dismissed at the nascent stage of the proceeding without waiting for the trial. The cause of action is not a stray fact or date but is a bundle of facts, which, if the plaintiff is able to prove, would yield the desired relief claimed in the plaint and therefore, the contention of the petitioner that there is nondisclosure of the cause of action because the date which is pleaded in Paragraph 15 of the plaint, is not supported with the relevant facts, is not correct. It can not also be said that the plaint has not disclosed the material facts and the said suit is an outcome of abuse of the process of law, as there is a distinction between suppression of facts and the suppression of material facts. So far as the point of limitation is concerned, such plea if depends upon the decision on facts, the plaint cannot be rejected. The plaint can be rejected on the point of limitation when the relief claimed in the suit is ex facie time barred. It is not permissible to cull out a sentence or word from the plaint for the purpose of finding out whether the suit is barred by law of limitation. The plaint is to be read as it stands without adding or subtracting any words into it. From the entire reading of the plaint, it does not appear that the suit is either ex facie time barred or the relief claimed therein, cannot be granted because of the interdiction of law. This Court, therefore, does not find any infirmity and illegality in the impugned order. The revisional application is devoid of merit. The same is hereby dismissed. There shall be no order as to costs. In view of the dismissal of the revisional application, the connected application namely C.A.N. 1986 of 2013 has rendered infractuous and is thus dismissed.