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2013 DIGILAW 467 (CAL)

Debashis Bose v. S. R. P. Construction Pvt. Ltd.

2013-07-19

PRASENJIT MANDAL

body2013
Judgment :- Prasenjit Mandal, J. Challenge is to the Order No.97 dated February 20, 2013 passed by the learned Civil Judge (Senior Division), Barasat in Title Suit No.146 of 2007 thereby rejecting an application for rejection of the plaint. The plaintiff/opposite party no.1 instituted the aforesaid suit for declaration that the plaintiff is a tenant in respect of the property in suit, permanent injunction restraining the defendants, their men and agents from disturbing the plaintiff’s peaceful possession over the property in suit without due process of law, costs and other reliefs. The defendant no.2 filed an application under Order 7 Rule 11(a) and (d) of the C.P.C. for rejection of the plaint at the stage of further hearing of the suit. That application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Having heard the learned Advocates of both the sides and on perusal of the materials on record, I find that the defendant no.2 has contended that the plaintiff has no cause of action to institute the suit. He has also contended that the plaint filed by the plaintiff has not been affirmed properly and that there is a violation of the provisions of the Companies Act and Section 26(2) of the C.P.C. Not only that the provisions of Order 6 Rule 15(2) & (3) of the C.P.C. have not been complied with. So, the plaint comes within the mischief or Order 7 Rule 11(a) & (d) of the C.P.C. Mr. Sudhis Dasgupta, learned Senior Advocate appearing for the petitioner, has contended that the learned Trial Judge is totally wrong in coming to the conclusion as the plaint does not disclose the true facts. It has been described simply that the plaintiff is a tenant of the suit property (ground floor of an unfinished construction over plot no.33 in Block-DN, Salt Lake, Sector-V) under the defendant no.1 by virtue of a deed of agreement dated December 1, 2005. The tenancy of the plaintiff was to commence since January 1998. It has also been contended that since induction the plaintiff is in possession of the property in suit and it paid rent regularly to the defendant no.1 who used to grant receipts. Thereafter, the defendant no.2 came to the suit property and he has claimed to be the owner of the suit property. It has also been contended that since induction the plaintiff is in possession of the property in suit and it paid rent regularly to the defendant no.1 who used to grant receipts. Thereafter, the defendant no.2 came to the suit property and he has claimed to be the owner of the suit property. Since the land was taken by the defendant no.2 from the Government, he has to discharge certain rights and obligations and as such, the property in suit cannot be given to a third party on rent. Under such circumstances, the defendant no.2 is free to file an appropriate application under Order 7 Rule 11 of the C.P.C. at any stage of the suit and that there is no bar to file the application under Order 7 Rule 11 of the C.P.C. even at the stage of peremptory hearing of the suit as has been in the present case. On the other hand, Mr. Ashok Kumar Banerjee, learned Senior Advocate appearing for the plaintiff/opposite party no.1, has contended that in order to consider the contention of the rejection of the plaint, only the plaint will be the subject matter of the consideration. In the instant case, no document has been annexed to the plaint and so, only the plaint is the matter of consideration for rejection of the plaint. The learned Trial Judge, while disposing of the application, has clearly mentioned that there is a disclosure of the cause of action in paragraph nos.4 to 8 of the plaint. He has also observed that the question as to whether this cause of action is correct, false, fabricated, right or wrong can only be decided after full trial and not before. So, this is the correct approach of the learned Court in the matter. He has also drawn my attention as to the findings of the learned Trial Judge over the other contentions on behalf of the defendant no.2 that those are formal defects and could be corrected at any time and it has been clearly indicated in the impugned order and there is nothing wrong. Mr. Anit Kumar Rakshit, learned Advocate appearing for the opposite party no.2, has also supported the contention of the defendant no.2/petitioner herein. Mr. Anit Kumar Rakshit, learned Advocate appearing for the opposite party no.2, has also supported the contention of the defendant no.2/petitioner herein. Having due regard to the submissions of the learned Advocates of both the sides, I am of the view that the instant suit was filed in the year 2005 and so, the defendant no.2/petitioner herein was very much aware of the fact that the plaintiff is in possession of the suit property, but, he did not take any action earlier. Not only that the plaintiff has contended that he is in possession of the suit property since January 1998. Anyway, these are the matters to be decided at the time of trial. What I find from perusal of the copy of the plaint appearing as Annexure ‘P-1’ at page 100 that the paragraph nos.4 to 8 lay down the cause of action to file the suit and such facts have clearly been indicated by the learned Trial Judge in the impugned order. He has rightly observed that the other grounds which have been raised by the defendant no.2 under Order 7 Rule 11(d) of the C.P.C. are the procedural irregularities which could be cured at any stage and do not render the plaint of the plaintiff liable to be rejected. In support of his conclusion, the learned Trial Judge has relied on various decisions as indicated in the impugned order. In that view of the matter, I am of the opinion that the learned Trial Judge has rightly addressed the issue whether the plaint is liable to be rejected being barred by any law. So far as the defence stance as appearing from the materials furnished by him, I am of the view that at present, in order to consider the prayer for rejection of the plaint, such defence stance cannot be a matter of consideration. So, it cannot be decided at this stage whether the defendant no.1 had any right to induct a tenant in respect of the property in suit or not. So, it may be decided well after the full trial upon taking evidence on behalf of both the sides and the suit is at such stage. So, it cannot be decided at this stage whether the defendant no.1 had any right to induct a tenant in respect of the property in suit or not. So, it may be decided well after the full trial upon taking evidence on behalf of both the sides and the suit is at such stage. So, at this stage, the learned Trial Judge, in my opinion, has rightly addressed the issue holding that it would be beneficial to both the parties to decide all the matters in a contested disposal form after full trial as the suit has reached the stage of adducing evidence on behalf of the defendants. Therefore, there is no ground for intervention with the impugned order. The impugned order should, therefore, be sustained. Accordingly, the application stands dismissed. However, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.