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2016 DIGILAW 202 (CAL)

Shakuntala Devi Kanodia v. Ginni Farms Pvt. Ltd.

2016-02-24

SUBRATA TALUKDAR

body2016
JUDGMENT : Subrata Talukdar, J. The short point which this Court is required to answer in this application under Article 227 of the Constitution of India relates to the legality of the orders dated 28th August, 2015 and 4th September, 2015 being Order Nos. 10 and 11 respectively passed by the Ld. 5th Bench, City Civil Court at Calcutta (hereinafter referred to as the Ld. Trial Court) in Ejectment Suit No. 154 of 2011 (for short the suit) dismissing the application. 2. By order dated 28th August, 2015 the Ld. Trial Court was pleased to dismiss the application filed on behalf of the present petitioners, being the defendants in the suit, under Order 7 Rule 11 of the Code of Civil Procedure (for short CPC). By the subsequent order dated 4th September, 2015, the Ld. Trial Court was further pleased to dismiss the prayer of the petitioners to file a written statement in view of the long delay of 172 days. 3. The opposite parties in the present application (for short the OPs) are the plaintiffs in the suit. 4. The plaintiffs have, inter alia, pleaded in the suit for recovery of possession and mesne profit in respect of one flat being flat No. 2A on the ground floor of premises No. 75A, Kolkata-700016 totalling a carpet area of more or less 809 sq. ft. (for short the suit flat). It is, inter alia, pleaded in the plaint that the suit flat was purchased by the plaintiffs/present OPs by a Deed of Conveyance dated 11th November, 2006 from its erstwhile owner, one Seth Anandram Jaipuria Trust. 5. The purchase of the suit flat was informed by the plaintiffs by letter dated 5th December, 2006 to one Gouri Shankar Kanodia, since deceased, being the predecessor-in-interest of the present petitioners/defendants in the suit. The attornment of tenancy in favour of the plaintiffs was recognized by the said Gouri Shankar Kanodia (since deceased) and rents were paid in respect of the suit flat to the plaintiffs. 6. The attornment of tenancy in favour of the plaintiffs was recognized by the said Gouri Shankar Kanodia (since deceased) and rents were paid in respect of the suit flat to the plaintiffs. 6. Alleging that the defendants had, without the consent of the plaintiffs, changed the mode of user of the suit flat for commercial activities and further alleging that the defendants committed default in payment of rents, the plaintiffs caused to be served upon the defendants a notice dated 3rd/5th May, 2014 determining the tenancy under the provisions of the West Bengal Premises Tenancy Act, 1997 (for short the 1997 Act). 7. The notice (supra) was duly received by the defendant no.1 on behalf of the all defendants and, since the defendants failed to vacate and deliver the suit flat upon expiry of the notice period, the plaintiffs filed for recovery of possession and mesne profits (supra). 8. The present petitioners/defendants filed an application under Order 7 Rule 11 CPC read with Section 151 CPC praying for dismissal of the plaint on the sole ground that the statutory notice for vacating the suit flat is defective. The petitioners claimed to be tenants in respect of the Flat No. 2A, 75B Park Street and not Flat No. 2A, 75A Park Street. On the above point of an invalid notice and mis-description of the suit flat, the defendants argued that the plaint is liable to be rejected. 9. The point raised by the petitioners in their Order 7 Rule 11 CPC applicant was met by the plaintiffs by filing an affidavit-in-opposition before the Ld. Trial Court. At paragraphs (6) a, b, c, d, e and f of the said affidavit-in-opposition the plaintiffs have averred as follows:- “6. a. the premises no. 75A Park Street, Kolkata-700016 and premises no. 75B Park Street, Kolkata-700016 were previously two separate premises having distinct municipal holdings. b. After the plaintiffs purchased the said two properties, they had applied for mutation of the two properties. A copy of such mutation application filed before the Kolkata Municipal Corporation is annexed hereto and marked with the letter “A”. c. After mutation of the properties the purchaser had applied for amalgamation of the both the premises into one. b. After the plaintiffs purchased the said two properties, they had applied for mutation of the two properties. A copy of such mutation application filed before the Kolkata Municipal Corporation is annexed hereto and marked with the letter “A”. c. After mutation of the properties the purchaser had applied for amalgamation of the both the premises into one. After hearing the concerned parties, the Kolkata Municipal Corporation had passed an order dated 16th February, 2013, a copy whereof is annexed hereto and marked with the letter “B” amalgamating the said two properties into one and renumbering the two properties as 75A, Park Street, Kolkata-700016 and allotting assessee no. 110633900255. d. Kolkata Municipal Corporation has thereafter raised property tax bills on the plaintiffs in respect of the said property and the plaintiffs have been regularly making payments of the same. A copy of the last paid property tax bills in respect of the said property is annexed hereto and marked with the letter “C”. e. In view of the above, the said application has no legs to stand upon. It is immaterial whether the defendants were occupants in respect of the erstwhile 75B, Park Street, Kolkata-700016 inasmuch as 75A and 75B, Park Street have been amalgamated into a single municipal holding having the holding no. 75A, Park Street, Kolkata-700016. f. In those circumstances, the notice to quit caused to be issued by the plaintiffs on the defendants is apt and proper and the defendants are liable to be evicted from the suit property.” 10. Therefore, Sri Sabyasachi Bhattacharya, Ld. Senior Counsel appearing on behalf of the defendants/present OPs submits that amalgamation of the properties took place on the 16th of February, 2013 and the notice to quit (supra) was thereafter issued on the 3rd/5th of May, 2014 in respect of the amalgamated property. 11. Sri Bhattacharya argues that the defendants accepted the notice to quit without demur. According to Ld. Senior Counsel, the petitioners/defendants in the suit have preferred the present application under Article 227 of the Constitution of India for the purpose of creating a smokescreen to hide their laches for not filing the written statement even on the expiry of the period of 172 days from the service of summons. According to Ld. Senior Counsel, the petitioners/defendants in the suit have preferred the present application under Article 227 of the Constitution of India for the purpose of creating a smokescreen to hide their laches for not filing the written statement even on the expiry of the period of 172 days from the service of summons. Sri Bhattacharya further points out that the amalgamation of the premises resulting in a single flat number is a fact in respect of which evidence can be taken at the trial. It is not such a fact which disentitles the plaintiffs from pressing with the trial. 12. Ld. Senior Counsel for the OPs succinctly argues that there is a distinction between having no cause of action and disclosing no cause of action. 13. The petitioners are represented by Sri Arik Banerjee, Ld. Advocate who argues that no point has been taken in the suit that the amalgamation of the premises, inclusive of the suit flat, took place in the year 2013 although the suit was filed subsequently in 2014. Sri Banerjee submits that the matter may be remanded to the Ld. Trial Court for a better appreciation of the points raised in the application under Order 7 Rule 11 CPC. 14. Having heard the parties and considering the materials on record this Court finds substance in the submission of Sri Bhattacharya that assuming but not admitting that the point of amalgamation is res integra, the same can be decided at the trial. The point of defect of the notice to quit, as argued by Sri Banerjee, in the teeth of contrary facts pleaded by the plaintiffs is, to the mind of this Court not a non-triable issue warranting rejection of the plaint. 15. To the further mind of this Court the issue of amalgamation of the suit premises qua the notice to quit is an issue of fact which can be considered on evidence at the trial. This Court further notices with appreciation that the Ld. Trial court has correctly grasped the core issue that the defendants have been unable to make out a case of failure on the part of the plaintiffs to disclose a cause of action. 16. With regard to the above discussion this Court is required to notice the judgment reported in 2004 (3) SCC 137 in the matter of Sopan Sukhdeo Sable vs. Assistant Charity Commissioner & Ors. 16. With regard to the above discussion this Court is required to notice the judgment reported in 2004 (3) SCC 137 in the matter of Sopan Sukhdeo Sable vs. Assistant Charity Commissioner & Ors. at Paras 11, 12 and 21, which read as follows:- “11. In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal and Ors., 1998 (2) SCC 70 it was held that the basic question to be decided while dealing with an application filed under Order VII Rule 11 of the Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order VII Rule 11 of the Code. 12. The trial Court must remember that if on a meaningful and not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code. (See T. Arivandandam v. T.V. Satyapal and Anr. ( 1977 (4) SCC 467 ) 21. According to Mr. Mohta appearing for the appellants, as noted above, the reliefs are separable and merely because some of the reliefs cannot be granted by the Civil Court it would entail an automatic rejection of the old plaint. In fact he submitted that some of the reliefs would be given up by the plaintiffs in the suit itself. It is true as contended by Mr. Savant learned counsel appearing for the respondent-trust by ingenious drafting a cause of action in the nature of red herrings cannot be brought into judicial arena. But a reading of the reliefs shows that some of them can only be considered by the Civil Court.” 17. This Court is also required to notice with disappointment that although the Ld. Trial Court granted the defendants a period of 7 days effective from the date of the order, i.e. 28th August, 2015 to file the written statement by and within 4th September, 2015, such opportunity was not availed of on behalf of the defendants. This Court is also required to notice with disappointment that although the Ld. Trial Court granted the defendants a period of 7 days effective from the date of the order, i.e. 28th August, 2015 to file the written statement by and within 4th September, 2015, such opportunity was not availed of on behalf of the defendants. On the contrary, long after expiry of the period granted by the Ld. Trial court till 4th September, 2015, the present application under Article 227 of the Constitution of India was affirmed on the 15th of October, 2015. 18. In the backdrop of the above discussion this Court finds the conduct of the present petitioners/defendants to be most vexatious. This Court therefore finds no reason to interfere with the order impugned dated 28th August, 2015. 19. Accordingly, CO 4093 of 2015 stands rejected with costs assessed at Rs. 5,000/- (Five Thousand only). 20. This order shall not however stand in the way of the Ld. Trial Court from considering the prayer of the petitioners/defendants to take steps in the suit, if advised, on such terms found appropriate by the Ld. Trial Court. 21. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.