In this civil revisional application the petitioner has challenged Order no.27 dated 9th August, 2010 passed by the Learned Second Court (Junior Division) at Sealdah in Title Suit no.96 of 2009 in the matter of Ashok Kumar Kanu Vs. Neelamber Construction Private Limited. The petitioner in this civil revisional application is the defendant no.1 in Title Suit no.96 of 2009. The said suit is for recovery of possession, declaration and for permanent injunction in respect of the suit premises measuring more or less 38 cottahs in holding nos. 88 and 89, Dehi Serampore Road (subsequently renumbered as 27/1A and 27/1B, Dr.Sundari Mohan Avenue) P.S.- Beniapukur, Calcutta, 700014.
The Opposite Party (OP) no. 1 is the plaintiff before the Learned Trial Court.
By the said impugned Order the Learned Trial Court was pleased to reject the application filed by the defendant no.1 under Order 7 Rule 11 Code of Civil Procedure(CPC). While rejecting the prayer of the petitioner under Order 7 Rule 11 of the CPC the Learned Trial Court was pleased to arrive at the following three findings.
First, the contention of the petitioner-defendant no.1 that the plaint does not disclose any cause-of-action against the petitioner is not acceptable. In this connection the Learned Trial Court was pleased to refer to paragraphs: 4, 5, 6, 7, 8, 9 and 10 of the plaint to rebut the petition for rejection of plaint.
Second, the Learned Trial Court was pleased to hold that the claim of the petitioner-defendant no.1 to the effect that the plaintiff's case is not supported by documents is outside the purview of Order 7 Rule 11 CPC.
Third, the further contention of the petitioner-defendant no.1 that the General Power of Attorney (for short GPA) does not confer any right upon the constituted attorney of the OP no.1-plaintiff to verify the plaint cannot be the subject of adjudication while deciding a petition under Order 7 Rule 11 CPC.
The Learned Trial Court thereafter proceeded by fixing the next date for hearing the injunction petition.
Aggrieved by the said Order dated 9th August, 2010 the petitioner has preferred the present CO 2837 of 2010 praying, inter alia, for setting aside of the said impugned Order.
Sri Chatterjee, Learned Senior Counsel appearing on behalf of the petitioner, has submitted that the plaintiff's suit is a suit on documents. Sri Chatterjee points out that the suit being one for declaration to the effect that the plaintiff and the proforma defendant nos.2 and 3 are the rightful owners of the property as mentioned in the schedule of the plaint, with further prayers for recovery of Khas possession and permanent injunction restraining the petitioner- defendant no.1 from making any construction on the suit property, it is incumbent upon the Learned Trial Court to look into documents produced by the OP-plaintiff in support of his title to the property.
Sri Chatterjee's primary submission is that the present petitioner-defendant no.1 is wrongfully impleaded in the said suit. He submits that the suit was filed on documents annexed to the plaint. Thereafter the plaint was amended and the certified copy of the deed of conveyance was annexed to the plaint.
From the certified copy of the deed of conveyance as annexed to the plaint it transpires, according to Sri Chatterjee, that the OP- plaintiff relies upon a deed of sale executed in the year 1905 in respect of the suit premises. The said deed of sale is executed by one Munshi Mofizaddin in favor of one Sri Durga Ram Kanu for a total consideration of Rs.3,000 and absolutely transferring the right, title and interest of the vendor in holding nos. 88 and 89 Beniapukur Municipality measuring more or less 38 cottahs of land. The said deed is shown to have been registered on 2nd April, 1905 corresponding to 18th Chaitra, 1311 BS. The schedule of the said deed shows that the property sold is flanked on the east by Dehi Serampore Road. An English translation of the said deed of sale is annexed to CO 2837 of 2010.
Sri Chatterjee further submits that the deed of sale dated 2nd April, 1905 does not show that the property purchased is identical to the suit premises. He submits that from the certified copy of the said sale deed it appears that the same has been obtained in the year 1972. The said deed of conveyance nowhere refers to premises no.27 or 27/1 or 27/1A or 27/1B, Dehi-Serampore Road which is a subsequent introduction in the schedule of the plaint by the OP1- defendant.
According to the petitioner the alleged holding number disclosed in the sale deed dated 2nd April, 1995 makes no mention of the properties wholly owned and belonging to the petitioner numbered as 27/1A and 27/1B, Rameshwar Road (formerly Dehi-Serampore Road) Calcutta-700014. It is asserted on behalf of the petitioner that the suit property and the two properties owned and belonging to the petitioner are separate properties. Therefore the OP1-plaintiff can have no cause-of-action against the petitioner in respect of the two premises belonging to the petitioner. The petitioner has therefore prayed for an Order of rejection of plaint under Order 7 Rule 11 CPC before the Learned Trial Court. The petitioner submits that the Order 7 Rule 11 petition ought to have been allowed by the Learned Trial Court. Alternatively it is submitted by the petitioner that his name must be expunged from the array of defendants in Title Suit no.96 of 2009 in as much as the plaint fails to disclose any cause-of-action against the defendant no.1.
The second plank of Sri Chatterjee's submission is that the amended plaint in Title Suit no. 96 of 2009 was verified by the same constituent attorney who verified the original plaint on the strength of the GPA filed with the plaint. The said GPA which is also annexed to the revisional application was granted in support of premises being 27/1A and 27/1B Dr.Sundori Mohan Avenue and not in respect of 27 or 27/1 or 27/1A or 27/1B Dehi Serampore Road. In these circumstances, it is submitted by Sri Chatterjee that the Power-of- Attorney holder in terms of the said GPA was not competent to verify the plaint in as much as the schedule of property mentioned in the GPA and the schedule of property of the plaint are distinctly different. Such lack of competence to verify stares on the face of the records and the suit being one of declaration based on documents is liable to be rejected at the threshold. According to Sri Chatterjee, the defective verification of the plaint is against the grain of the provisions enshrined in Section 26 Rules 1 and 2 read with Order 26 Rule 16 of the CPC. No suit can be maintainable on the strength of a Power-of- Attorney holder's signature on affidavit when admittedly on the face of the records such Power-of-Attorney holder has not been given the right to prosecute under the parent document, viz. the GPA.
The third plank of Sri Chatterjee's submission is that the primary document on which the cause-of-action of the plaint is based is itself not free from suspicion. As mentioned earlier in this judgment the said primary document being the sale deed of 1905 was obtained on 20th May, 1972 by taking a certified copy thereof. According to Sri Chatterjee there is mention of Beniapukur Municipality in the year 1905 when the alleged sale deed was purportedly registered. History coupled with municipal records do not confirm that such a municipality by the name of Beniapukur Municipality existed in the year 1905.
Furthermore the deed shows that it was purportedly registered at the Sub-Registrar's Office, Sealdah, Book no.1, Vol. No.37, Page nos. - 41 to 48 being no.787 for the year 1905.
According to Sri Chatterjee right to information queries were filed by the petitioner in respect of the said deed of 1905.
From the reply received to such RTI query from the District Registrar, South 24 Parganas it transpires that "no such volume could be traced out in the District Record Room as per report of the ADSR, Records, Alipore, South 24 Parganas vide a memo no.741 dated 7th December, 2009 (copy enclosed)."
The said memo no.741 dated 7th December, 2009 of the ADSR, Alipore, states as follows: -
"This is for your kind information that no volume bearing no.37 for 105 of S.R. Sealdah is found in the Record Section. Volumes numbering up to 28 only have been traced out for the year 1905 of S.R. Sealdah."
In the aforesaid backdrop Sri Chatterjee submits the alleged sale deed of 1905 cannot be even said to be in a volume which can be traced out in the Record Room although there is reference to the volumes up to which records are traceable in the Court at Sealdah. Sri Chatterjee further submits that the sale deed of 1905 being itself clouded with suspicion and in respect of altogether different premises, the petitioner-defendant no.1 cannot be dragged into such a vexatious suit which does not disclose any cause-of-action against the petitioner. Therefore he submits that the plaint should be rejected.
In support of his arguments Sri Chatterjee relies on the following decisions :-
a) AIR 1983 Rajasthan 3 (Para 7) & AIR 2000 Bombay 34 (Para17): For the proposition that in a plaint on documents the Court can insist on prima facie satisfaction on the validity or invalidity of the documents.);
b) (1977) 4 SCC 467 (Para 5): For the proposition that when the plaint does not disclose a clear cause-of-action it must be rejected.
c) (1998) 2 SCC 70 (Paras: 16, 17, 27): For the proposition that while adjudicating a petition for rejection of plaint the Court must make a meaningful reading of the plaint and;
d) (2008) 1 CHN Page 36 (Paras: 32, 33, 48 and 49): For the proposition that the cause-of-action as pleaded in the plaint must be assessed by the Court while deciding an application for rejection of plaint.
Sri Ghosh, Learned Counsel appearing for the opposite party- petitioner argues the following:-
a) That in connection with Title Suit no.96 of 2009 the petitioner-plaintiff filed an application under Order 6 Rule 17 CPC. The proposed amendment was filed for deleting the words "now renumbered as 27/1A and 27/1B Dr. Sundari Mohan Avenue." The said application under Order 6 Rule 17 CPC was rejected by the Learned Trial Court. Against the said Order of rejection no.14 dated 7th December, 2009 the opposite party-plaintiff challenged the same before this Hon'ble Court by filing a revisional application no. CO 142 of 2010. The said revisional application was heard on 22nd February, 2010 and in presence of both parties this Hon'ble Court was please to decide CO 142 of 2010 by order dated 22nd February, 2010 as follows:-
"I think ends of justice will be observed by setting aside the Order impugned and directing deletion of 'now renumbered as 27/1A and 27/1B, Dr. Sundari Mohan Avenue, P.S.- Beniapukur, Calcutta 700014, Dist.- 24 Parganas (South)' from the schedule and in the plaint and retention of premises no. 27, Dehi Serampore Road only as the description of the premises.
It will be open to Sri Tandon's clients the defendants to file a written statement dealing with this alleged misdescription of property which he says is not 27 but has been subsequently renumbered so that at the trial of the suit the exact number of the holdings is identified and dealt with accordingly. I do not think that because the premises number is allegedly incorrect when the identification of the premises is otherwise correct, should be taken as a ground for refusing amendment sought for because such disputes can be resolved on the trial of the suit and such amendment do not change the character of the suit at all.....
Sri Tandon very fairly submits that the suit be expedited. Therefore, let the Court below make all endeavour to dispose of the suit within six months from the date of the communication of this Order."
b) That in spite of the Hon'ble Court having directed by Order dated 22nd February, 2010 in CO 142 of 2010 to file additional written statement, the present petitioner-defendant did not file such additional written statement within the period of four weeks directed by the Hon'ble Court. On the contrary on the 21st of April, 2010 the petitioner filed an application under Order 7 Rule 11 CPC praying for rejection of the plaint.
c) It is further contended on behalf of the OP1-plaintiff that in the application under Order 7 Rule 11 CPC the petitioner- defendant no.1 admitted that he does not have any claim, right title and interest over 27, Dehi Serampore Road under holding nos.88 and 89 described as the suit property. If the suit property and the property owned and possessed by the petitioner-defendant no.1 are different properties having separate holding numbers and addresses, the petitioner- defendant no.1 ought to have filed its additional written statement as directed by the Hon'ble Court in CO 142 of 2010.
The OP1-defendant has argued that once the issue of trial is settled by the Order dated 22nd February, 2010 in CO 142 of 2010 by which the petitioner-defendant no.1 undertook to file his additional written statement and agreed to expeditious hearing of the suit, the petitioner cannot be permitted to bypass the said Order and/or reopen the said issue by filing an application under Order 7 Rule 11 CPC. The contention of the OP1-plaintiff is that in the aforementioned circumstances the principles of res judicata or the principles analogous thereto shall apply. In this connection Sri Ghosh relies upon a decision of the Hon'ble Apex Court reported in AIR 2014 SCC 544 (Erach Boman Khavar Vs. Tukaram Sridhar Bhat; Para -34).
d) Sri Ghosh further contends that the observation of the Hon'ble Court in CO 142 of 2010 to the effect "at the trial of the suit the exact number of the holding is identified and dealt with accordingly." makes the issue of identity of the premises a triable one affirmed by an Order of this Court. In this connection he relies upon the following decisions:- AIR 2000 PUNJAB AND HARYANA; Pg.44; & AIR 1996 SC; Pg.2140 (State of Orissa Vs. Clockner and Co.);
e) Relying on a decision of the AP High Court reported in AIR 2001 NOC; Pg.78(AP) the opposite party no.1-defendant further contends that when the subject matter of the suit is an immovable property the plaint shall contain a description of the property sufficient to identify the same. When particulars of the boundaries or numbers in a record of survey of the said immovable property which is the subject matter of the suit are given in a plaint, the Court must presume that sufficient particulars are given. Other particulars such as the date of purchase, the date of partition, the names of attestators, scribe etc. are matters of evidence and the plaintiff cannot be compelled to disclose them prior to trial to the defendants.
Sri Ghosh also relies on the decisions reported in AIR 2012 SC 2638 (Para 4, 5, & 6); 1977 (1) SCC 511, 2005 (10) SCC 760, 2004 (9) SCC 512 in support of above proposition.
f) Sri Ghosh further argues that in the application under Order 7 Rule 11 CPC it has been impressed upon the Learned Trial Court that the petitioner is the owner of premises no. 27/1B Rameshwar Shaw Road (formerly known as Dehi Serampore Road) and such premises are not evident from the schedule of the property stated in the plaint. Such contention is reported by the petitioner in the revisional application filed before this Hon'ble Court that the petitioner-defendant no.1 does not lay any claim, right, title and interest in respect of the premises no.27, Dehi Serampore Road under holding nos.88 and 89 being the suit property. The suit property and the property owned and possessed by the petitioner- defendant no.1 are two different properties having different holding numbers and addresses.
In support of the above proposition that a Court deciding a petition under Order 7 Rule 11 shall not throw out a plaint on mere technicality of pleading, Sri Ghosh relies upon the following decisions:-
AIR 1976 SC 461; AIR 1952 SC 47; AIR 1977 SC 1158; AIR 1980 CALCUTTA, 204; AIR 1976 SC 461 (at Pg.470).
g) Sri Ghosh draws the attention of this Court to Paras - 6 and 8 of the plaint in which the OP1-plaintiff has specifically alleged that the petitioner-defendant no.1 is trying to grab the schedule property being 27, Dehi Serampore Road and construct a multi storeyed building on the suit premises. Several allegations of construction work started by the petitioner-defendant no.1 in the suit premises on and after 4th February, 2009 have been brought to the notice of the Learned Trial Court. Sri Ghosh therefore argues that the cause-of-action in the plaint pertains to a bundle of facts and such bundle of facts cannot be swept under the carpet by describing the same as illusory. In support of this proposition he relies upon the following decisions:-
1998 (2) SCC 70; AIR 2006 SC 1828 (Paras - 11 & 12).
h) A further plank of argument of the OP1-plaintiff is that the Court cannot dissect pleadings into several parts and strike out portions which purportedly do not disclose a cause-of- action. Sri Ghosh has relied on several authorities for the proposition that a plaint must be read as a whole and not piecemeal. The said authorities are as follows:- AIR 2006 SC 1828 (Paras - 11 & 12); AIR 1999 SC 1128 (Paras - 10 & 15); 2007 (2) SCC 148 (Para - 13); AIR 2003 SC 759 (Paras - 9 & 10); AIR 1962 SC 63.
i) On the disputed issue of the legal capacity of the Power-of-Attorney holder to verify the plaint the OP1-plaintiff has argued that the cause-of-action furnished in the plaint pertains to the illegal attempt of the petitioner-defendant no.1 to construct a multi storeyed building in the suit premises which is being resisted by the OP1-plaintiff. Such encroachment in the suit property has been described at paras 5, 6, 7, 8 & 9 of the plaint. In spite of the death of the Power-of-Attorney holder during the pendency of the suit, the OP1-plaintiff has been proceeding with the same. Having recorded the fact that the schedule of the property has been correctly delineated in the plaint, the mere allegation of giving an incorrect holding number or premises number cannot be considered to be a criterion sufficient to attract the provisions of Order 7 Rule 11 CPC.
Sri Ghosh in support of the above proposition relies on the following decisions of the Hon'ble Apex Court:- AIR 1961 SC 325 (Para - 10); AIR 1955 SC 610 on the point that the verification of a plaint or petition is found defective it should not be normally rejected and if such defect is found then the same may be cured by a process of amendment.
Sri Ghosh has produced during the hearing the deed of the premises purchased by the petitioner-defendant no.1. The said deed is dated 14th June, 2003 and is entered into between Nirodhi Prakash Ganguli and Navo Prakash Ganguli jointly referred to as 'owner/trustees' and Neelamber Construction Private Limited referred to as purchaser, that is the petitioner-defendant no.1. The said deed, inter alia, states that the 'owners/trustees' are all residing at 27, Dehi Serampore Road, Calcutta 700014. It was further agreed between the parties that the 'purchaser' will pay to the 'owners/trustees' a sum of rupees 96 lacs for purchase of the suit property which is described in the first schedule of the said deed of evidence dated 14th June, 2003 as follows:-
"The first schedule above referred to:
All that the piece and parcel of land measuring 37 .7339 cottahs more or less along with structures lying at premises no.27/1A (partly) and 27/1B Dehi Serampore Road, Calcutta 700014, P.S.- Beniapukur Sub-Registry Office, Sealdah within the municipal limits of the town of Kolkata together with Owners/Trustees allocation being 35% of the constructed area in the building to be constructed thereon and the said property is butted and bounded by On the north : C.I.T. Road;
On the south : 27 Dehi Serampore Road; On the west : Dr.Sundari Mohan Avenue; On the east : Dehi Serampore Road; The part of premise no.27/1A consisting of a land measuring 22 cottahs 26 sq.ft and premises no.27/1B is consists of 15 cottahs 11 chittaks 24 sq.ft in actual measurement."
Several other facts are cited by the OP1-plaintiff to contend that the petitioner-defendant no.1 is trying to confuse this Court by stating that the petitioner has no connection whatsoever with premises no.27, Dehi Serampore Road, Calcutta- 700014 and such premises named 27, 27/1A , 27/1B Dehi Serampore Road belonged to the Gangulis who applied to the Calcutta Improvement Trust (CIT) for exemption. In the meantime such premises was acquired by the Land Acquisition Collector and on payment of compensation to the Gangulis the land came under the possession of the State. Over such land the building being Chittaranjan Hospital and the National Medical College have already been constructed and the State is operating the same. The parties have also embarked upon several litigation in this respect and, in view of the complex and contentious factual scenario, it is appropriate that the parties should face trial before the Learned Trial Court.
By way of reply Sri Chatterjee has argued that even if the deed dated 14th June, 2003 is taken at face value, the name of the vendor Sri Durga Ram Kanu does not appear in any of the documents subsequent thereto describing further transfer of the suit premises. In this connection attention of this Court is drawn to the deed dated 14th June, 2003 between the Gangulis and the petitioner-defendant no.1. Sri Chatterjee argues that even if the contention of the OP1-plaintiff is accepted that there was a conveyance between the Gangulis and the petitioner-defendant no.1 in respect of the suit premises, then the said deed of conveyance dated 14th June, 2003 ought to have disclosed the names of the predecessors-in-interest of the Gangulis in respect of the suit premises. Therefore it would have been appropriate that the said suit dated 14th June, 2003 should have mentioned the name of Durga Ram Kanu as the original vendor and mention of the conveyance of 1905 in favor of Munshi Mofizaddin Ahmed should have been made in the latter conveyance. However, the name of the original vendor is significantly absent from any subsisting conveyance. From no subsequent conveyance the holding nos. 88 and 89 are perceived.
Sri Chatterjee also argues that the Order of this Court dated 22nd February, 2010 is an interlocutory Order and no binding effect of such Order can be imputed in connection with any subsequent development in the suit proceedings. He says that the moment the amendment is allowed by the Court incorporating the address 27, Dehi Serampore Road the right of the defendant accrues in Order 7 Rule 11 CPC. Sri Chatterjee by way of reply states that there is nothing stated in the plaint that the plaintiff-OP1 is in possession of the suit premises and is threatened with dispossession by the petitioner-defendant no.1. Drawing the attention of this Court to prayer (B) of the plaint Sri Chatterjee emphatically argues that in the absence of such specific averment the prayer (B) of the plaint is misconceived since such prayer relates to a decree for recovery of Khas possession.
Heard the parties. Considered the materials on record. At the very outset this Court is required to notice the solemn order dated 22nd February, 2010 passed by the Hon'ble Single Bench in CO 142 of 2010. The text of the order dated 22nd February, 2010 is already quoted hereinabove in this judgment.
It clearly transpires from the said order that the Learned Counsel for the present petitioner did not dispute the requirement of the present petitioner-defendant to file the written statement dealing with the alleged mis-description of property. While passing the direction to file the written statement the Hon'ble Single Bench was pleased to allow the amendment sought for by the plaintiff directing deletion of the premises no.27/1A and 27/1B, Dr. Sundari Mohan Avenue, P.S. - Beniapukur, Calcutta- 700014 from the schedule of the plaint and retention of the premises no.27, Dehi Serampore Road only as the description of the premises.
The Hon'ble Single Bench was further pleased to hold that because the premises number is allegedly incorrect when the identification of the premises is otherwise correct, the same should not be taken as a ground for refusing amendment because such disputes can be resolved at the trial of the suit and such amendment do not change the character of the suit at all. The Hon'ble Single Bench was also pleased to record the submission of the Learned Counsel appearing for the present petitioner-defendant on the issue of amendment by agreeing to have the suit decided. Accordingly, the Hon'ble Single Bench was pleased to direct the Learned Trial Court to make all endeavour to dispose of the suit within six months from the date of the communication of this order.
This Court therefore clearly finds from the conduct of the present petitioner-defendant before the Hon'ble Single Bench in CO 142 of 2010 a willingness to get the suit heard out after the amendment and the filing of the additional written statement to such amendment. It is a principle, now well recognized in law that a party to a proceeding ought not to be allowed to approbate or reprobate in respect of the same issue, viz. identity of the suit premises.
No material has been brought to the notice of this Court that the order dated 22nd February, 2010 was carried by way of challenge by the present petitioner-defendant. Therefore, to the mind of this Court the order dated 22nd February, 2010 has attained finality. Both the parties are bound by the terms of the said order and the petitione
Please Login To View The Full Judgment!
r-defendant by filing a subsequent application under Order 7 Rule 11 of the CPC on the issue of the identity of the suit premises, is barred from doing so on the test of res judicata and the principles analogous thereto. In this connection this Court finds merit in the submission of Sri Ghosh to the effect that pursuant to the order dated 22nd February, 2010 in CO 142 of 2010 the issue of identity of the suit premises becomes a triable one. Further, to the mind of this Court from the plethora of facts which have emerged from the pleadings and the arguments, it cannot be concluded that the plaintiff has not disclosed any cause of action in the suit. It is trite law that the cause of action disclosed in the plaint comprises a bundle of facts and the plaintiff is the dominus litus. The solemn order of the Court dated 22nd February, 2010(supra) having dwelt on the vexed issue of the identity of the premises and having allowed the amendment with the opportunity to the petitioner- defendant to file the additional written statement, to the further mind of this Court the issue of survival of the plaint is no more res integra. The petitioner-defendant shall be at liberty to urge all points in the trial, including the defective verification of the plaint by the purported Power of Attorney holder at the time of the trial of this suit. While appreciating the painstaking arguments advanced by Sri Chatterjee on behalf of the petitioner-defendant particularly on the point that in a suit for documents the materials relied upon by must be construed to be adequate to hold in favour of rejection of the plaint, this Court is of the considered opinion that the issues of facts raised by Sri Chatterjee and controverted by Sri Ghosh must best be relegated to the realm of trial. In the backdrop of the above discussion this Court finds no reason to interfere with the order no.27 dated 9th August, 2010 passed by the Learned 2nd Civil Court (Junior Division) at Sealdah in Title Suit no.96 of 2009. This Court however reiterates the letter and spirit of the solemn order dated 22nd February, 2010 directing expeditious disposal of Title Suit no.96 of 2009 on its own merits, without granting unnecessary adjournments to either parties and without being influenced by any observations made by this Court preferably within 6 months from the date of communication of this order. CO 2837 of 2010 is thus disposed of. There will be, however, no order as to costs. Later: Sri Bhaskar Mitra, Learned Counsel for the petitioners prays for stay of operation of this order for a period of 4 (four) weeks. Sri Shiba Prasad Ghosh, Learned Counsel for the respondent opposes the prayer for stay. However, in the facts and circumstances, prayer for stay is granted for a period of 4 (four) weeks from this date as prayed for.