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Sha-San infrastructures Pvt. Ltd v/s Thakur Corner Byabsayee Kalyan Samity & Others


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    C.O. No. 534 of 2010 WITH C.O. No. 535 of 2010

    Decided On, 29 June 2010

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE JYOTIRMAY BHATTACHARYA

    For the Petitioner: Sakti Nath Mukherjee, Saptangsu Basu, Bhaskar Mukherjee, Advocates. For the Opposite Parties: Bidyut Kumar Banerjee, Ms. Shila Sarkar, Advocates.



Judgment Text

Re: C.O. No. 534 of 2010


1. By the impugned order dated 6th January, 2010 passed by the learned Civil Judge, Junior Division, Fourth Court at Sealdah in Title Suit No. 243 of 2008, the defendant?s application under Order 7 Rule 11 of the Civil Procedure Code was rejected by the learned Trial Judge. The defendant No.8 is aggrieved by the said order. Hence the said defendant has come before this Court with this application under Article 227 of the Constitution of India.


Heard Mr. Mukherjee, learned Senior Counsel, appearing for the petitioner and Mr. Banerjee, learned Senior Counsel, appearing for the opposite party. Considered the materials on record including the order impugned. Let me now consider the merit of the impugned order in the facts of the instant case. The plaintiff is a registered Society. The plaintiff filed the suit for declaration of the lawful right of its members over the suit property and for a further declaration that the deed of conveyance registered in the office of the Registrar of Assurance, Kolkata-II on 31st August, 2007 being No.853 of 2008 is void, illegal, inoperative and a sham transaction. The plaintiff also prayed for a decree for permanent injunction for restraining the defendant their men and agents from carrying on any measurement over the suit property with the help of the proforma defendant No.10 with a view to block the entire suit property by constructing the boundary wall thereon and/or from interfering and disturbing the plaintiff?s peaceful possession of the suit property.


It was stated by the plaintiff in the plaint that the predecessor-in-interest of the defendant Nos.1 to 7, namely, Sajanendra Nath Tagore was the original owner of the land measuring about 36 Bighas 16 Cottahs, 15 Chittaks and 12 square feet together with some tile shaded structures in different dags which were particularly mentioned in the Schedule A of the plaint. It was further stated therein that the different persons were inducted as tenants by the said predecessor-in-interest of the defendant Nos. 1 to 7 in respect of their respective tenancies in different shop rooms made with tile shaded structure on monthly rental basis during the period of 1976. The possession which was given to such persons in respect of different shop rooms are mentioned in Schedule A-1 of the said plaint. In fact, the plaintiff claims relief by way of declaration and injunction in respect of the said A-1 Schedule property.


It was further stated therein that the tile shaded structures became dilapidated due to natural wear and tear and since neither the predecessors-ininterest of the defendant Nos. 1 to 7 nor the defendant Nos. 1 to 7 took care to repair these structures, the tenants formed an association which was registered under the West Bengal Societies Registration Act for protecting the interest of the members of the said association in smooth running of their respective business under the umbrella of the said Society.


It was further stated therein that the plaintiff?s Society developed the entire suit structure including the respective tenancies of its members to the knowledge of the defendant Nos. 1 to 7 with the fund provided by its members and has been possessing the same continuously and uninterruptedly on and from 17th April, 1980 by exercising their Possessory right and/or the right of tenancy over the suit property. The said Association along with another Association formed with the other group of tenants in other part of A Schedule property, jointly constructed passages within the suit property, arranged electricity, street lights, sewerage lines, drinking water connections for the members of their respective Associations. The Municipal Authority has also allotted individual holding number to the individual tenant in respect of their respective tenancies. Since the defendant No.8 tried to disturb the possession of the members of the plaintiff?s society and also made an attempt to demarcate the suit property in different plots on the strength of his alleged purchase of 50 per cent share in the suit property from the defendant Nos. 1 to 7, the plaintiff?s society filed the instant suit not only for declaration of the right of its members in the A-1 Schedule property but also for challenging the legality of the sale deed executed by defendant Nos. 1 to 7 in favour of the defendant No.8 by describing the said transaction as illegal, invalid, void and sham transaction.


The defendant No.8 filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint on the following grounds:


a) That the suit is not maintainable either in fact or in law;

b) The plaint does not disclose any cause of action;

c) The suit is hit by the provision of Specific Relief Act;

d) The suit exceeds pecuniary jurisdiction.


Of course, the objection regarding the maintainability of the suit on account of lack of pecuniary jurisdiction of the Court does not attract the provision of Order 7 Rule 11 of the Code of Civil Procedure. As such this Court does not think it necessary to consider this part of the objection of the defendant while considering this revisional application. This Court thus concentrates on the other three grounds as mentioned above, to find out as to whether the plaint discloses any cause of action for the said suit or not and further as to whether the suit as it appears from the statement made in the plaint is barred by any law or not.


The learned Trial Judge held that the plaint cannot be rejected under Order 7 Rule 11(a) of the Code of Civil Procedure as the plaintiff has made out a cause of action for the reliefs claimed in the suit. The learned Trial Judge also held that the objection regarding maintainability of the suit on the ground of bar of Section 34 of the Specific Relief Act cannot be decided at this stage without trial on evidence and as such the plaint cannot be rejected at this stage under Order 7 Rule 11(d) of the Civil Procedure Code.


Let me now test the legality of such findings of the learned Trial Judge in the facts of the instant case.


Re:- Non-disclosure of the cause of action:


The cause of action which was pleaded by the plaintiff in the plaint of the said suit has already been mentioned above. As such this Court does not feel any necessity for reiterating the said facts here once again. Cause of action is not defined in the Civil Procedure Code. Cause of action is a bundle of facts on which the plaintiff claims relief in the suit. For ascertaining as to whether cause of action has been disclosed in the plaint or not, the Court is required to consider the averments made out by the plaintiff in the plaint as a whole. While considering such pleadings, the Court can neither add anything to the pleadings nor can supplement anything to the pleadings nor can subtract anything from the pleadings. While considering the application under Order 7 Rule 11 of the Civil Procedure Code, the Court is required to confine itself within the plaint. In fact, meaningful reading of the plaint is the demand of the statue, as such the Court should not take a casual approach by reading the averments made in the plaint formally as the consequence of allowing an application under Order 7 Rule 11 of the Civil Procedure Code is far reaching which ultimately results into rejection of the plaint. While considering the scope of Order 7 Rule 11 of the Code of Civil Procedure the Hon?ble Supreme Court in the case of Sopan Sukhdeo Sable and others vs. Assistant Charity Commission and others reported in 2004 volume 3 SCC 137 held that the basic question to be decided while dealing with an application filed under Order 7 Rule 11(a) of the Civil Procedure Code is whether a real cause of action has been set out in the plaint or something purely illusory has been stated to note around Order 7 Rule 11. It was further held therein that the Court must remember that if on a meaningful reading of the plaint and not by formal reading, the court finds that it is manifestly vexious and meritless in the sense of not disclosing a clear right to sue, it should exercise the power under Order 7 Rule 11(a) of the Civil Procedure Code, taking care to see that the ground mentioned therein is fulfilled. It was further held therein that 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 10 of the Code.


Keeping in mind the aforesaid principles of law this Court has examined the averments made in the plaint very carefully. On examination of the averments made in the plaint this Court finds that by clever drafting an illusion of cause of action has been created in the paint without disclosing a clear right to sue of the plaintiff. The plaintiff which is an Association formed with its members who are claiming themselves to be tenants of different holdings of A-1 Schedule property, has not disclosed infringement of any of its legal right in the suit property. The plaintiff Association neither claimed any possessory right nor it claimed any tenancy right in respect of the A-1 Schedule property. The plaintiff claims that its members are tenants in respect of the different holdings as mentioned in the schedule A-1 of the plaint. The names the members of the plaintiff have not been disclosed in the plaint. The particulars of the tenancy, which is held by the respective members of the Society, have not been disclosed in the plaint. Without disclosure of these particulars, the chain of events does not constitute cause of action for the suit. The description of the suit property is vague and indefinite. Even assuming that the chain of events which was disclosed in the plaint constitutes a cause of action for the suit as the rights of the tenants who are members of the Society in respect of their respective tenancies were threatened by the defendant, still then since such cause of action relates to the threatened invasion of the right of those tenants who might be affected by invasion of their rights, such tenants may seek relief in appropriate suit on the basis of such cause of action. But since such cause of action does not relate to invasion of any of the rights of the plaintiff in respect of the suit property, the plaintiff, as an Association, cannot come forward to maintain the said suit. In fact, the plaintiff has no legal right in respect of the suit property which was alleged to have been threatened by the defendant. The plaintiff also does not claim that it has any independent legal right in the suit property. Thus, since the cause of action does not relate to the right of the plaintiff society, this Court holds that in fact, an illusion of cause of action has been created in the suit but real cause of action for the relief claimed in the suit has not been disclosed in the plaint.


Almost in an identical situation a question come up for consideration before the Division Bench of this Hon?ble Court regarding maintainability of a writ petition at the instance of an Association formed with the tenants to challenge the legality of the declaration made under Section 6 of the Land Acquisition Act for acquisition of the tenancy of the members of the said Association. The Division Bench of this Hon?ble Court in the case of 12 I. C. Bose Road Tenants? Association vs. Collector, Howrah reported in AIR 1977 Calcutta page 436 held that the persons who will be affected by the acquisition of the lands comprised in the said premises are the tenants occupying the same premises thereof, but surely not the association herein which has no legal right in the said premises and as such the question of infringement of the legal right of the said Association does not arise at all. Thus, this Hon?ble Court held that the Association of such tenants has no locus standi to maintain the writ petition. A subsequent decision of the Division Bench of this Hon?ble Court in the case of Calcutta Swimming Club vs. Lalit Singh and others reported in 2009 volume 2 CHN 379 held in an identical situation in that since none of the rights of the associate members of the club is going to be affected, if the new members with curtailed rights are admitted in the club, the plaintiffs being the members of the society whose rights have not been curtailed by such admission of the new members, cannot maintain the suit for declaration and injunction against the club. Thus the real test is as to whether the plaintiff has locus standi to maintain the suit. Here I have already indicated above that the plaintiff association claims that it has developed the suit property with the fund provided by its members but such acts of association do not create any legal right in favour of the association. As such the association which has no legal right in the suit property, has no locus to maintain the suit even if there is any cause of action for the suit for its members whose tenancy right is alleged to be invaded by the acts of the defendant. Since the cause of action pleaded in the plaint does not relate to the invasion of any legal right of the plaintiff, this Court holds that though an illusion of the cause of action was sought to be created in the plaint but in fact, no real cause of action which is related to the plaintiff?s right has been disclosed in the plaint.


There is another test for considering the merit of the defendant?s application under Order 7 Rule 11 of the Civil Procedure Code, as enunciated by the Hon?ble Supreme Court in the case of Hardesh Ores (P) Ltd. vs. Dede and Company reported in 2007 volume 5 SCC 614. The Hon?ble Supreme Court held in the said decision that the test is whether the averments made in the plaint, if taken to be correct in their entirety, a decree would be passed. Let me now apply the said test in the instant case. Apart from the fact which I have mentioned above that the cause of action which is pleaded in the plaint does not relate to the invasion of any legal right of the plaintiff association, this Court also wants to mention here that even the plaint was not presented by the association in compliance of the provision of Section 19 of the West Bengal Societies Registration Act of 1961. Section 19 of the said Act provides that every society may sue or may be sued in the name of the President, the Secretary and office bearer, authorised by the Governing body in this regard.


The said provision, thus, makes it clear that the society may sue in the name of the President, Secretary or any other office bearer authorized by the Governing Body in this regard. The expression ?in the name of? used in the said provision is very significant. The said expression signifies that for maintaining a suit by the society, the suit should be filed in the name of the President, Secretary or any office bearer authorized by the Governing Body in this regard. In the instant case, the suit has not been filed in the name of President and/or Secretary. The cause title of the plaint shows that the plaintiff was described as a Society therein which was registered under the West Bengal Societies Registration Act represented by its Secretary and President. Neither the name of President nor the name of the Secretary has been mentioned in the cause title of the plaint nor the name of any other authorized member was mentioned in the body of the plaint. As such in my view, the presentation of the plaint is also defective and the suit at the instance of the Society without being represented by either President or Secretary in their name, is not maintainable.


That apart, the events constituting the chain of the cause of action must be narrated in the plaint in precise form. Though the plaintiff challenged legality of the sale deed for transferring 50 per cent share of the defendant Nos. 1 to 7 in favour of the defendant No.8 on the ground that such transfer is illegal, void, invalid and sham transaction but in fact, excepting by using of those expressions, i.e. invalid, illegal, void, sham transaction, no elaboration was made about the grounds of such challenge with regard to the legality of the said transfer. In my view, without disclosure of those particulars, Court cannot hold that cause of action has been disclosed for the reliefs claimed in this suit. Thus this is not a case of a defective cause of action as contended by Mr. Banerjee by relying upon a decision of the Hon?ble Supreme Court in the case of Jogeshwary Devi and others vs. Shatrughan Ram reported in (2007) 15 SCC 52, but this is a case of non-disclosure o

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f cause of action. Thus this Court holds that the plaint does not disclose any cause of action for the suit. Only an illusion of cause of action has been created by clever drafting. As such the plaint is liable to be rejected under Order 7 Rule 11(a) of the Code of Civil Procedure. Re: Maintainability of the suit on the bar of law The Learned Trial Judge held that the objection regarding the maintainability of the suit on the bar of Section 34 of the Specific Relief Act cannot be considered at this stage without trial of evidence. This Court agrees with such findings of the learned Trial Judge. As such this Court does not find any illegality on this part of the findings of the learned Trial Judge. Be that as it may since this Court has held that the cause of action of the suit has not been disclosed in the plaint, the plaint is liable to be rejected. Accordingly the impugned order is set aside. The plaint is thus rejected under Order 7 Rule 11(a) of the Code of Civil Procedure. The revisional application is thus allowed. Re: C.O. No. 535 of 2010 Since the identical question has already been decided in the order passed by this Court in the other revisional application being C.O. No. 534 of 2010, this Court holds that the judgment passed in the said revisional application will also govern the fate of this revisional application being C.O. No. 535 of 2010. Thus, this Court holds that the defendant?s application under Order 7 Rule 11 filed in Title Suit No. 249 of 2008 stands allowed. The plaint in the said suit stands rejected. The revisional application is thus allowed. Urgent xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible.
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