Siddhartha Chattopadhyay, J.
1. Doubting the correctness of the Order No. 18 dated 14.12.2009 passed by the learned Civil Judge (Junior Division), Second Court at Sealdah, in Title Suit No. 397 of 2008, in connection with the application under Order VII Rule 11 the present petitioner/defendant has filed this revisional application under Article 227 of the Constitution of India.
2. Grounds ventilated in this revisional application is such that the learned Trial Court has not considered (1) Section 21 of West Bengal Thika Tenancy Act, 2001, wherein the Civil Court’s jurisdiction is ousted, (2) that the opposite party challenged the deed of conveyance executed by the erstwhile owner in favour of the present petitioner and for that the opposite party is required to pay the Court fees on the value of the deed of conveyance, and (3) that the said deed was challenged on the ground of thika tenancy right and as such the issues involved in the suit was in regard to West Bengal Thika Tenancy Act and accordingly the Civil Court has no jurisdiction to try the suit.
3. According to the defendant/petitioner, Trial Court below had not at all considered his application under Order VII Rule 11 of the Civil Procedure Code in its proper perspectives.
4. To come to a finding the factual aspect of this case is required to be revisited. The plaintiff/opposite parties specific case is such that the suit property originally belonged to Late Kamal Kumar Ruia and Nirmal Kumar Ruia (Proforma Defendant Nos. 4) who were in occupation of the suit property and they got the lease from one Sambhu Nath Pyne by a registered deed of lease duly executed and registered on 19.02.1971 with effect from 1st March, 1971. In terms of the said lease the said Kamal Kumar Ruia and Nirmal Kumar Ruia began to pay the monthly ground rent at the rate of Rs.400 per month payable according to the English Calendar month and the said Sambhu Nath Pyne began to issue rent receipt after accepting the rent for the land. On the strength of the said lease deed Kamal Kumar Ruia since deceased and Nirmal Kumar Ruia (Proforma Defendant No. 4) erected shed, office, godown, staff-quarters etc. on the said leased out land and began to run a business therein, after taking the trade licence. It is specifically averred by the plaintiff at Para 5 that after promalgamation of Calcutta Thika Tenancy Act, 1981, the status of the said Kamal Kumar Ruia since deceased and Nirmal Kumar Ruia became changed and the present plaintiff/opposite party has been in possession continuously. While the plaintiffs were in exclusive possession of the suit property, the present petitioner/defendant Nos. 2 and 3 entered into an agreement for sale of suit property with the heirs of Sambhu Nath Pyne in 2006 and asked the plaintiffs to quit and vacate the suit property. The present plaintiff/opposite party challenged the said deed. In the month of November, 2008 the present petitioner/defendant No. 1 asked the plaintiff to quit the suit property as they have purchased the schedule property from the heirs of Sambhu Nath Pyne i.e. defendant Nos. 2 and 3.
5. Challenging the said claim of the defendant/petitioner, the plaintiff/opposite party had filed the suit bearing No. 397 of 2008. The opposite party/plaintiff have prayed for a declaration that the plaintiffs are in lawful possession of the suit property on the basis of the lease deed dated 19.02.1971, a decree for declaration that the plaintiff/opposite party shall not be evicted by the defendant No. 1 without any due process of law and that a declaration that the deed of conveyance of Defendant No. 1 is void and no title has been passed by way of such deed of conveyance. They have also prayed for a declaration of permanent injunction so that the petitioner/defendant cannot disturb their peaceful possession.
6. At the very outset, learned Counsel appearing on behalf of the petitioner/defendant contended that Kamal Kumar Ruia and Nirmal Kumar Ruia took the lease from one Sambhu Nath Pyne by a registered deed of sale dated 19.02.1971 and Kamal Kumar Ruia and Nirmal Kumar Ruia began to pay Rs.400 per month as (ground rent) and Sambhu Nath Pyne used to issue rent receipts. The plaintiffs/opposite parties had been carrying on their business after constructing shed, staff room etc. Referring this part of plaint learned Counsel appearing on behalf of the petitioner contended that a vacant land was given under a lease and the Proforma Defendant No. 1 had been issuing receipts on ‘ground rent’. The Proforma Defendant No. 4 erected shed, office, godown, staff-quarters etc. and had been running their business. Therefore, there was no rent payable for the shed, office room etc. It has been specifically pleaded by the plaintiff/opposite party vide para 5 of plaint that after promalgamation of Thika Tenancy Act, 1981, the status of Nirmal Kumar Ruia and Kamal Kumar Ruia were significantly changed. This goes to show that the suit land was under thika tenancy and by virtue of that the plaintiff/opposite party wanted to say that they have become direct tenant under the state in view of the Thika Tenancy Act, 1981.
7. In the year 2006, the present petitioner/defendant entered into an agreement with the original owner Sambhu Nath Pyne and his heirs and asked the plaintiff/opposite party to quit. In para 7 of the plaint, the plaintiff further averred that due to change of status as per Thika Tenancy Act the legal questions cropped up may be decided by separate suit, in a separate forum and for that reason the plaintiffs craved leave under Order II Rule 2 of the Civil Procedure Code.
8. Referring those points the learned Counsel appearing on behalf of the petitioner contended that Section 21 of the Thika Tenancy Act clearly speaks 'S.21. Bar to jurisdiction. – No civil court shall have jurisdiction to decide, or to deal with, any question, or to determine any matter, which, by or under this Act, is required to be, or has been, decided or dealt with, or which is to be, or has been, determined, by the Controller or the appellate or other authority specified in the provisions of this Act, and no order or judgment passed, or proceedings including execution proceedings commenced, under the provisions of this Act shall be called in question in any civil court.'
9. He also contended that right from the word go it is settled position of law (in view of Section 5 (3) of the Thika Tenancy Act) that if any question arises as to whether a person is a thika tenant or not, the matter shall be decided by the controller. Amendment was made which was given effect to on and from 01.11.2010. By virtue of the said amendment the following words have been incorporated to extend the scope of the function of the thika controller i.e. whether the land in question is thika land or not. Therefore, now the thika controller is to adjudicate if a person is a thika tenant or if the land in question is a thika land or not. Be that as it may, if we do not consider the amendment of Thika Tenancy Act even then as per Section 5 (3) of the Thika Tenancy Act (prior to amendment) thika controller is the authority to decide the question if arises as to whether a person is a thika tenant or not. He further added that by virtue of a clever drafting, the present opposite party/plaintiff has been able to create a smog in the eyes of the Court below.
10. As against this learned Counsel appearing on behalf of the plaintiffs contended that the plaint contains specific cause of action, and does not ex-facie barred by any law. According to him, learned Court below has not committed any mistake. He further stated that even if a specific relief is barred but other relief is maintainable, in that case, plaint cannot be rejected as a whole.
11. After hearing the rival submission of the parties I want to go through the impugned order itself once again. I cannot help quoting relevant part of the impugned order which speaks 'on perusal of the defendants application under Order VII Rule 11 of the Civil Procedure Code and the objection filed against it and on considering the submissions of both sides, I am of the view, that no such statement is there in the plaint which renders this is barred by any law. I further opined that the plaint in its person form is not hit by any provision of Order VII Rule 11 of the Civil Procedure Code.
12. The impugned order goes to show that it is a very cryptic one and without any reason. It is not reflected in the order impugned what he actually considered. Most evasively and unconvincingly, like a lazy judge, he mentioned that after perusing the petition, objection, and after hearing both sides, he came to the finding that it is not barred by any law. He had not discussed the provision of Order VII Rule 11 and its application in the present case. There is nothing in his impugned order that he has considered the relevant portion of the special enactment i.e. West Bengal Thika Tenancy Act learned Court below has not given any reason as to why the thika tenancy law will not be attracted although that is the main apple of discord. There is no whisper even in the order that he has considered the registered conveyance of deed, on the basis of which parties are making rival submissions. It is perhaps needless to say that if any order is passed without any reason it renders the order lifeless and virtually it is an order non-est.
13. Now this Court is called upon to answer regarding the application under Order VII Rule 11 on merit, considering the factual aspects of this case. Learned Counsel appearing on behalf of the opposite party/plaintiff has referred to a decision reported in (1999) 3 SCC 267 (D. RAMACHANDRAN –Vs.- R.V.JANAKIRAMAN & Ors.) Hon’ble Apex Court, considered the specific averment made in the election petition and came to a finding that the said election petition discloses cause of action and, therefore, Order VII Rule 11(a) of the Civil Procedure Code cannot be invoked. The Court cannot dissect the pleading into several parts. In this instant suit the plaintiffs/opposite parties main case is such that they got the lease deed from Sambhu Nath Pyne and subsequently due to promalgamation of a Thika Tenancy Act his status has been changed. There is a hidden indication that by virtue of enactment of Thika Tenancy Act, his status has been changed. After promalgamation of Thika Tenancy Act a thika tenant became a tenant direct under the state. So according to them another sale agreement which was entered into by or between Sambhu Nath Pyne and the present petitioner is not tenable.
14. A meaningful reading of the plaint discloses that the fate of the suit hinges upon the status of the opposite party i.e. thika tenant. The opposite party/plaintiff also relied on a decision reported in 1995 (II) CHN (Cal) 157 (Kishorilal Agarwal & Ors. –Vs.- Durgadutt & Hariram & Ors.) wherein a Co-ordinate Bench of this Court came to the finding that the plaint cannot be rejected merely on the ground that some of the grounds mentioned in the plaint is not maintainable. Factual aspects of this case substantially differs from that case.
15. On the other hand, learned Counsel appearing on behalf of the petitioner/defendant relied on the decision reported in AIR 1998 SCC 634 (ITC Ltd. –Vs.- Debts Recovery Tribunal). In the said judgment Hon’ble Apex Court held that the moot question if a real cause of action has been set out in the plaint or something purely illusory has been stated to avoid the mischief of Order VII Rule 11 of the Civil Procedure Code has to be considered. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. The petitioner also relied on a decision reported in 2008 (1) CHN 98 (Bijoynagar Tea Company –Vs.- Nursing Dasgupta). In that case a Co-ordinate Bench of our High Court held that formal reading of plaint is not permissible rather meaningful reading is required so that vexatious litigation should not be a cause of accumulation of cases.
16. In terms of the said ratio of the decisions discussed above it seems to me that following considerations are essential for disposal of an application under Order VII Rule 11 of the Civil Procedure Code viz. (1) whether the meaningful reading discloses a specific cause of action or not; (2) whether by way of a clever drafting an important part of cause of action has been concealed under an artful advocacy; (3) whether the said cause of action attracts any legal bar or not. On perusal of the plaint of Title Suit No. 397 of 2008 it seems to me that consideration of thika tenancy is the integral part of the claim of the right of the respective parties. Now I am to consider Section 5 (3) of Thika Tenancy Act (prior to amendment) once. It speaks 'if any question arises as to whether a person is a tenant or not the matter shall be decided by the controller.' Plaint speaks that the plaintiffs/opposite parties desires to establish their right over the suit property as a thika tenant and so in para 5 of the plaint they have stated that after promalgamation of Calcutta Thika Tenancy Act, 1981 status of his predecessor-in-interest has been changed and at present the plaintiffs and Nirmal Kumar Ruia had been continuing in their possession by erecting structure therein. Therefore, there is a clear indication in the plaint itself that they claim their title and right of properties whatsoever they may have on the basis of the thika tenancy right and naturally Section 21 of Thika Tenancy Act shall come into play. Section 21 of the Thika Tenancy Act clearly speaks 'S.21. Bar to jurisdiction. – No civil court shall have jurisdiction to decide, or to deal with, any question, or to determine any matter, which, by or under this Act, is required to be, or has been, decided or dealt with, or which is to be, or has been, determined, by the Controller or the appellate or other authority specified in the provisions of this Act, and no order or judgment passed, or proceedings including execution proceedings commenced, under the prov
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isions of this Act shall be called in question in any civil court.' 17. Before coming to the conclusion in regard to under Order VII Rule 11 of the Civil Procedure Code the first question to be answered is :- (1) Do these disputes involve any question (whether legal or factual) on which the existence or extent of a legal right of the plaintiffs depends? If it does then the next question is whether the raising of such disputes is barred by any law. If the aforesaid questions, the answers are affirmative, then the plaint must be rejected as a whole. Where truth is covered under a thin layer of mystery and falsehood, the duty of the Court is to unveil the mystery and to explore the truth. 18. Therefore, in my considered view there is enough merit in the application under Order VII Rule 11 of the Civil Procedure Code and, accordingly, the impugned order is hereby set aside. The plaint of Title Suit No. 397 of 2008 is hereby rejected. 19. The instant revisional application stands allowed but without anycost. C.O. 3582 of 2010 Since, this Court of this view that the Title Suit No. 397 of 2008 is not maintainable, in connection with C.O. 3582 of 2010, this revisional application has become infructuous and it is dismissed. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.