Calcutta High Court
Mahendra Kanji Sicca vs Pradip Kumar Ghosh And Ors. on 4 April, 2006
Equivalent citations: (2006)3CALLT458(HC), 2006(2)CHN607, AIR 2006 (NOC) 907 (CAL.)
Author: Subhro Kamal Mukherjee
Bench: Subhro Kamal Mukherjee
JUDGMENT Subhro Kamal Mukherjee, J.
1. This is an application under Article 227 of the Constitution of India against judgment and order dated January 20, 2006 passed by the learned District Judge, District South 24-Parganas in Civil Revision Case No. 3 of 2006 affirming the order dated January 12, 2006 passed by the learned Civil Judge (Junior Division), Second Court at Alipore, District South 24-Parganas in Title Suit No. 231 of 2004.
2. Both the Courts below concurrently rejected an application filed by the defendant No. 6/petitioner under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of the plaint.
3. Following facts are relevant to deal with this application under Article 227 of the Constitution of India:
(a) Admittedly, Asit Kumar Ghosh, since deceased, was the original landlord of 23A, Asutosh Chowdhury Avenue, previously known as 23A, Old Ballygunge Road, Kolkata.
(b) Asit Kumar Ghosh inducted Moolji Sicca and company, a partnership firm, as a tenant at a monthly rental of Rs. 1001/- payable according to English calendar.
(c) Asit Kumar Ghosh instituted Title Suit No. 54 of 1972 in the Court of the learned Subordinate Judge, Second Court at Alipore on July 31, 1972 against the said firm, namely, Moolji Sicca and company, and its partners.
(d) Eventually, the suit as transferred to the Court of the learned Assistant District Judge, Fifth Court at Alipore, District South 24-Parganas and was renumbered as Title Suit No. 120 of 1983.
(e) While Moolji Sicca and company was impleaded as defendant No. 1, the defendant Nos. 2 to 5 were impleaded in the said suit as partners of the defendant No. I/firm.
(f) The said suit was for ejectment, recovery of arrears of rent and mesne profits. The plaintiff contended that the defendants have defaulted in payment of rents since January, 1970 and that the defendatns sublet the suit premises to third party without the consent and knowledge of the plaintiff.
(g) Although the said defendants appeared in the suit but, ultimately did not contest the suit at the trial.
(h) The learned Assistant District Judge, Fifth Court at Alipore, District South 24-Parganas, by judgment and decree dated August 4, 1992, decreed the suit exparte and granted the plaintiff a decree for recovery of khas possession, arrears of rent to the extent of Rs. 6006A, mesne profits at the rate of Rs. 1001A from July, 1972 till the date of recovery of khas possession of the suit premises. The learned Trial Judge held that the defendants were defaulter in payment of rents since January, 1970 and that the said defendants sublet the suit premises to third party without the knowledge and consent of the plaintiff.
(i) In the judgment the learned Trial Judge noted that by Order No. 137 dated September 19, 1977 the application filed by the defendant under Sections 17(2) and 17(2A)(b) was disposed of, inter alia, directing the defendants to pay arrears of rent for the period between January, 1970 and August, 1972 at the rate of Rs. 1001/- in monthly instalment of Rs. 1,500/-, but the defendants did not comply with the said order.
(j) The decree holder filed Title Execution Case No. 3 of 1993 for execution of the said decree. The execution case is still pending.
(k) One of the daughters of Moolji Sicca filed an application under Order 9 Rule 13, of the Code of Civil Procedure for recalling of the ex parts, decree. She, also, filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing such application. The said proceeding has been registered as Misc. Case No. 10 of 1993 and is pending before the Court of the learned Civil Judge (Senior Division), Fifth Court at Alipore, District, South 24-Parganas.
(l) One of the sons of Moolji Sicca filed an application under Section 47 of the Code of Civil Procedure challenging the executability of the said decree. The said application has been registered as Misc. Case No. 12 of 1994 and is pending in the Court of the learned Civil Judge (Senior Division), Fifth Court at Alipore, District South 24-Parganas.
(m) Unfortunately, the original plaintiff could not enjoy the fruit of the decree as he died on November 18, 1994. However, he left behind his last will and testament dated September 28, 1994.
(n) On April 27, 2002 the executor obtained probate of the said Will.
(o) Pradip Kumar Ghosh, the executor to the estate of Asit Kumar Ghosh, the opposite party No. 1 in this revisional application, instituted Title Suit No. 231 of 2004 in the Court of the learned Civil Judge (Junior Division), Second Court at Alipore against the present petitioner and the opposite party Nos. 2 to 8 in this revisional application. In the said suit, the petitioner is impleaded as defendant No. 6 and the opposite party No. 8, namely, the Commissioner, Kolkata Municipal Corporation, is impleaded as proforma defendant.
(p) In the said suit, the said plaintiff prayed for a decree for perpetual injunction restraining the defendant Nos. 1 to 6 from subletting the suit premises or from changing the nature and character or parting with possession of the suit premises for holding political party conferences, marriage ceremonies and for any other commercial purpose to any third party, perpetual injection restraining the said defendants from making any illegal and unauthorised construction in the suit premises, a decree directing the said defendants for rendering accounts and produce the papers in connection with the use of the suit premises for non-residential purposes to the third parties on and from August 4, 1992 till the filing of the suit and thereafter till the recovery of khas possession of the suit premises, a decree directing the said defendants to pay taxes for the wrongful use of the suit premises, a decree directing the said defendants to demolish the unauthorised constructions made by them in the suit premises.
(q) It was contended in the said suit that after passing of the decree in the earlier suit the defendant Nos. 1 to 6 have been in unauthorised occupation of the suit premises as trespassers. They have no right to use the suit premises for non-residential purpose as the premises was let out on monthly rental basis to a monthly premises tenant for residential purpose. The defendant No. 1, with the help and assistance of defendant Nos. 2 to 6, has been letting out the suit premises on daily rent to third parties for holding marriage ceremonies and other social and political functions and the defendants have been collecting huge sum depriving the actual owner. The defendant Nos. 1 to 6 have no right to change the nature and character of the suit premises, that is, to describe it as 'Sicca Palace' instead and in place of Zamindari Estate of Asit Kumar Ghosh. Therefore, they should be restrained from using the suit premises for commercial purposes. The defendant Nos. 1 to 6 have made unauthorised and unsanctioned constructions in the suit premises without the permission of the plaintiff causing serious damages to the main building. The defendant No. 7, the Kolkata Municipal Corporation, have been demanding taxes at the commercial rates, but since the original owner never applied for change of the user of the suit premises, the defendant No. 7 was not entitled to recover taxes at the commercial rates.
(r) In the said suit, Mahendra Kanji Sicca, the defendant No. 6, on or about November 25, 2005, filed an application under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of the plaint. In the said suit, he contended that the plaintiff had no cause of action for the present suit. The present suit has been barred by law. During the pendency of the execution proceeding for execution of the decree passed in the said Title Suit No. 120 of 1983, except a proceeding under Section 47 of the Code of Civil Proceduce by and between the parties of the execution case, no separate suit could be instituted.
(s) Therefore, the plaint of the present suit was liable to be rejected under Rules 11(a) and 11(d) of Order 7 of the Code of Civil Procedure.
(t) By filing a supplementary affidavit to the said application under Order 7 Rule 11 of the Code of Civil Procedure it was contended that Asit Kumar Ghosh was not the owner of the said premises. Therefore, by virtue of the probate of the Will of the said Asit Kumar Ghosh, the plaintiff of this suit, as the executor to the estate of Asit Kumar Ghosh, did not acquire any right, title and interest to institute the present suit claiming reliefs against the defendants.
(u) The learned Civil Judge (Junior Division), Second Court at Alipore, District South 24-Parganas by order dated January 12, 2006 rejected the said application under Order 7 Rule 11 of the Code of Civil Procedure.
(v) The defendant No. 6 being aggrieved by, and dissatisfied with, the said order dated January 12, 2006, filed an application under Section 115A of the Code of Civil Procedure in the Court of the learned District Judge at Alipore, District South 24-Parganas.
(w) The revisional application was registered as Civil Revision Case No. 3 of 2006.
(x) By judgment and order dated January 20, 2006 the learned District Judge, also, rejected the said revisional application holding, inter alia, that, prima fade, the plaintiff was entitled to institute the present suit. The learned District Judge, however, affirmed the findings of the learned Trial Judge that pendency of the applications under Section 47 of the Code of Civil Procedure nor under Order 9 Rule 13 of the Code of Civil Procedure could create a bar in the institution of the present suit for perpetual injunction. The learned District Judge held it was for the plaintiff to prove his title and if he could not do so, the suit would ultimately fail, but at this stage the plaint could not be rejected.
(y) Being aggrieved the defendant No. 6 has come up with this application under Article 227 of the Constitution of India.
4. Mr. Syama Prasanna Roychowdhury, learned senior Advocate, appearing in support of this application under Article 227 of the Constitution of India argues that no suit is maintainable as the plaintiff ought to have approached the Executing Court, particularly, when an application under Section 47 of the Code of Civil Procedure is pending in the Executing Court; The suit is, therefore, barred by law. The remedy of the plaintiff is either under Section 47 of the Code of Civil Procedure or under Order 21 Rule 101 of the Code of Civil Procedure. Mr. Roychowdhury draws my attention to the decree passed in Title Suit No. 120 of 1983 and submits that since a decree for mesne profit at the rate of Rs. 1001/- was granted in favour of the plaintiff against the defendants in the said suit, the principal defendants in this suit are entitled to remain in possessions till possession is recovered in execution of the decree. Mr. Roychowdhury submits that the entire basis of the suit is bad inasmuch as the principal defendants are not trespassers.
5. Mr. Sakti Nath Mukherjee, learned senior Advocate, appearing for the opposite party No. 1, submits that the Courts below rightly rejected the application for rejection of plaint filed by the defendant No. 6. Mr. Mukherjee also, draws my attention to the decree passed in Title Suit No. 120 of 1983, as also, to the plant of this suit and submits that the relief that is not contained in the decree, such relief cannot be granted by the Executing Court, Therefore, he submits the present suit is well-maintainable and the plaintiffs are entitled to the reliefs claimed in the suit. Mr. Mukherjee in support of his contentions cites the decision in the cases of J & K Bank Limited and Ors. v. Jagdish C. Gupta reported in 2004(10) SCC 568, and Naralasetti Thammarao and Ors. v. Duvva Veerraju and Ors.
6. Undisputedly, the subject-matter of the earlier suit and the present suit is the same, but the earlier suit and the present one are based on different causes of actions. Reliefs claimed in the present suit are different from the reliefs claimed in the earlier suit.
7. The Executing Court cannot go behind the decree. The decree passed in the earlier suit did not contain the reliefs claimed in the present suit.
8. Issues not covered by the decree are not the questions relating to the execution, discharge or satisfaction of the decree.
9. Section 47 provides that all questions arising between the parties to the suit in which a decree is passed and relating to the execution, discharge or satisfaction of the decree shall be determined by the Executing Court and not by a separate suit. Therefore, all questions between the parties to the suit or their representatives relating to the execution, discharge or satisfaction of the decree must be raised and determined by the Executing Court as provided by the Code of Civil Procedure and the parties or their representatives are prohibited from raising any such question in any separate suit.
10. Similarly, where an application is not maintainable under Section 47 of the Code, a suit will be competent. Therefore, the expression "not by a separate suit" refers to a suit of the nature in which the decree under execution has been passed. It does not refer to a suit of a totally different and distinct nature. If the case is not covered within the four-corners of Section 47 of the Code of Civil Procedure, the dispute cannot be said to be one relating to execution, discharge or satisfaction of the decree and bar under the said section is not attracted.
11. I am of the opinion that the Courts below have not committed any error of jurisdiction in rejecting the application filed under Order 7 Rule 11 of the Code of Civil Procedure by the defendant No. 6/petitioner.
12. Moreover, this is an application under Article 227 of the Constitution of India challenging an order passed by the Revisional Court under Section 115A of the Code of Civil Procedure. It has been held in Paltu Dutta v. Shrimati Nibedita Roy that the High Court could not surely act as a second Court of Revision while exercising power of supterintendence. It would only interfere in a case of manifestly gross injustice, abuse of the process of the Court or similar other extraordinary situation. Once remedy under Section 115A of the Code of Civil Procedure has been exhausted, the High Court would interfere under Article 227 of the Constitution of India only in the rarest of the rare cases.
13. I am of the opinion that in this case the Courts below have not committed any gross injustice nor there has been any abuse of the process of the Court at the instance of the opposite party No. I/plaintiff nor there is any extraordinary situation requiring interference by this Court in favour of the defendant No. 6/ petitioner.
14. The application under Article 227 of the Constitution of India is, therefore, rejected.
15. I, however, direct the parties to bear their respective costs in this Court.
16. Xerox certified copy of this order, if applied for, be supplied to the parties expeditiously.