Calcutta High Court
Bijoy Nagar Tea Company Ltd. vs Narsing Dasgupta And Ors. on 21 March, 2007
Equivalent citations: 2008(1)CHN97
JUDGMENT S.P. Talukdar, J.
1. The present application under Article 227 of the Constitution is directed against the Order No. 17 dated 24th March, 2006 passed by the learned Civil Judge (Sr. Divn.), Jalpaiguri, in title Suit No. 85 of 2005.
2. The present petitioner, as defendant No. 2, filed an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure before the learned Trial Court on 3rd January, 2006. The opposite party/plaintiff filed a written objection thereto on 2nd March, 2006.
3. It was claimed in the said application under Order 7 Rule 11 read with Section 151 of the Civil Procedure Code that admittedly the tenure of 12.77 acres allegedly belonging to Prem Singh Das and recorded in C.S. Record No. 86/5 was purchased by Prodyut Kumar Bose, an Advocate of Siliguri Court and in the R.S. record-of-rights the total land holding of Sri Bose was recorded in five different Khatians. The plaintiff in the suit gave the history of the alleged original tenure recorded in the name of Prem Singh Das as also the subsequent devolutions and transfers in favour of different persons. The plaintiff laid a claim to a total area of 1.14 acres forming part of two R.S. Dag, namely, Dag Nos. 77/771 and 79/775. The said two dags are admittedly part of R.S Khatian No. 600/27. The plaintiff in the suit did not make any claim in respect of any other plot or part thereof either under Khatian No. 600/27 or under any four of the R.S. Khatians recorded in the name of Prodyut Kumar Bose.
4. On 17th January, 1975, the petitioner acquired by purchase 0.14 acres in plot No. 76 and 0.36 acres in plot No. 77 under R.S. Khatian No. 600/24 which originally stood in the name of Prodyut Kumar Bose and was subsequently recorded in the name of transferee, namely, Dhirendra Nath Roy being carved out of parent R.S. Khatian No. 600 under Section 6 of the West Bengal Estates Acquisition Act.
5. R.S. Khatian No. 600/27 was similarly taken out of the parent R.S. Khatian No. 600. It will appear from R.S. Khatian No. 600/24 as also R.S. Khatian No. 600/27 that those are (part) Khatians being carved out of the parent R.S. Khatian No. 600 under Section 6 of the W.B.E.A. Act. The persons recorded in the said khanda (part) khatians have been recognized to have acquired a new statutory status as "Raiyat Dhakhali Swatta Bisistha" (Occupancy Right). It is a post-mortem new statutory status created by W.B.E.A. Act after extinction of the pre-existing right, title and interest and consequent upon retention as permissible under Section 6 of the W.B.E.A. Act.
6. The said two R.S. Khatians indicate that different plots were recorded in their entirety covering total 16 annas interest. No part of any such plot could be recorded in any other khatians. The R.S. records reveal that bata plots out of the parent plots have been separately demarcated and obviously indicated in their respective R.S sheets.
7. The plaintiff in the suit claimed derivative title in respect of 'A' Schedule lands of the plaint from Prodyut Kumar Bose, who has been recorded in R.S. Khatian No. 600/27. In R.S. Khatian No. 600/27 Bata Plot 77/771 has been recorded in its entirety measuring 1.45 acres and Plot No. 79 has also been recorded in its entirety having an area of 1.54 acres. The entries in the record-of-rights have reached finality by operation of the statute, nor the same have been disputed by the plaintiff.
8. In the said application filed by the present petitioner/defendant praying for rejection of the plaint, it was further alleged that the Scheduled 'B' of the plaint refers to 12.77 acres comprising S.S. Khatian No. 86/5.
9. It is also admitted in the plaint itself that the parent Khatian No. 86/5 has been sub-divided into five khatians. The other derived khanda khatians, namely, R.S. Khatian Nos. 600/11, 600/28 etc. under parent Khatian No. 86/5 have not been made the subject-matter of the present suit nor the other khanda khatians have been parties.
10. Each khanda khatian out of the parent R.S. Khatian No. 600 is self-content and the plots included therein stand separated and demarcated from all other plots of the parent khatian and owned separately as recorded in the R.S. record. The learned Trial Court in connection with the said suit passed an interim order directing the parties to maintain status quo.
11. The petitioner/defendant specifically claimed that the present suit is mala fide, mischievous and malicious. It has been filed in utter abuse of the process of Court with an ulterior motive to pressurize the applicant and compel it to dispose of its lands being Plot No. 76 measuring 0.14 acre and No. 77 measuring 0.36 acre under R.S. Khatian No. 600/24 to the interested parties. The present plaintiff previously instituted a suit being Title Suit No. 11 of 1975 before the same Court against defendant Nos. 2 and 3 as also against their sellers, namely, Dhiren Roy and the Commissioner of Siliguri Municipality.
12. It was stated on oath on behalf of the defendant Nos. 2 and 3 of the present suit that they did not purchase any land comprised in Plot Nos. 77/771 and 79/775 nor any land comprised in Khatian No. 600/27 in connection with the earlier suit. It was held by the learned Trial Court that plaintiff on the basis of their alleged purchase has acquired lands appertaining to Plot No. 77/ 771 and Plot No. 79/775 comprised in R.S. Khatian No. 600/27 and the plaintiff had failed to prove that defendant Nos. 2 and 3 of the present suit, who were defendant Nos. 1 and 2 in the earlier suit was dismissed by the Trial Court and such judgment and order of dismissal was affirmed by the learned Appellate Court.
13. It was then claimed while praying for dismissal of the suit in exercise of the power under Section 151 of the C.P. Code or rejection of the plaint under Order 7 Rule 11 read with Section 151 of the C.P. Code that there could be no question of any partition of plaintiff's property out of the properties of the parent khatian being Khatian No. 86/5.
14. The plaintiffs property stands separated, demarcated and recorded to be separately owned and that is accepted by the plaintiff himself.
15. Taking advantage of an ex parte interim order, the plaintiff is attempting to derive undue benefit.
16. In response to the application filed by the present petitioner/defendant No. 2 under Order 7 Rule 11 of the Civil Procedure Code read with Section 151 of the Civil Procedure Code, the plaintiff/opposite party contested the same denying, inter alia, all the material allegations made by the said defendant No.2. It appears that the plaintiff asserted his claim to the extent of 1.14 acres of land out of 12.77 acres recorded in the mother plot Nos. 77 and 79 which are divided into several bata plots comprised in original C.S. Khatian No. 86/5, which is corresponding to R.S. Khatian Nos. 600/11, 600/24, 600/27, 600/28 and 600/43 of Mouza Debgram, DistrictJalpaiguri. It was claimed that defendant Nos. 2 and 4 through their authorized representatives denied the right, title and interest of the plaintiff over the 'A' Schedule property on 5.2.2000 by giving oral evidence in connection with the earlier suit being Title Suit No. 11 of 1975.
17. It was then submitted on behalf of the opposite party/plaintiff that the suit was required to be filed to perpetuate and strengthen testimony regarding the right in respect of the share of the property as described in Schedule 'B'.
18. It was also placed before the learned Trial Court that after pronouncement of the judgment of the earlier suit, the plaintiff made repeated requests to all the defendants for joint survey and demarcation of their respective purchased lands but the defendants deliberately neglected to do the same.
19. It appears that the learned Trial Court, after taking into consideration the materials available on record and the submissions made by the respective Learned Counsel for the parties, observed that as the plaint discloses cause of action, it cannot be rejected and that too at such initial stage when the matter was not even taken up for first hearing.
20. This Court is now required to adjudicate how far the learned Trial Court was justified in rejecting the application.
21. Order 7 Rule 11 of the Code of Civil Procedure is as follows:
Rejection of plaint. -The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
....
22. While assailing the impugned order dated 24.3.2006 passed by the learned Trial Court, it was submitted by Mr. Saktinath Mukherjee, learned Senior Counsel for the petitioner that the power of the Court to reject a plaint under Order 7 Rule 11 of the Civil Procedure Code can very well be exercised at any stage of the proceeding. In this context, Mr. Mukherjee referred to the decision in the case of T. Arivandandam v. T.V. Satyapal and Anr. . Paragraph 5 of the said judgment and order may be reproduced as follows:
We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the Court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court. Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits. The Trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realized what George Bernard Shaw remarked on the assassination of Mahatma Gandhi.
It is dangerous to be too good.
23. It was specifically contended by Mr. Mukherjee that when considering a prayer for rejection of plaint, casual reading of the plaint may not be of much use. What is required is "the meaningful reading" of the same. It seems to be the categorical stand of the present petitioner that the opposite party/plaintiff sought for demarcation of boundaries with incidental reliefs. The earlier suit was dismissed on the ground that there is no cloud to the title of the plaintiff in respect of the suit property. According to Mr. Mukherjee, the present suit is vexatious and has been filed on an illusory cause of action which arose in 2000. No encroachment has been alleged or pleaded.
24. On the other hand, Learned Counsel, Mr. Saha, appearing for the opposite party/plaintiff submitted that while considering an application under Order 7 Rule 11 of Civil Procedure Code, the Court cannot go beyond the plaint. Inviting attention of the Court to paragraph 18 of the plaint, it was submitted that the plaintiff required physical demarcation of his hand which admittedly originated from the same C.S. plot. The deeds in favour of the opposite party/plaintiff referred to certain areas which do not conform to the plots/bata plots. Mr. Saha submitted that there is no reason why the opposite party/plaintiff should not be given a chance to try and establish his stand and there can be no reason for trying to nip him in the bud.
25. A supplementary affidavit was filed when the hearing of the matter reached penultimate stage. It was submitted that the transaction relates to bata plots which cannot be correlated to the revenue bata plots.
26. It was then submitted by Mr. Saha that whether the cause of action in the suit is sham or illusory, can only be decided at a subsequent stage. What is essential is that the plaint must disclose a cause of action.
27. Apart from seeking declaration of title, the plaintiffs grievance relates to alleged denial of his right, title and interest in respect of the suit property and that it the cause of action in the suit. Mr. Saha contended that the plaintiff has the right to have physical demarcation of the property. Since the plaintiff purchased a portion of bata plot, he has the right to ask for physical partition.
28. At the time of hearing of the present application, Learned Counsel for the parties relied upon various judgments which may now be considered one after another.
29. In the case of I.T.C. Limited v. Debts Recovery Appellate Tribunal and Ors. , it was held that the fact that issues have been framed in suit, cannot come in the way of consideration of an application filed under Order 7 Rule 11 of the Code. In the present case, it is, however, not in dispute that the present petitioner approached the learned Trial Court with such application for rejection of plaint at the initial stage, but that by itself could not be a valid acceptable ground for rejection of the application.
30. The stand of the opposite party/plaintiff, in the present case, is that once the plaint discloses a cause of action, there can be no question of rejection of the plaint.
31. On behalf of the petitioner/defendant No. 2, emphasis, however, has been laid on the claim that the suit, as would appear from the statements made in the plaint, is barred by law and this justifies rejection of the plaint at its earliest opportunity. It was strongly contended that in view of the dismissal of the earlier suit of 1975, the alleged cause of action is illusory.
32. In the case of Raj Narain Sarin (Dead) Through LRS and Ors. v. Laxmi Devi and Ors. reported in 2002 (10) SCC 501, the Apex Court held that rejection of plaint under Order 7 Rule 11 of the Civil Procedure Code is justified while the litigation is utterly vexatious and an abuse of the process of Court. It seems to be the settled position of law that for the purposes of deciding an application under Order 7 Rules 11(a) and (d), the averments in the plaint are germane and the pleas taken in the written statement would be wholly irrelevant at that stage.
33. In the case of Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors. reported in 2004 (3) SCC 137, the Apex Court observed that a duty is cast on Court to perform its obligations in rejecting the plaint hit by any of the infirmities under Clauses (a) to (d), even without intervention of the defendant.
34. It was further observed that the real object of Order 7 Rule 11 of the Code is to keep out of Courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in hands of the Courts; and by resorting to it and by a searching examination of the party, in case the Court is prima facie persuaded of the view that the suit is an abuse of the process of the Court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 can be exercised.
35. The relevant observations made by the Apex Court in the case of State of M.P. v. Saleem alias Chamaru and Anr. may be reproduced as follows:
The High Court does not seem to be right in rejecting the plaint on the ground that it does not disclose any 'cause of action. In our view, the Trial Court was right in coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself. The suit as framed is prima facie barred by the law of limitation, provisions of the Specific Relief Act as also under Order 2 Rule 2 of the Code of Civil Procedure.
36. Reference was also made to an earlier decision of this Bench in the case of M.N. Roy and Anr. v. Snehasis Bagchi reported in 2003 (2) CHN 361. It was observed therein that there is a gulf of difference between the expression "the plaint does not disclose cause of action" as required under Order 7 Rule 11(a) of the Civil Procedure Code and the finding that "the plaintiff has no cause of action against the defendant.
37. It thus appears that the legal position is quite well-settled.
38. While considering an application for rejection of plaint under Order 7 Rule 11 of Civil Procedure Code, the Court is required to confine itself within the plaint. Not a casual approach or a formal reading; but a meaningful reading of the plaint is the demand of the statute.
39. The Court can not be necessarily burdened with luxury litigation. It has statutory obligation to search, screen and then, eliminate vexatious or mala fide, litigation. It can not afford to remain a passive onlooker while coming across a case which is filed in order to harass the opponent and in the process to derive undue advantagewithout having any 'cause of action' in the true sense.
40. Borrowing expression from Lord Denning, it can be said that the Court must act as 'bold spirit' and not as 'timorous soul'.
41. In the present case, as submitted on behalf of the petitioner, there is no proper cause of action as the claim of the plaintiff in the suit had never been under challenge or any threat.
42. Claim of the plaintiff relates to land under Khatian No. 600/27 and the present petitioner has no concern with it. Defendant Nos. 1 and 2 purchased land of Khatian No. 600/24. There is reference of the earlier suit, being Title Suit No. 1 of 1975, in the plaint itself. Naturally, it cannot be said that the Court can not take the said suit, the stand of the parties in it and the result of the same into consideration.
43. On behalf of the petitioner it was categorically mentioned that there can not be any question of any partition of plaintiffs property out of the properties of Khatian No. 86/5. The plaintiffs property stands separated, demarcated and recorded to be separately owned. This being the accepted position, there could hardly be any justification for filing the present suit that too, in the background of dismissal of the earlier suit of 1975 and the learned Appellate Court's affirming the judgment and order of dismissal.
44. It appears from the materials available on record that the plaintiff virtually had nothing more to add than what was claimed in the earlier suit of 1975. The dispute that has been raised in regard to the suit property, does not, in fact, call for any adjudication in the backdrop of the clear, consistent and categorical stand of the present petitioner that he has no claim in regard to the said property.
45. The grievance that on being approached, the present petitioner and others denied partition or actual physical demarcation of the suit property, does not really seem to have much strength in it. Learned Counsel for the petitioner quite rightly referred to the fact that in order to effect partition, the plaintiff ought to have impleaded all others in whose favour the property under the original khatian devolved.
46. That having not been done, such grievance does not really inspire confidence of the Court. With such 'live and let live' attitude on the part of the petitioner/defendant, there virtually remains nothing for adjudication and it cannot be denied that the alleged cause of action in the suit is more of illusory nature, having no substance but only form.
47. Learned Trial Court rejected the application under Order 7 Rule 11 of the Civil Procedure Code on the ground that the suit did not even reach the stage of first hearing. This certainly indicates that the learned Trial Court failed to appreciate the grievance of the petitioner in its proper perspective. The impugned order thus suffers from latent infirmity as the learned Trial Court failed to exercise jurisdiction vested in it.
48. Accordingly, this Court, in exercise of its power under Article 227 of the Constitution, sets the said impugned order dated 24th March, 2006 aside.
49. Application filed by the present petitioner under Order 7 Rule 11 and Section 151 of the Civil Procedure Code before the learned Trial Court be allowed and the plaint be rejected.
No order as to costs.
Xerox certified copy the supplied to the parties as expeditiously as possible.
Later:
50. Immediately after passing of the said order, Learned Counsel appearing on behalf of the opposite party has sought for stay of operation of the order. This has been seriously opposed by the Learned Counsel for the petitioner.
After due consideration of relevant facts and materials, I do not find any sufficient reason for staying the operation of the order and the prayer in that regard be rejected.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties expeditiously.