Calcutta High Court
A.S. Overseas Private Limited vs Sri Sri Iswar Chinta Haran Shiv Thakur ... on 28 June, 1994
Equivalent citations: (1994)2CALLT166(HC)
Author: Ruma Pal
Bench: Ruma Pal
JUDGMENT Ruma Pal, J.
1. In May 1987, the plaintiff filed a suit against the defendant deity and 9 others as Shebaits/Trustees of the deity. The case of the plaintiff is that the defendants Shebaits/Trustees approached the plaintiff for development of about 70 cottahs of land for construction of a multi-storeyed building and that after negotiations on 25th July 1986 an agreement was entered into between the plaintiff and the defendants on the following terms :
(a) That the plaintiff would develop about 70 cottahs of land out of about 92 cottahs of land at premises No. 8, Ekdalia Road, Calcutta 700 019, belonging to the defendant No. 11 deity after excluding about 24 cottahs of land within the temple compound ;
(b) That the plaintiff would construct multi-storeyed residential buildings on the said 70 cottahs of land and that the existing buildings on the said 70 cottahs of land would be demolished at an appropriate stage in course of development;
(c) That in consideration of the value of the property the plaintiff would pay to the defendants and the defendants would be entitled to receive from the plaintiff a sum of Rs. 1,00,00,000/- (Rupees One Crore only) to be paid in instalments as agreed by the parties ;
(d) That the defendants will be further entitled to receive 25,000 square feet of super floor area in the buildings to be constructed by the plaintiff;
(c) That the balance area in the building to be constructed by the plaintiff as aforesaid shall belong to and remain with the plaintiff which shall be at liberty to dispose of the same according to its sole discretion;
(f) That the proposed buildings to be constructed shall be completed within the periods of 48 months from the date of obtaining vacant and peaceful possession of the said 70 Cottahs of land by the plaintiff from the defendants and/or the plans of the buildings being sanctioned."
2. It is the plaintiff's case that pursuant to the agreement with the plaintiff, it paid a sum of Rs. 20,000/- to the defendant No. 3 and thereafter between 4th July, 1986 and 29th July, 1986 ,a further amount of Rs. 45,000/-. It is the plaintiff's case that the defendants were threatening to act in breach of the agreement although the plaintiff has performed and was ready and willing to perform its obligation under the agreement. It is further said that the plaintiff has the right to enjoy the benefit of the agreement between the parties to the exclusion of all others. In paragraph 13 of the plaint it has been stated that the defendants had agreed to sell the premises to the plaintiff under the agreement.
3. On the basis of these allegations the plaintiff filed this suit with leave under Clause 12 of the Letters Patent for the following reliefs :
"(c) A declaration that the said agreement dated 25th July 1986 is valid and subsisting and the plaintiff's entitled to enjoy the rights under the said agreement to the exclusion of all others ;
(d) A permanent injunction restraining the defendants, its servants, agents or assignees from entering into any agreement or any transaction affecting the right of the plaintiff under the said agreement dated 25th July 1986 or to do any act which is in derogation of the rights of the plaintiff under the said agreement dated 25th July 1986 or for commissioning any act which would be contrary to the rights of the plaintiff under the said agreement dated 25th July, 1986 ;
(e) Damages ;
(f) Receiver ;
(g) Injunction ;
(h) Costs;
(i) Further and other reliefs."
4. An interlocutory application was moved in the suit. An ad-interim order was passed on 6th July 1987 in terms of prayer 'a' of the petition reads as under:
"An order of injunction do issue restraining the defendants, their servants, agents or assigns from entering into any agreement or any transaction effecting the right of plaintiff under the agreement dated 25th July, 1986 or to do any act which is, in derogation of the rights of the plaintiff or the obligations defendants under the said agreement dated 25th July, 1986 or from commissioning any act which would be contrary to the rights of the plaintiff under the said agreement dated 25th July, 1986."
5. It appears that contempt proceedings were filed by the plaintiff against the defendants for the violation of the order dated 6th July, 1987. The contempt proceeding and the interlocutory application are still pending.
6. The defendants Nos. 1 and 8 then filed an application for taking the plaint of the file. The grounds for the relief claimed in this application are four. The first submission is that there was no cause of action disclosed in the plaint. It is submitted by the petitioners that the Suit had been filed for declaration that an agreement was valid and subsisting. It is said that . there was in fact no concluded agreement between the parties as was apparent from the documents filed with the plaint. It is said that the agreement was to enter into an agreement and was not enforceable in law. It is also said that the agreement was a conditional one the pre-condition for the performances of which was permission of the High Court and as such could not be enforced.
7. Secondly it is submitted that the suit was a suit for land within the meaning of Clause 12 of the Letters Patent and as such the Court did not have the jurisdiction to try the suit. Reliance has been placed on T.B.K.S. Maharaj v. Maypore Sri Chatianya Math : and Bengal Glass & Silicate Works v. Lalit Mohan Bijlani: AIR 1986 Cal. 56 to contend that where the primary object of the Suit was to obtain declaration of title or a determination on the question of possession, the Court would treat the suit as a suit for land despite the language which may have been used.
8. Thirdly it is submitted that the suit was barred under the provision of Section 34 of the Specific Relief Act, in as much as the plaintiff had not claimed the relief which it could have at the time praying for declaratory relief. The decision of the Supreme Court in M.K. Rappai and Ors. v. John and Ors. : has been cited in this context.
9. Finally it is submitted that the suit was barred under Section 269UC of the Income Tax Act 1961.
10. The respondents have contended that in the suit as framed the plaintiff had claimed only a declaeration that the agreement dated 25th July 1986 entered into between the parties was valid and subsisting. Under that agreement the plaintiff only had a right to develop the property. It is submitted that there was no question of title involved nor was any possession asked for. The respondents had relied upon Debendra Nath Chowdhury v. Southern Bank Limited: and United Commercial Bank v. Sonatan Bastu Shilpa Prathisthan Pvt. Ltd: to contend that in such circumstances a suit cannot be said to be a suit for land. It is urged that the plaintiff wanted to restrain the defendants from granting the rights under the agreement to any third party. The reliefs did not operate directly in respect of the land.
11. Secondly, it is submitted that the application was grossly delayed. It is submitted that since the parties had allowed the suit to remain pending before this Court for such a long time, the court should not determine the issue of jurisdiction on an application but allow the suit to be heard in the normal course. It is pointed out that revocation of leave under clause 12 of the Letters Patent had not been asked for.
12. Thirdly, it is submitted that the statements contained in the plaint will have to be taken as correct. It was the plaintiff's case in the plaint that there was a concluded agreement. It may be that the Court may not pass a decree in favour of the plaintiff by reason of non-compliance with a statutory provision such as the Income Tax Act but this would not mean that the suit was barred or not maintainable as framed.
13. Without going into any other question in my view, the petitioner is entitled to an order as prayed for on the ground that the suit is in fact a suit for land.
14. The principle for deciding an application under Order 7, Rule 11 of the Code of Civil Procedure is well-established. The principle is that the court must act on the basis that the averments in the plaint are correct. There is an exception to this principle., The exception is that the court will construe the plaint and will determine the nature of the suit on the substance rather than the form of the pleadings. As already held by the Division Bench in T. B. K. S. Maharaj v. Mayapore Sri Chaitanya Math (supra), the primary object of the suit will have to be decided and the test to determine the primary object is to see whether the relief claimed can be granted to the plaintiff without necessity of any adjudication the question of title to land or building or other immovable properties or possession or control or management thereof. If the relief stands the test, the suit will not be a suit for land within the meaning of Clause 12 of the Letters Patent although the grant of such relief may indirectly affect the land. If, however, by applying the test it is found that such relief cannot be granted without deciding the question of title or possession control or management of land, the suit will be a suit for land within the meaning of Clause 12.
15. In the case of T. B. K. S. Maharaj v. Mayapore Sri Chaitanya Math (supra), the reliefs were for declarations and injunctions relating to immovable property.
16. This decision has been followed in Bengal Glass & Silicate Works v. Lalit Mohan Bijlani (supra), in which the prayers are similarly couched as the prayers in the plaint in this case.
17. The prayers in the plaint clearly indicate that the plaintiff is seeking an adjudication upon it's rights under the agreement. The plaintiff's rights under the agreement, according to the plaintiff have been set out in paragraph 4 of the plaint as quoted earlier. This includes the right to demolish and to construct in the premises. Both these rights carry with them implicitly the right to possess the premises. This implicit right is made somewhat explicit in clause 'f' quoted above, which envisages the construction to be completed within a period of 48 months after the plaintiff obtains possession of the premises.
18. Additionally the agreement recognises the right of the plaintiff to dispose of a portion of the construction. This right is based upon ownership.
19. The agreement does not confers a mere right to develop as contended by the plaintiff at the time of hearing but involves a transfer of possession and ownership.
20. The permanent injunction prayed for against the defendants to restrain them from doing any act in derogation of the rights of the plaintiff under the agreement connotes an adjudication on the right to possession.
21. In a similar case the Division Bench of this Court in the case of Brijmohanlal Rathi v. Gita Devi Rathi: held :
"Prayer (d) the plaint is for an injunction restraining the defendants/respondents from in any manner acting in derogation of or in manner inconsistent with the right, title and interest of the appellant/plaintiff in respect of the premises. Admittedly, the respondents/ defendants are in possession of the premises. An injunction in this form would mean that the defendants/respondents cannot any further remain in possession of the premises and would have to vacate. In substance, the plaintiff by prayer (d) is explicitly claiming the determination of the right to possession of the premises."
22. The decision in Debendra Nath Chowdhury v. Southern Bank Limited (supra) is an authority for the proposition that a suit for specific performance where the only relief claimed is a decree for execution of document or transfer and nothing else, is not a suit for land. In this case the relief is not as limited as it was in the case before the Division Bench.
23. In the second decision cited by the respondents in United Commercial Bank v. Sonatan Bastu Shilpa Prathisthan Pvt. Ltd. (supra), the plaintiff was in possession of the premises. The title of the defendants to the flat was not disputed. Of all the prayers, prayer (d) related to an injunction restraining the defendants from acting in any manner contrary to or inconsistent with the agreement. The Court accepted the submission of the plaintiff that even if any difficulty was felt by the Court at the hearing of . the suit in granting prayer (d) of the plaint the Court may deal with the same at the hearing and the plaintiff was entitled to give up such claim at the hearing but leave under Clause 12 of the Letters Patent could not be granted prayer-wise or piece meal.
24. In this case both the prayers (c) and (d) relate to title and possession bringing the case clearly within the definition "suit for" land and within the meaning of Clause 12 of the Letters Patent,
25. The fact that the application has been taken out in 1993 is immaterial. As held in Md Hasson Hashmi v. Kaberi Roy and Ors. (DB) either the Court has jurisdiction have the jurisdiction. The jurisdiction of the Court does not depend on the volition of the defendant (vide paragraph 21 of the report).
26. It is too well established to need the citing of any authority that consent cannot confer jurisdiction where on the basis of the allegations contained in the plaint the Court is of the view that the suit is a suit for land, no useful purpose would be served is prolonging the agony by having the issue decided at the hearing of the suit. For the reasons aforesaid the application is allowed. There will be an order in terms of prayer 'a' of the notice of motion. There will however, be no order as to costs.