Calcutta High Court (Appellete Side)
Ramesh Kumar @ Chandra Khowala & Anr vs Mamata Chakraborty & Ors on 1 March, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 924 of 2011
Ramesh Kumar @ Chandra Khowala & anr.
Versus
Mamata Chakraborty & ors.
For the petitioners : Mr. S.P. Roy Chowdhury, Sr. Advocate
Mr. Mrinal Kanti Biswas, Advocate
For the opposite party no.1 : Mr. Aniruddha Chatterjee, Advocate
Mr. Prabir Kr. Mukherjee, Advocate
Judgment on : March 1, 2012
1.The opposite party no.1 instituted Title Suit No. 811 of 1998 in the City Civil Court at Calcutta praying for a declaration that a purported gift deed, executed on March 27, 1965, has been made fraudulently and is forged and void, and also for cancellation of such deed. The learned Judge of the 7th Bench of the said Court is in seisin thereof.
2. Petitioners, who are the defendants 4 and 5 in the suit, made an application on December 13, 2010 praying for rejection of the plaint of the aforesaid suit in terms of provisions contained in Order 7 Rule 11, Code of Civil Procedure (hereafter the Code). The learned Judge of the trial Court by order no. 33 dated January 29, 2011 rejected the prayer for rejection of the plaint on contest. Feeling aggrieved thereby, the petitioners have invoked the revisional jurisdiction of this Court under Article 227 of the Constitution by preferring the instant application.
3. Mr. Roy Chowdhury, learned senior advocate for the petitioners, placed the entirety of the plaint and contended that the plaint ought to have been rejected by the learned trial Judge and he grossly erred in this regard. He contended that the suit filed by the opposite party no. 1 is barred by limitation as well as the provisions of Section 34 of the Specific Relief Act, 1963 (hereafter the Act) and the learned Judge has no territorial jurisdiction to entertain the suit in view of Section 16 of the Code.
4. According to Mr. Roy Chowdhury, the right to sue accrued to the opposite party no.1 in 1992 but she delayed her approach till the suit was instituted in 1998. It has been contended that the laws of limitation ordain that a suit of the present nature ought to be instituted within three years from date the facts entitling the plaintiff to have the instrument cancelled or set aside first became known to him/her, and the suit being clearly time barred, the learned Judge exercised jurisdiction illegally.
5. Insofar as applicability of Section 34 of the Act is concerned, he contended that neither had the opposite party no.1 claimed relief in respect of the subsequent deeds by which the title in respect of the property in dispute passed on to the subsequent purchasers and ultimately to the petitioners, nor was any relief for recovery of possession of such property claimed. Section 34, he submitted, contemplates that in a case where the decree passed on the basis of the relief claimed in the plaint would be abortive for all practical purposes and intent due to omission of the plaintiff to seek further relief that could have been claimed by her, discretion should be exercised to nip the action in the bud so as to avoid harassment of the defendant(s). The learned Judge, it was contended, exercised discretion erroneously in refusing the prayer of the petitioners.
6. Finally, he referred to the fact that the suit property is situated at Deoghar.
According to him, Section 16 of the Code would have overriding effect in view of clause (d) therein and that in a case where Sections 16 to 19 of the Code apply, Section 20 thereof shall not apply. In view of the specific provisions contained in the Code regarding the place of suing in respect of right to or interest in immovable property, he contended that the suit ought to have been held to be not maintainable in the trial Court.
7. He, accordingly, prayed for an order to set aside the impugned order and for rejection of the plaint.
8. Mr. Chatterjee, learned advocate for the opposite party no.1, opposed the application. He contended that the learned Judge of the trial Court was right in not granting the prayer of the petitioners for rejection of the plaint.
9. According to Mr. Chatterjee, the facts disentitling the opposite party no. 1 to claim mutation based on the deed of gift, registered in the office of the Registrar of Assurances, Calcutta (executed on March 27, 1965), first became known in course of hearing before the competent authority of Deoghar Municipality, whereafter the certified copy thereof was applied for. It was only upon perusal of the certified copy of the deed of gift that the opposite party no.1 derived knowledge that she and her mother (since deceased) purported to have divested themselves of their right and interest in respect of the property in dispute. The date on which certified copy of the deed was received by the opposite party no.1, he contended, would be the starting point of limitation, for, that is the date of knowledge of the alleged fraud and since the date of application for such certified copy is not there in the plaint, it would be a matter of evidence for which the suit ought to proceed to the stage of trial for the purpose of a decision as to whether it is really barred by limitation or not.
10. Mr. Chatterjee further submitted that having regard to the provisions of Section 17 of the Limitation Act, it is only on discovery of fraud that the period of limitation would start running and in this connection reliance was placed on the decision of the Supreme Court reported in AIR 2001 SC 2763 : Pallav Sheth v. Custodian & ors.
11. It has further been contended by Mr. Chatterjee that Section 34 of the Act does not bar a suit; what it bars is the relief claimed if other relief that the plaintiff could claim has not been claimed. According to him, the opposite party no.1 is not required to seek cancellation of the deeds following the parent deed, for, once it is declared void, the subsequent deeds would automatically fall through. Nonetheless, it is always open to the opposite party no.1 to pray for amendment of her plaint and seek insertion of appropriate relief and that on the ground that appropriate relief has not been claimed, the plaint does not deserve to be rejected.
12. Mr. Chatterjee also contended that the point of territorial jurisdiction not having been taken at the initial stage, the Court is empowered to try the suit in terms of Section 21 of the Code. Even otherwise, if the trial Court has no territorial jurisdiction, it would be a case of return of plaint and not of its rejection.
13. Finally, it was contended that the petitioners had made the prayer for rejection of plaint belatedly, admittedly when the suit had entered its twelfth year. For the proposition that a belated prayer for rejection of plaint ought not to be allowed by the High Court, reliance was placed on the decision of the Supreme Court reported in (2007) 10 SCC 59 : Ram Prakash Gupta v. Rajiv Kumar Gupta.
14. Reliance was also placed by Mr. Chatterjee on the decisions of the Supreme Court reported in (2005) 7 SCC 510 : Popat and Kotecha Property v. State Bank of India Staff Association and (2009) 13 SCC 729 : Vishnu Dutt Sharma v. Daya Sapra in support of his submission that the order impugned does not merit interference.
15. I have heard learned advocates for the parties and perused the plaint.
16. It appears from a meaningful reading of the plaint that the father of the opposite party no.1 and her aunt (both since deceased) had jointly acquired a piece of land measuring in excess of one bigha by a registered deed of lease for 50 years in the town of Deoghar, now in Jharkhand. The deed was registered on January 18, 1937. The aunt of the opposite party having passed away intestate leaving no heirs, the father of the opposite party no.1 became the absolute owner of the said land. After his demise, the opposite party no.1 and her mother became absolute owners thereof upon obtaining succession certificate from this Court. Mother of the opposite party no.1 passed away on January 2, 1987 and consequently the said land devolved on her. On September 3, 1992, the opposite party no.1 had applied for mutation since her late father's name was recorded as owner in the records of Deoghar Municipality. The Municipality on receiving her application registered a case, bearing no. 29 of 1993, and she was called upon to appear before the Executive Officer on September 26, 1992 for hearing. At such hearing, the petitioners lodged objection claiming themselves to be the owners of the said land. The petitioner no. 1 submitted copies of three deeds on November 24, 1992 in support of his claim. In paragraph 6 of the plaint, it is averred that the petitioner no.1 had filed before the Executive Officer a registered deed of gift bearing no. 2009 dated March 27, 1965 claiming that the same had been executed by the opposite party no.1 and her mother in favour of Sri Prem Ranjan Ghosh and Sri Amal Ranjan Ghosh and that the same was registered in the office of the Registrar of Assurances at Calcutta. On the basis of the said deed of gift, the said donees had transferred the said land by a registered deed of sale dated July 12, 1974 in favour of Sri Arun Kumar Drolia and Sri Chandra Shekhar Drolia. The said deed was registered in the office of the Deoghar sub-registry office. The petitioners acquired right, title and interest in respect of the said land once the same was transferred in their favour by the aforesaid Drolias by a deed of sale dated December 20, 1977, registered in the office of the Deoghar sub-registry office. On behalf of the opposite party no.1, it was denied before the Executive Officer that any gift of the said land was made in favour of the Ghoshs by executing gift deed and according to her, the same was a forged document. Based on the aforesaid deeds, the prayer of the opposite party no.1 for mutation stood rejected by order dated January 5, 1993. The opposite party no.1 thereafter applied for certified copy of the deed of gift bearing no.2009 dated March 27, 1965 and obtained it on June 30, 1995. It was only after receipt of the certified copy of the deed that the opposite party no.1 learned that the said document is a forged one. Since neither she nor her mother had executed the same in favour of the Ghoshs and since the said deed was forged, and therefore void, the subsequent deeds of sale are also void and the defendants in the suit had not acquired any right, title and interest in respect of the said land. Since the deed bearing no. 2009 was registered in the office of the Registrar of Assurances at Calcutta, the suit was instituted in the City Civil Court at Calcutta praying for relief, as noted above.
17. It is no doubt true that if on a reading of the plaint it were clear that the claim as raised therein is barred by limitation, clause (d) of Rule 11 of Order 7 of the Code would empower the Court to reject the plaint. However, it is settled law that if the question of limitation is connected or interwoven with the merits of the case, the matter requires to be decided along with the other issues and in such case clause (d) would have no application (see AIR 1987 Delhi 165 : Arjun Singh v. Union of India, AIR 1995 Andhra Pradesh 43 : Khaja Quthubullah v. Government of Andhra Pradesh, and AIR 1999 Rajasthan 102 : Mohanlal Sukhadia University v. Priya Solaman). In terms of Article 59 of the Limitation Act, the period of limitation is three years from the date the facts entitling the plaintiff to have the instrument cancelled or set aside first becomes known to him. It is not known at this stage as to whether the opposite party no.1 or his representative was allowed to peruse the alleged forged deed of gift dated March 27, 1965 in course of proceedings before the Executive Officer of the Municipality and thus became aware of the entire contents thereof or not. The date on which the opposite party no.1 actually came to learn of such alleged forged deed of gift and the extent of knowledge derived would be decisive, which could only surface after evidence is led at the trial. The controversy cannot be resolved at this stage without receiving evidence. The opposite party no.1 has averred in the plaint that she came to learn of the fraud that had been committed after receiving the certified copy on June 13, 1995. Such averment has to be treated as correct since while reading a plaint for deciding whether it deserves rejection or not on application of the terms of Order 7 Rule 11 of the Code or not, nothing can be added or subtracted. The contention of Mr. Roy Chowdhury that the suit is barred by limitation does not appeal to me, at least at this stage, to warrant an order for rejection of the plaint.
18. In so far as the contention based on Section 34 of the Act is concerned, I do not consider it to be worthy enough for directing rejection of the plaint at this stage based on the authority of the decision of the Supreme Court reported in AIR 1960 SC 335 : Mst. Rukhmabai v. Lala Laxminarayan & ors. There a similar objection referring to Section 42 of the Specific Relief Act, 1877, which is pari materia Section 34 of the Act, was raised for consideration. It was ruled as follows:
"30. The next question raised by the learned Counsel for the appellants is that the suit should have been dismissed in limine as the plaintiff asked for a bare declaration though he was in a position to ask for further relief within the meaning of S. 42 of the Specific Relief Act. The proviso to S. 42 of the said Act enacts that 'no Court shall make any such declaration when the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so'. It is a well-settled rule of practice not to dismiss suits automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. The learned Counsel for the appellant contends that in the plaint the cause of action for the relief of declaration was given as the execution of the partition decree through the Commissioner appointed by the Court and, therefore, the plaintiff should have asked for a permanent injunction restraining the appellant from interfering with his possession. The appellant did not take this plea in the written statement; nor was there any issue in respect thereof, though as many as 12 issues were raised on the pleadings; nor does the judgment of the learned District Judge disclose that the appellant raised any such plea. For the first time the plea based on S. 42 of the Specific Relief Act was raised before the High Court, and even then the argument advanced was that the consequential relief should have been one for partition: the High Court rejected the contention on the ground that the plaintiff, being in possession of the joint family property, was not bound to ask for partition if he did not have the intention to separate himself from the other members of the family. It is not necessary in this case to express our opinion on the question whether the consequential relief should have been asked for; for, this question should have been raised at the earliest point of time, in which event the plaintiff could have asked for necessary amendment to comply with the provisions of S. 42 of the Specific Relief Act. In the circumstance, we are not justified in allowing the appellant to raise the plea before us."
(underlining for emphasis by me)
19. Here also, the submission that the plaint ought to be rejected in view of the plaintiff not having claimed proper relief relying on Section 34 of the Act was raised at a belated stage and not at the earliest stage of the suit. I do not see any reason as to why an opportunity may not be granted to the opposite party no.1 to amend her plaint so as to comply with the provisions of Section 34 of the Act. If even after grant of opportunity the opposite party no.1 does not take step to pray for further relief, the trial Court may pass appropriate order in accordance with law. Other relief that the opposite party no.1 could have claimed but has not claimed per se is not a ground for rejection of the plaint since discretion of the Court not to grant relief in a given case cannot be equated with a suit being barred by any law within the meaning and scope of Section 9 of the Code.
20. The question of territorial jurisdiction has also not impressed me. On the face of the plaint, the jurisdiction of the City Civil Court appears to have been invoked because the alleged forged deed dated March 27, 1965 was registered in the office of the Registrar of Assurance, within the jurisdiction of the said Court. Mr. Chatterjee has rightly argued that if the City Civil Court lacks the territorial jurisdiction to try the suit, the plaint would have to be returned for presentation before the appropriate Court and the City Civil Court, for lack of territorial jurisdiction, cannot reject the plaint under Order 7 Rule 11 of the Code. However, I am of the view that since the petitioners have raised a point of territorial jurisdiction in their written statement, the learned Judge of the trial Court would most certainly frame an issue in this behalf and decide the point of jurisdiction.
21. In the circumstances aforesaid, I am inclined to dispose of this revisional application by passing the following order. The opposite party no.1 is granted liberty to apply for amendment of plaint within a fortnight from date (the time frame is peremptory) and in the event such an application is filed, the same shall be considered and disposed of as early as possible by the learned trial Judge in accordance with law. If the opposite party no.1 fails to avail such liberty, she shall have to face the consequences flowing therefrom and the learned trial Judge shall pass appropriate order, also in accordance with law, without wasting any further time
22. There shall be no order for costs.
Urgent photostat certified copy of this order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)