Calcutta High Court (Appellete Side)
Soumitra Kumar Sen vs Shyamal Kumar Sen And Others on 12 December, 2016
1 12.12.2016
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Item No. 23C.O. 3154 of 2016 Soumitra Kumar Sen Vs. Shyamal Kumar Sen and others.
Mr. Sabyasachi Nayak, Mr. Raj Rajeshwar Sinha.
... for the petitioner.
It is settled law that the court shall not look into any other documents disclosed by the defendant for the first time or the statements made either in the written statement or in an application for rejection of the plaint at the time of considering an application under Order VII Rule 11(d) of the Code of Civil Procedure.
The defendant, who applied for rejection of the plaint, has to accept prima facie that all the statements made in the plaint are true, correct and sacrosanct and if it appears that the suit is hit by the provisions of law, there is no difficulty on the part of the court in rejecting the plaint.
In the instant case, the plaintiff/opposite party filed a suit for declaration of his leasehold right acquired in the name of M/s. Sen Industries and permanent injunction restraining the other persons, whose name are recorded in the register maintained by the appropriate authority, from removing articles and/or from changing the nature and character of the same.
By taking out the application under Order VII Rule 11(d) of the Code, the defendant nos. 1 and 2 tried to invite the attention of the trial court that previous to the said suit there was another suit being Title Suit No. 103 of 1995 filed by the plaintiff against the 2 defendant/petitioner herein, which was ultimately dismissed by the trial court and an appeal was preferred against the said judgment and decree, which could not yield favourable result in favour of the plaintiff/opposite party. It is further stated that the second suit was filed being Title Suit No. 268 of 2008 for declaration of dissolution of partnership and accounts, which was again dismissed by the trial court and the said judgment and decree has been carried to the appellate court, who is still in seisin thereof.
Purely relying upon the aforesaid statement, the application for rejection of the plaint has been taken out. As indicated above, though there is a reflection of the second suit in the plaint of the said case but the court should not venture to look into the documents surfaced for the first time at the behest of the defendant for the purpose of nipping the plaint in bud under Order VII Rule 11(d) of the Code. Furthermore, the court has to consider whether the subject disputes in earlier suits are identical and similar to the disputes involved in the instant suit.
Even if such point has a relevance, the principle of res judicata being the mix question of facts and law, it would not be proper for the court to reject the plaint on such score but invite the parties to lead evidence and frame specific issue in this regard.
There appears to be some confusion on the nature of relief claimed in the earlier suits and the relief claimed in the present suit. This Court, therefore, cannot accept the contention of the petitioner that the instant suit is hit by the provisions of law.
This Court does not find any infirmity and/or illegality in the impugned order passed by the trial court.
The revisional application, therefore, fails. There shall, however, be no order as to costs.
ab (Harish Tandon, J.)
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