Calcutta High Court
Apeejay House Pvt. Ltd. vs Punjab National Bank on 15 January, 2007
Equivalent citations: 2007(2)CHN178, AIR 2007 (NOC) 1208 (CAL.)
Author: Aniruddha Bose
Bench: Aniruddha Bose
JUDGMENT Aniruddha Bose, J.
1. The instant motion has been taken out by the defendant seeking in substance dismissal of the suit instituted by the plaintiff, primarily claiming decree for khas and vacant possession of certain portion of the premises No. 15, Park Street. This portion of the premises was let out to the petitioner/defendant. The case of the plaintiff as made out in the plaint is that they had let out the subject property to the defendant as monthly tenant, and the monthly lease was determined by a notice of termination issued on 8th October, 2005. The suit was instituted upon the expiry of the term of the notice as the defendant did not vacate the premises in question.
2. The ground on which the dismissal of this suit has been prayed for is lack of proper pleading. The contention of the defendant is that the particulars regarding the facts constituting the cause of action and when it arose, the facts showing how this Court has the jurisdiction and the statement regarding the value of the subject-matter of the suit for the purpose of jurisdiction and of Court-fees have not been disclosed. The requirement for disclosure of these particulars and contained in Clauses (e), (f) and (i) of Rule 1 Order 7 of the Code of Civil Procedure (the "Code", in short).
3. Mr. Pradip Kumar Ghose, learned Senior Counsel appearing for the petitioner/defendant argued that in view of the provisions of Rule 1(3) Order 4 of the Code introduced to the Code by the Code of Civil Procedure (Amendment) Act, 2002, the compliance of the above referred provisions of Order 7 of the Code are mandatory and the suit cannot be held to be duly instituted, and hence the plaint ought to be taken off the file.
4. Before I proceed to consider the submissions of the learned Counsels for the respective parties, I shall refer to the provisions of the Code whose construction is necessary for effective disposal of the present proceeding. These provisions are Rule 1 of Order 7 and Rule 1 of Order 4 of the Code, which are reproduced below:
ORDER 7 PLAINT
1. Particulars to be contained in plaint.--The plaint shall contain the following particulars:
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff;
(c) the name, description and place of residence of the defendant, so far as they can be ascertained;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees, so far as the case admits.
ORDER 4 INSTITUTION OF SUITS
1. Suit to be commenced by plaint.(1) Every suit shall be instituted by presenting a or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders 6 and 7, so far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in Sub-rules (1) and (2).
5. Mr. Ghosh submitted that the pleadings in the plaint do not satisfy the requirements of Clauses (e), (f) and (i) of Rule (1) of Order 7 of the Code. He has mainly relied on three authorities, being Steam Navigation Co. Ltd. v. Shalimar Works Ltd. AIR 1915 Cal 681; Kalyani Dassi v. Ganesh Chandra Sreemany and Ors. and Tilakraj v. Prithi Pal AIR 1961 J&K page 61 in support of his submissions.
6. To this argument, the defence of Mr. Anindya Kumar Mitra, learned Senior Counsel appearing for the plaintiff, broadly is that the suit being for recovery of possession of immovable property, this is a "suit for land" within the meaning of Clause 12, Letters Patent, and this Court is the only Court having jurisdiction to try the suit having regard to the value of subject-matter of the property involved in this suit. As regards the requirement to stipulate the valuation of the suit, since maximum Court-fees had been paid and there is specific pleading to that effect, this requirement as stipulated in Sub-rule (i) of Rule 1 of Order 7 of the Code also stands substantially complied with. The date on which cause of action arose could also be clearly ascertained from the pleadings and hence the provisions of Rule 1 of Order 7 of the Code has been substantially complied with in the pleadings.
7. For proper appreciation of the arguments of the respective parties reference to the relevant part of the pleadings as contained in the plaint which relates to disclosure of these particulars are necessary and for this purpose the following paragraphs of the plaint are reproduced below:
3. The monthly lease was determined by notice dated 23rd March, 2005. This notice has, however, been waived and/or withdrawn by a notice dated 28th September, 2005 and a fresh notice of termination issued by the plaintiff on 8th October, 2005. Copies of said notices are annexed hereto and collectively marked with letter 'C' The said notice of termination dated 8th October, 2005 is under Section 106 of the Transfer of the Property Act.
4. The defendant has, however, failed and/or neglected to vacate the demised portion and hand over possession to the plaintiff on expiry of the period of the said notice.
5. The defendant is thus in wrongful and illegal possession of the demised portion on and from the expiry of the said notice i.e. from 24th October, 2005 and is a trespasser in respect thereof.
6. The plaintiff has accepted rent of the demised portion lastly upto 23rd October, 2005. The defendant is wrongful possession of the demised portion actually received or might with ordinary diligence have received therefrom profits reasonably assessed at Rs. 100/- per sq. ft. per month.
7. The plaintiff is entitled to decree for vacant and peaceful possession of the demised portion as well as mesne profit and interest thereon.
8. The plaintiff is entitled to claim interest and interest on judgment @ 18% p.a.
9. The suit is valued at over Rs. 50 lakhs. The plaintiff has had appropriate Court-fees and undertakes to pay further Court-fees, if so directed.
8. The main question that arises for determination in the present proceeding is as to whether the manner in which the plaint has been framed meets the requirement of the above-referred provisions of the Code. If there is breach in meeting the requirements, then the plaint shall not be deemed to have been duly instituted.
9. In the case of Steam Navigation Co. Ltd. (supra), the suit was founded on the allegation of commission of two torts, being malicious abuse of the process of the Court, and that of trespass. There were separate periods of limitation prescribed for instituting suits founded on these two torts, and it appears from the judgment that there was no statement in the plaint as regards the date on which cause of action arose in the plaint. But the Hon'ble Division Bench of this Court did not dismiss the suit for failure to comply with the requirements of Order 7 and finding was given on this aspect, visa-vis the allegations made on both these torts.
10. The decision in the case of Kalyani (supra) was delivered in an application for amendment of plaint. Objection was taken in this matter on the form of the plaint, and one of the specific objections was that there was no statement in the plaint as to when the cause of action for the suit arose. This deficiency was sought to be cured by making an amendment, by adding a paragraph containing a statement that the cause of action arose in a particular year (1922 in that case) without specifying the particular date. On this count also an objection was taken. The suit was instituted to prevent acts of encroachment on the plaintiff's land, and the plaintiff's Counsel appeared to have found himself in difficulty in stating the precise date. But the stand of the plaintiff was that in the event the cause of action arose in the year 1922, the suit would not have been barred under the law of limitation. This position was accepted by the learned Counsel for the defendant, and the amendment was allowed.
11. It was in this factual context the judgment was delivered, and there is elaborate discussion in the judgment as regards the manner in which there should be pleading on Sub-rule (e) of Order 1 Rule 7 of the Code. What was considered in this judgment by Buckland, J. was the adequacy of the practice of making a statement in the plaint that cause of action of a suit arose on a particular date, which Lort Williams, J. in an earlier authority, being the case of Ramprosad Chimanlal v. Hazarimal Lalchand , found to be wholly insufficient, useless and unnecessary. In this background, it was observed:
I find myself unable to agree with my learned brothers' general proposition that a paragraph in the plaint stating that the plaintiffs cause of action arose on such and such a date is either wholly insufficient or useless or unnecessary. That will be the case if the date upon which the cause of action arose is otherwise alleged specifically. But if that has not been done in stating the facts which constitute the cause of action, which method I agree is to be preferred, then, in my judgment, the plaintiff should be required to allege the date specifically, though, whether he does so in a separate paragraph or not is a matter of no account, but whatever form is adopted the defendant should be able to ascertain from the pleading upon which day the cause of action is alleged to have arisen.
12. In the case of Tilak Raj (supra), the defect alleged was non-disclosure in pleadings a statement showing clearly and in sufficient detail how the Court in which the suit was instituted had the jurisdiction to try the suit. Before the Trial Court, an application was filed by the defendant for an order requiring the plaintiff to amend the plaint incorporating the facts to show that the Court had jurisdiction to try and determine the suit. The plaintiff did not file his response to this application and thereafter the parties were directed to go on trial on the preliminary issue relating to jurisdiction. This order directing the parties to go on trial on this preliminary issue was challenged before the Hon'ble High Court in its revisional jurisdiction. The Hon'ble High Court was of the view that in the absence of a specific averment in the plaint as to how the Court had jurisdiction, it was not proper for the Court to direct the parties to adduce evidence on the question as to whether the Court had the jurisdiction to try the suit. If such a course was adopted, then there would have been a trial on the preliminary issue without there being any pleading in the plaint that the Court had jurisdiction to try the suit, and adducing of evidence would have been permitted on a point or issue even though there was no averment on that count. The revisional application was allowed, but the plaintiff was directed to amend the plaint by making necessary averments to show how the Court in which the suit was brought had jurisdiction to try the suit. The right of the defendant to traverse those allegations were retained. In this case, however, the issue was not as to whether there was specific necessity to give the particulars using the exact expression as contained in the Code, or whether the requirement of the Code could be deemed to have been complied with if from the pleadings itself it could be ascertained how the Court had jurisdiction to try the suit. This judgment proceeds on the basis that there was no averment at all showing how the Court had jurisdiction. Thus this judgment, in my opinion, has no application in the facts of the present proceeding.
13. In the case of Vidyabati Gupta v. Bhakti Hari Nayak the Hon'ble Supreme Court considered the question of applicability of the provisions of Code of Civil Procedure introduced by way of the Code of Civil Procedure (Amendment) Act, 2002 on the Original Side Rules of this Court. In that case, a suit was instituted subsequent to 1st July, 2002, on which date the Amendment Act came into operation. But this plaint was not supported by an affidavit, which was made mandatory by the Amendment Act. Before an Hon'ble Appellate Bench of this Court, which was hearing an appeal against an interlocutory order passed in this suit, a preliminary objection was taken by the defendants regarding the validity of institution of the suit for this deficiency. The Hon'ble Appellate Bench of this Court was of the opinion that if a plaint did not comply with the provisions of the amended provisions, there would be no due institution of the plaint. The Hon'ble Appellate Bench, however, had granted leave to the plaintiff to file an affidavit in support of the plaint, and in pursuance of such leave, the affidavit was filed. The Hon'ble Appellate Bench was of the view that this was a curable defect, and once this defect or error was rectified, the plaint would be deemed to have been properly instituted from the date the defect stood cured. The Hon'ble Supreme Court, however, held that once the defect was cured, the effect thereof would date back to the date of presentation of the plaint.
14. Applicability of the provisions relating to pleadings as contained in the Code on the suits instituted in the Original Side of this Court is not in dispute. It was held so in the case of Vidyabati Gupta (supra). Moreover, there appears to be a subsisting direction to that effect also of Sir Lawrence Jenkins, C.J. requiring compliance of these provisions in such suits. This direction was referred to in the case of Kalyani (supra), and is contained in a communication of the Registrar, Original Side of this Court addressed to the Honorary Secretary, Incorporated Law Society, dated 1st May, 1914 (vide 18 CWN cxlvii). The relevant part of this communication is:
It having been brought to the notice of the Hon'ble Chief Justice that a practice has grown up to omit in plaints the particulars required by Clauses (e) and (f) of Rule 1 of Order 7 CPC, I am directed by His Lordship to state that no plaints will be admitted unless there be a distinct statement:
(i) as to when the cause of action arose,
(ii) as to where that portion of the cause of action on which reliance is placed as giving jurisdiction arose.
In this connection I am desired to refer you to Appendix A, Plaints Form No. I, para 4 of the CPC....
15. In the present case, however, learned Counsel appearing for the plaintiff has submitted that the plaint is maintainable in its present form only and his client was inclined to defend its validity in the manner it was framed, without effecting any amendment. Under these circumstances, I am to test as to whether there is any deficiency in the pleading for non-compliance of Sub-clauses (e), (f) and (i) of Order 7 Rule 1 of the Code, and if the deficiency is of such degree which would warrant dismissal of the suit itself or render the suit non est. Reliance was placed by the learned Counsel for the plaintiff on the decision of this Court in the case of Binani Properties v. G.A Hossain & Co. . In this case, which was a suit for eviction, the defendant sought to question the maintainability of the suit on the plea that the plaintiff, who was an incorporated company was not a "property company" and its charter did not permit buying or making houses in Calcutta. This plea, however, was not taken in the written statement, and this issue was raised at the closing stage of the trial after evidence was closed and arguments were being heard. The plea on maintainability of the suit by the defendant was accordingly rejected by this Court. On the strength of this judgment, it was contended that such a plea cannot be taken at this stage after the plaintiff had instituted the proceeding for summary judgment under chapter XIIIA of the Original Side Rules.
16. The judgment of this Court in the case of Binani Properties (supra), in my opinion is not applicable in the facts of the present case. This is because the pendency of application under Chapter XIIIA of the Original Side Rules cannot be held to be the last stage of the trial, though if allowed, that may result in conclusion of the suit itself. This chapter contemplates summary proceeding on admitted facts, and cannot exclude the defendant's right to raise a triable issue on a preliminary point.
17. Both the authorities of this Court, being the cases of Madras Steam Navigation Co. Ltd. (supra) and Kalyani (supra) which have been cited by Mr. Ghose relates to non-disclosure by way of making a distinct statement as to the date on which cause of action arose. Accordingly, I propose to deal first with the argument made on non-complinace of Rule 1(e) of Order 7 of the Code, which requires the plaintiff to make statement on this aspect in the plaint. There is no distinct statement in the plaint in an independent paragraph to the effect that the cause of action of the suit arose on a particular date. But is making of such statement in a separate paragraph which no doubt constitutes a good practice in pleading, the specific requirement of Rule 1(e) of Order 7? In the case of Kalyani, Buckland, J. observed:
It may be that what I have endeavoured to express was what was in the mind of my learned brother Lort Williams, J., when he delivered his judgment, and indeed I do not think that there is any difference in substance between his view of this matter and mine. But an extreme view seems to have been taken of what he then said and I should not have dealt with this matter at such length had it not come to my notice that it is in consequence of that judgment that plaints are now being admitted without any statement as to when the cause of action arose. The pendulum seems to have swung entirely in the opposite direction, for in the plaint with which I am now concerned not only is there no separate paragraph stating when the cause of action expressed in para 12 of the plaint arose, but it is impossible for anybody upon a perusal of the facts alleged to constitute the cause of action to ascertain for himself when it is alleged to have arisen. It is very important that there should be continuously a uniform practice in this respect, and I have therefore dealt with the matter at considerably greater length than otherwise would have been necessary for the guidance of the officers of the Court and of the profession generally.
There will be an order for amendment of the plaint as prayed. The applicant must pay the costs of this application. The defendant Srimany will be at liberty to file and additional written statement of which the applicant must also pay the costs.
18. The argument advanced on behalf of the defendant, if accepted, would result in laying down an absolute proposition of law mandating making of a specific statement in the plaint that the cause of action of the suit arose on a particular date. The statement contained in paragraph 5 of the plaint clearly indicates the date on which cause of action arose. What is missing from this paragraph, if any, is a statement, the nature of which I have referred to in the first sentence of this paragraph. But from none of the authorities cited I find that omission in making that specific statement would be fatal to the plaint, even if it can be ascertained from the averments of plaint that the cause of action forming basis of the suit arose on a particular date. In the directive of Sir Lawrence Jenkins, C.J., reference was made to Appendix A, Plaints Form No. 1, para 4 of the CPC This paragraph reads:
4. [Facts showing when the cause of action arose and that the Court has jurisdiction.] What is necessary, in my opinion, in this context is that facts pleaded must show when the cause of action arose and that the Court has jurisdiction. If from the pleading this can be ascertained, there would be compliance of Clause (e) of Rule 1 Order 7. I find support of this view from the observation of Buckland, J. in the passages I have referred to earlier in this judgment. On a plain reading of the plaint, and in particular paragraph 5 of the plaint, I am of the opinion that it can be ascertained when the cause of action of the present suit arose.
19. Next comes the question of compliance with the stipulations of Clause (f) of Order 7 Rule 1. Under this rule, the plaint is to contain particulars concerning facts showing that this Court has jurisdiction. The suit, out of which the present proceeding arises is for a decree of "khas and vacant possession" of the premises which forms the subject-matter of the suit. In first paragraph of the plaint itself, the particulars of the property has been given, and it has been specified that the property is "within the aforesaid jurisdiction", implying the property is situated within the Ordinary Original Civil Jurisdiction of this Court, and valuation of this suit has been made beyond rupees fifty lacs. The present suit is thus a "suit for land" and this brings the suit exclusively within the Ordinary Original Civil Jurisdiction of this Court. Though the decision in the case of Kalyani (supra) was delivered in a case relating to stipulation concerning statement as regards the date on which the cause of action of the suit arose, the observations made in that case as to the manner in which the disclosure shall be made in the plaint applies to the other sub-rules of Rule 1 of Order 7 of the Code. Paragraph 4 of Form No. 1 of plaints as contained in Appendix A to the Code also covers this aspect of pleading. Applying the ratio of that judgment, and for the reasons discussed in the preceding paragraph of this judgment, I am also satisfied that the requirement of Rule 1(f) of Order 7 also stands complied with in the plaint in question.
20. The third charge of breach made out in the present proceeding by the defendant/petitioner is in respect of the provisions of Rule 1(i) of Order 7. In the plaint, I find that the suit has been valued over rupees fifty lacs. Such valuation, in a suit instituted under the Ordinary Original Civil Jurisdiction of this Court meets the requirement of both jurisdiction and Court-fee, as valuation of rupees fifty lacs entails payment of maximum Court-fees. Valuation beyond rupees ten lacs in a suit for land vests this Court with the exclusive jurisdiction to entertain, try and determine that suit. The case of the defendant is not that the suit has been over-valued, but that there is no specific statement as regards the value of the subject-matter of the suit for the purposes of jurisdiction and Court-fees. I am satisfied that paragraph 9 of the plaint complies the requirement of Order 7, Rule 1(i) of the Code, being a statement on the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees.
21. As I have already held that the plaint, as framed satisfies the requirement of Rule 1 of Order 7 of the Code, I do not consider it necessary to consider the impact of Sub-rule (3) of Rule 1 Order 4, as introduced by the Amendment Act of 2002 on the subject-plaint. The present application accordingly stands dismissed.
22. There shall however be no order as to cost.
23. Let an urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.