Calcutta High Court (Appellete Side)
Ranajit Gopal Ray Alias Ranjit Gopal Roy vs Biswajit Roy & Ors on 20 February, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
1 38,ML,Ct.21. 20.02.2019
AJ.
C.O. 3148 of 2017 Ranajit Gopal Ray alias Ranjit Gopal Roy
-Vs-
Biswajit Roy & Ors.
Mr. Uttiya Ray.
... for the petitioner.
Affidavit-of-service filed in Court today be kept with the record. None appears on behalf of the opposite parties to oppose the revisional application in spite of service.
The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for declaration of title and is directed against Order No. 24 dated August 24, 2017 passed by the learned Civil Judge (Junior Division), 1st Court, Katwa.
The defendants in the suit filed an application under Order 14 Rule 2 of the Code of Civil Procedure praying framing of a preliminary issue regarding maintainability of the suit on the ground that the learned Trial Judge lacks jurisdiction to entertain the said suit in view of the bar under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the 'said Act' in short).
The learned Trial Judge, by the order impugned disposed of the said application by expunging the names of defendant nos. 2 and 3 from the cause title of the plaint of the suit.
2
Mr. Ray, learned advocate appearing on behalf of the petitioner submits that Section 27 puts a bar to the jurisdiction of the civil court only in respect of the matters to which the provisions of the said Act applies, but the scope of the present suit and the relief sought for therein by the plaintiff is nowhere covered under any of the provisions of the said Act. Therefore, according to him, the learned Trial Judge has erroneously applied the provisions of Section 27 of the said Act to strike out the names of defendant nos. 2 and 3 from the cause title of the plaint of the suit.
Heard Mr. Ray, learned advocate for the petitioner. Perused the materials-on-record.
The defendant no. 1 is the brother of the plaintiff and defendant nos. 2 and 3 are the widow sister and the widow mother of the plaintiff respectively. The mother initiated a proceeding for maintenance under Section 4 of the said Act and she has been favoured with an order of maintenance in the said proceeding.
The learned Trial Judge in the order impugned has taken note of the order dated September 8, 2015 passed by the Tribunal constituted under the provisions of the said Act, whereby the defendant Nos. 2 and 3 has been allowed to be remained in the suit property. The learned Trial Judge considering the prayer for a decree of permanent injunction restraining the defendants from entering into the suit property which is in conflict with the aforementioned order of the Tribunal struck off the names of the defendant Nos. 2 and 3 from the cause title of the plaint of the suit. 3
The defendants have invited the learned Trial Judge to frame a preliminary issue regarding the maintainability of the suit under Order 14 Rule 2 of the Code on the ground that the provisions of the said Act put a bar to the jurisdiction of the learned Trial Judge to decide the said suit.
The learned Trial Judge, therefore, under the obligation to answer the said issue either by holding the suit is maintainable or it is not maintainable.
The main relief sought for in the suit against the defendant is the decree of declaration of right, title and interest of the plaintiff over the suit property which is not divisible and the decree of injunction is an ancillary relief to the said main relief.
The learned Trial Judge while answering the framed preliminary issue is required to investigate whether the provision of Section 27 of the said Act puts a bar to the jurisdiction of the learned Trial Judge in entertaining and deciding the said suit.
The preliminary issue framed by the learned Trial Judge cannot be answered only by deleting the names of two defendants from the category of defendant in the suit without considering of the scope of the entire suit vis a vis bar envisaged under Section 27 of the said Act.
In view of the aforesaid, the order impugned is set aside by requesting the learned Trial Judge to decide the said application under Order 14 Rule 2 of 4 the Code afresh in accordance with law within a period of three weeks from the date of communication of this order.
It is made clear that the learned Trial Judge is free to decide the said application on its own merit.
The revision application being C.O. 3148 of 2017 is disposed of. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)