Calcutta High Court (Appellete Side)
Akd Sri Arun N. Udani vs Smt. Chhaya Bakshi & Anr on 15 December, 2017
Author: Harish Tandon
Bench: Harish Tandon
1
127 15.12.17 C.O. 4039 of 2017
Ct. No. 2
akd Sri Arun N. Udani.
Vs.
Smt. Chhaya Bakshi & Anr.
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Mr. Swapan Kumar Mallick, Mr. Nitai Ch. Saha.
... for the petitioner.
Mr. Debanjan Mukherjee, Ms. Debobeena Mukherjee.
... for the opposite parties.
This revisional application is directed against an order dated 25th October, 2017 passed by the learned Civil Judge (Junior Division), 3rd Court, Alipore in Ejectment Suit No. 15 of 2014, by which an application under Order VII Rule 11 of the Code of Civil Procedure is rejected.
Admittedly the plaintiffs/opposite parties filed a suit for eviction of a monthly tenant, inter alia, on the ground of default and the change of user.
In paragraph 8 of the plaint it is averred that in a reply to a notice to quit issued upon the defendant/petitioner, a stand has been taken that an agreement for sale was executed on 22nd May, 2006 in respect of 580 sq. ft. of area in the ground-floor of premises no. 108/7B, Satyendra Nath Majumder Sarani, P. S. Tollygunge, Kolkata - 700 026 at a consideration of Rs.7,00,000/-. In paragraph 9 thereof it is averred that if there be any existence of such agreement, the same is null and void.
An application under Order VII Rule 11 of the Code is filed for rejection of the plaint on the ground that once the agreement for sale is executed, the suit for eviction of a monthly tenant is not maintainable. The plaintiffs never admitted the execution of an agreement for sale, rather in paragraph 8 of the plaint they have reproduced the stand taken by the defendant/petitioner in reply to a notice to quit.
2However, for abundant precaution it is averred that if there is any existence of an agreement for sale, the same is void and not binding upon the plaintiffs.
The application for rejection of the plaint is taken out as the status of the defendant/petitioner has changed, the moment an agreement for sale is executed in respect of the suit property. It does not appear from the averments made in the plaint or in an application under Order VII Rule 11 of the Code that the said agreement for sale is registered. Even otherwise mere agreement for sale does not create title into the purchaser in view of Section 54 of the Transfer of Property Act. The shelter is probably taken under Section 53A of the Transfer of Property Act in contending that the moment the agreement for sale is executed, such possession becomes a possession under the agreement and the earlier status as "tenant" automatically seizes.
I am not impressed with the aforesaid submission as well.
Section 17 (1A) of the Registration Act, which was introduced by way of an amendment in the year 2001 categorically provides that the possession under an agreement for sale, which is not registered, does not give a protective umbrella to the intending purchaser under Section 53A of the Act.
Furthermore, the scope of Order VII Rule 11 (d) of the Code is limited and the Court cannot look into any other statement or the documents produced by the defendant/petitioner for the first time. The scrutiny must be confined to the averments made in the plaint. If it appears to the Court that the reliefs claimed therein is barred by law, the Court may proceed to reject the plaint.
This is certainly not a case of such nature, as a suit simplicitor for eviction of a monthly tenant on the ground of default and the change of user is maintainable under Section 6 of the West Bengal 3 Premises Tenancy Act, 1997.
From whatever angle this Court looks at does not find any infirmity or illegality in the impugned order.
The revisional application is thus dismissed. There will be no order as to costs.
(HARISH TANDON, J.)