Calcutta High Court
Pioneer Spring & Steel Concern (P) Ltd. vs Delta International Ltd. & Anr. on 4 May, 2000
Equivalent citations: (2000)3CALLT259(HC)
JUDGMENT V.K. Gupta, J.
1. This Appeal is directed against the judgment and order dated 5th February, 1993 passed by the learned single Judge of this Court in Extraordinary Suit No, 8 of 1990 whereby the application filed by the Respondent No. 1 in terms of Order 7 Rule 11 CPC for rejection of the plaint filed by the Appellant/Plaintiff was allowed on the basis of the direction issued by the learned single Judge that the plaint be forth with taken off the File. At the same time in the Order under appeal the learned single Judge also observed that the plaintiff/appellant would be entitled to make an application under section 47 CPC for the purpose of protection of its rights.
2. The brief facts leading to the filling of the appeal are that the plaintiff/ appellant claims to be in occupation of a portion of the 5th floor measuring about 2200 square feet in premises No. 4 Government Place (North) Calcutta (5th floor of the said premises). The case of the appellant is that since August 1970 and at all material times thereafter up till date, the plaintiff/ appellant has been a monthly tenant in respect of the demised premises being in its lawful possession. The plaintiffs case is that he was inducted as a sub-tenant in the demised premises by the predecessor-in-interest of respondent No. 2 with the previous consent in writing of the predecessor-in-interest of respondent No. 1, The predecessor-ln-interest of respondent No. 1 and at present the respondent No. 1 itself are the owners of the demised premises and the predecessor-in-interest of respondent No. 2 was the tenant of the same along with certain other portions in No. 4 Government place (North) Calcutta popularly known as "Eagle House". It appears that in the year 1987 a Suit, being Suit No. 883 of 1987 was filed by respondent No. 1 against respondent No. 2 for the eviction of respondent No. 2 from the premises in question. On 9th June, 1989 a decree purported to be based on the consent and the agreement of the parlies in that Suit was passed by this Court. By the said decree the defendant in the said Suit (respondent No. 2 in the present Appeal) was to deliver the khas possession of the 3rd, 4th, 5th and 6th floors of the premises No. 4 Government place (North), Calcutta, Eagte House. But the plaintiff in the aforesaid Suit (respondent No. 1 herein) undertook in the said decree not to execute the same against the defendant therein for the recovery of khas possession in respect of a specified portion of the aforesaid property in view of the fact that the defendant therein had agreed to take a fresh lease for the said area from the plaintiff on the terms and conditions stipulated in the decree itself. The decree therefore mentioned that, but for the aforesaid specified portion forming a part of the Eagle House, the decree could be executed. In other words, it meant that in respect of the portion not specified the decree was executable which also meant that the portion occupied by the appellant herein in his capacity as a sub-tenant of respondent No. 2 herein was liable to be executed because that portion also formed a part of the subject matter of the said decree.
3. Being aggrieved with the passing of the aforesaid decree the appellant filed the suit, as indicated hereinabove for a declaration and perpetual injunction. The following reliefs were claimed in the said suit.
(a) Declaration that the purported decree and Order dated June 9, 1989 made in the Suit No. 883 of 1987 (Delta International v. The Oriental Insurance Co. Ltd.) is invalid, null, void, of no effect, not binding on and enforceable against the plaintiff;
(b) If necessary, declaration that the plaintiff was and is a tenant In respect of the portion of the 5lh Floor of the Premises No. 4, Government Place (North), Calcutta particulars whereof are set out in schedule "A" to the plaint, and is entitled to be in possession, occupation, use and enjoyment thereof as such tenant,
(c) Perpetual injunction restraining the defendants, their servants, agents and assigns and each of them from in any way or manner whatsoever to rely, act upon, implement, enforce and give effect to and/or cause to be given effect to and/or enforced and/or taking any steps therefor, the purported decree and order dated June 9, 1989 made in the said Suit No. 883 of 1987;
(d) Perpetual Injunction restraining the defendants, their servants, agents and assigns and each of them from in any way or manner whatsoever preventing, interfering, obstructing, taking any steps with regard thereto and/or causing to be interfered with and obstructed the possession, occupation use and enjoyment by the plaintiff of the said portion of the 5th floor of the said premises No. 4, Government Place (North), Calcutta;
(e) Costs;
(f) Receiver;
(g) Injunction;
(h) Further and other reliefs.
4. The respondent No. 1 accordingly, as noticed above, filed application in terms of Order 7 Rule 11 CPC for rejection of the Plaint on the ground that all questions arising between the parties or their representatives to a Suit in which a decree was passed and which relates to execution, discharge or satisfaction of the decree have to be resolved in execution proceedings by the Executing Court and not by means of filing a separate Suit, and that because of the aforesaid provision of Law contained in section 47 CPC, the Suit filed by the appellant was barred and thus the plaint was liable to be rejected in terms of Order 7 Rule 11 CPC. As noticed at the outset, the learned single Judge agreed with the aforesaid contention of the respondent No. 1 and ordered the rejection of the plaint but by giving libery to the appellant to file an appropriate application in terms of section 47 CPC.
5. Mr. Mitra the learned senior advocate appearing on behalf of the appellant has submitted that the learned single Judge erred in law in rejecting the plaint by holding that the questions raised in the suit could be exclusively dealt with only in Execution Proceedings in terms of section 47 CPC. Mr. Mltra's contention is that because of the issues involved, the suit filed by the appellant was maintainable and that since the appellant had challenged the decree llself on a number of grounds. including those relating to and arising out of fraud, the issues raised by the appellant could be adjudicated upon only in a suit and not in an application filed under section 47 CPC.
6. Mr. P.K. Ray, learned senior advocate appearing for the respondent No. 1 on the other hand has urged that the learned Single Judge was right in rejecting the plaint and that all the questions raised by the appellant in the suit can be dealt with properly and affectively in an application under section 47 CPC read with Order 21 Rule 97, or Rule 98, or Rule 99 CPC.
7. We have given our thoughtful consideration to the aforesaid rival contentions. In our considered view the points raised by the appellant in the Suit are such which can appropriately and effectively be dealt with and adjudicated upon in execution proceedings by the executing Court in terms of section 47 read with Order 21 Rule 97 and other related provisions of CPC. We are of the view that the suit was not maintainable and the learned single Judge was right in rejecting the plaint. We are not going into the detailed analysis, consideration or examination of various points individually urged before us by the learned Advocates of the parties. Including any aspect relating to alleged fraud in obtaining the decree, the applicability of the provisions of West Bengal premises Tenancy Act 1956 to the lease in question, or the terms contained in the Lease Deed executed on 10th July, 1967 between the predecessor-ln-interest of respondent No. 1 and the predecessor-in-interest of respondent No. 2, particularly the clause relating to the earlier determination of that lease notwilh stand ing the fact that it was granted for a period of 21 years. We are also not going into any question relating to the fact as to whether the lease as executed had any provision for permitting the lessee to induct a sub-tenant wllh Uie previous permission of the landlord or that the appellant was actually inducted as a sub-tenant by respondent No, 2 with the previous permission in writing of respondent No. 1. We are leaving all these questions open because these are the very questions which may arise for consideration, if they are relevant and material to the subject matter of controversy between the parties and if these questions, or anyone of them are applicable to the issues involved in the proceedings between the parties. We wish to make it absolutely clear that we are not entering into any debate or discussion about the merits of such questions nor are we expressing our views regarding the same. We even refrain from commenting whether the aforesaid questions are or would be relevant or applicable in the proceedings or not.
8. Mr. Mitra wanted that if we did not agree with his contention about the maintainability of the Suit, we should convert the Suit into an application under section 47 read with Order 21 Rule 97 etc. CPC in support of his contention he referred to a Judgment of the High Court of Bombay and a judgment of our own High Court .
9. We have considered the aforesaid submission of Mr. Mltra but regret to accept the same. By the amendment Act of 1976, sub-section (2} of section 47 which provided for conversion of a Suit into an application under that section or vice versa was omitted. Before the amendment of 1976 undoubtedly there was a provision as contained in sub-section (2) of section 47 CPC whereby the Court had the discretion to convert a Suit as an application under that section or an application under that section as a Suit. By omitting sub-section (2) of section 47, the Parliament has clearly expressed its intention of doing away with the aforesaid practice of converting a Suit into an application. if therefore a particular provision of law has been amended specifically to take away a particular right of a party or to do away with a particular contingency, in our opinion taking recourse to the exercise of inherent power under section 151 CPC is not permissible or desirable. We therefore respectfully do not find ourselves in agreement with the view taken by their Lordships in the aforesaid cases.
10. The apprehension of the appellant that fresh application filed by the appellant under section 47 read with Order 21 Rule 97 may be barred by limitation does not appear to be well founded. Under Article 137 of the Schedule to the Limitation Act an application of this nature is required to be filed within a period of three years from the date when the right to file the application accrues. Even though at the very outset we record the statement of Mr. P.K. Roy before us, in clear and categorical terms that the respondents shall not raise the plea of limitation in any aforesaid application before any Court, we ourselves wish to observe that the right to file an application in terms of Article 137 (supra) would accrue to an aggrieved person only if the execution proceedings are initiated by putting the decree in execution in a case like the present one. Apart from that we have no hesitation whatsoever in holding that the suit filed by the appellant in this Court cannot at all be called a misconceived Suit because, even according to us the appellant may have been under a bonaftde, genuine and legitimate belief that the Suit was maintainable, even though strictly speaking, in the eyes of law, such suit was not maintainable. Therefore, the time spent by the appellant in prosecuting the aforesaid suit has to be excluded while computing the period of limitation if. at any stage any one takes a view that the application filed by the appellant under section 47 read with Order 21 rule 97 etc. CPC is barred by limitation.
For the foregoing reasons therefore, we dismiss the appeal and uphold the Judgment of the learned single Judge.
Later:
Let a Xerox signed copy of this Judgment, duly countersigned by the Assistant Registrar of this Court, be given to the parties upon their undertaking to apply for and obtain certified copy of the same upon usual undertaking.
M.K. Basu, J.
I agree.
11. Appeal dismissed