Calcutta High Court (Appellete Side)
Ananda Kundu And Another vs Smt. Supriya Barman And Others on 15 April, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
April 15, 2024
Sl. No.36
Court No.19
s.biswas
CO 3431 of 2022
Ananda Kundu and another
vs.
Smt. Supriya Barman and others
Mr. Sumit Roy
Mr. Sailen Naskar
... for the petitioners
Mr. Abhijit Ray
Mr. Santu Nandy
Md. Ayaan
... for the opposite party no.1
1. The revisional application arises out of an order
dated August 11, 2022 passed by the learned
Judge, 12th Bench, City Civil Court at Calcutta in
Title Suit No.870 of 2019.
2. The learned court rejected an application under
Order 7 Rule 11 of the Code of Civil Procedure.
According to the learned court, the question of
rejecting the plaint, at the nascent stage, would
not arise. A meaningful reading of the plaint did
not reflect that the suit was barred under the
provisions of The West Bengal Thika Tenancy
(Acquisition and Regulation) Act, 2001,
(hereinafter referred to as the said Act).
According to the learned court, the plaint read as
a whole also did not indicate that the reliefs
claimed, were barred by law.
3. The suit was filed for declaration and injunction.
A declaration that the plaintiff was the absolute
owner of the A-schedule property and was
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entitled to enjoy the property, without any
obstruction and hindrance from the side of the
defendants and their men and agents, was the
first prayer. Further declaration that the
defendants and their men and agents could not
construct on the property without proper
sanction and permission and without
maintaining adequate space between the two
properties was prayed for. Permanent injunction
restraining the defendants and their men and
agents from constructing on the B schedule
property, in violation of the rules, thereby
depriving the plaintiff of her right to air and light
was also prayed for.
4. Mr. Sumit Roy, learned advocate appearing on
behalf of the petitioners/defendant nos.1 and 2,
submits that the suit was not maintainable as
the property on which the alleged construction
was going on, was a thika property.
5. The plaintiff had categorically stated in
paragraph 11 of the plaint that the sanction to
build on the said plot was not obtained by the
defendants either from the Kolkata Municipal
Corporation or from the Thika Controller.
6. The learned advocate for the opposite parties
submits that the plaint indicates that the suit
was barred by the provisions of the said Act.
3
Further, the reliefs claimed did not also pertain
to anything arising out of the rights and
obligations of the thika tenant vis-a-vis the
plaintiff. The issue involved in the suit was
beyond the scope and jurisdiction of the Thika
Controller.
7. Having heard the learned advocates for the
respective parties, this court finds that in
paragraph nos.1, 2 and 3 of the plaint it has
been averred that the plaintiff is owner of the
property situated at 81/C, Tarak Pramanick
Road, Kolkata 700006, being A schedule
property. The plaintiff had constructed a G+1
building on the said property. In paragraph
nos.4 to 7, the plaintiff stated that the defendant
nos.1 and 2 were the owners of the neighbouring
property, i.e., premises no.49/H/6, Madhu Roy
Lane, Kolkata 700006. The defendants property
has been described in schedule-B.
8. The contention of the plaintiff is that the
defendant was demolishing the old structure on
B-schedule property and constructing a new
building thereon, without taking any permission
from the Kolkata Municipal Corporation and the
Thika Controller. The allegation is that the act of
demolition, excavation, drilling, digging of
trenches, etc. were so close to the boundary wall
4
of the plaintiff's property that such activities was
resulting in damage to the floors, walls, etc. of
the plaintiff's property. Accordingly, the suit was
filed with the prayers which have been
mentioned hereinabove. The plaintiff is also
enjoying an injunction. Thus, the bone of
contention of the plaintiff is that the defendants
were constructing without proper sanction from
the permission granting authorities and without
observing the building rules. The defendants
were not maintaining adequate side space
between the two properties. As a result of such
construction, digging, drilling, etc., the property
of the plaintiff suffered damage and there was
obstruction of free play of light and air. The suit
was filed with prayers for declaration that the
plaintiff was entitled to enjoy a schedule
property, free from any hindrance, damage and
disturbance from the defendants and with a
further prayer restraining the defendants from
causing any kind of damage or disturbance to
the plaintiff's property.
9. Under such circumstances, upon a meaningful
reading of the plaint, this court cannot arrive at
the conclusion that the suit was per se barred by
law. Whether the Thika Controller had the
power to adjudicate the allegations made by the
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plaintiff can be decided as a separate issue.
Whether the suit was barred under the
provisions of the Thika Tenancy Act would also
be decided as an issue as of now. Reliance has
been placed on the decision of Samarendra Nath
Das @ Samar Das vs. Bengal Central Building
Society Limited reported in 2015(5) CHN (Cal)
23 by the petitioner. This court cannot travel
beyond the averments in the plaint to arrive at
the decision that the suit was barred by the
provision of the Thika Tenancy Act, only because
the alleged illegal construction was continuing
on the neighbouring property, which was alleged
to be thika property by the defendants. The
contents of the plaint should be deemed to be
correct and correctness of the defendants'
submissions cannot be decided at this stage.
Moreover, whether the reliefs claimed in the suit
were within the jurisdiction of the Thika
controller and the controller could grant such
reliefs cannot be decided at this stage.
10. The judgment cited by Mr. Sumit Roy, learned
advocate for the petitioners, is not applicable at
this stage, as the facts are distinguishable. In the
decision of Samarendra Nath Das @ Samar Das
(supra), the Hon'ble Division Bench came to the
finding that a prayer for declaration was for
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setting aside a deed of conveyance of a thika
property.
11. Reference is made to decision of G. Nagaraj
and Anr. vs, B.P. Mruthunjayanna and Ors.
decided in Civil Appeal No.- 2737 of 2023.
The Hon'ble Apex Court held as follows:-
"6. The law is well settled. For dealing
with an application under Rule 11 of
Order VII of CPC, only the averments
made in the plaint and the documents
produced along with the plaint are
required to be seen. The defence of the
defendants cannot be even looked into.
When the ground pleaded for rejection of
the plaint is the absence of cause of
action, the Court has to examine the
plaint and see whether any cause of
action has been disclosed in the plaint.
7. A perusal of the judgments of the Trial
Court and the High Court will show that
the Courts have gone into the question of
correctness of the averments made in the
plaint by pointing out inconsistent
statements made in the plaint. The
Courts have referred to the earlier suits
filed by the appellants and have come to
the conclusion that the plaint does not
disclose cause of action.
8. The learned counsel appearing for the
second and third respondents
vehemently submitted that on a plain reading of the plaint, it is crystal clear that cause of action is not disclosed. Therefore, we have perused the plaint. After having perused the plaint and in particular paragraphs 16 and 17, we find that the cause of action for filing the suit has been pleaded in some detail. It is pleaded how the first appellant acquired title to the property. The facts constituting alleged cause of action have been also incorporated in paragraph 17.
9. We are of the view that merely because there were some inconsistent averments in the plaint, that was not sufficient to come to a conclusion that the cause of action was not disclosed in the plaint. The question was whether the plaint 7 discloses cause of action. As observed earlier, the plaint does disclose cause of action. Whether the appellants will ultimately succeed or not is another matter."
12. In the decision of Kamala and ors. vs. K.T. Eshwara Sa and ors., reported in (2008) 12 SCC 661, the Hon'ble Apex Court held as follows:-
"21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision."
13. The revisional application stands disposed of without any interference.
14. All the parties are directed to act on the basis of the server copy of the order.
815. Urgent Photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Shampa Sarkar, J.)