C.O. 3476 of 2011 and C.O. 2724, 2739 of 2007. Case: Das Organochem Pvt. Ltd. Vs Calcutta Bone Mills and Fertilisers Pvt. Ltd.. High Court of Calcutta (India)
| Case Number | C.O. 3476 of 2011 and C.O. 2724, 2739 of 2007 |
| Counsel | For Appellant: Saptangshu Basu, Sr. Adv. and For Respondents: Hiranmoy Bhattacharjee, Adv. |
| Judges | Arijit Banerjee, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11; Order XIV Rules 2, 2(1); West Bengal Premises Tenancy Act, 1956 - Section 17(3) |
| Judgement Date | March 13, 2015 |
| Court | High Court of Calcutta (India) |
Judgment:
Arijit Banerjee, J.
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The three revisional applications arise in connection with the orders passed and or proceedings in the same suit and, accordingly, involve common facts. As such the three revisional applications are taken up for hearing and disposal together.
Common facts of the case:
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The opposite party in CO No. 2739 of 2007 is the plaintiff in Title Suit No. 173 of 1985 renumbered as Title Suit No. 111 of 2006 pending in the Court of the Civil Judge (Senior Division) 4th Court, Alipore. The suit has been filed for recovery of possession of the suit premises on the grounds of, inter alia, default in payment of rent and illegal subletting.
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The petitioner/defendant filed written statement in the suit claiming to be Thika Tenant.
CO 2739 of 2007:--
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The defendant/petitioner filed an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint on the basis that the suit is not maintainable against the defendant who is a Thika Tenant in respect of the suit premises. The defendant contended that the plaintiff had wrongfully and illegally instituted the suit under the provisions of the West Bengal Premises Tenancy Act when, in fact, the defendant is a thika tenant under the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981. The defendant contended that it had been depositing rent with the Thika Controller, Calcutta since January, 1982.
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The plaintiff/opposite party opposed the said application by filing written objection wherein it contended that while deciding an application under Order 7 Rule 11 of the CPC the Court has to consider only the allegations in the plaint and is not entitled to look into the defence of the defendant. The plaintiff contended that by filing the said application the defendant was only trying to thwart the plaintiff's application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956.
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The Ld. Court held that while considering an application under Order 7 Rule 11 of the CPC, the Court has to assume all the averments in the plaint to be true. Nowhere in the plaint, the plaintiff has admitted that the defendant is a thika tenant although the plaintiff has averred in the plaint that the defendant has raised a false claim of thika tenancy. The Ld. Judge rejected the defendant's application under Order 7 Rule 11 of the CPC. Being aggrieved, the petitioner/defendant is before this Court by way of the instant revisional application.
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