C.O. 233 of 2017. Case: Premal Sen and Ors. Vs Ranjit Sen and Ors.. High Court of Calcutta (India)
| Case Number | C.O. 233 of 2017 |
| Counsel | For Appellant: Jaydip Kar, Indranil Roy, Hiranmoy Bhattacharyya, Dipayan Choudhury, Suvradal Choudhury, Soumya Bhattacharyya, Priyanka Choudhury and Srija Banerjee, Advs. and For Respondents: Kashinath De, Sandip Kumar De, Rananit Chowdhury and Debalina Chatterjee, Advs. |
| Judges | Ashis Kumar Chakraborty, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order VII Rules 11, 11(a), 11(d); Order XXIII Rule 3A; Order XXXIX Rules 1, 2; Constitution of India - Article 227; Representation of the People Act, 1951 - Section 83; Securities and Exchange Board of India Act, 1992 - Section 20A |
| Judgement Date | April 17, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Ashis Kumar Chakraborty, J.
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This revisional application under Article 227 of the Constitution of India, is directed against the order dated December 7, 2016 passed by the learned Civil Judge (Junior Division), 4th Court, Alipore in Title Suit No. 134 of 2015. By the impugned order, the learned Court below rejected the application filed by the petitioners, the defendant Nos. 1 and 2 in the suit, under Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short "the Code") praying for, rejection of the plaint on the grounds mentioned hereinafter.
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The opposite party No. 1 filed the above suit, before the learned Court below, claiming declarations that he himself, the petitioners and the proforma opposite parties (the defendant Nos. 3 and 4 in the suit) are the co-sharers of the suit property and that he has the right to enjoy the entire suit property without any interference whatsoever by the petitioners and the proforma opposite parties. He has also claimed consequential reliefs for permanent injunction and mandatory injunction. In the schedule to the plaint, the suit property has been described as the plot of land measuring 23 cottahs, 8 chittacks, 18 square feet situate at Premises No. 10/1, Lala Lajpat Rai Sarani (previously known as 10/1, Elgin Road), Kolkata; the front portion consisting of a three storied building with a courtyard and the rare portion consisting of a three storied building together with a lawn and other one storied building. In the suit, the opposite party No. 1 has also filed an injunction application under Order XXXIX Rules (1) and (2) of the Code, which is pending before the learned Court below without any interim order. The petitioners filed an application under Order VII Rule 11 of the Code praying for, rejection of the plaint filed in the suit on the following grounds.
"(a) The suit appears from the statement in the plaint to be barred by law. The issues raised in the suit including the reliefs claimed therein are barred by res-judicata and/or analogous thereto;
(b) The suit has been filed in gross abuse of the process of Court."
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In their application, the petitioners alleged that the suit property described in the plaint measuring more or less 23 cottahs, 8 chittacks of land with the buildings of Premises No. 10/1 Lala Lajpat Roy Sarani, Kolkata was originally owned by Radhika Ranjan Sen, upon whose death the same devolved upon his two sons Kalyan Sen and Milan Sen, who on May 13, 1998 filed a Terms of Settlement in appeal, being FA 39 of 1997 arising out of a partition suit, being T.S. No. 60 of 1987 and based on which a compromise decree dated May 14, 1998 (hereinafter referred to as "the said compromise decree") was passed by the Division Bench of this Court for partition of the suit property by metes and bounds. According to the petitioners, as per the said compromise decree the front portion of the suit property comprising 10 cottahs 3 chittacks and 15 square feet of land with the part of a three storied building with open courtyard described as "Lot-B property" was allotted to Milan Sen and the rear portion, comprising 13 cottahs, 5 chittacks and 3 square feet of land with part of the three storied building with lawn and other one storey permanent/temporary structure, described as "Lot-A property" was allotted to Kalyan Sen. They further alleged that in terms of the said compromise decree, Kalyan Sen and Milan Sen, during their life time obtained their names mutated in respect of the said Lot-B property and Lot-A property, respectively and the front portion of the suit property forming part of Lot-B property allotted to Milan Sen has since been renumbered as 10/1A, Lala Lajpat Rai Sarani, Kolkata and the Lot-A property retained the original No. 10/1 Lala Lajpat Rai Sarani. Therefore, the opposite party No. 1 and proforma opposite parties, the defendant Nos. 3 and 4, as the sons and daughter of the said Kalyan Sen, are the owners of premises No. 10/1 Lala Lajpat Rai Sarani and the petitioners, as the sons of Milan Sen, since deceased are the owners of Lot-A property of the said compromise decree. Along with the plaint filed in the suit, the opposite party No. 1 has disclosed the said terms of settlement filed by the said Kalyan Sen and Milan Sen, resulting in the said compromise decree. Relying upon the said compromise decree and the mutation of the Lot-A property and Lot-B property described in the said compromise decree in favour of Kalyan Sen and Milan Sen, respectively and renumbering of the said Lot-B property, as 10/1/A, Lala Lajpat Rai Sarani, the petitioners urged the aforementioned grounds for rejection of the plaint filed in the suit. With regard to the first ground, the petitioners contended before the learned Court below that in view of the said compromise decree the present suit filed by the opposite party No. 1 was hit by the principle of res-judicata. In support of the second ground pressed for rejection of plaint, the petitioners contended that the opposite party No. 1, in his plaint suppressed the factum of mutation of the names of Kalyan Sen and Milan Sen, in respect of the Lot-A property and Lot-B property of the said compromise decree, respectively and renumbering of the said Lot B property as Premises No. 10/1/A, Lal Lajpat Rai Sarani presently occupied by them and certain other facts. The opposite party No. 1, the plaintiff contested the said application. By the order dated December 7, 2016 the learned Court below, however, rejected the application filed by the petitioners for rejection of the plaint by holding that in view of the decision of the Supreme Court in the case of P.V. Guru Raj Reddy vs. P. Neeradha Reddy reported in (2015) 8 SCC 331, the plea of res-judicata being question of fact and law cannot be invoked as a ground for rejection of the plaint under Order VII Rule 11 of the Code. The learned Court below also repelled the contention of the petitioners to reject the plaint on the aforementioned second ground. As stated above, it is the said order dated December 7, 2016 which is the subject matter of challenge in the present revisional application.
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Assailing the impugned order passed by the learned Court below, Mr. Jaydeep Kar, learned Senior Advocate appearing for the petitioners contended that the opposite party No. 1, in his...
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