Sri Dilip Talikder vs Harilal Majumder
2021 Latest Caselaw 4178 Cal

9th August,

(AK)

C.O. 7 of 2019 IA No: CAN 1 of 2019 (Old No: CAN 9785 of 2019)

Sri Dilip Talikder Vs.

Harilal Majumder, since deceased represented by his legal heirs Smt. Pakhirani Majumder and others

(Via video conference)

Mr. Partha Pratim Roy Mr. Sarbananda Sanyal ... For the Petitioner.

Mr. Arijit Bardhan ...For the Opposite party.

Learned counsel appearing for the petitioner, who

was the defendant in a suit for declaration that a deed

dated November 7, 2008 is illegal, void and not binding

upon the plaintiffs and for ancillary reliefs, submits that

the trial court refused to exercise jurisdiction vested in it

by law in rejecting the petitioner's application under

Order VII Rule 11 of the Code of Civil Procedure, for

rejection of the plaint.

Learned counsel contends that the suit was

palpably barred by Section 34 of the Specific Relief Act,

since the plaintiff no.2, even as per the pleadings of

paragraph nos.5 and 8 of the plaint, had executed the

deeds but subsequently alleged forgery and

misrepresentation, the appropriate relief to be sought by

the second plaintiff would be a cancellation of such deed,

since the said plaintiff was himself an executant of the

same.

Hence, it is contended that the trial court ought to

have rejected the plaint at the outset, the suit being

barred by law.

In support of his contention, learned counsel places

reliance on the judgments reported at AIR 2020 SC 4047

and AIR 2010 SC 2807, to iterate the proposition that the

executant of a deed, if challenging the same in a suit, has

to seek cancellation of the same. A mere prayer for

declaration that the deed is 'not binding' on him would

not suffice.

Learned counsel places the relevant paragraphs in

the first-cited judgment to elaborate the nitty-gritties of

judgments in rem and judgments in personam in such

context.

Learned counsel appearing for the

plaintiffs/opposite parties argues that the arguments

made in this court are beyond the grounds taken in the

application under Order VII Rule 11 of the Code of Civil

Procedure and/or canvassed in the trial court.

That apart, as far as the contention regarding non-

maintainability of the suit is concerned, even going by the

arguments of the defendants, the suit is maintainable in

respect of the first plaintiff.

Since it is well-settled that there cannot be any

partial rejection of plaint, the entire application under

Order VII Rule 11 of the Code of Civil Procedure was

rightly turned down by the trial court.

That apart, it is argued that the plaintiff no.2

denies having consciously executed the deed and, as

such, the suit is maintainable with regard to the second

plaintiff as well, since a declaration that the deed was

void and not binding was the appropriate relief to be

sought.

Learned counsel for the plaintiffs/opposite parties,

in reply, candidly admits that, in the court below, stress

was given on the question of the suit being barred by

limitation, which the plaintiffs do not press, as such,

before this court.

However, in view of the other question raised,

regarding the bar of Section 34 of Specific Relief Act,

1963, the same being a pure question of law, can be

urged and decided for the first time before the revisional

court as well.

Upon going through the contents of the plaint, it is

clear that, as rightly submitted by learned counsel for the

plaintiffs/opposite parties, even as per the arguments of

the defendants, the suit is maintainable in so far as the

first plaintiff is concerned, since the first plaintiff also

claims to be a co-owner of the suit property and never

executed the deed at all.

Therefore, the appropriate relief for the first plaintiff

would be relief (a) sought in the plaint, seeking a

declaration that the deed is illegal, void and not binding

upon him. Partial rejection of plaints being deprecated by

settled judicial opinion, the entire application under

Order VII Rule 11 was, thus, rightly rejected.

Even inasmuch as the second plaintiff is

concerned, it is arguable as to whether the suit is barred

by the provisions of the Specific Relief Act, since it is open

to argument as to whether, even as per the plaint

pleadings, the second plaintiff at all executed such

document or not.

Be that as it may, apart from the fact that it is well-

settled that there cannot be any partial rejection of plaint,

the issues raised in the present revisional application

have to be decided on merits upon taking evidence, which

can only be done by the court below at the trial of the

suit.

Hence, there is no merit in the present revisional

application. The trial court was justified in passing the

impugned order, rejecting the demurrer application of the

petitioner.

Accordingly, C.O. 7 of 2019 is dismissed, affirming

the order impugned therein, without any order as to

costs.

However, it will be open to the trial court to decide

all issues raised by the parties in the suit on their own

merits at the final hearing of the suit, without being

prejudiced in any manner by any of the observations

made herein.

CAN 1 of 2019 (Old CAN 9785 of 2019) is also

dismissed accordingly.

Urgent website certified copies of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Sabyasachi Bhattacharyya, J.)