Twilight Properties Pvt. Ltd. & ... vs Supratik Bhattacharjee & Ors
2022 Latest Caselaw 357 Cal

                                                           C.O. No. 1412 of 2021




                IN THE HIGH COURT AT CALCUTTA

                 CIVIL REVISIONAL JURISDICTION

                            APPELLATE SIDE

   Present:-

   THE HON'BLE JUSTICE Kesang Doma Bhutia.

C.O. No. 1412 of 2021 Twilight Properties Pvt. Ltd. & Anr.

VS.

Supratik Bhattacharjee & Ors.

For the Petitioners               : Ms. Fereshte Sethna,
                                    Mr. Satadeep Bhattacharyya,
                                    Mr. Awani Kumar Roy,
                                    Mr. Surajit Biswas,
                                    Mr. Arijeet Bera,
For the Opposite Party
Nos. 1 to 3                        : Mr. Sakya Sen,
                                    Mr. Soumik Sarkar,
For the Opposite Party
No. 4                         : Mr. Sabyasachi Chowdhury,
                                    Mr. Amit Meharia,
                                    Ms. Paramita Banerjee,
For the Opposite Party
Nos. 5 to 10                  :     Mr. D. Roy Chowdhury,
                                    Ms. Atasi Saha,

Hearing concluded on              : 20.01.2022

Judgment on                   : 08.02.2022





                                                             C.O. No. 1412 of 2021

Kesang Doma Bhutia, J:- The plaintiffs/petitioners have filed the present

application under Article 227 of the Constitution of India, challenging the

order passed by the learned Civil Judge (Senior Division), 2nd Court,

Alipore, in Title Suit No. 10216 of 2011 on 20.03.2021 and whereby the

learned Court below was pleased to recast issues in compliance of the

direction of the Hon'ble Co-ordinate bench of this Hon'ble High Court passed

in C.O. No. 4188 of 2018 on 13.11.2019 and kept in abeyance the plaintiffs'

application under Order 11 Rule 14 of the Civil Procedure Code.

The facts necessary for determination of the present revisional

application in gist is that there exist a dispute between the parties in respect

of a Development Project of a property measuring 3 bigas 12 cottahs 7

chittacks &18 sq.ft. situated at 3/1 Sunny Park, Ballygunge, Kolkata-

700019. Such property was originally owned by one Josna Ghosal. The said

Josna Ghosal during his life time relinquished the suit property in favour of

his grandson Jitendra Kumar Ghosal by executing a deed of transfer on 6 th

July, 1971. Jitendra Kumar Ghosal was a NRI (Non Resident Indian) and

married to an American lady named Mary Ann Ghosal. The deceased

defendant no. 1 Romola Bhattacharjee was the own sister of Jitendra Kumar

Ghosal.

Jitendra Kumar Ghosal died sometime in the month of July, 1987. That

during his life time he bequeathed the disputed property in favour of his wife

Mary Ann Ghosal by executing a will.

It appears from the record that in order to develop the property of late

Jitendra Kumar Ghosal 50/50 agreement was executed between the Plaintiff

C.O. No. 1412 of 2021

no. 2 and Defendant no. 2 the family attorney of Ghosals' on certain terms

and conditions sometime in the year 1987. Consequently a written

agreement was also executed to that effect in between the plaintiff no. 1 and

deceased defendant no. 1, the subsequent owner of the property on 19th

October 1994.

In pursuant to such agreement with owner /deceased defendant no.1,

the Plaintiff no.2 managed to get possession of a portion of the property

under the occupation of Hongkong and Shanghai Banking Corporation

(HSBC). He made necessary arrangement for getting the property transferred

in the name of deceased defendant no. 1 by Mary Ann Ghosal by executing a

deed of gift. That he engaged different architectural firms for preparation of

plans for construction of high-end multi-storied structures as well as a

bungalow for defendant no. 1 on disputed property. In that way plaintiff had

spent more than 51.88 lakh on various accounts for the proposed project

from the year 1987. In the meantime the plaintiffs have shifted its base to

Pune. Sometime in the month of May 2011 they came to know about

deceased defendant no. 1 executing a fresh development agreement with

defendant no. 3 to 8 and execution of a deed of conveyance thereof on 27th

May, 2011.

Therefore, by filling suit no. 10216 of 2011 for Specific Performance of

Contract, the plaintiffs have alleged that in the agreement dated 1994

executed between plaintiffs and deceased defendant no. 1 there subsist

negative covenant. The deceased defendant no. 1 who had also received

Rupees five lakh from the plaintiffs in pursuant to such agreement cannot

C.O. No. 1412 of 2021

execute any conveyance in respect of suit property in favour of defendant

no. 3 to 8.

Subsequently, in view of amendment in the Specific Relief Act, the

plaintiffs have sought for an alternative relief for damage by filing an

amendment petition and which was initially rejected by learned Trial Court,

but later the same was allowed by Hon'ble Co-ordinate bench of this Hon'ble

High Court in C.O. No. 3257 of 2018 on 13.11.2019 and with a direction to

the plaintiffs and defendants to file amended plaint and additional written

statement within time fixed. While disposing C.O. No. 4188 of 2018 on the

same day, the trial Court was directed to recast the issue which has already

been framed in the light of the amendment in the plaint or to formulate

additional issue. In the event either of the two course are inconvenient, the

trial Court would be at liberty to strike out the issue already framed and

frame fresh issue in the light of the amended plaint and as well as the

additional written statement.

During the pendency of the above two C.Os., the plaintiffs had filed an

application under Order 11 Rule 14 Civil Procedure Code read with Section

151 Civil Procedure Code before the learned court below with a prayer that

defendants be directed to produce the documents lying in their custody as

per the list annexed thereto on 03.01.2019.

However, the learned court below in due compliance of direction given to

it by Hon'ble coordinate bench of this Hon'ble High Court in the C.O. 4118

of 2018 on 13.11.2019 was pleased to recast the issues, but kept the

plaintiffs' application under Order 11 Rule 14 of the Civil Procedure Code in

C.O. No. 1412 of 2021

abeyance with the observation that such application would be taken into

consideration if the situation arises during trial.

It has been invariably contended by the learned Senior Counsel for the

plaintiffs that it is mandatory for the learned Trial Court to call for the

production of those documents lying in the custody of the defendants before

framing additional issues or recasting of issues which are already there on

record as contents of those documents may be vital and material for

determination of the actual dispute between the parties and issue may

require to be framed on the basis of contents of those documents and how it

effect the interest of the parties to the suit. That without those vital/relevant

issues on record it may not be possible on the part of the plaintiffs to lead

evidence at the time of trial and it may cause irreparable loss and prejudice

to the plaintiffs. That judges are expected to examine the pleadings and

documents that would come on record before framing of issues. If those

documents happen to be the foundation and subject matter of the dispute

and without framing issue on such documents parties would be deprived of

their right to get themselves prepared in advance for proving those

documents in support of their case or to destroy their opponent's case at the

time of trial. Therefore the learned counsel for the petitioner submits the

order impugned is bad in law and liable to be set aside.

The learned Counsel in support of her contention referred Maria

Margarida Sequeria Fernandes & Ors. Vs. Erasmo Jack de Sequeria reported

in AIR 2012 (SC) 1727 and to an order passed by the Hon'ble coordinate

C.O. No. 1412 of 2021

bench of this Court in C.O. No. 4083 of 2017 in between Kamaljeet Gupta Vs

Freserinus Kabi Oncology Ltd. & Orson 14.02.2019.

Per contra the opposite parties urged the settlements of issues are

governed by order 14 Rule 1 of Civil Procedure Code and which depend on

facts alleged in the plaint and those denied in the written statement. Order

14 Rule 1 Civil Procedure Code does not stipulate requirement of any

additional documents for the purpose of framing of issues. Necessary

pleadings have already been filed by the respective parties that learned

Court below has already taken into consideration the facts which have been

brought by way of amendment in the plaint and in the additional written

statement filed thereto and in compliance of the Hon'ble High Court order

passed in C.O. No. 4188 of 2018 and recast the issues. The documents

which plaintiffs want production are already relied upon in the plaint and

production of the documents under Order 11 rule 14 of Civil Procedure Code

has no bearing on framing of issues.

In view of such submission made by learned counsels for the parties, the

only issue which requires determination in the present revisional application

is whether the Court below is bound to dispose of application under Order

11 Rule 14 of Civil Procedure Code prior to recasting of the issues.

In order to decide such issue it is necessary to discuss the purpose and

object of Procedural law. Code of Civil Procedure clearly provides the legal

steps which an individual or any person or persons or legal entity required

to comply when seeking a particular legal right against an individual or

corporation in the court of law. Further, procedural law controls the way a

C.O. No. 1412 of 2021

court case precedes and to ensure due process is ensured. The court needs

to conform to the standard set up by procedural law during civil proceeding.

Generally procedural law deals with and lays down ways and means by

which substantive law can be enforced. The observance of procedural law is

required before trial.

Normally documents are produced and inspection is given after the

pleadings are concluded and before issues are framed. In the present case

such stages were already completed and case was ready for trial when the

plaintiffs had come with a petition for amendment of plaint. That before final

disposal of the amendment petition by the Hon'ble High Court, the plaintiffs

have come up with another application under Order 11 Rule 14 CPC for

production of documents mentioned therein by the defendants.

Initially the plaintiffs have filed the suit only for specific performance of

contract which they had with the deceased defendant no.1 in the year 1994

for development of the disputed property, but after amendment in Specific

Relief Act, in 2018 the plaintiffs by amending plaint have sought alternative

remedy for damage. The plaintiffs with the change in the relief sought for

and to prove their claim for damage have filed an application under Order

11 Rule 14 CPC asking defendants to produce documents mentioned therein

which are lying in their custody .

Order 11 Rule 14 CPC read as follows;- It shall be lawful for the Court, at

any time during the pendency of any suit, to order production by any party

thereto, upon oath, of such of the documents in his possession or power,

relating to any matter in question in such suit, as the Court shall think right:

C.O. No. 1412 of 2021

and the court may deal with such documents, when produced, in such

manner as shall appear just.

On plain reading of the provision of Order 11 Rule 14 of CPC, it appears

any party to the suit at any time during the pendency of suit can pray for

production of the documents in possession of his opponent relating to any

matter in question in such suit as the court think right.

Therefore, this court is of view with the amendment in plaint and with

the change in the relief sought for the plaintiff can seek production of those

documents which are in custody of the defendants to prove their alternative

relief/remedy in the form of damage. For the purpose of obtaining clarity

regarding the actual controversy in suit and in order to frame correct issue

of facts and law, the learned Court below ought to have directed the

defendants to produce those documents mentioned in the application of the

plaintiffs and which are in their custody to enable to obtain material facts or

information for the purpose of elicitation of additional materials for better

preparation of a case before it is brought to trial. The learned court below

ought to have framed additional issue or recast the issue after taking into

consideration the contents of those documents alleged to be material in

order to prove the plaintiffs' alternative remedy for damage.

No doubt, the learned Court below in due compliance of the direction

of the Hon'ble High Court passed in C.O. No. 4118 of 2018 appears to have

recast the issues on the basis of the amended plaint and additional written

statement thereof and decided to consider the application of the plaintiffs

C.O. No. 1412 of 2021

under order 11 Rule 14 of Civil Procedure Code at later stage and if

situation demands.

It is settled principal of law that issues can be framed at any stage of the

suit and even at the time of writing of judgment additional issue can be

framed or issue can be recast. Therefore, in view of discussion made above

this Court holds that the Court below has committed error in keeping the

application of the plaintiffs under Order 11 Rule 14 CPC in abeyance with

uncertainty. The order impugned is here by set aside and the petition under

Order 11 Rule 14 CPC filed by the plaintiff is hereby allowed. The

defendants are directed to produce the documents mentioned therein within

a month from the date hereof before the learned Court below. On production

of documents by the defendants proceed further with the hearing of the case

as per law.

Accordingly, C.O. 1412 of 2021 is allowed.

Connected applications, if any, are disposed of.

Interim order, if any, stands discharged.

There will be no order as to costs.

All parties are directed to act on a server copy of this order duly

downloaded from the official website of this Court.

Urgent Photostat certified copies of this order, if applied for, be given

to the parties upon compliance of all requisite formalities.

(Kesang Doma Bhutia, J.)

C.O. No. 1412 of 2021

Later

Ld. Advocate for the Opposite Parties No. 5 - 10 prays for Stay of

operation of the order.

Stay of the order prayed for considered and refused.

(Kesang Doma Bhutia, J.)