Calcutta High Court (Appellete Side)
Sri Subhash Chandra Basu vs Sri Paritosh Saha on 7 August, 2023
Item No. 11
07.08.2023
Court. No. 19
GB
C.O. 1081 of 2023
Sri Subhash Chandra Basu
Vs.
Sri Paritosh Saha
Mr. Gopal Ch. Ghosh,
Mr. Pankaj Halder
... for the Petitioner.
Mr. Arnab Mukherjee
... for the Opposite Party.
The revisional application has been filed challenging
an order dated January 16, 2023 passed in Title Suit No.236
of 2021 by the learned Civil Judge (Junior Division), 3rd
Court at Howrah.
By the order impugned, the learned court below
rejected an application under Order 7, Rule 11(d) of the Code
of Civil Procedure, filed by the defendant. The defendant in
the suit alleged that the suit did not disclose the complete
cause of action. An earlier suit which was dismissed for
default and the proceedings before the learned Thika
Controller, had not been disclosed in the plaint.
The learned trial judge held that apart from the plaint
and averment made therein, the court was debarred from
looking into any pleading or submission of the defendant.
The plaint read as a whole, disclosed a cause of action and
hence, the application under Order 7, Rule 11(d) of the Code
of Civil Procedure was rejected. Aggrieved, the
petitioner/defendant is before this Court.
The law is well-settled that an application under Order
7, Rule 11 of the Code of Civil Procedure, must be disposed of
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on the basis of the pleadings in the plaint and the documents
relied upon in the plaint. The contentions of the defendant
either in the written statement or in the application under
Order 7, Rule 11 of the Code of Civil Procedure were not to be
looked into. The decision of Bhagirath Prasad Singh
versus Ram Narayan Rai & Anr. reported in AIR
2010 Patna 189, does not apply in this case.
The decision of the Hon'ble Apex Court in Dahiben
versus Arvindbhai Kalyanji Bhanusali reported in
(2017) SC 366 also does not apply to the facts of this case.
In the said case, the learned trial court and the High Court
found that the plaintiff while challenging a deed of sale, had
intentionally suppressed the date of execution of such deed.
Thus, the cause of action was found to be incomplete and the
suppression of the date of sale was intentional and in order
to avoid limitation. The facts of this case are completely
different.
Perusing the plaint as a whole, it appears that the
plaintiff filed Title Suit No.236 of 2021 before the learned
Civil Judge (Junior Divion), 3rd Court at Howrah, inter alia,
stating that the plaintiff was a tenant in respect of one shop
room at 86 Sadar Baxi Lane. The plaintiff was running a
grocery shop. One Manoranjan Basu (since deceased) had
inducted the plaintiff as a tenant 40 years ago. After the
death of Manoranjan Basu, who died as a bachelor, his
brother Surendra Nath Basu became the owner. Surendra
Nath Basu had four sons. Subhash Chandra Basu one of the
sons was realizing the rent. Rent was paid upto June 2010.
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Thereafter, the defendant refused to accept the rents. The
defendant was of dangerous nature and tried to evict the
plaintiff without following the due process of law. That the
defendant did not have any right to terminate the tenancy.
On February 20, 2021, the defendant and his men and agents
went to the suit property, hurled stones and bricks at the
shop room. The tile shed was damaged. That the cause of
action arose on February 20, 2021 in the suit property.
Paragraphs 14 and 22 of the plaint disclose a cause of action.
Whether the same is partial or complete or the plaint suffers
from suppression of fact, cannot be decided at the stage of
hearing of an application under 7, Rule 11 of the Code of Civil
Procedure.
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
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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 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."
In the decision of Kamala and ors. v. 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."
The contention of Mr. Ghosh that the complete cause
of action was not mentioned and there has been suppression
of material facts, is not evident from the plaint case. The
contention of the defendant in the application under Order 7,
Rule 11 of the Code, cannot be looked into. Hence, this Court
is of the view that at this stage, the learned court below
rightly rejected the application.
It is submitted that the application under Order 14,
Rule 2 of the Code is still pending. The said application shall
be disposed of on its own merits and in accordance with law
within a period of two months from the next date fixed.
This Court has not gone into the merits of the said
application and this order shall not be construed as an
opinion of the Court about the maintainability of the said
application.
Accordingly, the revisional application is disposed of.
Urgent photostat certified copy of this order, if applied
for, be given to the parties on priority basis.
(Shampa Sarkar, J.)
