Calcutta High Court (Appellete Side)

Zakir Hossain vs Zubair Ahmed Khan on 28 August, 2023

Item No. 8
28.08.2023
Court. No. 19
GB/CP
                                 C.O. 2121 of 2023

                                   Zakir Hossain
                                         Vs.
                                 Zubair Ahmed Khan


                Mr. Agniv Sinha,
                Ms. Ananya Kanti Roy Saraswati
                                                          ... for the Petitioner.


                       This revisional application arises out of an order dated

                August 22, 2022 passed by the learned Chief Judge,

                Presidency Small Causes Court at Calcutta in Ejectment Suit

                No.190 of 2021. By the order impugned, the learned court

                below rejected an application under Order 7 Rule 11 of the

                Code of Civil Procedure filed by the petitioner, seeking

                rejection of the plaint.

                       The petitioner is the defendant in the suit. According

                to the petitioner, the suit was not maintainable as the subject

                matter of the dispute was a waqf property. The municipal tax

                receipts were produced along with the application for

                rejection of the plaint, in support of the contention that the

                suit ought to be tried by the waqf tribunal. The deed of lease

                has been annexed to the revisional application in support of

                such contention as well.

                       The learned court below came to a finding that as a

                landlord-tenant relationship could exist even if the property

                was a waqf property, Section 85 of the Waqf Act, 1995 would

                not have any role to play.

                       Learned advocate for the petitioner submits that the

                learned court below proceeded on the basis that the dispute
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was simpliciter a landlord-tenant dispute. The provisions of

Section 83(1) of the Waqf Act had not been considered.

Section 83(1) of the Act, by an amendment in 2013

incorporated that eviction of a tenant or determination of

rights and obligations of the lessor and lessee under the said

Act, would be tried by a tribunal constituted under Section 83

of the said Act. On such proposition of law, reliance has been

placed on a decision in the matter of Rashid Wali Beg vs.

Farid Pindari, reported in (2021) SCC Online SC 1003. The

Hon'ble Apex Court had held that after the amendment of Act

27 of 2013, even the eviction of a tenant or determination of

rights and obligations of the lessor and lessee would come

within the purview of the tribunal.

      The issue is whether, on a meaningful reading of the

plaint, the suit would appear to be barred by law. The

Ejectment Suit No. 190 of 2021 was filed by the plaintiff

claiming ownership in respect of Premises No. 5, Marquis

Lane, Police Station - New Market, Kolkata - 700016. The

unambiguous statement was that the defendant was a

monthly tenant under the plaintiff in respect of one room,

kitchen, latrine and bath with balcony on the 4th floor of the

premises. That the plaintiff reasonably required the premises

for his own use and occupation and for the use and

accommodation of his family members, consisting of 18

members. That the present accommodation of the plaintiff

was not sufficient. That the defendant had a self-contained

residential flat in the same locality. The tenancy was

terminated by a noticed dated July 14, 2021 with the expiry of
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August 31, 2021. That the cause of action arose on and from

September 1, 2021 on the basis of an ejectment notice. The

prayers were for recovery of vacant and khas possession of the

suit premises upon eviction of the defendant, costs and other

reliefs.

           In this case, the plaint could be rejected on two

grounds. If it did not disclose a cause of action or if the suit

appeared to be barred by any law.

           The pleadings indicate that the landlord has filed the

suit for eviction. The cause of action has been elaborately

pleaded. Secondly, the law is well-settled that while deciding

an application under Order 7 Rule 11 of the Civil Procedure

Code, only the averments made in the plaint and the

documents relied upon by the plaintiff could be looked into.

In this case, the plaint does not indicate that the property was

a waqf property. The suit has been framed as a suit for

eviction under the West Bengal Premises Tenancy Act. The

documents relied upon by the defendant cannot be pressed

into service while deciding such application.

           Under such circumstances, this court is of the view that

the application under Order 7 Rule 11 of the Civil Procedure

Code, was rightly rejected.

           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
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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 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."