Calcutta High Court (Appellete Side)
Smt. Parna Majumdar vs Sri Shuvajit Majumdar on 24 July, 2023
24.07.2023
Sl. No.344(ML)
srm
C.O. No. 2027 of 2023
Smt. Parna Majumdar
Versus
Sri Shuvajit Majumdar
Mr. Kaustav Chandra Das
....for the Petitioner.
The revisional application is directed against an
order dated May 8, 2023, passed by the learned Civil Judge
(Senior Division), 9th Court at Alipore, South 24-Parganas,
in Title Suit No.2878 of 2016.
By the order impugned, the learned court below
rejected an application under Order VII Rule 11of the Code
of Civil Procedure. The learned court, on a bare reading of
the plaint, found that a cause of action was disclosed in the
plaint. The reliefs prayed for, were not hit by the
provisions of Order VII Rule 11 of the Code of Civil
Procedure. The suit was not barred by law.
The learned Advocate for the petitioner submits that
the suit property belongs to a cooperative society. Hence,
an eviction suit would not be maintainable against a
member/flat owner.
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It is submitted that Section 102 of the West Bengal
Cooperative Societies Act, 2006 would be a complete bar.
Section 102 states that any dispute concerning the
management or business or affairs of a cooperative society
other than the dispute relating to election in a cooperative
society, shall be filed before the Registrar for settlement, if
such dispute arises among members, past members,
persons claiming through members and deceased
members.
It is settled law that at the stage of deciding an
application under Order VII Rule 11 of the Code of Civil
Procedure, the Court can only look into the averments
made in the plaint and the documents submitted along
with the plaint.
In this case, the averments in the plaint do not
indicate that the defendant is either a member of the
cooperative society or the owner of a flat belonging to a
cooperative society. The dispute as disclosed in the plaint,
is not with regard to the membership of defendant in
respect of the cooperative society. No dispute with regard
to management and affairs of the society has been made.
The plaint does not reflect that the suit relates to any
matter relating to the affairs of the cooperative society. The
plaint discloses that the plaintiff and Souren Majumdar
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were living in a joint mess at 84, Dilkhusha Street, P.S.
Karaya, Kolkata-700017. Souren was a widower.
Thereafter, Souren purchased a flat and shifted from 84,
Dilkhusha Street. Somehow, the defendant came into
contact with Souren and developed a relationship. The
defendant was allowed by the plaintiff to reside in the suit
premises as a licensee after Souren died. The defendant
was a divorcee and she took advantage of Souren's
loneliness. The plaintiff asked the defendant to quit and
vacate the suit premises, but she did not do so and hence
the suit has been filed for a decree of eviction upon
revocation of licence, permanent injunction and cost.
At this stage, the share certificate filed by the
defendant and the averments made in the application for
rejection of the plaint, cannot be looked into by this Court.
Whether the suit is barred under the provisions of the West
Bengal Cooperative Societies Act, 2006, whether the
defendant is a member of the cooperative society and
whether the plaintiff is the owner of the property in
question, are issues, which shall be decided at the trial.
In the matter of G. Nagaraj & anr. vs. B.P.
Mruthunjayanna & ors. decided in Civil Appeal No.2737
of 2023, the Hon'ble Supreme Court held as follows:-
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"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 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."
However, considering the nature of the suit, the suit
should be disposed of within a year from date, by framing
appropriate issues.
This Court has not gone into the merits of the suit.
The revisional application is, thus, dismissed.
There shall be no order as to costs.
Parties are to act on the basis of the server copy of
this order.
(Shampa Sarkar, J.)
