Calcutta High Court
Shree Shree Iswar Sitaram Jew And Anr vs Arkoprovo Ganguly And Ors on 9 January, 2025
OD- 7
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
CS/229/2024
SHREE SHREE ISWAR SITARAM JEW AND ANR.
VS
ARKOPROVO GANGULY AND ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date: 9th January, 2025.
Appearance:
Ms. Noelle Banerjee, Adv.
Mr. Anujit Mookherji, Adv.
Ms. Antara Biswas, Adv.
Ms. Sucheta Mitra, Adv.
Ms. Saolini Bose, Adv.
...for the plaintiff.
Mr. Debabrata Roy, Adv.
Mr. Rishabh Ahamed Khan, Adv.
...for defendant no. 1.
Mr. Pranit Bag, Adv.
Mr. Biswajit Kumar, Adv.
Mr. Raja Baliyal, Adv.
Mr. Rajarshi Ganguly, Adv.
Mr. Vidhya Bhusan Updhayay, Adv.
...for defendant no. 3.
The Court : Ms. Noelle Banerjee, learned Advocate, is appearing for the
plaintiff.
The plaintiff has filed the present suit praying for decree of declaration
that the defendant nos. 1, 2 and 3 have acted in a manner contrary to the
interest of deity and other prayers. The plaintiff has prayed for leave under
Clause 12 of the Letters Patent, 1865 as some cause of action arose within the
jurisdiction of this Court and some cause of action arose outside the
jurisdiction of this Court.
Mr. Debabrata Roy, learned Advocate appearing for the defendant no. 1
and Mr. Pranit Bag, learned Advocate appearing for the defendant no. 3 raised
objection for grant of leave and admission of the plaint filed by the plaintiff on
the ground that on the same subject matter, a suit being Title Suit No. 35403
of 2014 is pending before the learned City Civil Court at Calcutta and in the
said plaint also the plaintiff has prayed similar relief which the plaintiff has
prayed in the present suit. It is also submitted that there is another suit being
Title Suit No. 910 of 2023 is pending before the Civil Judge, Senior Division at
Alipore and in the said suit, a Deed dated 2nd July, 2015 is under challenge.
He further submits that there is another suit being Title Suit No. 13 of
2012 is also pending before the 10th Civil Judge, Senior Division at Alipore
and he submits that in the said suit, an interlocutory order is passed. Being
aggrieved by the said order, a revision has been preferred and the said
revision is also pending. In the said revisional proceeding, the plaintiff has
taken the similar stand which the plaintiff has taken in the instant suit.
Counsel for the plaintiff raised objection with regard to the appearance
of the defendants and objection raised by the defendants on the ground that
they have no locus standi at this stage for raising any objection for admission
of the plaint. She further submits that the plaintiff has filed the suit and
prayed for leave and if this Court grants leave, the defendants will get an
opportunity to raise objection for rejection of plaint or for stay of the suit as
per the provisions provided under the Code of Civil Procedure at the
appropriate stage of the suit.
Learned Counsel for the plaintiff has also relied upon the judgment in
the case of International Conveyors Limited Vs. Ranjit Dash reported in
MANU/WB/1897/2022 wherein the co-ordinate Bench of this Court held as
follows:-
8. The provision under Rule 7 (a) under Chapter VII of the Original
Side Rules have been made to enable the plaintiff to present the plaint
and have it admitted upon applying and obtaining the leave under
Clause 12 of the Letters Patent, leave under Order I Rule 8, Order II Rule
2 and Order II Rule 4 of CPC as the case may be without a petition so
that the suit is instituted under the provisions of Section 26 and Order IV
Rule 1 of the CPC. This also takes care of a situation that no petition can
be filed without the plaint being presented and admitted as the suit is
not instituted till such time even though a suit number is allotted to it
and it appears in the list under the heading "presentation of plaint". Any
petition filed before the plaint is presented and admitted is not born even
though a number has been allotted to it and may also be appearing in
the list under any heading for which at the time of presentation of plaint
there is no petition on board wherein an order can be made. This
procedure is, however, different as in the case of institution of suit in the
Subordinate Courts in West Bengal as the provisions of Section 26,
Order VI read with the provisions of Rule 41, 42, 43 and 44 of the West
Bengal Civil Rules and Orders are followed therein. In the Subordinate
Courts once the plaint is presented and entered in the prescribed
register, the plaintiff can file a petition. Following this procedure a
petition for leave under Section 80 (2) or Order II Rule 2 is filed and
moved as the suit is instituted when the plaint is presented before the
officer authorized for such purpose.
Learned Counsel for the plaintiff relying upon the said judgment
submits that at this stage, the defendants cannot raise any objection. It is
only up to this Court whether the leave can be granted or not and plaint can
be admitted.
Learned Counsel for the plaintiff also relied upon the judgment in the
case of Srihari Hanumandas Totala Vs. Hemant Vithal Kamat and
Others reported in (2021) 9 Supreme Court Cases 99 and submitted that
the point of rejection of plaint, suit is barred by law and applicability of bar of
res judicata can be raised by the defendants if the plaint is admitted.
Heard learned counsel for the respective parties.
Admittedly, the suit has been placed before this Court only for the
presentation of plaint. Counsel for the plaintiff draws attention of this Court
in paragraph 31 of the plaint wherein the plaintiff has disclosed several cause
of action why the plaintiff has filed the said suit. In the suit, the plaintiff has
prayed for several declarations as well as the perpetual injunction. The
defendants have brought to the notice of this Court with regard to the
pendency of the other suits in different Courts.
This Court finds that at this stage, this Court cannot look into whether
other suits are pending or not. This Court has only to look into whether the
plaint filed by the plaintiff is required to be admitted or not and the leave as
prayed for by the plaintiff can be granted or not.
Considering the above, this Court finds that the plaintiffs have
appropriately disclosed their cause of action in the suit. It is also found that
one of the plaintiff and one of the defendants are also outside the jurisdiction
of this Court and cause of action also arose partly within the jurisdiction of
this Court and partly outside the jurisdiction of this Court.
Accordingly, leave under Clause 12 is granted.
Plaint is admitted subject to scrutiny by the Department.
(KRISHNA RAO, J.)
KB
