Order VII Rule 11 CPC; Ashwin Desai Vs. Bijay Kumar Manish Kumar Huf [Calcutta High Court, 15-11-2016]

Civil Procedure Code, 1908 – Order 7 Rule 11 – Rejection of Plaint – The trial Court can exercise power under Order VII Rule 11 of the Code, at any stage of the suit and at any time before the conclusion of the trial.

Civil Procedure Code, 1908 – Order 7 Rule 11 – Rejection of Plaint – Whether Second Application is Maintainable – the dismissal of the earlier application for rejection of the plaint by the Court could not render the second application under Order VII Rule 11 of the Code to be not maintainable.

Civil Procedure Code, 1908 – Order 7 Rule 11 – Rejection of Plaint – Not disclose any cause of action – For the decision in an application under Order VII Rule 11(a) of the Code for rejection of plaint on the ground that the same does not disclose any cause of action the test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed by the Court.

# Suit

IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction Appellate Side

Present : Hon’ble Justice Ashis Kumar Chakraborty

Judgement on : 15.11.2016

C.O. 3351 of 2016

Ashwin Desai

Vs.

Bijay Kumar Manish Kumar HUF

For the petitioner : Mr. Amitava Das, Mr. Debdut Mukherjee, Mr. Meghajit Mukherjee; For the opposite parties : Mr. Saptangshu Basu, Ms. Vijaya Bhatia, Mr. Ganesh Prasad Shaw.

Ashis Kumar Chakraborty, J.

This revisional application is directed against the order dated August 18, 2016 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Title Suit No. 2452 of 2007 (hereinafter referred to as “the said suit”). By the impugned order the learned Court below dismissed the application filed by the petitioner under

# Order VII Rule 11 of the Code of Civil Procedure, 1908

(hereinafter called as “the Code”) praying for, rejection of the plaint filed by the plaintiff opposite party in the said suit.

The facts giving rise to this application are that in September, 2007 the plaintiff opposite party, a HUF, being represented by its karta filed the said suit before the learned Court below claiming, inter alia, a decree for eviction of the defendant petitioner from the suit property.

In the plaint filed in the said suit it is the case of the plaintiff that M/s. Nanjee Shamjee and Company (hereinafter referred to as “the said company”). By an indenture of lease dated November 20, 1992 the said company granted a lease in respect of the one storied brick built godown measuring about 1650 square feet at the back portion of the said Premises No. 10A, Rabindra Sarani, Kolkata-700001, (hereinafter referred to as “the suit property”) to the defendant, for a period of 99 years commencing from November 01, 1992 at a monthly rent of Rs. 150/- payable according to English calendar. By a deed of conveyance dated August 30, 1996 the said company transferred the entirety of the said Premises No. 10A, Rabindra Sarani, Kolkata- 700001 to the plaintiff and, as such, the plaintiff became the owner of the entirety of the said premises. Accordingly, the defendant became a lessee in respect of the suit property under the plaintiff and the said indenture of lease dated November 20, 1992 executed between the said company and the defendant became binding upon the parties to the suit. The plaintiff claimed that clause 4(a) the said indenture of lease dated November 20, 1992 provided that in default of payment of monthly lease rent for a period of three months, the lease would be terminated by giving one month notice to lessee by the lessor and if the arrear rent is paid by the lessee with interest at the rate of 2%, per month, within one month from the date of receipt of such notice, the default will be waived but in case of non-payment of arrear rent with interest at the rate of 2%, per month, the lessor is entitled to determine the lease and to re-enter and take possession of the demised premises. Since September, 2002 the defendant defaulted in payment of lease rent in respect of the suit property for more than three months; in spite of demand, the defendant failed to pay the arrear rent together with interest at the rate of 2%, per month and, as such, his lease in respect of the suit property was forfeited as per Clause 4(a) of the said indenture of lease dated November 20, 1992. The plaintiff further claimed that the defendant has lost all protections under the relevant provisions of the Transfer of Property Act and is liable to be evicted.

The defendant petitioner has been contesting the said suit. He first filed an application under Order VII Rule 11 of the Code praying for, rejection of the plaint filed in the said suit on the ground that the plaintiff opposite party filed the suit, claiming his eviction from the suit property on the ground of forfeiture of the said lease on account of breach of the aforementioned clause 4(a) of the said indenture of lease dated November 20, 1992 without serving a notice under

# Section 114A of the Transfer of Property Act, 1882

(hereinafter called as “the said Act of 1882”). However, the learned Court below rejected the said application. The defendant petitioner challenged the said order of rejection before this Court, by filing a revisional application, being C.O. 1094 of 2015. However, by an order dated March 31, 2015 a learned Single Judge of this Court rejected the revisional application. The said order was passed by the learned Single Judge on the observation and findings recorded in C.O. 1092 of 2015 involving the same issue in another eviction suit between the same parties, where it was held that Section 114A of the Act of 1882 has no application relating to forfeiture of lease in case of non-payment of rent.

The defendant petitioner filed his written statement in the said suit. He also filed an application under Section 114 of the Transfer of Property Act and the same is pending before the learned Court below. It appears that the trial of the suit had begun and the karta of the plaintiff opposite party, as PW1 filed his affidavit of examination-in-chief before the learned Court below and he was cross-examined. At this stage, the defendant petitioner filed a second application under Order VII Rule 11, read with Section 151 of the Code praying for, rejection of the plaint filed in the said suit. According to the defendants petitioners in the beginning of 2016 he engaged a new set out of counsel and as per their advice he filed the said second application for rejection of plaint. In the said application the defendant petitioner alleged that from the averments made in the plaint it is evident that the plaintiff opposite party filed the said suit, claiming him to be a lessee in respect of the suit property under the Act of 1882, but in view of the enactment of the

# West Bengal Premises Tenancy Act, 1997

(hereinafter called as “the Act of 1997”) which came into force on July 10, 2001 thereof, when the said indenture of lease was registered before July 10, 2001 and the monthly rent in respect of the suit property is Rs. 150/- only, he is a monthly tenant in respect of the suit property under the provisions of the said Act of 1997 and, as such, in the absence of any notice under Section 6(4) of the said Act of 1997 the plaint filed in the ejectment suit is liable to be rejected. In the said application the defendant petitioner pressed both the grounds under Order VII Rule 11(a) and (d).

The plaintiff opposite party contested the said application of the defendant petitioner. By the impugned order dated August 18, 2016 the learned Court below rejected the said application filed by the defendant petitioner and fixed the next dated of hearing of the suit on September 07, 2016 for evidence of the defendant’s witness.

The learned Court below held that after rejection of the first application under Order 7 Rule 11 of CPC, no such second application lies after filing of the written statement, framing of issues, evidence being led by the parties at the fag end of the trial. The learned Court below also held that the defendant petitioner filed the said application so as to misuse and abuse the judicial process. According to the learned below, the said order dated March 31, 2015 passed by this Court in C.O. 1093 of 2015 not having been challenged by the defendant petitioner is binding on it and the said second application under Order VII Rule 11 of the Code is not maintainable.

On September 05, 2016 the defendant petitioner moved the present revisional application and obtained an interim order directing stay of all further proceedings in the said suit before the learned Court Subsequently, the said interim order was extended and the same is still subsisting.

Assailing the impugned order, Mr. Debdut Mukherjee, led by Mr. Amitava Das appearing on behalf of the defendant petitioner contended that it is well settled law that an application under Order VII Rule 11 of the Code can be filed at any stage of the suit, before the conclusion of the trial but the learned Court below fell into an error of law in dismissing the application of the defendant on the ground that the same was filed after the trial of the suit had commenced. In support of such contention, he relied on the decision of the Supreme Court in the case of

# Saleem Bhai and Ors. v. State of Maharashtra and Ors. reported in (2003) 1 SCC 557

Although, in his application the defendant petitioner mentioned both the grounds of rejection of plaint under Order VII Rule 11(a) and (d), but during the hearing of this application, learned counsel for the defendant petitioner pressed the ground that the plaint filed by the plaintiff opposite party does not disclose any cause of action.

It was contended on behalf of the defendant petitioner that although in the plaint filed in the ejectment suit it is the case of the plaintiff opposite party that the defendant petitioner was inducted as a lessee in respect of the suit property under the said registered indenture of lease dated November 20, 1992, but in view of the amended provisions of Section 3(c) of the said Act of 1997, which came into effect from July 10, 2001 any tenancy under a lease agreement registered before commencement of the said act shall be governed by the said Act of 1997 only. It was, therefore, urged that in the instant case the tenancy of the defendant petitioner on the basis of the said indenture of lease dated November 20, 1992 registered before July 10, 2001 is governed by the said Act of 1997 and in the absence of any notice under Section 6(4) of the said Act of 1997, the plaint filed by the plaintiff opposite party suit on the basis of the Act of 1882, discloses no cause of action against the defendant petitioner. It was further contended that it is the case of the plaintiff opposite party in the plaint filed in the suit that the monthly rent payable by the defendant petitioner in respect of the suit property is Rs. 150/- and the said indenture of lease was registered before July 10, 2001 and as per Section 3(e) or Section 3(f) of the Act of 1997 whether the tenancy of the defendant petitioner is for residential or non residential purpose, the same is governed by the Act of 1997. Therefore, acoording to Mr. Mukherjee, once again in the absence of any notice under 6(4) of the said Act of 1997the plaint filed by the plaintiff on the basis of the Act of 1882, does not disclose any cause of action of the plaintiff opposite party against the defendant petitioner.

It was vehemently urged that from the impugned order it is evident that no argument was advanced on behalf of the plaintiff opposite party before the learned Court below to dispute the contention raised by the defendant petitioner that his tenancy in respect of the suit property is governed by the said Act of 1997 and in the absence of any notice under Section 6(4) of the said Act of 1997, the plaint filed by the plaintiff opposite party does not disclose any cause of action against the defendant petitioner for his eviction from the suit property. According to Mr. Mukherjee, when the ground urged by the defendant petitioner in his second application under Order VII Rule 11 of the Code was totally different from that urged in the first application for rejection of the plaint, the learned Court below fell into an error of law in holding that once an application filed under Order VII Rule 11 of the Code is rejected the second application under the same provision is not maintainable. He strenuously urged that by the impugned order the learned Court below has not at all decided the contention raised by the defendant petitioner with regard to the maintainability of the suit, nor any direction has been passed that the defendant petitioner’s contention will be decided at the trial of the suit.

However, Mr. Saptangshu Basu, learned senior counsel appearing for the plaintiff opposite party submitted that the impugned order passed by the learned Court below suffers from no infirmity. He urged that in view of the dismissal of the first application under Order VII Rule 11 of the Code, the second application under the same provision of law is not maintainable. According to Mr. Basu, in any event, when the trial of the suit has commenced, the application filed by the defendant petitioner under Order VII Rule 11 of the Code was not maintainable. In this regard, Mr. Basu relied on the decision of the Supreme Court in the case of

# Ram Prakash Gupta v. Rajiv Kumar Gupta & Ors. reported in (2007) 10 SCC 59

It was argued that whether the defendant petitioner is a lessee in respect of the suit property under the Act of 1882 or he is a monthly tenant under the said Act of 1997 can be established only at the trial of the suit and not on the basis of the averments made by the plaintiff opposite party in the plaint filed in the said suit. Mr. Basu submitted that this Court should dispose of this revisional application by directing the learned Court below to decide the question raised by the defendant petitioner in the said application under Order VII Rule 11 of the Code, as an issue in the eviction suit. However, no submission was advanced on behalf of the plaintiff opposite party disputing the above contentions raised by the defendant petitioner claiming himself to be a tenant, under the Act of 1997.

I have considered the material records and the agreements advanced by learned counsel, appearing for the respective parties. It is the settled law that for deciding an application for rejection of plaint under Order VII Rule 11(a) or (d) of the Code, only the averments made in the pliant are germane, which are to be treated as correct. For the decision in an application under Order VII Rule 11(a) of the Code for rejection of plaint on the ground that the same does not disclose any cause of action the test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed by the Court. This view is fortified by the decision of the Supreme Court in the case of

# Liverpool & London S.P. & I. Association Ltd. v. M.V. Sea Success & I & Ors. reported in (2004) 9 SCC 512

(para-139).

In the present case, in the year 2007 the plaintiff opposite party filed the said suit claiming eviction of the defendant petitioner from the suit property on the ground of forfeiture of the lease, with the express averments made in the plaint that the lease was governed by the terms provided in the said indenture of lease dated November 20, 1992 and the lease rent payable by the defendant petitioner was Rs. 150/- per month. In the plaint it is the case of the plaintiff opposite party that the defendant petitioner is a lessee in respect of the suit property under the Act of 1882 and claimed that the defendant has lost all protections under the relevant provisions of the Act of 1882 and he is liable to be evicted. Now the test is, whether by treating the averments made in the plaint to be true, in view of the provisions contained in clauses (c) and (f) Section 3 of the Act of 1997 which came into force with effect from July 10, 2001 a decree would be passed in the suit in favour of the plaintiff opposite party. As per Section 3(c) of the Act of 1997 any tenancy where the lease has been registered under the Registration Act, 1908, after commencement of the said Act with due consent of the tenant recorded in the registered instrument, the tenancy shall not be governed by the said Act. Therefore, in this case when the said suit was filed in 2007 on the basis of said indenture of lease dated November 20, 1992 which was registered before July 10, 2001, the tenancy of the defendant petitioner comes within the purview of the said Act of 1997 and in the absence of any notice under Section 6(4) of the said Act of 1997, no decree can be passed in favour of the plaintiff opposite party in the suit based on the Act of 1882.

From the statements made in the plaint it is clear that the suit property is a godown and the same was let out for non residential purpose. As per Section 3(f) of the Act of 1997, as amended with effect from July 10, 2001 provides that any premises situated within the limits of the Kolkata Municipal Corporation area, let out for non residential purpose and carrying monthly rent more than Rs. 10,000/- (Rupees Ten Thousand only) is excluded from the purview of the said Act. In the present case, the suit property is situate within the limits of the Kolkata Municipal Corporation and the same was let out non residential purpose at a monthly rent less than Rs. 10,000/-, the inescapable conclusion is that the defendant petitioner is a monthly tenant in respect of the suit property under the said Act of 1997 and in the absence of any notice under Section 6(4) of the said Act, on the basis of the averments made in the plaint already discussed, no decree can be passed in the eviction suit filed by the plaintiff opposite party on the basis of the Act of 1882. Even no argument was advanced on behalf of the plaintiff opposite party to dispute the applicability of the said Act of 1997 in respect of the suit property as contended by the defendant petitioner.

For all the foregoing reasons, I find substance in the contention raised by the defendant petitioner, both before the learned Court below and in this revisional application that the plaint filed by the plaintiff opposite party in the said suit does not disclose any cause of action against him and I accept the same.

From the impugned order it is evident that the learned Court below did not at all consider the contentions raised by the defendant petitioner in his said application for rejection of the plaint, nor any direction was passed that the contentions raised by the defendant petitioner will be decided at a subsequent stage of the suit. The learned Court below simply rejected the application filed by the defendant petitioner holding that on rejection of an application under Order VII Rule 11 of the Code no such second application lies after filing of the written statement, framing of issues, evidence being led by the parties just at the fag end of the trial. I am, however, unable to persuade myself to agree the said finding of the learned Court below can be sustained in law. The trial of a suit commences with the framing of issues. The trial of the suit commences at the stage of the first witness of the plaintiff adducing evidence and concludes with the argument of the parties. In the case of

# Samar Singh v. Kedar Nath & Ors. reported in AIR 1987 SC 1926

the Supreme Court held that Order VII Rule 11 of the Code does not ,either expressly or by necessary implication, provide that the power under the said provision should be exercised at a particular stage only and in the absence of any restriction placed by the statutory provision, it is open to the Court to exercise that power at any stage. Even in the subsequent decision in the case of Saleem Bhai and Ors. (supra) relied upon by the defendant petitioner the Supreme Court held that the trial Court can exercise power under Order VII Rule 11 of the Code, at any stage of the suit and at any time before the conclusion of the trial.

It is settled law that the decision of a Court should be considered in the context in which it was rendered and not to be read as a statute. In the case of Ram Prakash Gupta (supra) cited on behalf of the plaintiff petitioner, the plaintiff had filed the suit for cancellation/setting aside a decree obtained against his father by the defendant. As per Article 59 of the Limitation Act, 1963 a suit for cancellation of a decree has to be filed by the plaintiff within three years from the date of his knowledge of the facts entitling him to have the decree cancelled/set aside. It is a fact that, in the said case after conclusion of the evidence, the application under Order VII Rule 11(d) was filed by the defendant alleging that on the basis of the averments made in the plaint itself, the plaintiff’s suit was barred by Article 59 of the Limitation Act and both the trial Court and the High Court, in appeal allowed the application of the defendant by accepting the contention of the defendant. The Supreme Court, however, after considering the averments made by the plaintiff in his plaint held that the knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. In the background of such finding in paragraphs 22 and 23 of the said decision the Court held as follows:

“22. It is also relevant to mention that after filing of the written statement, framing of the issues including on limitation, evidence was led, the plaintiff was cross-examined, thereafter before conclusion of the trial, the application under Order 7 Rule 11 was filed for rejection of the plaint. It is also pertinent to mention that there was not even a suggestion to the appellant-plaintiff to the effect that the suit filed by him is barred by limitation.

23. On going through the entire plaint averments, we are of the view that the trial court has committed an error in rejecting the same at the belated stage that too without adverting to all the materials which are available in the plaint. The High Court has also committed the same error in affirming the order of the trial Court.”

From the above findings in the case of Ram Prakash Gupta (supra) it is clear that in the said case the Supreme Court did not lay down any law that after filing of written statement, framing of issues or after the conclusion of the evidence of the plaintiff’s witness the defendant cannot maintain an application under Order VII Rule 11 of the Code. Therefore, in the facts of the present case the said decision of the Supreme Court in the case of Ram Prakash Gupta (supra) does not come to any assistance of the plaintiff opposite party.

By the impugned order the learned Court below the rejected second application of the defendant petitioner for rejection of the plaint filed in the suit on the ground that on rejection of the earlier application under Order VII Rule 11 of the Code no such second application lie under the same provision. The learned Court below held that the aforementioned order dated March 31, 2015 passed by this Court in C.O. 1093 of 2015 not having been assailed by the defendant anywhere is binding on it. It was contended on behalf of the plaintiff opposite party that the said finding of the learned Court below is the correct exposition of law. However, no decision or authority was cited before me to support the said finding of the learned Court below. However, it is to be noted the reasoned decision by which this Court held the earlier application of the defendant petitioner under Order VII Rule 11 to be not maintainable was passed in C.O. 1092 of 2015 and not in C.O. 1093 of 2015 as recorded in the impugned order. In the facts of the present case already discussed above, it is evident that the grounds urged by the defendant petitioner in the second application for rejection of plaint and the ground urged in his said earlier application decided by this Court in the aforementioned earlier revisional application are completely different. Therefore, the dismissal of the earlier application of the defendant petitioner for rejection of the plaint by this Court could not render the second application of the defendant petitioner under Order VII Rule 11 of the Code to be not maintainable. For all these reasons, I am unable to convince myself to sustain the finding of the learned Court below that in view of the rejection of the earlier application of the defendant petitioner under Order VII Rule 11 of the Code, his said second application for rejection of the plaint was not maintainable. In the facts of the instant case, as I have already discussed, the finding of the learned Court below that the defendant filed the said second application to misuse and abuse the judicial process cannot be sustained.

For all the foregoing reasons, the impugned order dated August 11, 2016 passed by the learned Court below in Title Suit No. 2452 of 2007 stands set aside.

In this case, not only by the averments made in the plaint the plaintiff has claimed the suit to be based on the Act of 1882, even in the affidavit-in-opposition filed against the application of the defendant, it have asserted that the suit has been rightly filed under the Act of 1882 and the said Act of 1997 has no application. However, as discussed above, when from the averments in plaint it is evident that no decree can be passed in the suit and in view of the assertion of the plaintiff opposite party in its said affidavit-in-opposition that the suit is based on the Act of 1882, it makes no sense to direct the learned Court below to further decide the contention raised by the defendant petitioner in this revisional application. Accordingly, the application filed by the defendant petitioner for rejection of the plaint filed in Title Suit No. 2452 of 2007, pending before the learned Judge 11th Bench City Civil Court at Calcutta stands allowed and the plaint filed in the said suit stands rejected. However, since there was delay on the part of the defendant petitioner to file the application, he shall pay costs assessed at Rs. 20,000/- (Rupees Twenty Thousand) only to the plaintiff opposite party within December 03, 2016.

With the above directions the revisional application, being C.O. 3351 of 2016 stands disposed of.

Let urgent certified server copies of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Later A prayer was made on behalf of the plaintiff opposite party for stay of operation of the above order. Such prayer is considered and rejected.

Comments