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2004 Supreme(Cal) 138
High Court Of Calcutta
Alok Kumar Basu
UTTAM KUMAR GHOSE - Appellant
Versus
RAM GOBINDA SHIB THAKUR - Respondent
C. O. 2253 Of 2003
Decided On : 02/24/2004
A.PAIN, B.GHOSH, D.Bose, H.BANERJI
The provisions of Order 7 Rule 11 (d) of the CPC cannot be attracted for rejection of a plaint where there is a controversy as to the status of the plaintiff to bring the suit and two views are possible on the interpretation of law.
Headnote:
ORDER 7 RULE 11(D) OF THE CODE OF CIVIL PROCEDURE - MAINTAINABILITY OF SUIT - PRIVATE DEBUTTER ESTATE - STATUS OF PLAINTIFF TO BRING SUIT - COURT'S PERMISSION - INTERPRETATION OF LAW - TWO VIEWS POSSIBLE - ORDER 7 RULE 11(D) NOT ATTRACTED.
Fact of the Case:
Plaintiff, claiming to represent a family deity, filed a suit for declaration and injunction in respect of a property in dispute. Defendant Nos. 4 to 13 and 15 and 16 filed an application for rejection of the plaint under Order 7 rule 11 (d) of the Code of Civil Procedure, contending that the suit is not maintainable as the plaintiff is not a sebait of the alleged debutter property and has not obtained permission of the Court before institution of the suit.
Finding of the Court:
The learned Civil Judge (Senior Division) rejected the petition for rejection of plaint on the ground that since one of the defendants has filed written statement and issues have already been framed, the prayer for rejection of plaint cannot be considered and the issue challenging maintainability of the suit can be very well considered at the time of final disposal.
Issues: 1. Whether the suit is maintainable in its present form as the plaintiff is not a sebait of the alleged debutter property and has not obtained permission of the Court before institution of the suit? 2. Whether the provisions of Order 7 Rule 11 (d) of the CPC can be attracted for rejection of a plaint?
Ratio Decidendi: 1. As a general principle, nobody except a sebait is authorised to bring a suit on behalf of the idol to protect the interest of the idol. In exceptional circumstances, a third party having interest in the affairs of the idol can bring a suit for the idol provided the third party obtained prior permission from the Court through a legal proceeding. 2. Where on an interpretation of law two views are possible, Order 7 Rule 11 (d) is not attracted.
Final Decision: The application under Article 227 of the Constitution of India is dismissed on Contest, but, without any order as to costs. The learned Civil Judge (Senior Division) is directed to proceed with the trial of the suit as expeditiously as possible without granting unnecessary adjournment at the instance of the parties of the suit.
( 1 ) A very interesting question of law is involved in this application filed under Article 227 of the Constitution of India challenging order dated 1st August, 2003 passed by the learned Civil Judge (Senior Division), 3rd Court at Howrah in connection with Title Suit No. 112 of 2002.
( 2 ) OPPOSITE Party No. 1 of the present application filed Title Suit No. 112 of 2002 on behalf of family deity representing herself as sebait/next friend of the deity for declaration and injunction in respect of the property in dispute and the declaration prayed for related to the character of the suit property. One of the defendant in that suit is contesting the suit by filing written statement and defendant Nos. 4 to 13 and 15 and 16 of the said suit did not file any written statement and when the suit was fixed for ex parte disposal against them, they came forward and filed an application for rejection of the plaint under Order 7 rule 11 (d) of the Code of Civil Procedure.
( 3 ) IT was the specific case of defendant Nos. 4 to 13 and 15 and 16 who figured as petitioners of the present application that the suit is not maintainable in its present form as the plaintiff Smt. Pritikana Ghosal is not a sebait of the alleged debutter property and not being a sebait, she has not obtained any permission of the Court before institution of the suit as next friend of the deities and as a person interested in preservation of the debutter property and performing the seva puja of the deities.
( 4 ) THE petitioners in view of their above point filed an application under order 7 Rule 11 (d) of the CPC contending inter alia that the suit in the form it has been filed is not maintainable under law and hence, plaint is liable to be rejected.
( 5 ) THE learned Civil Judge (Senior Division) after considering the application of the present petitioners and also the objections raised by the plaintiffs opposite parties rejected the petition for rejection of plaint on the ground that since one of the defendants has filed written statement and issues have already been framed at that stage the prayer for rejection of plaint cannot be considered and the issue challenging maintainability of the suit can be very well considered at the time of final disposal. The learned Civil Judge also observed that the petitioners did not show how and under what provisions of law the suit was not maintainable and hence, the learned Civil Judge did not find any merit in the said application.
( 6 ) THE present petitioners have challenged the order of the learned Civil judge (Senior Division) through this application filed under Article 227 of the constitution of India.
( 7 ) MR. Banerjee appearing for the petitioners submits that the learned Civil judge was totally under wrong legal conception in rejecting the prayer of the petitioners on the ground that since issues have been framed no order can be passed for rejecting the plaint under Order 7 Rule 11 (d) of the CPC. To substantiate his point Mr. Banerjee has referred to the decision of the Hon'ble supreme Court in the case of I. T. C. Ltd. vs. Debts Recovery Appellate Tribunal and Ors. , reported in 1998 (2) SCC 70 and also another decision of the Hon'ble supreme Court in the case of Samar Singh vs. Kedar Nath and Ors. reported in air 1987 Supreme Court page 1126.
( 8 ) AS regards the issue how and under what provision of law the suit brought by the plaintiff opposite parties is barred, Mr. Banerjee submits that undisputedly the plaintiff opposite party is not sebait of the alleged debutter property and naturally without being sebait and without taking any previous permission from the Court, the plaintiff opposite party is not entitled to file a suit representing the deity regarding the debutter property.
( 9 ) MR. Banerjee in order to strengthen his point has first mentioned a Division bench judgement of this Court in the case of Tarit Bhusan Rai and Ors. vs. Sri sri Iswar Sridhar Salagram Shila Thakur and Or
