One of the three landlords cannot maintain a suit for eviction of a tenant when the other two landlords are not willing to join as plaintiffs in a suit for eviction on the ground of forfeiture of a lease of 99 years.

( 1 ) : This first miscellaneous appeal is at the instance of a plaintiff in a suit for recovery of possession on forfeiture of a lease and is directed against the Order No. 86 dated 4th September, 2004 passed by the learned Judge, 7th Bench, City Civil Court at Calcutta in Title Suit No. 1580 of 1996 thereby allowing an application under Order 7 Rule 11 of the code of Civil Procedure by rejecting the plaint.

( 2 ) THE plaintiff-appellant filed the aforesaid suit thereby praying for recovery of khas possession of the suit premises as described in schedule of the plaint on the basis of a registered deed of lease dated 5th March, 1985 executed by one manicklal Mullick, since deceased, as lessor and the defendant No. 1 as lessee for 99 years commencing from first day of January, 1962. According to the plaintiff, the original lessor died on 9lh June, 1968 thereby bequeathing his properties including the suit premises to his three sons namely, plaintiff and proforma defendant Nos. 2 and 3 in equal share. The said Will was duly probated and the aforesaid three persons stepped in the shoes of the original lessor and subsequently, on the offer of the heirs of the original lessor, the defendant No. 1 agreed to apportion the rent to them.

( 3 ) IN the plaint it is further alleged that the defendant No. 1 violated various conditions mentioned in the lease deed and as such, a notice under section lll (g) of the Transfer of Property Act was served at the instance of the plaintiff upon the defendant No. 1. In paragraph 10 of the plaint it is further stated that as the other two lessors, namely, proforma defendant Nos. 2 and 3 had expressed their unwillingness to join with the plaintiff in the present suit, they have been made proforma defendants.

( 4 ) AFTER entering appearance in the suit, the defendant No. l filed an application under Order 7 Rule 11 of the Code of Civil Procedure thereby praying for rejection of the plaint on the allegation that although the suit is based on the allegation that the lease of the property had been determined for breach of express condition, yet the plaintiff in the plaint did not refer to any notice served by the plaintiff upon the defendant No. 1 specifying particulars of the breaches complained of and requiring the defendant No. 1 to remedy the breaches notwithstanding the fact that the alleged breaches complained of are capable of being remedied. It is further alleged that the plaintiff not having stated anything about service of any such notice and actually no such notice having been given, the suit was barred by law and as such, the plaint filed by the plaintiff was liable to be rejected.

( 5 ) THE learned Trial Judge on consideration of the materials on record came to the conclusion that the plaint did not disclose a clear right to sue and that the drafting of the plaint had created an illusion of a cause of action against the defendant No. 1 and according to the learned Trial Judge, such a litigation should be nipped in the bud by following the principles laid down by the Supreme court in the decisions in the case of T. Arivandandam vs. T. V. Satyapal and anr. , reported in AIR 1977 SC 2421. Accordingly, the learned Trial Judge rejected the plaint.

( 6 ) BEING dissatisfied, the plaintiff has come up with the present appeal,

( 7 ) MR. Banerjee, the learned senior advocate appearing on behalf of the appellant vehemently contended before us that while rejecting the plaint under the provision of Order 7 Rule 11 of the Code of Civil Procedure, the learned trial Judge adopted a procedure not permissible in law. Mr. Banerjee contends that the learned Trial Judge while arriving at his finding that there was no cause of action for filing the suit could not take into consideration various documents which could be taken note of only at the time of hearing of the suit if those documents were admitted into evidence in accordance with law and his client was given opportunity to rebu