A plaint must disclose a cause of action for specific performance of a contract, and a bare resolution of the Board of Directors of the defendant approving the recommendations of a director to sell the flats of the defendant to the occupiers thereof, without anything more in this respect, does not give rise to any right in favor of the occupants thereof.

1. IN a suit for specific performance of contract instituted by Sri Ganesh Prasad Singh (hereafter the plaintiff), India Carbon Ltd. is the defendant (hereafter the defendant). After nearly 8 (eight) years of institution of the suit and while it had progressed to the stage of recording of evidence, the defendant filed an application under Order 7 Rule 11, Civil Procedure Code on August 13, 2010 praying for rejection of the plaint. By an order dated September 6, 2010, the learned Judge of the trial Court rejected the application on contest without costs. This order is impugned in C.O. 3164 of 2010, being an application under Section 115 of the Code, presented before this Court on September 20, 2010.

2. WHILE the said application was pending for consideration, the learned Judge of the trial Court had fixed December 10, 2010 for further cross-examination of the PW1. The defendant applied for adjournment. The learned Judge was of the view that since this Court had not granted stay and the defendant even after filing the said revisional application had cross-examined the PW1 on November 29, 2000, there was no reason to allow the prayer for adjournment and while refusing the prayer of the defendant requested the parties to get ready for further cross-examination of PW1 by 1.15 P.M. Later, by an order of even date, the learned Judge recorded that the learned advocate for the defendant had declined to cross- examine PW1 and in such circumstances the witness was discharged on closure of his evidence. Since the learned advocate for the defendant could not apprise the learned Judge as to whether the defendant would adduce evidence or not, the evidence of the defendant was also closed. The order dated December 10, 2010 forms the subject matter of challenge in C.O. 3931 of 2010, being an application under Article 227 of the Constitution. Since both the revisional applications arise out of the same suit, the same have been heard together and shall stand disposed of by this common judgment and order.

3. MR. Bhattacharya, learned senior advocate for the defendant, duly assisted by MR. Jishnu Saha, learned advocate contended that the learned Judge acted illegally in not rejecting the plaint filed by the plaintiff. According to him, although the suit was one for specific performance of contract, there was no valid subsisting contract between the parties, which could be enforced; therefore, the suit, was instituted in abuse of the process of law and ought to have been nipped in the bud. He further contended that by not rejecting the plaint, the defendant had been subjected to unnecessary inconvenience and harassment.

4. MR. Bhattacharya next contended that the plaintiff had instituted a previous suit for a declaration that he is a tenant in respect of the flat (bearing no. 303) (hereafter the said flat), being the subject matter of the suits pending between the parties. The suit was dismissed and the issue is pending in an appeal. It was also submitted that the suit for eviction of the plaintiff from the said flat instituted by the defendant is also pending. The suit, out of which the revisional applications arise, is nothing but an attempt on the part of the plaintiff to prolong his unauthorised occupation in the said flat and, in the interest of justice, the Court ought to reject the plaint.

In support of his submissions, Mr. Bhattacharya relied on the following decisions:

i) AIR 1966 SC 543 (Bhagwandas Goverdhandas Kedia v. Girdharilal Parshottamdas and Co. and ors.);

ii) [1974] 2 ALL ER 967 (Fairline Shipping Corporation v. Adamson);

iii) AIR 1954 Bombay 491 (Baroda Oil Cakes Traders v. Parshottam Narayandas Bagulia and anr.);

iv) 1990 (3) SCC 1 (Mayawanti v. Kaushalya Devi);

v) AIR 1992 Delhi 305 (J.K. Industries Limited v. Mohan Investments and Properties Private Limited);

vi) 2004 (9) SCC 512 (Liverpool and London S.P. and I Association Ltd. v. M.V. I Sea Success and anr.);

vii) 1986 Supp. SCC 315 (Azhar Hussain v. Rajiv Gandhi);