The court must consider the pleadings made out by the plaintiffs in the plaint while deciding an application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure. The court cannot rely on a tentative finding of a division bench regarding bar of law in granting one of the reliefs claimed in the suit to decide the defendant's application for rejection of plaint.

1. THIS application under Article 227 of the Constitution of India is directed against an order being No.28 dated 19th February, 2010 passed by the Learned Civil Judge, Senior Division, Second Court at Barasat in title Suit No.220 of 2007 by which the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant no.1, was rejected on contest. The said defendant is aggrieved by the said order. Hence the instant application was filed by the defendant before this court.

2. HEARD Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner and Mr. Banerjee, learned Senior Counsel, appearing for the plaintiffs/opposite parties. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. The plaintiffs filed a suit for specific performance of contract against the defendants. Various other reliefs were claimed by the plaintiffs in the said suit apart from the relief for specific performance of the contract. The reliefs which were claimed by the plaintiffs in the said suit are as follows:

a) A decree for specific performance of contract in respect of 53% of the land area with proportionate structure standing thereon as per contract at the scheduled property.

b) A decree for specified portion allowing 53% of schedule property according to flats along with common area and facilities granting absolute interest to the plaintiffs to that extent.

c) A decree declaring that none of the defendants have right title or interest in respect of 53% of the schedule land and building constructed thereon or that any document executed thereby affecting 53% of the property is not binding on the plaintiffs.

d) A decree declaring that such deed or deeds if found to have been executed be cancelled and delivered up.

e) A decree declaring that the plaintiffs as partners have acquired a good and equitable right title and interest upon the 53% of schedule land and building thereon.

f) A decree declaring that the plaintiffs have acquired right to enjoy the schedule property to the extent of 53% thereof including right to re-transfer.

g) A decree declaring that the plaintiffs are entitled to refund of Rs.21 Lakhs kept as refundable security with the defendants on a declaration of charge of 47% of the property in suit.

h) A decree for permanent injunction confirming the possession of the plaintiffs as well as restraining the defendants from transferring alienating or encumbering the schedule property in any manner whatsoever and/or to deliver possession thereof without the consent of the plaintiffs.

i) A further decree for permanent injunction restraining the defendants from causing any construction or change of nature and character in any manner whatsoever without knowledge and consent of the plaintiffs.

j) A temporary injunction in the manner as prayed for above;

k) Appointment of receiver;

l) Attachment before judgment;

m) Cost of the suit;

n) Any other relief or relief for which plaintiff is entitle to.

3. AFTER filing said suit, the plaintiffs filed an application for temporary injunction. The said application was allowed by the Learned Trial Judge by an order being No.6 dated 16th April, 2008.

4. SUBSEQUENTLY the defendant No.1 filed an application for modification of the said order. The application for modification of the said order, was rejected by the Learned Trial Judge on 7th July, 2008 vide order No.13. Both the aforesaid orders were challenged by the defendant no.1 by filing an appeal being F.M.A. No. 1456 of 2008 before this Hon’ble Court. The said appeal as well as a connected application being C.A.N. No.6395 of 208 were disposed of by the Division Bench of this Hon’ble Court on 10th June, 2009 whereby both the parties were restrained from transferring, alienating or encumbering the suit property in any manner with a further rider that there should not be any further construction in the suit premises till the disposal of the suit. While dispos