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2010 Supreme(Cal) 966
HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, J.
Sunder Lal Sarda - Appellant
Versus
Praduman Sarda - Respondent
C.O. No. 1049 of 2010
Decided on : Aug 13, 2010
S.P. Roychowdhury, Manju Manot, Bajrang Manot, Aniruddha Chatterjee, S.N. Arefin
A plaint cannot be rejected under Order 7, Rule 11 of the Code of Civil Procedure for want of cause of action if it discloses a bundle of facts on which relief is claimed by the plaintiff, even if some of the properties are located outside the court's territorial jurisdiction.
Headnote:
CIVIL PROCEDURE CODE - Order 7, Rule 11 - Rejection of Plaint - Cause of Action - Jurisdiction - Partition Suit - Properties Located in Different States - One Property Within Court's Jurisdiction - Plaintiff Claiming Share in All Properties - Whether Plaint Discloses Cause of Action - Interpretation of Pleadings.
Fact of the Case:
Plaintiff filed a partition suit for his share in various properties, including one located within the court's jurisdiction ('A' schedule property). The defendant, claiming the 'A' schedule property as his self-acquired property, challenged the court's jurisdiction and sought rejection of the plaint under Order 7, Rule 11 of the Code of Civil Procedure.
Finding of the Court:
The court held that the plaint disclosed a cause of action for the partition suit as the plaintiff claimed a definite share in all properties, including the 'A' schedule property, and sought partition due to inconvenience in joint possession. The court rejected the defendant's argument that the plaintiff had no share in the 'A' schedule property, stating that this could only be determined after trial on evidence.
Issues: 1. Whether the plaint disclosed a cause of action for the partition suit. 2. Whether the court had jurisdiction to entertain the suit given that most of the properties were located outside its territorial jurisdiction.
Ratio Decidendi: 1. The court held that the cause of action for the partition suit was disclosed in the plaint as the plaintiff had claimed a definite share in all properties, including the 'A' schedule property, and sought partition due to inconvenience in joint possession. 2. The court held that it had jurisdiction to entertain the suit as one of the properties ('A' schedule property) was located within its territorial jurisdiction and the plaintiff had claimed a share in all properties, including the 'A' schedule property.
Final Decision: The court rejected the defendant's application under Order 7, Rule 11 of the Code of Civil Procedure and held that the plaint disclosed a cause of action for the partition suit.
1. THIS application under Article 227 of the Constitution of India is directed against an order being NO. 31 dated 7th September, 2009 passed by the Learned Civil Judge (Senior Division) First Court at Barasat, North 24 Parganas, in Title suit No. 287 of 2010 by which the application for rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1, was rejected on contest. The defendant No.1 is aggrieved by the said order. Hence the said defendant has come before this Court with this application under Article 227 of the Constitution of India.
2. HEARD Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner and Mr. Chatterjee, learned Advocate, appearing for the plaintiff/opposite party. 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 plaintiff has filed a suit for partition against the petitioner herein as well as the opposite parties No. 2 to 26 claiming his 1/21st share in the properties described in Schedules 'F' to 'H' and 1/42nd share in the properties described in the Schedule 'A' to 'E' of the plaint. It is stated by the plaintiff that all the properties excepting 'A' schedule property, are lying in different states beyond the territorial jurisdiction of the learned Trial Judge. Only the 'A' schedule property which is situated at Madhyamgram, P.S. Barasat in North 24 Parganas, is within the territorial jurisdiction of the learned Trial Judge.
In fact, the jurisdiction of the learned Trial Judge was invoked by taking the location of the said 'A' schedule property which is within the territorial jurisdiction of the learned Trial Judge.
3. IT is further stated by the plaintiff that the properties mentioned in schedules 'F' to 'H' of the plaint were the joint family properties in which the grandfather of the plaintiff was a member and since the parties are governed by the Mitakshar School of Hindu Law, the plaintiff claims to have inherited 1/21st share in those properties. IT was further stated by the plaintiff that the properties described in schedules 'A' to 'E' of the plaint were seized and possessed of by Sundarlal Sarda and his brother Kanailal Sarda as joint owners having half share each therein. The plaintiff also claims 1/42nd share in those properties by inheritance. IT is further stated therein that since the plaintiff was feeling inconvenience in possessing those properties jointly, the plaintiff demanded partition from the defendant on several occasions and lastly on 25th April, 2007 but since the defendants have refused to partition the said property amicably, the instant suit was filed for partition.
4. THE defendant No.1 has appeared in the said suit and filed an application under Order 7 Rule 11 of the Code of Civil Procedure inter alia praying for rejection of the plaint on the ground that since the Madhyamgram property which is described in schedule 'A' of the plaint is not a Hindu Joint Family property, the plaintiff cannot claim any share in the said property during the life time of his grandfather, namely, defendant No.1. The said defendant claims that since the 'A' schedule property was the self acquired property of the defendant No.1 and his brother Kanailal Sarda, the plaintiff cannot claim any interest in the said property by birth. The defendant thus claims that since admittedly the other properties are not located within the territorial jurisdiction of the learned Trial Judge and further since the plaintiff has no interest in 'A' schedule property, no part of the cause of action for the said suit had arisen within the territorial jurisdiction of the said Court. As such the jurisdiction of the learned Trial Judge cannot be invoked even though the 'A' schedule property is situated within its jurisdiction. The learned Trial Judge rejected the defendant's said application under Order 7 Rule 11 of the Code of Civil Procedure by holding inter alia
