Back
2012 Supreme(Cal) 586
IN THE HIGH COURT OF CALCUTTA
Tapan Kumar Dutt and Mrinal Kanti Chaudhuri, JJ.
R. Rebeiro @ Rubin Reberio - Appellants
Vs.
Monoj Lal Seal - Respondent
F.A. No. 18 of 2007
Decided On: 06.07.2012
For Appellant/Petitioner/Plaintiff: Prasun Ranjan Gupta and Biswabrata Basu Mallick
For Respondents/Defendant: Mrinal Kanti Chatterjee and Sonali Mukhopadhyay
A person who is dispossessed of immovable property by the holder of a decree for the possession of such property must file an application under Order 21, Rule 99 CPC before the Court, and is barred from filing a separate suit for recovery of possession.
Headnote:
ORDER 21 RULE 99 AND 101 CPC - SUIT FOR RECOVERY OF POSSESSION - MAINTAINABILITY - COURT FEES - AMENDMENT OF PLAINT - DESCRIPTION OF PROPERTY - LIMITATION - APPLICATION UNDER ORDER 21 RULE 99 CPC - APPLICABILITY - INTERPRETATION OF STATUTE - LEGAL PRINCIPLES.
Fact of the Case:
The plaintiff-appellant filed a suit for declaration that the ex parte decree passed in Ejectment Suit No. 1003 of 1985 was obtained by fraud and should be declared null and void. The plaintiff also sought recovery of possession of the property in dispute. The Trial Court dismissed the suit on the grounds that the plaintiff had not put in sufficient court fees, the property was not properly described in the plaint, the suit was not maintainable under Order 21, Rules 99 and 101 CPC, and the suit was barred by limitation.
Finding of the Court:
The High Court held that the Trial Court was correct in holding that the suit was not maintainable under Order 21, Rules 99 and 101 CPC. The High Court also held that the plaintiff should have filed an application under Order 21, Rule 99 CPC before the Trial Court, and that the plaintiff was barred under the law to file a separate suit in this regard.
Issues: 1. Whether the suit was maintainable under Order 21, Rules 99 and 101 CPC? 2. Whether the plaintiff should have filed an application under Order 21, Rule 99 CPC before the Trial Court? 3. Whether the suit was barred by limitation?
Ratio Decidendi: 1. Order 21, Rule 99 CPC provides that when any person other than the judgment-debtor is dispossessed of immovable property by the holder of a decree for the possession of such property, he may make an application to the Court complaining of such dispossession. 2. Order 21, Rule 101 CPC provides that all questions arising between the parties to a proceeding on an application under Rule 99 shall be determined by the Court dealing with the application and not by a separate suit. 3. The plaintiff was not a party to the Ejectment Suit No. 1003 of 1985 and thus not the judgment-debtor in the decree passed in the said suit. Therefore, the plaintiff qualified to make an application in terms of Order 21 Rule 99 CPC. 4. The question whether the decree passed in the said Ejectment Suit No. 1003 of 1985 was vitiated by fraud or not should have been decided by the Court concerned under the provisions of Order 21 CPC while deciding the question as to whether or not the plaintiff had any right, title and/or interest in respect of the subject-matter of dispute.
Final Decision: The High Court dismissed the appeal and affirmed the Trial Court's conclusion that the suit was not maintainable.
Tapan Kumar Dutt, J.
1. This Court has heard the learned Advocates for the respective parties. The facts of the case, briefly, are as follows:
The plaintiff/appellant filed a suit against the defendants/respondents being Title Suit No. 474 of 1987 which was placed before the learned 9th Bench, City Civil Court at Calcutta.
2. The plaintiff/appellant prayed for a decree for declaration that the ex parte decree passed on 9.3.1986 in Ejectment Suit No. 1003 of 1985 was obtained by fraud by the defendant No. 1/respondent and the said ex parte decree should be declared as null and void.
3. The suit was contested by the defendant No. 1/respondent by filing a written statement denying the material allegations made in the plaint. It appears that the suit was filed on 13th March, 1987.
4. It is the plaintiffs case that on 25th April, 1987 the plaintiff was dispossessed from the property which was the subject-matter of the said Ejectment Suit No. 1003 of 1985 and, accordingly, on 26th April, 1996, the plaintiff filed an application for amendment of the plaint praying decree for recovery of possession in respect of the property which was the subject matter of the said Ejectment Suit No. 1003/1985.
5. It appears that the said amendment application was allowed by the learned Trial Court. The defendant No. 1 also filed an additional written statement. It appears from the arguments and/or submissions made by the learned Advocates for the respective parties that a portion of the first floor of Premises No. 102, Collin Street, Calcutta is in dispute.
6. The plaintiff/appellant is claiming tenancy under the landlords (Seals) in respect of such portion, and the landlords (Seals) are claiming to have obtained a decree against some other persons in respect of such portion and, according to the landlords (Seals), the plaintiff/appellant has no right and/or interest in respect of such portion which happens to be the subject-matter of Ejectment Suit No. 1003 of 1985.
7. However, the said suit came up for hearing and the learned Trial Court by the impugned judgment and decree dated 29th June, 2002 dismissed the said suit.
8. It will appear from the impugned judgment that the learned Trial Court framed the following nine issues:
i) Has the plaintiff any cause of action for the suit?
ii) Is the suit maintainable in its present form?
iii) Is the suit bad for defect of parties?
iv) Is the suit hit by section 34 of the Specific Relief act?
v) Is the plaintiff a tenant under the defendants in respect of the suit premises, as contended by him?
vi) Has the plaintiff his alleged interest in and possession of the suit premises?
vii) Is the plaintiff entitled to obtain a decree for declarations as prayed for?
viii) What relief if any, is the plaintiff entitled to?
ix) Is the suit barred under the principles of res judicata?
9. But, the learned Trial Court decided the issue Nos. (i) to (iv) and then held that the other issues, that is, issue Nos. (v) to (ix) are left untouched in view of the findings made in respect of issue Nos. (i) to (iv).
10. The learned Trial Court found that the plaintiff/appellant has not put in sufficient Court fees after the amendment of the plaint, that is, after the inclusion of the prayer for recovery of possession. The learned Trial Court also found that the property in respect of which the plaintiff/appellant has prayed for recovery of possession has not been described properly in the plaint and it remains vague. The learned Trial Court further found that in view of the provisions of Order 21, Rules 99 and 101 CPC the suit is not maintainable. The learned Trial Court also came to the conclusion that the suit is barred by the law of limitation. Since the learned Trial Court refrained from deciding the issue Nos. (v) to (ix), it is not necessary for this Court to discuss the other merits or otherwise of the case at this stage.
11. The learned Advocate appearing on behalf of the plaintiff/appellant submitted that in view of section 10 of the West B
