Back
IN THE HIGH COURT OF CALCUTTA
Harish Tandon, J.
Banke Bihari Enclave Pvt. Ltd. & Ors. - Petitioners
Versus
Prasanta Mondal @ Prasanta Kumar Mondal & Ors. - Opposite Parties
C.O. No. 1545 of 2014
Decided On : 10-11-2014
For the Petitioners:S.P. Roy Chowdhury, Probal Mukherjee, Debjit Mukherjee, B. Kumar, and S. Bhattacharjee, Advocates.
For the Opposite Party No. 1 :Sudhis Das Gupta, D. Chowdhury, Sibasish Ghosh, Amal Kumar Saha and Shreya Ghosh, Advocates.
For the K.M.C :Alok Kumar Ghosh and Swapan Kumar Debnath, Advocates
The court held that the trial court did not err in rejecting the application under Order 7 Rule 11 of the Code, as the plaint disclosed a cause of action and was not barred by any law.
Headnote:
ORDER VII RULE 11 - REJECTION OF PLAINT - AGREEMENT FOR SALE - SPECIFIC PERFORMANCE - LIMITATION ACT - COURT FEES ACT - VALUATION OF SUIT - JURISDICTION - AMENDMENT OF PLEADING - COURT'S DISCRETION.
Fact of the Case:
The petitioner challenged the rejection of an application under Order 7 Rule 11 of the Civil Procedure Code, seeking the rejection of a suit for declaration of the validity of an agreement for sale and for a permanent injunction restraining interference with the possession of the property in question.
Finding of the Court:
1. The court held that the trial court did not err in rejecting the application under Order 7 Rule 11 of the Code, as the plaint disclosed a cause of action and was not barred by any law. 2. The court further held that the suit was not grossly undervalued, as the plaintiff had the freedom to value the relief sought in a suit for declaration, and that the valuation of a suit for specific performance of a contract for sale was governed by Section 7(xii) of the West Bengal Court Fees Act. 3. The court also held that the application for amendment of the plaint, seeking to incorporate the relief of specific performance, could be allowed, and that if the valuation of the suit exceeded the pecuniary jurisdiction of the court, the plaint would be returned for presentation before the appropriate court having jurisdiction.
Issues: 1. Whether the trial court erred in rejecting the application under Order 7 Rule 11 of the Code of Civil Procedure. 2. Whether the suit was grossly undervalued. 3. Whether the application for amendment of the plaint, seeking to incorporate the relief of specific performance, could be allowed.
Ratio Decidendi: 1. The court held that the trial court did not err in rejecting the application under Order 7 Rule 11 of the Code, as the plaint disclosed a cause of action and was not barred by any law. 2. The court further held that the suit was not grossly undervalued, as the plaintiff had the freedom to value the relief sought in a suit for declaration, and that the valuation of a suit for specific performance of a contract for sale was governed by Section 7(xii) of the West Bengal Court Fees Act. 3. The court also held that the application for amendment of the plaint, seeking to incorporate the relief of specific performance, could be allowed, and that if the valuation of the suit exceeded the pecuniary jurisdiction of the court, the plaint would be returned for presentation before the appropriate court having jurisdiction.
Final Decision: The revisional application was dismissed with no order as to costs.
Harish Tandon, J.
The petitioner has assailed the order No. 18 dated April 4, 2014 passed by learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No. 453 of 2013 by which the application under Order 7 Rule 11 of the Civil Procedure Code is rejected.
2. The opposite party no.1 filed a suit for declaration that the agreement dated December 2, 2002 executed by the opposite party No.2 in his favour is legal, valid and binding upon the parties with additional prayer that the purported registered sale deed no. 3206 is invalid, illegal and void ab initio.
3. It is averred in the plaint of the said suit that the opposite party no.2 being the admitted owner of part and parcel of land measuring 9 cottahs and odd comprised in R.S. Dag No. 414, R.S. Khatian No. 217, Mouza- Nonadanga, J.L. No. 10, Touzi No. 1298/2833 in Ward No. 107 of Police Station, Kasba, agreed to sale, transfer and convey the said property unto and in favour of the opposite party no. 1 at a consideration of Rs. 3 lakhs per cottahs. The terms and conditions were reduced in writing in the form of an agreement dated December 2, 2002 and it is further recorded therein that a sum of Rs. 1,25,000/- was received as a by way of an earnest money. It is further averred that another sum of Rs. 55,000/- was paid to the said admitted owner who subsequently delivered the possession of the said property. The opposite party no. 1 claimed to have received the possession in the year 2005 and erected a boundary wall by spending a further sum of Rs. 80,000/- and is in exclusive possession thereof. It can further be noticed from the statements made in the plaint that a notice was published on 27th May, 2007 at the instance of the opposite party no.1 in the newspaper signifying the existence and continuance of the said agreement. The said notice came to be published for avoidance of the opposite party no.2 in execution of the sale deed. The opposite party no.2 subsequently sold, transferred and conveyed the said property by executing a sale deed no. 3206 on 9th October, 2012 which was also registered with the Additional Sub Registrar, Sealdah on the same date.
4. It is alleged that the factum of execution and registration of the purported sale deed was brought to the knowledge of the opposite party no. 1 on September 11, 2013 when an attempt was made to take possession of the said property by demolishing the boundary wall.
5. In the backdrop of the aforesaid facts, the reliefs as indicated above are sought together with the decree for permanent injunction restraining the defendants/opposite parties from interfering with and/or disturbing the peaceful possession of the plaintiff and also from giving effect to the purported sale deed. The petitioners who subsequently purchased the suit property from the opposite party No. 2 filed an application under Order 7 Rule 11 of the Code of Civil Procedure seeking the rejection of the plaint on the following grounds :
(I) The opposite party No. 1 have no right in the property in question and a mere declaration that the agreement is valid, can not be granted.
(II) The suit to enforce the rights under the agreement is valued at Rs. 200/- when the consideration money therein is Rs. 27,65,5000/-.
(III) The plaint does not disclose the cause of action against the petitioners who are the bonafide purchasers for value without notice.
(IV) The description of the property is vague and ambiguous.
(V) The suit is an outcome of the abuse of the process of law and is required to be nipped in the bud.
(VI) The suit as it stand is not maintainable as no relief for specific performance of an agreement dated December 2, 2002 is claimed and is, therefore, hit by Section 34 of the Specific Relief Act.
6. The objection to the said application for rejection of the plaint which runs in several pages is basically founded on the denial of the averments made in the said application with assertion that the suit is otherwise maintainable.
7. The Trial Court reje
