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2015 Supreme(Cal) 659
IN THE HIGH COURT OF CALCUTTA
Ashoke Kumar Dasadhikari, J.
Tridib Kumar Chakraborty & ors. - Petitioners
Versus
Radha Gobinda Jew Thakur & ors. - Respondents
C.O. No. 2633 of 2012
Decided On : 06-10-2015
For the Petitioners: Achin Kr. Majumdar and Arjun Kumar Samanta
For the Opposite Parties : Bidyut Banerjee and Priyanka Mondal
A suit for vindication of private right does not fall under Section 92 of the Code of Civil Procedure.
Headnote:
JURISDICTION - PUBLIC DEBOTTAR PROPERTY - ORDER 7, RULE 11 (D) AND ORDER 7, RULE 10 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE - SECTION 92 OF THE CODE OF CIVIL PROCEDURE - Whether the suit is maintainable before the learned Trial Court and whether the trial is necessary for determination of the status of the property?
Fact of the Case:
Plaintiff filed a suit for declaration of public debottar property, eviction of the opposite parties, and for not giving any new electric connection to the suit premises. The trial court allowed the application under Order 7, Rule 11 (d) of the Code of Civil Procedure and returned the plaint on the ground of lacking jurisdiction. The plaintiff filed an appeal before the appellate court, which reversed the trial court's order and held that the trial court had gone wrong in its decision.
Finding of the Court:
The court held that the suit was not maintainable before the trial court as it was a suit for vindication of private right and did not come within the scope and ambit of Section 92 of the Code of Civil Procedure.
Issues: Whether the suit was maintainable before the trial court?
Ratio Decidendi: The court relied on the judgment of the Hon'ble Apex Court in Swami Parmatmanand Saraswati (supra) and held that a suit to remedy infringement of individual right or suit to vindicate private right is outside the scope of Section 92 of the Code of Civil Procedure.
Final Decision: The revisional application was dismissed.
Ashoke Kumar Dasadhikari, J.
Order impugned dated 23rd February, 2012 passed by the learned Civil Judge, Senior Division, 2nd Court at Howrah reversing the order of the learned Civil Judge, Junior Division, 4th Court at Howrah, allowing petitioners' application under Order 7, Rule 11 (d) and under Order 7, Rule 10 read with Section 151 of the Code of Civil Procedure is under challenge in this revisional application.
2. Mr. Majumdar, learned Counsel appearing for the petitioners submits that the learned Trial Court after proper adjudication of the application filed for rejection and/or return of the plaint passed an order for returning the plaint on the ground of lacking jurisdiction since the plaintiff has made a prayer for declaration that the property is a public debottar property. He submits that the suit is not maintainable before the learned Trial Court and that is why the plaint was returned.
3. Being aggrieved by and dissatisfied with the order of the plaintiff filed a miscellaneous appeal before the learned Appellate Court and the learned Appellate Court has reversed the order passed by the learned Trial Court and has come to a conclusion that the learned Trial Court has gone wrong and the order passed by the learned Court is not sustainable since the learned Trial Court without going into trial has come to a decision that the property is a public debottar property and the dedication is complete not partial.
4. Mr. Majumdar submits that from the averments made in the plaint it would be apparent and evident that the property is a public debottar property and the learned Trial Court also found on admission of plaint that it is a public debottar property. Therefore, the learned Trial Court was right in its decision allowing the application under Order 7, Rule 11 (d) of the Code of Civil Procedure.
5. Mr. Majumdar submits since it is a public debottar property covered under Section 92 of the Code of Civil Procedure no suit is maintainable before the learned Civil Judge, Junior Division. He submits there is no wrong in the order passed by the learned Trial Court. He further submits that the learned Appellate Court is totally incorrect in its conclusion since no trial is necessary for determination of the status of the property since it is admitted by the plaintiff that the property is public debottar property.
6. Mr. Majumdar submits that since first prayer is for declaration of public debottar property, the learned Court ought to have proceeded on the basis of public debottar property and ought not to have entertained the appeal filed by the plaintiff.
7. Mr. Majumdar submits that the order impugned is not sustainable. He submits the order impugned passed by the learned Appellate Court must be set aside.
8. Mr. Banerjee, learned Senior Counsel appearing for the opposite parties submits that the scope of Section 92 is totally different. He submits that the prayers made in the plaint are not at all covered by that Section and the suit filed by the plaintiff even if it is admitted that the property is a public debottar is not coming within the scope and ambit of Section 92 since there is no dispute about trusteeship nor there is any prayer for removing any trustee; appointing a new trustee; or vesting any property in a trustee, etc. This is not at all a suit under Section 92 of the Code of Civil Procedure.
9. Mr. Banerjee submits that the law is now well-settled if it is a suit for adjudication of a private right then the suit instituted by the plaintiff cannot be a suit under Section 92.
10. Mr. Banerjee referred the Hon'ble Apex Court judgement in case of (Swami Parmatmanand Saraswati and anr. v. Ramji Tripathi and anr.), reported in A.I.R. 1974 S.C. 2141 wherein it was held that suit to remedy infringement of individual right or to vindicate private right is outside scope of Section 92.
11. Mr. Banerjee submits that the learned Trial Court has gone wrong without taking note of the provisions under Section 92 of the Code of
