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IN THE HIGH COURT OF CALCUTTA
Kesang Doma Bhutia, J.
Twilight Properties Pvt. Ltd. And Another - Appellant
Versus
Supratik Bhattacharjee And Others - Respondent
C.O. No. 1412 of 2021
Decided On : 08-02-2022
Order 11 Rule 14 - Production of Documents - Summary of Acts and Sections: Order 11 Rule 14 of CPC - The court held that the plaintiffs were entitled to seek production of documents in the custody of the defendants to prove their alternative remedy for damage. The court set aside the lower court's decision and allowed the plaintiff's application under Order 11 Rule 14 CPC, directing the defendants to produce the documents mentioned therein within a month from the date of the order.
Fact of the Case:
The plaintiffs filed an application challenging the order passed by the learned Civil Judge, recasting issues in a property dispute case. The plaintiffs sought production of documents in the custody of the defendants to prove their alternative remedy for damage.
Finding of the Court:
The court found that the plaintiffs were entitled to seek production of documents in the custody of the defendants to prove their alternative remedy for damage. The court set aside the lower court's decision and allowed the plaintiff's application under Order 11 Rule 14 CPC.
Issues: The main issue was whether the Court below was bound to dispose of the application under Order 11 Rule 14 of Civil Procedure Code prior to recasting of the issues.
Ratio Decidendi: The court held that the plaintiffs were entitled to seek production of documents in the custody of the defendants to prove their alternative remedy for damage. The court set aside the lower court's decision and allowed the plaintiff's application under Order 11 Rule 14 CPC.
Final Decision: The court allowed the plaintiff's application under Order 11 Rule 14 CPC, directing the defendants to produce the documents mentioned therein within a month from the date of the order.
JUDGMENT
Kesang Doma Bhutia, J. - The plaintiffs/petitioners have filed the present application under Article 227 of the Constitution of India, challenging the order passed by the learned Civil Judge (Senior Division), 2nd Court, Alipore, in Title Suit No. 10216 of 2011 on 20.03.2021 and whereby the learned Court below was pleased to recast issues in compliance of the direction of the Hon'ble Co-ordinate bench of this Hon'ble High Court passed in C.O. No. 4188 of 2018 on 13.11.2019 and kept in abeyance the plaintiffs' application under Order 11 Rule 14 of the Civil Procedure Code.
2. The facts necessary for determination of the present revisional application in gist is that there exist a dispute between the parties in respect of a Development Project of a property measuring 3 bigas 12 cottahs 7 chittacks &18 sq.ft. situated at 3/1 Sunny Park, Ballygunge, Kolkata- 700019. Such property was originally owned by one Josna Ghosal. The said Josna Ghosal during his life time relinquished the suit property in favour of his grandson Jitendra Kumar Ghosal by executing a deed of transfer on 6th July, 1971. Jitendra Kumar Ghosal was a NRI (Non Resident Indian) and married to an American lady named Mary Ann Ghosal. The deceased defendant no. 1 Romola Bhattacharjee was the own sister of Jitendra Kumar Ghosal.
3. Jitendra Kumar Ghosal died sometime in the month of July, 1987. That during his life time he bequeathed the disputed property in favour of his wife Mary Ann Ghosal by executing a will.
4. It appears from the record that in order to develop the property of late Jitendra Kumar Ghosal 50/50 agreement was executed between the Plaintiff no. 2 and Defendant no. 2 the family attorney of Ghosals' on certain terms and conditions sometime in the year 1987. Consequently a written agreement was also executed to that effect in between the plaintiff no. 1 and deceased defendant no. 1, the subsequent owner of the property on 19th October 1994.
5. In pursuant to such agreement with owner /deceased defendant no.1, the Plaintiff no.2 managed to get possession of a portion of the property under the occupation of Hongkong and Shanghai Banking Corporation (HSBC). He made necessary arrangement for getting the property transferred in the name of deceased defendant no. 1 by Mary Ann Ghosal by executing a deed of gift. That he engaged different architectural firms for preparation of plans for construction of high-end multi-storied structures as well as a bungalow for defendant no. 1 on disputed property. In that way plaintiff had spent more than 51.88 lakh on various accounts for the proposed project from the year 1987. In the meantime the plaintiffs have shifted its base to Pune. Sometime in the month of May 2011 they came to know about deceased defendant no. 1 executing a fresh development agreement with defendant no. 3 to 8 and execution of a deed of conveyance thereof on 27th May, 2011.
6. Therefore, by filling suit no. 10216 of 2011 for Specific Performance of Contract, the plaintiffs have alleged that in the agreement dated 1994 executed between plaintiffs and deceased defendant no. 1 there subsist negative covenant. The deceased defendant no. 1 who had also received Rupees five lakh from the plaintiffs in pursuant to such agreement cannot execute any conveyance in respect of suit property in favour of defendant no. 3 to 8.
7. Subsequently, in view of amendment in the Specific Relief Act, the plaintiffs have sought for an alternative relief for damage by filing an amendment petition and which was initially rejected by learned Trial Court, but later the same was allowed by Hon'ble Co-ordinate bench of this Hon'ble High Court in C.O. No. 3257 of 2018 on 13.11.2019 and with a direction to the plaintiffs and defendants to file amended plaint and additional written statement within time fixed. While disposing C.O. No. 4188 of 2018 on the same day, the trial Court was directed to recast the issue which has already been framed in the light of the amendment in the p
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