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IN THE HIGH COURT AT CALCUTTA
SUPRATIM BHATTACHARYA, J.
Smt. Laily Ghosal – Appellant
Versus
Sri Debnarayan Dey & Ors. – Respondents
FMA 765 of 2017 IA No. CAN 1 of 2017 (Old No. 3327 of 2017)
Decided on : 22-06-2023
ORDER II RULE 2 CPC - SUIT - CONSOLIDATION - SUBSEQUENT EVENTS - AMENDMENT OF PLEADINGS - ORAL UNDERSTANDING - TENABILITY - LIMITATION - SPECIFIC PERFORMANCE OF CONTRACT - DEED OF CONVEYANCE - NULLITY - DECLARATION - INJUNCTION - MAINTAINABILITY - DIFFERENT CAUSE OF ACTION - SAME PARTIES - SAME SUBJECT MATTER.
Fact of the Case:
The appellant/defendant No.2 in a Title Suit appealed against the judgment of the lower appellate court, which had set aside the trial court's order dismissing the suit as not maintainable under Order II Rule 2 of the Code of Civil Procedure (CPC). The plaintiffs/respondents No.1 and 2 had filed a suit for declaration of their settled possession of the suit property since 1978, permanent injunction restraining the defendants from disturbing their possession, and specific performance of a contract for sale of the property. The defendants contended that the suit was barred by Order II Rule 2 CPC as the plaintiffs could have sought all the reliefs in the earlier suit filed by them for injunction against eviction.
Finding of the Court:
The court held that the plaintiffs could have sought leave to amend their pleadings in the earlier suit to include the subsequent events, such as the execution of a deed of conveyance by the defendants, as per the judgment of the Supreme Court in Vineet Kumar vs. Mangal Sain Wadhera. The court also noted that the plaintiffs could have consolidated the two suits, as per the principles laid down in Suraj Prakash Bhasin Vs. Smt. Raj Rani Bhasin and others, to avoid multiplicity of proceedings.
Issues: 1. Whether the suit is barred by Order II Rule 2 CPC? 2. Whether the oral understanding alleged by the plaintiffs is tenable in law? 3. Whether the suit is barred by limitation?
Ratio Decidendi: The court held that the subsequent events could have been brought into record through amendment of pleadings in the earlier suit, and that the plaintiffs had not provided any document or written receipt to support their claim of an oral understanding for sale of the property. The court also noted that the plaintiffs had not sought leave of the court to relinquish a part of their claim, as required under Order II Rule 2(2) CPC.
Final Decision: The court directed the trial court to consolidate the two suits and frame two additional issues on the tenability of the oral understanding and limitation. The court further directed the trial court to dispose of the consolidated suits within six months.
JUDGMENT :
Supratim Bhattacharya, J.
1. The instant appeal has been preferred by the appellant/ defendant No.2 namely Laily Ghoshal being aggrieved by and dissatisfied with the Judgment and Decree dated 7th of March 2017 passed by the Ld. Additional District Judge 1st Court Alipore, South 24 Parganas in Title Appeal No. 23 of 2017.
2. Through the aforesaid judgment and decree the Ld. Additional District Judge 1st Court, Alipore has reversed the Judgment and decree dated 13th of January 2017 passed by the Ld. Civil Judge Sr. Divn. 7th Court Alipore, South 24 Parganas, in Title Suit No. 17 of 2015.
3. The Civil Judge Sr. Divn, 7th Court Alipore, South 24 Parganas vide order dated 13.01.2017 has dismissed the Title Suit No. 17 of 2015 on contest as being not maintainable under the provision of Order II rule 2 of the Code of Civil Procedure.
4. Against the Judgment and decree passed on 13.01.2017 by the Ld. Civil Judge Sr. Divn. in Title Suit No. 17 of 2015, Title Appeal No. 23 of 2017 was preferred and ultimately the Ld. Additional District Judge 1st Court Alipore, South 24 Parganas allowed the appeal on contest without any order as to cost, by setting aside the Judgment and decree passed in the Title Suit No. 17 of 2015. Through the impugned Judgment the Ld. Additional District Judge 1st Court, Alipore directed the Ld. Trial Judge to proceed with the suit from the hearing of the injunction application afresh and after deciding the injunction application has further directed to proceed with the suit after allowing the defendants therein to file respective written statements if not filed earlier. It has been further directed that after framing issues if not framed earlier to dispose of the suit that is Title Suit No. 17 of 2015 in accordance with law. The Ld. Additional District Judge has further directed to maintain status quo in respect of nature and character of the suit property as the respondents vide order No. 4 dated 13.01.2017 were directed to maintain status quo in respect of nature and character of the suit property by the Ld. Trial Judge.
5. The fact of the instant lis is that Dolly Bose the respondent No.3/defendant is /was the owner of the suit property being premises No.311 Becharam Chatterjee Road, P.S. Parnashree, District South 24 Parganas.
According to the plaintiffs/respondents No.1 and 2 namely Debranjan Dey and Alo Dey were delivered vacant possession of the aforesaid property in the year 1978 on the basis of an understanding with Dolly Bose. The said understanding was that there will be an absolute sale of the said property to the plaintiffs according to market price which was settled at Rs. 75,000/-. It is the contention of the plaintiffs/respondents No.1 and 2 that they have paid Rs. 18,000/-in instalments to the respondent/defendant. The respondents No.1 and 2 have also alleged that the respondent No.3/ defendant along with her men and agents on 15.3.2013 had tried to forcibly evict the respondents No.1 and 2. On the basis of the aforesaid contentions the respondent Nos. 1 and 2 earlier filed a Title Suit being TS No. 7322 of 2013 praying for declaration that the plaintiffs are in settled possession of the suit property till date since 1978 and have also prayed for permanent injunction restraining the defendant from disturbing the peaceful possession and enjoyment by the plaintiffs. The petition under Order XXXIX Rules 1 and 2 was rejected ex parte on 02.05.2013.
In the Title Suit 7322 of 2013 the defendant filed written statement after disposal of the injunction petition and stated that the said property has been sold during the month of April 2013.
The plaintiffs/respondents No.1 and 2 thereafter filed another suit being TS No. 17 of 2015 before the self same court. In this title suit filed later in addition to Dolly Bose, who was the defendant in the earlier suit, one Laily Ghoshal has been added as defendant No.2 being the purchaser of the suit property. The prayers made in the second suit that is Title Suit No
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