IMPORTANT POINT
Plaint case being without any cause of action, deserve to be rejected.

Prasenjit Mandal, J.—This application is at the instance of the defendant and is directed against the Order No.38 dated December 13, 2010 passed by the learned Judge, Thirteenth Bench, City Civil Court, Calcutta in Title Suit No.2430 of 2007 thereby rejecting an application under Order 7, Rule 11 of the C.P.C.

2. The short fact is that the plaintiff/opposite party and Smt. Ashima Sen filed a title suit being Title Suit No.2430 of 2007 for declaration and permanent injunction. In that suit, the defendant/petitioner herein appeared and filed an application under Order 7, Rule 11 of the C.P.C. for rejection of the plaint. That application was rejected by the learned Trial Judge by the impugned order. Being aggrieved, this application has been preferred by the defendant No.2.

3. The short question in the matter is that whether the learned Trial Judge is justified in rejecting the application under Order 7, Rule 11 of the C.P.C. filed by the petitioner.

4. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the said title suit being Title Suit No.2430 of 2007 arose out of an matrimonial obligation between the petitioner and his wife, namely, Smt. Ashima Sen.

5. Admittedly, the petitioner and Smt. Ashima Sen were married according to Hindu rites and customs on June 2, 1986 and one son namely, the opposite party herein was born in the wedlock. The said son is now a student and he has attained majority. Smt. Ashima Sen and her son, opposite party herein, resided in two rooms in the first floor at 5, Netaibabu Lane, Kolkata -700 012. This is the suit premises in the said suit. Admittedly, the suit premises along with other premises belonged to the petitioner and his two brothers in equal shares. The eldest brother, Raj Kumar Sil gifted his 1/3rd share to his other two brothers, namely, Naba Kumar Sil and the defendant in equal shares. Thereafter, by a Deed of Partition dated December 17, 1993, the defendant became the owner of the suit premises along with other properties.

6. It is the contention of Smt. Ashima Sen and her son that the suit premises is possessed by both of them and that after annual examination of the son when they were out of the room for three days from March 10, 2005 by keeping the said premises under lock and key, the defendant/petitioner herein forcibly put another padlock on the same.

7. It may be mentioned herein that in the month of May, 2005, the defendant filed a title suit being Title Suit No.779 of 2005 against the plaintiff No.1 of the instant suit. In that suit, both the plaintiff and the (plaintiff No.1 of this suit) filed separate applications, for injunction. Upon hearing both the sides, the learned Trial Judge, Thirteenth. Bench, City Civil Court, Calcutta disposed of the said two applications by a consolidated order dated March 8, 2006 by allowing the application of the plaintiff No.1 of the instant suit and directing the parties to maintain status quo with regard to the premises in suit. It was directed that the son of the plaintiff No.1, that is, the opposite party No.1 herein would be at liberty to decide where to live after attaining the majority. Thereafter, since the plaintiff of the instant suit could get their access to the premises in suit, there was no other way but to file the instant suit for declaration and injunction.

For proper appreciation of the matter, the

reliefs sought for in the instant suit are stated below:

“(a) For a decree for declaration that the defendant, his men and agents have no right to obstruct the user of the suit flat by the plaintiffs by any means prejudicial to the interest of the plaintiffs;

(b) For a decree permanent injunction restraining the defendants, their men, agents and associates from causing any obstruction towards free ingress an egress of the plaintiffs, for use and occupation of the suit flat at 5, Netai Babu Lane, Kolkata-700 012, in any manner prejudicial to the interest of the plain