- (1.) This application under Article 227 of the Constitution of India is directed against an order dated 6th January, 2007 passed by the Learned Civil Judge (Junior Division), Fifth Court at Alipore in Title Suit No. 282 of 2004 by which the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant No.1 was rejected by the learned Trial Judge on contest.
(2.) The defendant No.1 is aggrieved by the said order. Hence the said defendant has come before this Court with this application. Heard Mr. Ray Chowdhury, learned Senior counsel, appearing for the petitioner and Mr. Banerjee, learned Counsel, appearing for the plaintiff/opposite party. Considered the materials on record including the order impugned. Let me now consider as to how far the Learned Trial Judge was justified in passing the impugned order in the facts of the instant case.
(3.) It is settled law that while considering an application under Order 7 Rule 11 of the Code of Civil Procedure, the Court cannot consider any other document save and except the plaint itself. And if, on consideration of the averments made by the plaintiff in the plaint, the Court is satisfied that any of the conditions as mentioned in Order 7 Rule 11 of the Code of Civil Procedure is satisfied, then the plaint can be rejected under Order 7 Rule 11 of the Civil Procedure Code. Keeping in mind the aforesaid basic settled principle of law, this Court is required to consider as to whether any of the conditions as mentioned in Order 7 Rule 11 of the Code of Civil Procedure is satisfied in the instant case or not and if on examination of the averment made in the plaint, the Court finds that any of the conditions as mentioned in Order 7 Rule 11 of the Code of Civil Procedure is satisfied in the instant case then this Court will have no other alternative but to reject the plaint under Order 7 Rule 11 of the Civil Procedure Code. Here is the case where the defendant No.1 has prayed for rejection of the plaint on the ground that the suit is barred by law. Thus the said defendant claims that the plaint in the instant case is liable to be rejected on the ground as mentioned in Order 7 Rule 11(d) of the Code of Civil Procedure. For ascertaining the substance of the defendant's said application in the present case, this Court has very carefully and anxiously considered the averments made by the plaintiff in the plaint as well as the deed of wakf which is a part of plaint. On consideration of the plaint itself, this Court finds that the plaintiffs being the members of the Shia community of Muslim filed the said suit in the representative capacity for protecting the rights of the members of the Shia community of Muslim in the Wakf Estate created by a deed of Wakf executed by Prince Kamar Kader Mirza Kohammad Adid Ali Bahadur, a Shia Mahamaddan on 14th June, 1987 with a view to settlement of his various properties for the maintenance of his children from generation to generation and for enforcement of his direction regarding use of his considerable immovable properties for various purpose incluidng religious and charitable purpose. The said Wakf Estate comprised of various properties in different places including the suit property lying at premises No. 123, Karl Marx Sarani previously known as Circular Garden Reach Road, Kolkata-700023.;