- (1.) THIS application under Article 227 of the Constitution of India is directed against an order being No.28 dated 19th February, 2010 passed by the Learned Civil Judge, Senior Division, Second Court at Barasat in title Suit No.220 of 2007 by which the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant no.1, was rejected on contest. The said defendant is aggrieved by the said order. Hence the instant application was filed by the defendant before this court.
(2.) HEARD Mr. Ray Chowdhury, learned Senior Counsel, appearing for the petitioner and Mr. Banerjee, learned Senior Counsel, appearing for the plaintiffs/opposite parties. 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. The plaintiffs filed a suit for specific performance of contract against the defendants. Various other reliefs were claimed by the plaintiffs in the said suit apart from the relief for specific performance of the contract. The reliefs which were claimed by the plaintiffs in the said suit are as follows: a) A decree for specific performance of contract in respect of 53% of the land area with proportionate structure standing thereon as per contract at the scheduled property. b) A decree for specified portion allowing 53% of schedule property according to flats along with common area and facilities granting absolute interest to the plaintiffs to that extent. c) A decree declaring that none of the defendants have right title or interest in respect of 53% of the schedule land and building constructed thereon or that any document executed thereby affecting 53% of the property is not binding on the plaintiffs. d) A decree declaring that such deed or deeds if found to have been executed be cancelled and delivered up. e) A decree declaring that the plaintiffs as partners have acquired a good and equitable right title and interest upon the 53% of schedule land and building thereon. f) A decree declaring that the plaintiffs have acquired right to enjoy the schedule property to the extent of 53% thereof including right to re-transfer. g) A decree declaring that the plaintiffs are entitled to refund of Rs.21 Lakhs kept as refundable security with the defendants on a declaration of charge of 47% of the property in suit. h) A decree for permanent injunction confirming the possession of the plaintiffs as well as restraining the defendants from transferring alienating or encumbering the schedule property in any manner whatsoever and/or to deliver possession thereof without the consent of the plaintiffs. i) A further decree for permanent injunction restraining the defendants from causing any construction or change of nature and character in any manner whatsoever without knowledge and consent of the plaintiffs. j) A temporary injunction in the manner as prayed for above; k) Appointment of receiver; l) Attachment before judgment; m) Cost of the suit; n) Any other relief or relief for which plaintiff is entitle to. After filing said suit, the plaintiffs filed an application for temporary injunction. The said application was allowed by the Learned Trial Judge by an order being No.6 dated 16th April, 2008.
(3.) SUBSEQUENTLY the defendant No.1 filed an application for modification of the said order. The application for modification of the said order, was rejected by the Learned Trial Judge on 7th July, 2008 vide order No.13. Both the aforesaid orders were challenged by the defendant no.1 by filing an appeal being F.M.A. No. 1456 of 2008 before this Honble Court. The said appeal as well as a connected application being C.A.N. No.6395 of 208 were disposed of by the Division Bench of this Honble Court on 10th June, 2009 whereby both the parties were restrained from transferring, alienating or encumbering the suit property in any manner with a further rider that there should not be any further construction in the suit premises till the disposal of the suit. While disposing of the said appeal, the Division Bench of this Honble Court expressed its prima facie view about the bar of law in granting the relief for specific performance of contract in such a suit in view of the provision contained in Section 14(3)(C) of the Specific Relief Act, 1963. While expressing their prima facie view regarding the bar of law in granting relief for specific performance of contract in such a suit, Their Lordships also noted that the relief by way of specific performance of contract was not the only relief which was claimed in the said suit, as the plaintiff has also prayed for declaration and permanent injunction apart from the relief for specific performance of contract. On the prayer of the learned Advocate, appearing on behalf of the respondent in the said appeal, liberty was given to the plaintiffs to file appropriate application for amendment of plaint with a rider that such application must be filed within a month from the date of disposal of the said appeal. This Court is informed by Mr. Banerjee, learned Senior Counsel, appearing for the plaintiffs/opposite parties that pursuant to the leave granted by the Division Bench of this Honble Court, as aforesaid, an application for amendment of the plaint was filed by his client and the said application was also allowed and nobody has challenged the propriety of the said order before any Higher Forum. Thus according to Mr. Banerjee, the pleadings of the amended plaint are required to be considered for ascertaining the application filed by the defendant no.1 for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure. I accept such submission of Mr. Banerjee.;