- (1.) THE petitioners in this revisional application under Article 227 of the Constitution are the defendants 3 and 4 in Title Suit No.87 of 2007 (since renumbered T.S No.6 of 2010), pending on the file of the learned Judge, Small Causes Court, Sealdah. Challenge in this application is to order no. 47 dated 6/10/2010 passed by the learned Judge, whereby two petitions filed by the petitioners, one under Order 7 Rule 11, Civil Procedure Code (hereafter the Code) and the other under Order 2 Rule 2 thereof, were rejected.
(2.) MR. Rabindra Narayan Dutta, learned advocate for the petitioners contended that the learned Judge erred in the exercise of his jurisdiction in rejecting the petitions. He invited the Court"s attention to the facts pleaded in the plaint, referred to relevant provisions of the Code as well as the Limitation Act (hereafter the Act) and relied on a host of decisions to buttress his contention that the plaintiffs (opposite parties 1 to 7) have grossly abused the process of law and the Court and the plaint filed by them was liable to be rejected, and in not so rejecting, the learned Judge has added to the woes of the petitioners in contesting the suit, which is barred by limitation and by res judicata and/or principles analogous thereto as well as principles underlying Order 2 Rule 2 of the Code. He, accordingly, prayed for setting aside of the order impugned and for rejection of the plaint. Mr. Sanjib Kumar Mal, learned advocate representing the opposite party no. 8 (defendant no.1 in the suit) supported Mr. Datta and in addition to his submissions, advanced further arguments and relied on several other decisions to urge the Court to allow the revisional application by setting aside the order impugned and rejecting the plaint. Per contra, Mr. Saptangshu Basu, learned senior advocate for the plaintiffs, contended that the revisional application does not merit interference. According to him, this Court in exercise of power under Article 227 of the Constitution ought not to interfere with the impugned order particularly having regard to the fact that issues had been framed for a decision on the suit, of which one relates to maintainability of the suit, and that it should be left to the trial Court to give its decision on such issue. Even otherwise, by referring to the relevant provisions of the Code and the Act and by placing reliance on several decisions of the Supreme Court, he assiduously contended that no case for rejection of plaint had been set up by the petitioners and, therefore, the learned Judge was right in rejecting the petitions by the order under challenge.
(3.) IN the petition under Order 7 Rule 11 of the Code, the sole contention raised is that having regard to the allegation of the plaintiffs that the predecessor-in-interest of the defendant no. 1 had trespassed in the suit property on 25/1/1992, the suit ought to have been filed within 12 years from that date and hence it was barred in view of the provisions of Articles 64 and 65 of the Act. In the petition under Order 2 Rule 2 of the Code, the petitioners had referred to a previous suit instituted by the predecessor-in-interest of the plaintiffs, being T.S. No.101 of 1998 (since renumbered T.S. No.4 of 2005), wherein she had questioned the actions of the petitioners in acquiring a different property belonging to her, viz. 73, Canal Circular Road, Kolkata under the self-same notification, issued in connection with proceedings initiated under the Urban Land (Ceiling and Regulation) Act (hereafter the ULC Act) by which the suit property had been acquired. It was also pleaded that since the predecessor-in-interest of the plaintiffs had instituted T.S. No.101 of 1998 in respect of the property bearing no.73, Canal Circular Road, Kolkata availing the leave granted by the Division Bench of this Court by order dated 3/4/1997, the suit instituted by the plaintiffs is hit by Order 2 Rule 2 of the Code.;