- (1.) THE petitioner is the defendant no.3 in Title Suit No.75/2008 pending on the file of the learned Civil Judge (Senior Division), at Sealdah. THE said suit has been instituted by the opposite party no.1 herein against the petitioner and five other defendants for declaration and permanent injunction in respect of the properties mentioned in schedules 'A' and 'B' to the plaint.
(2.) THE defendant no.3/petitioner filed an application under Order VII Rule 11, Civil Procedure Code, 1908 (hereafter the Code) read with Section 151 thereof. THE grounds on which the learned Civil Judge was urged to reject the plaint are two fold viz. i) the suit is barred by limitation; and ii) the suit is hit by Section 34 of the Specific Relief Act, 1963 (hereafter the Act). The plaintiff/opposite party no.1 contested the application under Order VII Rule 11 by filing a written objection. The defendant no.3/petitioner filed a reply thereto. After the defendant no.3/petitioner prayed for rejection of the plaint, the plaintiff/opposite party no.1 has filed an application under Order VI Rule 17 of the Code praying for amendment of the plaint. The application under Order VII Rule 11 of the Code was taken up for consideration by the learned Judge on May 25, 2010. Upon hearing the parties, none of the two grounds urged on behalf of the defendant no.3/petitioner found favour with the learned Judge. It was observed that the cause of action for filing the suit had accrued to the petitioner on and from May 15, 2008 and the suit having been filed six days thereafter, it was not barred by limitation. So far as the second ground is concerned, it was observed that the plaintiff/opposite party no.1 had impliedly stated in the plaint that the defendants are denying or interested to deny the title of the plaintiff and particularly that the defendants and their men and agents are showing the suit properties to third parties with a view to transfer or alienate the same to them. Accordingly, the learned Judge by order no.37 rejected the application under Order VII Rule 11 and fixed June 4, 2010 for hearing of the application under Order VI Rule 17.
(3.) THIS order dated May 15, 2010 is under challenge in the present application under Article 227 of the Constitution. Mr. Chatterjee, learned advocate representing the defendant no.3/petitioner submitted that within the four corners of the plaint there is no pleading that the defendant no.3 had denied the title of the plaintiff and regard being had to the provisions contained in Section 34 of the Act, the question of passing a decree for declaration of the nature sought for in the plaint would not at all arise. It was next contended by him that although the opposite party no.1/petitioner had prayed for injunction, there was no statement in the body of the plaint that he was in possession of the suit properties; it was only after the Order VII Rule 11 application was filed that the plaintiff/opposite party no.1 grew wiser and filed the application under Order VI Rule 17 for amending his plaint by asserting that he is in possession of the suit properties. According to him, the learned Judge committed gross error of jurisdiction in not allowing the application under Order VII Rule 11.;