HARISH TANDON, J. - (1.) THIS revisional application is directed against an order dated. 24.5.2010 passed by learned Civil Judge (Jr. Division), Second Court, Sealdah in Title suit No. 157 of 2006 by which an application for dismissal of the suit being not maintainable is rejected. By executing and registering a deed of lease the defendant / petitioner demised unto predecessor-in-interest of the plaintiff / Opposite Party all that a flat measuring an area of 1942 Sq fit on the third floor at premises No. 16, Beniapukur Road, Calcutta-700014 for a period of 30 years commencing from the date of handing over the possession which would be handed over upon completion of the construction of the third floor.
(2.) IT is alleged in the plaint that the construction of the third floor is complete but the defendant / opposite party is not handing over the possession in terms of the registered deed of lease. On the basis of the aforesaid fact the relief sought for in the plaint of the said Title Suit No. 157/2006 by the plaintiff / opposite party is the decree for declaration that the registered deed of lease dated. 1.6.1987 is valid and binding and the defendant / petitioner is liable to hand over the possession of the demised property in terms of the said lease deed and a decree for permanent injunction restraining the defendant / petitioner to let out and create any third party interest in respect of the property in question. The defendant/petitioner after entering appearance filed an application challenging the maintainability of the suit inter alia on the ground that a relief as sought for recovery of possession in the plaint can be made upon the payment of requisite Court fee, the registered lease deed cannot be enforced without the prayer for specific performance of contract and in view of the non existence of the alleged suit property the question of enforcement of any right does not arise.
(3.) THE said application was opposed by the plaintiff / opposite party contending that the suit as framed is maintainable and the ground which has been taken requires factual investigation and as such at this stage the suit cannot be dismissed. Mr. Jiban Ratan Chatterjee, learned senior advocate appearing for the defendant / petitioner submits that the suit is not maintainable in view of Section 34 of the Specific Relief Act. He further submits that proviso to Section 34 of the said Act have created an embargo on the Court to grant relief in absence of any further relief than mere declaration of the status. He relies upon an unreported judgment of this Court in case of Smt. Anjana Gupta "Vs- HemantaKumar Pathak (C.O. 402 of 2010) in support of the above contention. Further reliance is placed upon a judgment of the Apex Court in case of N.V. Srinivasa Murthy "Vs- Mariyamma reported in 2005 (5) SCC 548 for the proposition that in absence of other relief than a mere relief for declaration the suit is not competent under Section 34 of the Specific Relief Act. Per contra, Mr. Mahendra Prasad Gupta, learned advocate appearing for the plaintiff / opposite Party submits that the suit as framed is maintainable and Section 34 is not a bar. He further submits that the Court, while considering an application for maintainability of the suit, should not embark to consider the other relevant document but should restrict itself to the averment made in the plaint. In support of such contention he relied upon the following judgments : 1.Balasaria Construction (P) Ltd. "Vs- Hanuman Seva Trust and Ors reported in 2006 (5) SCC 2.Kamala and Ors "Vs- K.T. Eshawara S.A.Sah and Ors reported in 2008 12 SCC 661. 3.C. Natarajan "Vs- Ashim Bai reported in 2007 14 SCC 183. ;