- (1.) The Judgment of the Court was as follows: The Court: This appeal is preferred against the judgment and order of the learned Single Judge by which the learned Trial Judge has been pleased to pass an order for return of the plaint filed in the suit, for presenting before the appropriate Court within whose jurisdiction the property in question situates, on the application filed by the defendant for return of the plaint filed in the aforesaid suit. The learned Trial Judge has correctly recorded the fact of the case that the plaintiff has filed a suit for specific performance of Memorandum of Understanding but sole defendant is said to have been agreed to assign an unexpired period of leasehold interest of premises at 8/2, Palm Avenue, Calcutta, which situates admittedly outside the territorial limit of this Court. The relief claimed In the plaint for specific performance of the terms and conditions for assignment containing in the Memorandum of Understanding and nothing else. As a matter of fact that plaintiff has already sought for leave and we are told that such leave has been granted by this Court under the provisions of Order II Rule 2 of the Code of Civil Procedure for obtaining possession of the property.
(2.) The learned Trial Judge was of the view that irrespective of the relief claimed the suit that is in the nature of specific performance, is a suit for land. None appears for the respondent/defendant despite the matter being called on thrice. Mr. Chakrabarty, led by Mr. Deb and Mr. Ghosh, submits that judgment and order of the learned Trial Judge on the facts and circumstances of this case is completely contrary to the present position of law relating to suit for land. He submits that when any suit is filed for a relief the specific performance simpliciter without asking for any declaration or title to the property or for possession thereof it does not assume that character of a suit for land in any sense and his legal argument is supported by the decision of the Supreme Court in the case of Adcon Electronics Put Ltd. v. Daulat and Another, 2001 7 SCC 698and also a judgment of the learned Single Judge of this Court following by the aforesaid decision in the case of Hazra Medical Stores Private limited v. Biswanath Sarkar & Ors,2007 CalLT 656. 4. Therefore, he concludes the order passed by the learned Trial Judge is not sustainable under the law.
(3.) We have considered his submission and have examined the plaint as it is the only document which has to be examined in the demurrer action. In prayer portion of the plaint following relief have been claimed; The plaintiff prays for Leave under Order 2 Rule 2 of the Code of Civil Procedure, 1908 and claims, (a) Decree for specific performance of the Memorandum of Understanding dated August 30, 1990. (b) In the alternative, an enquiry in to the damages suffered by the plaintiff and decree for the sum found due thereon. The leave as aforesaid was claimed for the case and relief as mentioned in paragraph 19 (at page 36) of the paper book is hereunder; 19. The plaintiff has not claimed any relief regarding possession of premises No. 8/2, Palm Avenue. Calcutta 700 019, in the present suit. The plaintiff prays for leave of this Hon'ble Court under Order 2 Rule 2 of the Code of Civil Procedure, 1908 for instituting the appropriate legal proceeding in appropriate forum.;