- (1.) Challenge is to the Order No.45 dated February 28, 2011 passed by the learned Civil Judge (Senior Division), 2 nd Court, Barasat in Title Suit No.140 of 2008 thereby rejecting an application under Order 7 Rule 11(a) & (d) of the C.P.C. The plaintiff / opposite party herein instituted a suit being Title Suit No.140 of 2008 for declaration against the petitioner in respect of the premises in suit as described in the schedule of the plaint before the learned Civil Judge (Senior Division), 2 nd Court, Barasat. The defendant / petitioner entered an appearance in the said suit and it is contesting the suit by filing a written statement denying the material allegations contained in the plaint. The learned Trial Judge framed issues on the basis of pleadings of both the parties and suit was at the stage of peremptory hearing. At that time, the petitioner filed an application under Order 7 Rule 11(a) & (d) of the C.P.C. read with Section 21 of the West Bengal Government Land (Regulation of Transfer) Act, 1993 for rejection of the plaint. That application was rejected by the impugned order. Being aggrieved, this application has been filed. Now, the question is whether the impugned order should be sustained.
(2.) Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the following facts are not in dispute:- i) That the plaintiff got a plot of land bearing plot no.32 in Block DD, Sector-I, Salt Lake City under P.S. Bidhannagar (North) in 1983 by a lease of 999 years from the Government of West Bengal. ii) That the said lease was granted for the purpose of construction of a cinema hall. iii) That the said cinema hall was constructed but it was not viable and the plaintiff incurred huge loss. iv) That on being approached by the plaintiff, the defendant paid a sum of Rs.18 lakh as accommodation loan with interest at the rate of 18 per cent per annum in 2004. As a security, the defendant was put into the possession of an area measuring more or less 3122 square feet in the basement and 173 square feet on the ground floor of the said building. v) That it was agreed between the parties that till repayment was not done, the defendant would possess the premises in suit at a monthly rental of Rs.18,000/- per month and such amount would be adjusted against the interest of the accommodation loan advanced to the plaintiff. vi) That the tenancy would be terminated upon payment of the entire loan amount of Rs.18 lakh together with interest at the rate of 18 per cent per annum minus the monthly rent of Rs.18,000/- per month to be adjusted. vii) That the plaintiff took the lease of the land in suit from the Government of West Bengal on condition that the lessee shall not sublet the demised land or the building to be constructed without the consent of the Government first and the Government shall have the right and to be entitled to refuse its consent at its absolute discretion. viii) That in case of transfer or assignment of the leasehold property by the lessee, the lessor (Government) shall have the right of pre-emption and upon exercise of this right, the building constructed by the lessee on the land in suit shall be taken over by the lessor at a valuation of the building, made by the lessor on the basis of construction of the building less the depreciation value. ix) That the defendant became a sub-lessee in respect of the suit premises knowing fully well the terms and conditions of the lease between the Government and the plaintiff. x) That the plaintiff offered repayment of the money to the defendant for taking possession of the leasehold property but the defendant did not deliver the possession of the same.
(3.) Mr. S.P. Roychowdhury, learned Senior Advocate appearing for the petitioner has contended that the plaint should be rejected on the ground that the plaint does not disclose the cause of action to file the suit. He points out that though the paragraph no.25 of the plaint lays down the cause of action for filing the suit as on July 13, 2008 when the period given in the said notice had expired and the defendant failed to hand-over vacant possession of the premises in suit. This is not at all a cause of action. He submits that the cause of action means a bundle of facts and it shall be construed on perusing the plaint as a whole. By referring different clauses, Mr. Roychowdhury submits that the plaint has been drafted in clever way by a legal expert and it lays down various facts. As a result, the said suit suffers from multifariousness. He also submits that the plaintiff company took the first point that the suit premises was delivered to the defendant as a security for an accommodation loan meaning thereby it is a money suit. He submits that as per terms and conditions, lease agreements were executed between the parties on June 25, 2004, inter alia, that the landlord (plaintiff) agreed to let out the premises in suit to the defendant/tenant at a monthly rent of Rs.18,000/- per month and such rent was to be adjusted against the interest to be obtained on the loan of Rs.18 lakh and the interest was at the rate of 18 per cent thereon. So, by laying down such a clause, the plaintiff has wanted to bring out a suit under the provisions of the West Bengal Premises Tenancy Act. He has next submitted that as per plaint case, if the said agreement is not considered as an agreement for creation of a tenancy between the parties to the suit, in view of the superior lease between the plaintiff and the Government of West Bengal, the plaintiff should be treated as a landlord and the defendant as the licensee under the plaintiff.;