- (1.) THE present revisional application is at the instance of" the defendant Nos. 3 and 4 being the developers and owners of the land. The petitioner aggrieved by Order No. 51 dated 10th August, 2011 passed by the learned City Civil Court, 10th Bench, Calcutta in Title Suit No. 988 of 2088", rejecting an application filed under Order 7 Rule 11 of the Civil Procedure Code.
(2.) THE plaintiffs instituted a suit for declaration and injunction. The plaintiffs claimed to be a purchasers of two flats in the second and third floor of the suit premises with right over common space. They have also purchased car parking space in the ground floor of the said premises together with undivided share and/or interest in the land comprising of the said premises together with right over any common areas and facilities. One of the principal grievances of the plaintiffs in the suit is that although plaintiffs purchased the respective garages, but the developers surreptitiously sold the car parking spaces which were already allotted and sold to the plaintiffs and on the basis of such sale in favour of defendant Nos. 1 and 2 the right of the plaintiffs to enjoy the said spaces as car parking spaces is sought to be infringed and interfered with. The plaintiffs alleged that the defendant Nos. 1 and 2 could not have purchased the said two garages and/or car parking spaces and the plaintiffs already had purchased the said two car parking spaces from the defendant Nos. 3 and 4 out of the three garages and/ or car parking spaces existing in the suit premises as per the sanctioned plan. In the said proceeding, the defendant Nos. 3 and 4 filed an application under Order 7 Rule 11 of the Civil Procedure Code on the ground that the plaint does not disclose any cause of action. It was urged that the plaintiffs have no cause of action against the defendant as stated in the plaint and the said proceeding is vexatious. It was contended that the plaintiffs did not have any right over the constructive building and other areas and common areas except which they have purchased and mentioned in their respective conveyance and as such neither of them has any right to restrain the defendant Nos. 3 and 4 from selling any other area over which the defendant Nos. 3 and 4 retained absolute right of disposal in terms of the sanctioned plan.
(3.) THE said application was considered by the learned Trial Judge, li appears that the learned Trial Judge after due its enquiry and scrutiny of the plaint held that no case has been made out for rejection of the plaint on the ground that the plaintiffs have no cause of action. It was further held that in order to determine the question as to whether the plaint discloses the cause of action, the avarments made in the plaint can only be looked into and no other document would be relevant or necessary for the purpose of considering such question in deciding an application for rejection of plaint under Order 7 Rule 11 of the Civil Procedure Code.;