AMITAVA LALA, J. - (1.) THIS first miscellaneous appeal arises out of a judgment and order of remand passed by the 14th Additional District Judge, Alipore, South -24 Paraganas, Calcutta. A very interesting and important question of law is germane for the purpose of due consideration by this Court.
(2.) A suit has been instituted by the respondent/plaintiff in the Court of first instance for the purpose of administration, accounts and various other consequential relief in connection thereto. The reliefs as prayed in the suit are as follows : a) For due administration of the estate of the deceased fully described in the Schedules 'A' and 'B' to the plaint; b) For allotment of the 'A' Schedule property in the share of the plaintiff as a legatee under the 1st Will and Testament of the deceased, Smt. Bijali Prova Basu and in respect of which probate has been obtained by the defendant, granted by the learned 3rd Court of the Additional District Judge, at Alipore in O.S. No. 2 of 1977; c) For according in respect of the income and expenditure of the estate of the deceased, in the hand of the defendant, as an executor and also as administrator pendente lite; d) For a decree for Rs. 5,000/ - which the plaintiff assessee for the present for accounting and for a further decree which might be found to be due to the plaintiff, after final accounting, if necessary, by appointment of an Advocate Commissioner, on payment of the additional amount of the court -fees ; e) For a decree for permanent/mandatory injunction requiring the defendant to allow the plaintiff to take separate electric connection and install a meter in his name in the proportion in the occupation of the plaintiff; f) For permanent injunction restraining the defendant from disturbing plaintiff's peaceful possession user and enjoyment; g) For appointment of Receiver ; h) For injunction restraining the defendant from dealing with the suit properties in any way whatsoever and/or from making any additions and alterations; i) For all costs; j) For any other relief or reliefs the plaintiff is entitled to under law and equity. The appellant being the sole defendant therein took out an application under Order 7 Rule 11 of the Code of Civil Procedure for dismissal of the suit upon being served with the summons and copy of the plaint. The suit was dismissed on contest. The First Appellate Court set aside the order and sent the matter back on remand for fresh decision according to law. The ground for setting aside the order of dismissal of the suit is that since all the questions regarding administration of the properties of the deceased is covered by the Will, whether the administration has been completed by the executor or not or assent has been given or not can only be considered after having evidence on behalf of the parties. The First Appellate Court is of the opinion that the learned Court of first instance was not justified in rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure. It was further held by the First Appellate Court that the learned Court below (Court of first instance) instead of rejecting the pliant would have called for the defendant to file a written statement and after considering the evidences as will be adduced by the parties should have disposed of the suit on merit.
(3.) BEFORE me, Mr. Jayanta Kumar Mitra, Learned Senior Counsel ably assisted by Mr. Malay Kumar Ghose, learned Counsel appearing for the appellant and Mr. Asish Bagchi, learned Counsel ably assisted by Mr. Amal Krishna Saha, learned Counsel appearing for the respondent extensively argued the matters on the point. However, before going into their arguments let me test the valuable parts of the plaint which is the root cause for making such application under Order 7 Rule 11 of the Code of Civil Procedure. The important part being paragraph 7 and part of paragraph 8 are set out hereunder: '7. That inspite of the grant of probate by the learned Court in favour of the defendant and/or taking out of the probate by the defendant as aforesaid, the defendant has not most illegally, wrongfully, with an ulterior motive for illegal gain had/has and/or made no attempt whatsoever for due administration of the estate of the said deceased and/or of the suit properties in accordance with the provisions of law and/or direction containing in the said last Will and Testament of the said deceased and/or of the learned Court giving due share to the plaintiff in the suit properties and/or rendering true and faithful accounts before the learned Probate Court or to the plaintiff in respect of the income and expenditure of the estate of the said deceased, simply to keep the learned Probate Court and also the plaintiff quite in dark. The plaintiff craves leave to file an application before the learned Probate Court as and when required and bona fide advised. 8. That the defendant although is being requested by the plaintiff for completion of the administration of the estate of the deceased and also to hand over the due share of the plaintiff to which the plaintiff is legally entitled to under the Will as a beneficiary/ legatees as per provisions made wherein, the defendant most illegally fraudulently, maliciously for illegal gain had been and has been withholding completion of the administration of the estate of the deceased intentionally and further has not been given any assent to the due administration thereof.................'. ;