SUBHRO KAMAL MUKHERJEE,J. - (1.) ALTHOUGH this appeal is appearing under the heading 'for orders', it is taken up for hearing by the consent of the learned advocates for the parties upon dispensation of all formalities. A suit for eviction was instituted in the City Civil Court at Calcutta, which was registered as Ejectment Suit No. 4 of 2008.
(2.) IN the plaint it was stated that the plaintiffs were the owners/landlords and the defendants were the tenants under them in respect of one room on the first floor at the front side of the suit premises. It was stated that initially the rent was Rs.1,600.00 (Rupees one thousand six hundred) only, but it was increased to Rs.9,600.00 (Rupees nine thousand six hundred) only with effect from November, 2005. It was, further, alleged that the tenants committed default in payment of rent and kept the premises under lock and key for more than three months. Therefore, a prayer was made for recovery of possession by vacating the tenants from the suit premises. The tenants entered appearance in the suit and filed an application under Order VII, rule 11 of the Code of Civil Procedure praying for rejection the plaint on the ground that the court had no jurisdiction to try the suit as the rent was Rs.1,600.00 (Rupees one thousand six hundred) only. The rent was never increased to Rs.9,600.00 (Rupees nine thousand six hundred) only. The defendants did not accept such enhancement. The trial court held that the increase of rent could not be established. Thus, the trial court allowed the application filed under Order VII, rule 11 of the Code of Civil Procedure holding that the court had no territorial jurisdiction. It is true that the provisions of the said rule 11 of Order VII of the Code of Civil Procedure are mandatory. If the plaint is found to be defective and the case is covered by the said rule 11, it goes to the root of the matter and the Court had to reject the plaint even exercising the power suo motu at any stage of the suit. It is the duty of the court to examine the plaint averments and to find out if such averments disclose a cause of action, if the valuation is proper, if sufficient court-fees have been paid, if the suit is within the period of limitation, if the plaint is presented in duplicate and if the plaintiff has complied with the provisions relating to issuance of summons upon the defendants.
(3.) NEVERTHELESS , where the plaintiff has pleaded a cause of action for filing a suit, it does not mean that he has cause of action for filing a suit. Thus, for the limited purpose of considering the question whether the suit is maintainable under the said rule 11, the averments in the plaint alone are material and relevant. At an appropriate stage of the trial, the question whether the suit is maintainable can be determined on the basis of evidence adduced by the parties. The approach of the learned trial judge in this case was erroneous. In the suit the issue is whether the rent was increased from Rs.1,600.00 (Rupees one thousand six hundred) to Rs.9,600.00 (Rupees nine thousand six hundred) only; it requires evidence. We feel that the learned judge, by applying wrong legal tests, erroneously, allowed the application under Order VII, rule 11 of the Code of Civil Procedure.;