- (1.) This revisional application is directed against Order No.41 dated 7th April, 2011 by which the learned Trial Judge rejected an application dated 20th March, 2007 under Order VII Rule 11 of the Code of Civil Procedure. The application which was filed by the defendant/petitioner under Order VII Rule 11 has been annexed as Annexure P-5 to this revisional application. When the revisional application was admitted by this Court an order was passed on 15th June, 2011 and it has been observed in the said order as follows : "This interim order is passed considering the fact that recent amendments in the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 were not adverted to and hence the order, prima facie, borders on perversity."
(2.) The petitioner has filed a supplementary affidavit today with which a copy of the said order has been annexed. The supplementary affidavit has been filed to bring in certain facts which are sequel to the observation contained in the said order passed by this Hon'ble Court.
(3.) In the application under Order VII Rule 11 the defendant/petitioner has made out a case that the plaint has been filed without any proper cause of action and the same is barred by law. It has been further added that plaintiff has made Postal Department, Government of India, and others as parties being defendant Nos. 3 to 5 but no statutory notice as required under Section 80 of the Code of Civil Procedure was issued before filing of the suit and, therefore, the suit is also barred by law. The defendant/petitioner has also made out a case in their application that under Order VII Rule 11 of the Code the plaint is liable to be rejected at the threshold because of the provisions of Waqf Act, 1995 particularly when Section 85 of the Waqf Act, 1995 bars the jurisdiction of Civil Court in respect of a suit or a legal proceeding regarding any dispute relating to Waqf. They claimed that the suit is barred by the provisions of Thika Tenancy Act and that the suit is also barred by the provisions of Specific Relief Act and further that the plaint is liable to be rejected since the reliefs have been claimed by the plaintiff against the persons with whom the plaintiff has or had no privity of contract. On these grounds the defendant/petitioner agitated before the learned Court below that the plaint is liable to be rejected under the provisions of Order VII Rule 11 of the Code of Civil Procedure. On perusal of the plaint averment and the application under Order VII Rule 11 of the Code of Civil Procedure the learned Court below passed the impugned order and made certain observations in support of its decision to reject the application filed by the defendant/petitioner under Order VII Rule 11 of the Code of Civil Procedure. Mr. Ali, learned senior advocate appearing for the petitioner submits that the order impugned is not sustainable in law and the same is liable to be set aside for the reasons that the learned Court has not taken into consideration the grounds which were made out in support of rejection of plaint. He submits that the learned Court, while coming into conclusion to reject the application filed by the plaintiff on 20th March, 2007, made certain observation which is diametrically opposite to the conclusion he made. He submits that although, the learned Judge took note of the Waqf Act and the bar provided thereunder, the learned Court has erred in law in not holding that in view of the provisions of the Waqf Act the suit may not be filed before the Civil Court. Such observation of the Court has not been reflected in his ultimate decision. The learned advocate has also drawn the attention of the Court that some other observation has also been made which has got no reflection in his decision. Mr. Ali further submits that the property in question is a Thika land which is apparent from the averment made in the plaint to the effect that an open land was leased out with a right to the lessee to make construction thereon and further that the said lease was assigned to his client subsequently. He submits that in view of Section 21 of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 2001, Civil Court's jurisdiction has been totally barred which has to be decided by the Thika Tenancy Controller.;