Pratap Kr. Ray, J. - (1.) This Civil rule arose out of an application under Section 115 of the Code of Civil Procedure, which was originally numbered as C.O. 3156 of 2002. Order dated 26th July, 2002 passed by learned Civil Judge, 4th Court (Senior Division) at Alipore in title suit No. 40 of 2002 is under challenge. By the impugned order of this rule, the application of the defendant No. 1 under Order 7 Rule 11 of the Code of Civil Procedure raising the question of maintainability of the suit on ground of legal embargo, was rejected.
(2.) This case has a chequered history. Factual matrix in brief is to this effect : Title Suit No. 40 of 2002 in which the impugned order was passed, was filed by the plaintiff, M/s. R.S. Limited, who admittedly suffered judgment and order in earlier suit on his alleged claim as sub-lessee in the property in question. Present petitioner herein, the Property Company Private Ltd., as plaintiff moved an eviction suit being title suit No. 66 of 1977 against the opposite party No. 2, McDonnell (1948) Private Ltd., the tenant of suit premises, alleging, inter alia, that tenant had sublet a portion of the suit premises to said M/s. R.S.I. Limited without consent of the plaintiff. Said suit was decreed on 13th September, 1988 in favour of plaintiff, the Property Company Private Limited. A first appeal being No. F.A. 27 of 1989 was filed by the tenant/defendant, said McDonnell (1948) Private Ltd., which also was dismissed by the Division Bench of Calcutta High Court on 3rd October, 1997, affirming the judgment and decree of trial Court. Special Leave Petition as was moved to the Apex Court by the said tenant/defendant, was dismissed as withdrawn on 13th May, 1998. The present petitioner of this revisional application, who was plaintiff of Title Suit No. 66 of 1977, filed title execution case No. 10 of 1998 to execute the decree passed in the said suit. This execution proceeding was resisted by the plaintiff of title suit No. 40 of 2002, the R.S.I. Limited, who alleged his lawful sub-tenancy right in the suit premises, by filing application under Order 21 Rule 97, 99 and 101 read with Section 151 of the Code of Civil Procedure, 1908, resulting the initiation of misc case No. 25 of 1998, which was dismissed on 15th January, 2000 by learned Civil Judge (Senior Division), Fourth Court at Alipore, dated 24-Parganas (South). Appeal being No. FMAT 1056 of 2000 as preferred by the petitioner of the said misc case namely the R.S.I. Limited in the High Court at Calcutta, also was dismissed. Special Leave Petition being (Civil) No. 11016 of 2001 was filed by the applicant of misc. case No. 25 of 1998, unsuccessfully, wherein M/s. R.S.I. Limited, the plaintiff of present title suit No. 40 of 2002, was directed to vacate the suit premises by 31st July, 2002. The plaintiff of the suit vacated the suit premises in due compliance of the order of the Apex Court and thereafter filed this title suit to reopen the entire matter alleging, inter alia, that though the plaintiff was inducted as sub-lessee in the suit premises by the lessee/tenant defendant No. 2 of the suit and the plaintiff paid the monthly rental to the said defendant No. 2 of the suit being title suit No. 48 of 2002, but after the final adjudication of the Special Leave Petition as filed by the plaintiff and vacating of the suit premises on due compliance of Apex Court's order, it came to the notice that defendant No. 1, The Property Company Pvt. Ltd., instituted the earlier suit being No. 66 of 1977 by practicing fraud upon the Court contending, inter alia, that the plaintiff of the said suit had the ownership of the said premises though subsequently it revealed that the plaintiff of the said suit of 1977, who is defendant No. 1 of the present suit, had no title over suit premises. It is further contended that suppressing such material facts, earlier suit was filed and on the basis of such facts of ownership as disclosed by the plaintiff of the suit of the year 1977, eviction decree was passed by the Court of law, which ultimately was upheld in the Special Leave Petition. It has been accordingly contended in the present title suit that the decree of eviction passed in suit No. 66 of 1977 was nullity due to exercise of the fraud aforesaid.
(3.) In the plaint of the present title suit No. 48 of 2002 the plaintiff averted in different paragraphs on the said issue. The relevant paragraphs are as follows : "17. The plaintiff states that the fact that the defendant No. 1 was not the owner/landlord of the said premises and therefore, was not authorised to file or obtain a decree of ejectment against the defendant No. 2, was not made known to any of the Court that dealt with the matter. Since the aforesaid fact was also suppressed from the plaintiff, the plaintiff also did not know that the defendant No. 1 had no locus standi to institute the said ejectment suit. The decree dated 13th September, 1988 was thus, obtained by fraud, collusion and/or by suppression of material facts and as such, is void-in the eye of law. 19. The plaintiff submits and contents that since the defendant No. 1 colluded with the defendant No. 2 and/or practiced fraud upon Court, the same should be declared null and void or a nullity. In the premises aforesaid, the plaintiff is entitled for a decree that the eviction decree passed by the learned 4th Court of Senior Civil Judge at Alipore on 13.9.1988 in Title Suit No. 66 of 1977 be declared as null and void and the same is not binding upon the plaintiff. The plaintiff is further entitled to for a decree that this learned Court is entitled to set aside the said decree passed in Title Suit No. 66 of 1977 as the same was obtained by fraud or by suppressing facts. 20. The plaintiff states that they are in lawful possession of the suit property or portion thereof. They are also entitled to remain in occupation and enjoyment of the suit property from any obstruction or invasion either from the defendant No. 1 and/or from the defendant No. 2 or any persons claiming any title in respect of the demised premises. Alternatively, the plaintiff states that they cannot be ousted from the suit property or any portion thereof without due process of law as the decree passed in Title Suit No. 66 of 1977 was not binding upon them. 23. The cause of action of this suit arose on 19th day of June, 2002 when the plaintiff for the first time came to know that the defendant No. 1 is not the owner of the suit property and/or any portion thereof, and they have practiced fraud upon the judiciary for obtaining a decree passed in Title Suit No. 66 of 1977 in collusion with the defendant No. 2, and such cause of action is continuing day by day at premises No. 1, Bishop Lefroy Road, Kolkata - 700 020, Police Station Bhowanipore, District : South 24 Parganas within the jurisdiction of this learned Court. 24. The plaintiff states that various persons will be interest when the plaint will be discovered in course of the proceeding and as such, they are entitled for a leave under Order 1 Rule 8 of the Code of Civil Procedure. At the same time, leave may also be granted to the plaintiff under Order 2 Rule 2 of the Code of Civil Procedure." Plaintiff of the suit of 2002 accordingly prayed the following decree: "(a) Leave under Order 2 Rule 2 of Code of Civil Procedure, 1908; (b) The decree passed by the learned 4th Court of Senior Civil Judge at Alipore in Title Suit No. 66 of 1977 on 13th September, 1988 be adjudged and/or declared as a void decree and/or nullity; (c) Declaration that the decree dated 13th September, 1988 passed by the learned 4th Court of Senior Civil Judge at Alipore in Title Suit No. 66 of 1977 is a void decree and therefore, not binding upon the plaintiff; (d) Necessary order be passed for setting aside the decree passed in Title Suit No. 66 of 1977 on 13th September, 1988; (e) Declaration that the plaintiff is a bona fide sub-tenant of the said property described in the Schedule hereunder written; (f) Declaration that the plaintiff is entitled to occupy the said property as a tenant after paying the stipulated rent to the real owner of the suit property; (g) Permanent injunction restraining the defendants jointly and/or severally and/or their officers and/or their associates and/or their activists from any way interfering and/or invading the plaintiffs peaceful possession and/or occupation and/or enjoyment of the suit property or any portions thereof; (h) Declaration that the decree passed in Title Suit No. 66 of 1977 being a void decree is also not executable." ;