- (1.) This is an application under Article 227 of the Constitution of India against judgement and order dated January 20, 2006 passed by the learned District Judge, District: South 24 Parganas in Civil Revision Case No. 3 of 2006 affirming the order dated January 12,2006 passed by the learned Civil Judge (Junior Division), Second Court at Alipore, District: South 24 Parganas in Title Suit No. 231 of 2004.
(2.) Both the Courts below concurrently rejected an application filed by the defendant No 6/petitioner under Order 7, Rule 11 of the Code of Civil Procedure praying for rejection of the plaint.
(3.) Following facts are relevant to deal with this application under Article 227 of the Constitution of India: (a) Admittedly. Asit Kumar Ghosh, since deceased, was the original landlord of 23A, Asutosh Chowdhury Avenue, previously known as 23A,Old Baliygunge Road, Kolkata. (b) Asit Kumar Ghosh inducted Moolji Sicca and Company, a partnership firm, as a tenant at a monthly rental of Rs. 1001/- payable according to English calendar. (c) Asit Kumar Ghosh instituted Title Suit No. 54 of 1972 in the Court of the learned Subordinate Judge, Second Court at Alipore on July 31, 1972 against the said firm, namely, Moolji Sicca and Company, and its partners. (d) Eventually, the suit was transferred to the Court of the learned Assistant District Judge, Fifth Court at Alipore, District: South 24 Parganas and was re-numbered as Title Suit No. 120 of 1983. (e) While Moolji Sicca and Company was impleaded as defendant No. 1, the defendant Nos. 2 to 5 were impleaded in the said suit as partners of the defendant No. 1/firm. (f) The said suit was for ejectment, recovery of arrears of rent and mesne profits. The plaintiff contended that the defendants have defaulted in payment of rents since January, 1970 and that the defendants sublet the suit premises to third party without the consent and knowledge of the plaintiff. (g) Although the said defendants appeared in the suit but, ultimately did not contest the suit at the trial. (h) The learned Assistant District Judge, Fifth Court at Alipore, District: South 24 Parganas, by judgement and decree dated August 4,1992, decreed the suit ex parte and granted the plaintiff a decree for recovery of khas possession, arrears of rent to the extent of Rs. 6006/-, mesne profits at the rate of Rs. 1001/- from July, 1972 till the date of recovery of khas possession of the suit premises. The learned Trial Judge held that the defendants were defaulter in payment of rents since January, 1970 and that the said defendants sublet the suit premises to third party without the knowledge and consent of the plaintiff. (i) In the judgement the learned Trial Judge noted that by Order No. 137 dated September 19,1977 the application filed by the defendant under Sections 17(2) and 17(2A)(b) was disposed of, inter alia, directing the defendants to pay arrears of rent for the period between January, 1970 and August, 1972 at the rate of Rs. 1001/- in monthly instalment of Rs. 1,500/-, but the defendants did not comply with the said order. (j) The decree holder filed Title Execution Case No. 3 of 1993 for execution of the said decree. The execution case is still pending. (k) One of the daughters of Moolji Sicca filed an application under Order 9, Rule 13 of the Code of Civil Procedure for recalling of the ex parte decree. She, also, filed an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing such application. The said proceeding has been registered as Misc. Case No. 10 of 1993 and is pending before the Court of the learned Civil Judge (Senior Division), Fifth Court at Alipore, District: South 24 Parganas. (I) One of the sons of Moolji Sicca filed an application under Section 47 of the Code of Civil Procedure challenging the executibility of the said decree. The said application has been registered as Misc. Case No. 12 of 1994 and is pending in the Court of the learned Civil Judge (Senior Division), Fifth Court at Alipore, District: South 24 Parganas. (m) Unfortunately, the original plaintiff could not enjoy the fruit of the decree as he died on November 18,1994. However, he left behind his last will and testament dated September 28,1994. (n) On April 27, 2002 the executor obtained probate of the said will. (o) Pradip Kumar Ghosh, the executor to the estate of Asit Kumar Ghosh, the Opposite party No. 1 in this revisional application, instituted Title Suit No. 231 of 2004 in the Court of the learned Civil Judge (Junior Division), Second Court at Alipore against the present petitioner and the oposite party Nos. 2 to 8 in this revisional application. In the said suit, the petitioner is impleaded as defendant No. 6 and the opposite party No. 8, namely, the Commissioner, Kolkata Municipal Corporation, is impleaded as proforma defendant. (p) In the said suit, the said plaintiff prayed for a decree for perpetual injunction restraining the defendant Nos. 1 to 6 from subletting the suit premises or from changing the nature and character or parting with possession of the suit premises for holding political party conferences, marriage ceremonies and for any other commercial purpose to any third party; perpetual injunction restraining the said defendants from making any illegal and unauthorised construction in the suit premises; a decree directing the said defendants for rendering accounts and produce the papers in connection with the use of the suit premises for non-residential purposes to the third parties on and from August 4, 1992 till the filing of the suit and thereafter till the recovery of khas possession of the suit premises, a decree directing the said defendants to pay taxes for the wrongful use of the suit premises; a decree directing the said defendants to demolish the unauthorised constructions made by them in the suit premises. (q) It was contended in the said suit that after passing of the decree in the earlier suit the defendant Nos. 1 to 6 have been in unauthorised occupation of the suit premises as trespassers. They have no right to use the suit premises for non-residential purpose as the premises was let out on monthly rental basis to a monthly premises tenant for residential purpose. The defendant No. 1, with the help and assistance of defendant Nos. 2 to 6, has been letting out the suit premises on daily rent to third parties for holding marriage ceremonies and other social and political functions and the defendants have been collecting huge sum depriving the actual owner. The defendant Nos. 1 to 6 have no right to change the nature and character of the suit premises, that is, to describe it as 'Sicca Palace' in stead and in place of Zamindari Estate of Asit Kumar Ghosh. Therefore, they should be restrained from using the suit premises for commercial purposes. The defendant Nos. 1 to 6 have made unauthonsed and unsanctioned constructions in the suit premises without the permission of the plaintiff causing serious damages to the main building. The defendant No. 7, the Kolkata Municipal Corporation, have been demanding taxes at the commercial rates, but since'the original owner never applied for change of the user of the suit premises, the defendant No. 7 was not entitled to recover taxes at the commercial rates. (r) In the said suit, Mahendra Kanji Sicca, the defendant No. 6, on or about November 25, 2005, filed an application under Order 7, Rule 11 of the Code of Civil Procedure praying for rejection of the plaint. In the said suit, he contended that the plaintiff had no cause of action for the present suit. The present suit has been barred by law. During the pendency of the execution proceeding for execution of the decree passed in the said Title Suit No. 120 of 1983, except a proceeding under Section 47 of the Code of Civil Procedure by and between the parties of the execution case, no separate suit could be instituted. (s) Therefore, the plaint of the present suit was liable to be rejected under Rules 11 (a) and 11 (d) of Order 7 of the Code of Civil Procedure. (t) By filing a supplementary affidavit to the said application under Order 7, Rule 11 of the Code of Civil Procedure it was contended that Asit Kumar Ghosh was not the owner of the said premises. Therefore, by virtue of the probate of the will of the said Asit Kumar Ghosh, the plaintiff of this suit, as the executor to the estate of Asit Kumar Ghosh, did not acquire any right, title and interest to institute the present suit claiming reliefs against the defendants. (u) The learned Civil Judge (Junior Division), Second Court at Alipore, District: South 24 Parganas by order dated January 12,2006 rejected the said application under Order 7, Rule 11 of the Code of Civil Procedure. (v) The defendant No. 6 being aggrieved by and dissatisfied with the said order dated January 12, 2006, filed an application under Section 115A of the Code of Civil Procedure in the Court of the learned District Judge at Alipore, District: South 24 Parganas. (w) The revisional application was registered as Civil Revision Case No. 3 of 2006. (x) By judgement and order dated January 20,2006 the learned District Judge, also, rejected the said revisionai application holding, inter alia, that, prima facie, the plaintiff was entitled to institute the present suit. The learned District Judge, however, affirmed the findings of the learned Trial Judge that pendency of the applications under Section 47 of the Code of Civil Procedure nor under Order 9, Rule 13 of the Code of Civil Procedure could create a bar in the institution of the present suit for perpetual injunction The learned District Judge held it was for the plaintiff to prove his title and if he could not do so, the suit would ultimately fail, but at this stage the plaint could not be rejected. (y) Being aggrieved the defendant No 6 has come up with this application undei Article 227 of the Constitution of India;