Sarala Baidya v. Sakthi Vel

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA CO 13 of 2022 Sarala Baidya ... Petitioner Vs.

Sakthi Vel ... Opposite Party For the petitioner :

Mr. Arul Prasanth For the opposite party :

Mr. KMB Jayapal Heard on :

July 20, 2022 Judgment on :

July 20, 2022 HIRANMAY BHATTACHARYYA, J.

The defendant in a suit for permanent injunction has filed this application under Article 227 of the Constitution of India challenging the order dated June 03, 2022 passed by the learned Civil Judge, Junior Division-I, Port Blair in Other Suit No. 18 of 2021. By the impugned order, the application under Order VII Rule 11 of the Code of Civil Procedure was rejected.

The learned advocate appearing for the petitioner draws the attention of the Court to an order passed by a Coordinate Bench on April 19, 2017 in WP No. 450 of 2016 whereby the Tehsildar was directed to implement his order passed directing eviction of the wife of the plaintiff and to hand over possession to one Smt. Medona Baisal. The said order was carried in appeal and the Hon'ble Division Bench disposed of the appeal being MA No. 019 of 2017 without interfering with the order passed in the writ petition but by modifying the order to the extent directing the Tehsildar to implement the order passed by him after giving an opportunity of hearing to all concerned.

The said learned advocate further refers to the recording in the Holding Register to impress upon this Court that the defendant is in possession of the suit property and his name has been duly recorded therein. He further refers to a report of the Assistant Commissioner dated December 3, 2019 to show that the plaintiff/opposite party herein is in unlawful possession of the property of the petitioner.

The learned advocate for the petitioner submits that the plaint is liable to be rejected only on the basis of an observation made by a Coordinate Bench in an earlier civil order that the cause of the plaintiff does not lie against the defendant. He

submits that the said decision of the Coordinate Bench is binding upon learned Trial Judge as well as this Court sitting under Article 227 of the Constitution of India. The learned advocate submits that the learned Trial Judge while rejecting the application under Order VII Rule 11 did not take into consideration the aforesaid documents which forms part of this revisional application and the findings of the learned trial judge is contrary to the aforesaid observation made in the earlier civil order.

He further draws the attention of this Court to the order dated July 1, 2022 passed by a coordinate Bench at the time of admission of the revisional application and submits that the coordinate Bench expressed an opinion that the learned Trial Judge while passing the impugned order did not take into consideration the order passed in CO 15 of 2021. The learned advocate further submits that the leaned Trial Judge misconstrued the order passed by the Coordinate Bench in observing that the Coordinate Bench made an observation for addition of party. Thus the learned advocate submits that the application may be remanded to the learned Trail Judge for a fresh consideration.

Mr. Jayapal, learned advocate appearing for the opposite party submits that the plaintiff has pleaded in detail the cause of

action against the defendant. He further submits that the learned Trial Judge after considering the statements made in the plaint has arrived at a conclusion that the plaint discloses cause of action against the defendant. He therefore prays that this revisional application may be dismissed Heard the learned advocates for the parties and considered the materials on record.

The petitioner seems to have been encouraged by an observation made by a Coordinate Bench in the order dated March 16, 2022 in CO 15 of 2021 that the cause of the plaintiff does not lie against the defendant herein and accordingly filed the application for rejection of plaint as would be evident from the ground taken in the application under Order VII Rule 11 of the Code.

It is well settled that the Court while considering the application under Order VII Rule 11 of the Code has to confine its scrutiny only to the statements made in the plaint. The Court while deciding an application for rejection of plaint is to accept the averments made in the plaint to be true. A plaint cannot also be rejected on the basis of the allegations made by the defendant in the application for rejection of plaint. The Court has to read the

entire plaint as a whole to find out whether it discloses a cause of action. [See Kuldeep Singh Patharia vs. Bikram Singh Jasyal reported at (2017) 5 SCC 345]. The documents relied upon by the learned advocate for the petitioner is only to impress upon this Court that the claim made by the plaintiff is not a genuine one. Whether the plaintiff will ultimately succeed in the suit is a matter to be decided after conducting a full-fledged trial. Thus this Court is of the considered view that the documents relied upon by the learned advocate for the petitioner in support of his contention that the defendant has a better right in respect of the suit property or that the plaintiff has no manner of any right, title and possession in respect of the suit property cannot be taken into consideration at this stage.

The next issue that arises is whether the plaint can be rejected by solely relying upon the observation of the Coordinate Bench in CO 15 of 2021 that the cause of the plaintiff does not lie against Smt. Sarala Baidya. The aforesaid finding of the Coordinate Bench is a prima facie and tentative one, only for the purpose of deciding the application under order 39 Rule 1 and 2 of the Code of Civil Procedure. The legal tests for grant or refusal of injunction is completely different from that of rejection of a plaint as indicated hereinbefore. The said finding, which are prima facie and tentative one, made while deciding a civil order

arising out of a Misc. Appeal in connection with the temporary injunction cannot be said to be binding upon the learned Trial Judge while deciding the application under Order VII Rule 11 of the Code of Civil Procedure as well as upon this Court while deciding the application under Article 227 of the Constitution of India against the order rejecting the application under the Order VII Rule 11 of the Code.

The other argument of learned Advocate for the petitioner is that the learned Trial Judge misconstrued the order of the Coordinate Bench in holding that the Coordinate Bench made an observation for addition of party. Though the said observation may have been made by the learned Trial Judge while considering the application under Order VII Rule 11 of the Code but only for such reason the impugned order is not liable to be set aside. The learned Trial Judge has returned a finding that the plaint disclosed cause of action against Sarala Baidya. This Court after going through statements made in the plaint is of the considered view that the learned Trial Judge was perfectly justified in holding that the plaint discloses cause of action against the defendant.

The observation of the Coordinate Bench at the time of admission is only a prima facie finding after hearing the learned

advocate for the petitioner only for the purpose of admitting the civil revision application and same cannot be said to be binding upon the coordinate bench while disposing of the civil revision application finally on its merits after hearing the learned advocates for the respective parties.

At this stage, the learned advocate for the petitioner submits that a direction may be passed upon the learned Trial Judge to expedite the hearing of the suit. On the query of the Court, learned advocate for the petitioner submits that he shall file written statement within two weeks from date. Let such written statement be filed within two weeks from date. The learned Trial Judge is requested to dispose of the Other Suit No. 18 of 2021 as expeditiously as possible without granting any unnecessary adjournment to either of the parties. For all the reasons as aforesaid this Court is of the considered view that the order passed by the learned Trial Judge does not suffer from any infirmity warranting interference under Article 227 of the Constitution of India.

The revisional application being CO 13 of 2022 stands dismissed without however any order as to costs.

Urgent photo stat certified copy, if applied for, be supplied to the parties upon compliance of all requisite formalities. (Hiranmay Bhattacharyya, J.)