NITYANANDA DAS Vs. USHA RANI DAS

JUDGEMENT

(1.) This application is at the instance of the defendant no.1 and is directed against the order no.18 dated July 24, 2008 passed by the learned Civil Judge (Junior Division), Sixth Court, Alipore in Title Suit No.254 of 2006 thereby rejecting an application under Order 7 Rule 11(d) of the Code of Civil Procedure.

(2.) The plaintiffs/opposite parties filed the title suit for a decree of declaration that the plaintiffs are the absolute owners in respect of 1/4th share each in the suit property, as described in schedule A & B, a decree of declaration that the alleged deed of 1990 in favour of Nityananda Das and others is void and not binding upon the plaintiffs and for permanent injunction not to sell the suit property and not to change the nature and character of the suit property. In that suit, the defendant appeared. Thereafter, he filed an application under Order 7 Rule 11(d) of the C.P.C. stating, inter alia, that the plaintiffs suppressed the fact that previously the plaintiff no.2 filed a writ petition under Article 226 of the Constitution of India praying for certain reliefs which is same with the relief sought for in the suit and that the application was disposed of on June 29, 2004 finding that the property did not pass to any of his heirs on the death by reason of law of succession. Being aggrieved, the plaintiff no.2 preferred an appeal before a Division Bench at Calcutta and the Hon'ble Division Bench dismissed the said appeal. Therefore, this suit is not maintainable in the present form. Mr. Midya, learned Advocate appearing on behalf of the petitioner, has submitted before this Bench in the same manner just referred to above and he has stated the specific case numbers of the writ petition and the appeal arising therefrom and thus he has submitted that the plaint should be rejected. The learned Trial Judge was not justified in rejecting the application. In support of his contention Mr. Midya has also referred to the decision of Hardesh Ores (P) Ltd. Vs. Hede & Company reported in (2007) 5 SCC 614 and Popat & Kotecha Property Vs. State Bank of India Staff Association reported in (2005) 7 SCC 510.

(3.) On the other hand, Mr. Dey, learned Advocate appearing on behalf of the opposite parties, has submitted that at the initial stage there is no scope for consideration of those documents being of the nature of defence. On perusal of the plaint, it does not appear that the suit is barred by limitation.