BIVA PYNE Vs. CHUNILAL PYNE

JUDGEMENT

(1.) Of the several interlocutory applications that have come up for hearing, the one urged first is the defendants' application for rejection of the plaint relating to this suit on the principal ground that it is barred by Order II Rule 2 of the Code of Civil Procedure. The defendants say that the first plaintiff had instituted a suit before the Sealdah court and another before the City Civil Court which were based on the same cause of action on which the present suit is founded. The defendants suggest that since the plaintiffs here and the sole plaintiff in the two earlier suits claim on behalf of the Motilal Pyne branch of the family, it would matter little that the second plaintiff, son of Motilal Pyne, was not a party to the previous suits instituted by his mother. The defendants contend that since the plaintiff in the two previous suits had not included the whole of the claim relating to the cause of action without the leave of either court, the plaintiffs here could not have launched this action at all.

(2.) GA No. 3090 of 2006 is the defendants' application for rejection of the plaint relating to the suit as being barred by law. There is also a ground canvassed that this is a suit for land relating to an immovable property situated outside the territorial jurisdiction of this Court. GA No. 2800 of 2006 is the plaintiffs' initial interlocutory application. GA No. 365 of 2008 is the plaintiffs' second surviving application complaining of the violation of an initial order passed in these proceedings coupled with a prayer for amendment of the plaint. GA No. 413 of 2008 is the plaintiffs' further application for restoration of status quo ante based on a complaint of dispossession from a Panihati property which is located several miles north beyond the bounds of the territorial authority exercised on the Original Side. GA No. 3928 of 2008 is the plaintiffs' subsequent application for amendment of the plaint and the plaintiffs say that in view of such subsequent, comprehensive application for amendment, the prayers in GA No. 365 of 2008 relating to amendment may be disregarded. GA No. 596 of 2009 is the fourth defendant company's application for liberty to utilise funds lying in its bank accounts to meet its statutory and legal expenses. GA No. 2039 of 2009 is an application by the alleged subsequent purchasers of the Panihati property, who are now proposed to be added as defendants in the plaintiffs' amendment application, for vacating an order subsisting in these proceedings that apparently affects them.

(3.) It is imperative that the frame of the suit, the nature of the cause of action pleaded and the reliefs claimed in this suit be first noticed. The plaintiffs claim that one Chaitanya Charan Pyne was the father of the predecessor-in-interest of the plaintiffs and the defendant nos. 1 and 2. Chaitanya Charan had five sons, each of them named after a precious stone: Hiralal, Motilal, Pannalal, Chunilal and Jaharlal, though not necessarily in that order. Chaitanya Charan also had two daughters but there is no further reference to the daughters beyond the second paragraph of the plaint. According to the plaint, an elder brother of Chaitanya Charan, Gour Mohan, was a member of the Calcutta Stock Exchange and carried on business under the name and style of GM Pyne. The plaintiffs claim that Gour Mohan admitted Chaitanya Charan as a partner of the firm and ultimately left it to Chaitanya Charan to run the business. Gour Mohan was a bachelor and died in 1948. The plaintiffs aver that Chaitanya Charan carried on the business of the firm and acquired substantial properties from the profits of the business and held the properties, inter alia, in the names of limited liability companies. The plaint narrates that Chaitanya Charan inducted his sons into what had then become a family business and for the purpose of acquiring immovable properties for the family, the fourth defendant company was incorporated in whose name the properties were to be parked. At paragraph 8 of the plaint it is stated that the Pyne family, in the name of the fourth defendant, acquired several immovable properties including one at Panihati, another at Amherst Row, a third at China Bazar Street, a fourth at D.L. Roy Street and a fifth at Narkeldanga. The plaintiffs' predecessor-in-interest held 1800 shares out of the 4000 issued equity shares in the fourth defendant company at the time of his death in 2002.