HAZRA MEDICAL STORES PRIVET LTD Vs. BISWANATH SARKAR

JUDGEMENT

(1.) The above application has been taken out by notice of Motion by the defendants No. 1 to 9 for revocation of leave under Clause 12 of the Letters Patent and leave granted under Order 2 Rule 2 of the Civil Procedure Code and further to hold that this Court has no jurisdiction to entertain the suit for adjudication since it is a suit for land. Upon reading of the petition being the grounds of the Motion it appears to me that this demurer action has been taken for rejection of the plaint on the ground that no part of cause of action has arisen within the jurisdiction of this Court and further this is a suit for land. Mr. Haradhan Bandyopadhyay, appearing for the defendants/applicants, at the time of the argument has conceded to the proposition of law that this Court can entertain a suit for enforcement of specific performance of agreement for sale of the immovable property simpliciter but no relief for possession of the immovable property can be granted in the suit. He contends that relief claimed for perpetual injunction and also mandatory injunction if granted, involves the trial and adjudication of title to the land in question. Admittedly the property situates outside the territorial limit of this Hon'blc Court as such the suit, if the plaint is read as a whole with reference to the relief claimed, is essentially a suit for land. According to him, granting relief for specific performance for agreement for sale automatically touches and/or relates to right, title and further granting possession of the land. He further contends that it has been falsely averred in the plaint that part of cause of action has arisen within the jurisdiction of this Hon'ble Court. In support of his submission he has relied on the decisions of the Division Bench of this Court reported in 2003(2) WBLR 42, AIR 1970 Cal 539 and 2003(2) SCC 111.

(2.) Mr. Shyamal Sarkar, learned Advocate appearing for the plaintiff/ petitioner, while opposing this demurer action, contends that it is settled position of law that while granting decree for specific performance of agreement for sale of an immovable property Court is not required to decide the title, as such the relief can be granted by the Civil Court even though the property situates outside the territorial limit of the Court. In other words, he contends that the relief claimed in the plaint does not relate to the land at all. He further contends that relief for perpetual injunction and mandatory injunction does not require any adjudication of title or delivery of possession. He submits that if the plaint is read as a whole it will appear that the plaintiff has not claimed possession in as much as he is in possession of the property in question though in different status. In support of his submission he has relied on three decisions of this Court reported in AIR 1981 Cal 146, AIR 1993 Cal 70 and a decision of a learned single Judge of this Court rendered in G.A. No. 741 of 2000, in C.S. No. 217 of 1989 (Deepak Prakash & Ors. v. Jayanta Kumar Bose & Ors.) and Supreme Court decision reported in 2001(7) SCC 698 (Adcon Electronics Private Limited v. Daulat & Anr).

(3.) Having heard contentions of the learned counsels I have read the plaint carefully and with reference to the relief claimed therein. I find that at this stage reading of the plaint is only exercise to decide the aforesaid Motion. I find from the plaint that the plaintiff has asked for decree for specific performance of an agreement for sale of an immovable property and permanent injunction restraining the defendants and each of them whether by themselves or their men, agents or assigns or otherwise howsoever from transferring, encumbering, dealing with, disposing of or creating any third party right or interest over and in respect of the premises No. 62/1C, Diamond Harbour Road, Kolkata - 700 023; mandatory injunction directing the defendants No. 1 to 9 and each of them whether by themselves or their men, agents or assigns or otherwise however to forthwith execute and register the Deed of Conveyance in favour of the plaintiff over and in respect of premises No. 62/1C, Diamond Harbour Road, Kolkata - 700023.