PROMATHA NATH GHOSE Vs. ISWAR GOPAL JIU

JUDGEMENT

(1.) In this matter the applicant who is one of the defendants in: the suit, made an application to the Court asking that the plaint should be struck out and that the suit should be dismissed on the ground that the plaintiff had not or, at any rate had no longer any cause of action. What is said is that the suit is solely the outcome of what is usually described as a claim case in which the defendant who is the, petitioned before me Claimed to be interested in a certain property in Tollygunge in regard to which the plaintiff in the suit was maintaining that defendants 2 to 9 were his tenants and that their interest was liable to be disposed of in order to satisfy a decree for rent which the plaintiff had already obtained. In the claim matter it, was decided that the present petitioner had, acquired the interest of the other defendants by means of a sale at an auction which took place in the year 1910. The plaintiff instituted the present suit in order to get rid of the decision in the claim matter in order to enable him to proceed to execution against the interest of defendants 2 to 9.

(2.) It appears that, the suit was started several years ago and after it had pro-needed on its way, for a considerable period, one of the defendants, i. e., defendant 9 paid a sum of money to the plaintiff which, the present petitioner avers, was sufficient to satisfy the plaintiff's claim in the original suit. This is denied by the opposite parties :" in this proceeding they say that the amount paid was in fact only sufficient to satisfy the original claim excluding the costs and expenses incurred and interest on the amount claimed. The learned Munsif in declining to make an order which Would have in effect put an end to the suit, seems to have proceeded upon the basis that subsequent to the institution of the suit the amount of the original decree had been in fact, satisfied. But he took the view that as at the time when the suit was instituted the plaintiff had a good cause of action he ought to come to the conclusion that that being the position the question whether the plaintiff ought ultimately to succeed, was a matter to be decided in the suit itself. If one looks at the application made to the Munsif and the second application to review the order which he made, it must be apparent at once that in effect the application was of the kind indicated at the outset , namely, an application strike out the plaintiff's pleadings as no longer disclosing a cause of action. In this view of the matter Mr. Chuckrabutty on behalf of the opposite party argues that this present application becomes a matter of an attempt to set aside what is in its nature an interlocutory order, or at any rate, in effect an inter locutory order in the proceedings before the Munsif.

(3.) There is another- aspect of the case which has been presented before me on behalf of the opposite party and it is this : that the claims in the suit are far wider than the mere asking for a declaration that the property in question or rather the defendant's interest in the property in, question is liable to attachment and available for execution proceedings. It does appear that the plaintiff in bringing the suit is also asking for further relief which are designed to have the effect of establishing his own position with regard to the property in question in that he is claiming to be the owner of the property and that defendants 2 to 9 are his tenants on such terms that they are liable to be dispossessed at the will of the plaintiff. The plaintiff is also seeking a declaration against the other defendant the present petitioner declaring that he has no interest whatsoever in the property in question.