Calcutta High Court (Appellete Side)
Ramesh Kumar Kejriwal & Ors vs Mamesh Kumar Kejriwal & Ors on 3 March, 2025
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
03.03.2025
Sl. No. M/L12
g.b.
Court No.06
CO 713 of 2025
Ramesh Kumar Kejriwal & Ors.
-Vs-
Mamesh Kumar Kejriwal & Ors.
Mr. Sukreet Mukherjee
Mr. Satrajeet Sen
Mr. Anurag Bagaria
…..For the Petitioners
Mr. Avirup Mondal
Ms. Ahana Ghosh Mondal
Mr. Debdipta Sen
…..For the Opposite Party
This application under Article 227 of the
Constitution of India is at the instance of the defendants
and is directed against an order dated November 16, 2024
and February 1, 2025 both passed by the learned Civil
Judge (Junior Division), 1st Court, Uluberia, District
Howrah in Title Suit No.111 of 2007.
By the order dated November 16, 2024 the
application under Order VI Rule 17 of the Code of Civil
Procedure filed by the opposite party herein stood
allowed. The petitioners herein filed an application
praying for recalling of the order dated November 16, 2024
which stood rejected by an order dated February 1, 2025.
The opposite party herein filed a suit for declaration that
he is the absolute owner of the suit property upon a further
declaration that the Deed of Sale dated 26 th of May, 2006
is illegal, void, collusive, fraudulent and not binding upon
the plaintiffs/opposite parties herein and liable to be set
2
aside. An alternative relief for cancellation of those deeds
was also prayed for. The opposite party herein also
prayed for a decree of permanent injunction.
The petitioner herein filed an application under
Order VII Rule 11 of the Code of Civil Procedure praying
for rejection of the plaint on various grounds including that
the suit was not properly framed. However, after the
application under Order VII Rule 11 was taken up for
hearing, the opposite party herein filed an application
under Order VI Rule 17 of the Code of Civil Procedure
praying for amendment of the plaint.
The learned Trial Judge took up the hearing of the
application under Order VI Rule 17 of the Code of Civil
Procedure by keeping the application under Order VII Rule
11 of the Code pending though the application for rejection
of plaint was filed at an earlier point of time.
The learned advocate appearing for the petitioners
submits that when the application for amendment of plaint
was filed in course of hearing of the application for
rejection of plaint, the learned Trial Judge ought to take up
the hearing of the application under Order VII Rule 11 of
the Code of Civil Procedure prior to taking up the
application for amendment of plaint. The learned
advocate further submits that the learned Trial Judge did
not have the jurisdiction to decide the suit as it was
originally framed in view of the fact that the alternative
relief praying for cancellation of the deed is also required
3
to be valued on the market value of the suit property and if
the suit is correctly valued, it would oust the pecuniary
jurisdiction of the learned Trial Judge. He submits that
since the learned Trial Judge lacks jurisdiction to decide
the relief claimed in the original plaint, the application for
amendment of plaint could not have been taken up by the
learned Trial Judge.
In support of such contention he places reliance
upon the decision of the Hon’ble Division in the case of
Mst. Zohra Khatoon Vs. Janab Mohammad Jane Alam
and Others reported at AIR 1978 Cal 133 and in the
case of Manthan Brand Band Services Pvt. Ltd. and
Anr. Vs. C. K. T. Communications Pvt. Ltd. reported at
AIR 2005 Cal 317. The said learned advocate also places
reliance upon the decision of the Hon’ble Supreme Court
in the case of Patasibai & Ors. Vs. Ratanlal reported at
(1990) 2 SCC 42 in support of his contention that a highly
belated application with the object of averting the
inevitable consequence of rejection of plaint is liable to be
rejected.
Per contra the learned advocate for the opposite
party places reliance upon a decision of a Co-ordinate
Bench delivered on May 15, 2009 in the case of
Nellimarla Jute Mills Company Ltd. Vs. Rampuria
Industries & Investments Ltd. in support of his
contention he submits that the Order VII Rule 11 of the
4
Code does not take away the power of the court to allow
the amendment of the plaint.
Learned advocate for the opposite party further
places reliance upon a decision in the case of Sri Dipak
Kumar Paul & Anr. Vs. Subhadra Mondal & Anr. in CO
2060 of 2022, order dated 12th September, 2022 in
support of his contention that the order on the issue of
under valuation of the suit has to be decided during the
final hearing of the suit.
Heard the learned advocates for the parties and
perused the materials on record.
The opposite party instituted the suit praying for the
following reliefs:
(a) “for a decree of declaration that M/s. Shree
Hanuman Cotton Mills Limited is the absolute
owner of the entire suit property upon further
declaration that the Deeds of Sale dated
26.5.2005 in favour of Smt. Ekota Ghosh and
Smt. Shibani Bhaduri are illegal, void, collusive,
fraudulent, not binding on the plaintiffs and
those are liable to be set aside; alternatively for
cancellation of those Sale Deeds;
(b) for a decree of permanent injunction restraining
the defendants, their men and agents from
selling, alienating or encumbering the suit
property;
(c) ………….
5
(d) …………”
After reading the plaint as a whole and the reliefs
claimed this court finds that the plaintiff has challenged the
Deed of Sale dated 26th of May, 2005. The
plaintiff/opposite party herein is not an executant of the
said Deed of Sale dated 26th of May, 2005.
The Hon’ble Supreme Court in Suhrid Singh Alias
Sardool Singh Vs. Randhir Singh & Ors. reported at
(2010) 12 SCC 112 has held that where the executant of a
deed wants it to be annulled, he has to seek cancellation
of the deed. But if a non-executant seeks annulment of a
deed, he has to seek a declaration that the deed is invalid,
or non est, or illegal or that it is not binding on him.
By applying the aforesaid proposition of law laid
down by the Hon’ble Supreme Court in Suhrid Singh
(supra) this court is of the considered view that the
plaintiff/opposite party herein who has challenged the
Deed of Sale dated 26 th May, 2005 being a non-executant
was not required to pray for cancellation of the said Deed
of Sale.
The question of abandonment of a relief arises if
plaintiff prays for relief and he wants to abandon the same
or withdraw from a part of the claim. In the case on hand
there was no necessity for the plaintiff to pray for
cancellation of the deed. Therefore, the alternative relief
praying for cancellation of deed was merely a surplusage.
6
The opposite party herein sought to amend the
plaint only to make the reliefs in tune with the well settled
proposition of law laid down by the Hon’ble Supreme
Court in Suhrid Singh (supra).
To the mind of this Court, the amendment sought
for does not amount to abandonment of a relief claimed as
the question of abandonment of relief would arise only if
the plaintiff desires not to claim a particular relief.
In view of the findings recorded hereinbefore, this
court finds that the learned Civil Judge cannot be said to
lack jurisdiction to decide the suit as it was originally
framed.
In Zohra Khatoon (supra) the Hon’ble Division
Bench noted that where the court inherently lacks
jurisdiction to entertain the suit it cannot make any order
for amendment to bring the suit within its jurisdiction.
In view of the observation made hereinbefore, the
said decision in Zohra Khatoon (supra) cannot come to the
aid of the petitioner. In Manthan Brand Band Services
Pvt. Ltd. (supra), the plaintiff therein wanted to relinquish
part of the claims by filing an application for amendment of
plaint. On such facts it was held that the Court should
return the plaint along with the application of amendment
of plaint to the learned advocate for the plaintiff for
presentation before the Court where it ought to have been
filed and before such Court, the plaintiff should press the
application thereby praying for reducing the valuation of
7
the suit by giving up a part of the claims. The said
reported decision is distinguishable on facts and,
therefore, cannot be applied to the case on hand.
Now this Court shall proceed to decide the
objection raised by the learned advocate for the petitioner
that the application under Order VII Rule 11 which was
filed prior in point of time ought to have been taken up
before taking up the hearing of the application for
amendment of plaint.
The Co-ordinate Bench in Nellimarla Jute Mills
Company Ltd. (supra) has held that conjoint reading of
Order VII Rule 11 and Order VII Rule 13 gives sufficient
indication that if plaintiff wants to cure the defects in the
plaint by supplying the lacking materials in the plaint and/
or to cure any other defects therein, as the case may be,
the prayer for amendment should not be rejected and if
after allowing the amendment, the court finds that the
requirements for maintaining the plaint are fulfilled, the
plaint cannot be rejected under Order VII Rule 11 of the
Code of Civil Procedure. This Court held thus:
“In fact, the question as to whether the Court
can consider the plaintiff’s prayer for
amendment of the plaint when it is found that
the plaint, as it stood, as on the date of
presentation of the plaint, is liable to be rejected
on any of the grounds under order 7 Rule 11 of
the Code of Civil Procedure or not, is no longer a
res integra in view of the decision of this Hon’ble
Court in the case of Ahmed Hossein – Vs.-
8
Chembelli reported in AIR 1951 Cal 262 wherein
the following principle of law was laid down after
taking into consideration various decisions of
our High Court as well as of different other High
Courts including the decision of our high Court
which was cited by Mr. Mitra:-
“Para 6 : What then is the
object of Order 7 Rule 11? The
Rule contemplates four cases
viz: (a) where the plaint does
not disclose a cause of action;
(b) where the relief claimed has
been undervalued; (c) where
Court fees of full value have
not been supplied and (d)
where the suit appears on the
face of the plaint to be barred
by any law. In none of these
cases even if the rule had not
been enacted a decree could
have been passed. In cases (a)
and (d) no decree could be
passed for the reason that
either there was no cause of
action on which a decree could
be passed or that the suit was
barred. In cases (b) and (c) by
reason of Sections 6 and 28 of
9the Court-fees Act, the plaint
would be invalid and no Court
would file or record it. In the
absence of a provision like
Order 7 Rule 11 in cases (a)
and (b) the suit would have to
be dismissed and in cases (b)
and (c) the plaint would not be
entertained or if entertained
the suit would have to be
dismissed. Order 7 Rule 11
provides that the suit will not
dismissed but only the plaint
will be rejected. Order 7 Rule
13 provides that if the plaint is
so rejected the plaintiff will
not be precluded by reason of
such rejection only from filing
another suit on the same cause
of action. The object of Order
7 Rule 11, therefore, is really
to prevent the ordinary
consequences of dismissal viz.,
to prevent the filing of another
suit on the same cause of
action that is to say prevent
10another suit filed on the same
cause of action from being
barred. If such is the object, it
cannot be defeated by allowing
the plaint to be amended so as
to remove the defect and
prevent the operation of Order
7 Rule 11. The result of saying
that when Order 7 Rule 11
applies the plaint cannot be
amended and would be to say
that it was the intention of the
Legislature that the parties
would be compelled to have the
suit dismissed and start afresh
and made to throw away large
costs incurred in the first suit.
It strikes me as absurd to say
that this was what the
legislature intended. In my
view, therefore, Order 7 Rule
11 does not in the least affect
or take away the Court’s power
or duties as to amendment and
all necessary amendments
11
should be made even if order 7
Rule 11 applies”.
The said decision clarifies the duty of
the Court in such circumstances by
holding inter alia that making of
amendment is not really the matter
of power of a Court but its duty, so
that substantial justice may be done
for which alone Courts exist. It was
further held therein that as a
fundamental principle, the law
strongly favours an amendment
where it is necessary for ends of
justice and it would require the
clearest language to alter the very
beneficial legal principle. It was
further held therein that the object
of Order 7 Rule 11 is to prevent
another suit filed on the same cause
of action from being barred. It was
clearly held therein that Order 7
Rule 11 does not take away the
power of the Court to allow
amendment of the plaints when it
discloses no cause of action.
The said conclusion was drawn
by this Hon’ble Court in the said
decision by considering the provision
of Order 7 Rule 11 of the Code of
12
Civil Procedure as well as the
provision contained in Order 7 Rule
13 of the Code of Civil Procedure.
The effect of the provision contained
in Order 7 Rule 13 of the Civil
Procedure Code is very significant in
the present context as the said
provision makes it clear that even
the rejection of the plaint on any of
the grounds mentioned in Order 7
Rule 11 of the Civil Procedure Code
shall not of its own force preclude
the plaintiff from presenting a fresh
plaint in respect of the said cause of
action. The said provision makes it
clear that even rejection of a plaint
will not debar a partly from filing a
fresh plaint by curing the defects on
the selfsame cause of action. Thus,
the conjoint reading of Order 7 Rule
11 and Order 7 Rule 13 of the Civil
Procedure Code gives sufficient
indication that if plaintiff wants to
cure the defects in the plaint by
supplying the lacking materials in
the plaint and/or to cure any other
defects therein, as the case may be,
the prayer for amendment should not
be rejected and if after allowing the
amendment, the Court finds that the
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requirements for maintaining the
plaint are fulfilled, the plaint cannot
be rejected under Order 7 Rule 11 of
the Code of Civil Procedure.”
In Dipak Kumar Paul (supra), the Co-ordinate
Bench held that the issue relating to maintainability of suit
is best decided during the final hearing of the suit.
This Court accordingly holds that the learned Trial
Judge was right in taking up the hearing of the application
under Order VI Rule 17 of the Code of Civil Procedure
prior to take up the hearing of the application under Order
VII Rule 11 of the Code.
This court has already observed that the proposed
amendment was sought only to bring the plaint of the
instant suit to the tune of the well settled proposition of law
laid down by the Hon’ble Supreme Court in Suhrid Singh
(supra).
This court, therefore, is not inclined to interfere
with the impugned order. Now it is time to consider the
propriety of the order dated 1st February, 2025. By the
said order the application for recalling stood rejected.
Though the learned advocate for the petitioner submits
that the order dated 16th November, 2024 was passed
without giving any opportunity of hearing to the petitioner
but this court has elaborately heard the learned advocate
for the petitioner in support of his contentions praying for
rejection of the application for amendment of a plaint.
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In view thereof, this court is not inclined to interfere
with the orders impugned dated November 16, 2024 and
February 1, 2025 passed by the learned Civil Judge
(Junior Division), 1st Court at Uluberia, Howrah in Title Suit
No. 111 of 2007.
With the above observation and direction, CO 713
of 2025 stands dismissed.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties after completion of
all necessary formalities.
(Hiranmay Bhattacharyya, J.)
