As regards the question of abatement, the cause of action of the
present suit arises primarily from the notice to quit given by the
plaintiff/opposite party in the year 2012, which is subsequent to the abatement of the previous suit. In view of the observations made above, the trial court was justified in refusing to reject the plaint of the opposite party.Accordingly, the revisional application bearing C.O. 1082 of 2019 is dismissed.
High Court at Calcutta
Civil Revisional Jurisdiction
C.O. 1082 of 2019
Jharna Ghosh Vs Debibrata Chattopadhyay
Dated: 5- 4 - 2019
Citation: AIR 2020(NOC) 51 Cal
Affidavit of service filed on behalf of the petitioner is taken on
record.
The present challenge is at the instance of the defendant in an
eviction suit.
By virtue of the impugned order, the petitioner’s application
under Order VII Rule 11 of the Code of Civil Procedure was rejected by the
trial court.
The learned senior advocate appearing on behalf of the
petitioner argues that the predecessors-in-interest (parents) of the
plaintiff/opposite party instituted a suit for eviction against the petitioner
previously, admitting that the petitioner was a lessee/tenant in respect of the
suit premises. The basis of the previous suit was a notice under Section 106 of
the Transfer of Property Act.
The said suit stood abated on the death of one of the plaintiffs,
being the mother of the opposite party, in the year 2008. No step was taken to
set aside such abatement. Subsequently, pursuant to a notice to quit dated May
3, 2012, the plaintiff/opposite party filed another eviction suit, being the
present suit, in the year 2012 and made contradictory averments in so far as the
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status of the petitioner in respect of the suit property was concerned.
By placing reliance on certain paragraphs of the plaint, it is
argued on behalf of the petitioner that, in the same breath, the
plaintiff/opposite party admitted that the suit property was let out by the
predecessors of the opposite party to the petitioner and her husband (since
deceased) and that they were accepted as tenants by the parents of the plaintiff,
while in other places of the plaint, it was alleged that the petitioner was in
wrongful and illegal possession of the suit flat and was occupying the same as
a trespasser.
In the impugned order, the trial court came to a finding that after
going through the plaint, it is clear that it is a suit for eviction of licensee and
the ground of eviction is the default in payment of rent.
It is argued that such finding is vitiated by perversity on the face
of the record, in view of the specific admission of the opposite party that the
suit property was let out. Learned senior advocate for the petitioner argues that
in view of the bar of Order XXII Rule 9 of the Code, the present suit is not
maintainable, being based on the same cause of action as the previous suit,
which stood abated.
It is further argued that there was an arbitration agreement
between the parties in respect of the suit property. An arbitrator was also
appointed to resolve the dispute between the parties. Such contention is
controverted by the learned advocate appearing on behalf of the opposite party.
Upon a query of court, learned senior advocate for the petitioner fairly submits
that a application under Section 8 of the Arbitration and Conciliation Act, 1996
was filed by the petitioner in the present suit, but the same was rejected, as also
pointed out by the learned advocate for the opposite party too.
However, it is argued that in view of the provision of the 1996
Act and previous appointment of an arbitrator, the matter ought to have been
relegated to arbitration instead of the suit being proceeded with in a civil court.
Learned senior advocate further argues that the ground of
limitation was also urged by the petitioner in the application under Order VII
Rule 11 of the Code, but fairly submits that the same being a mixed question
of law and fact, can be decided only at the time of trial.
It is contended by both parties that in view of the petitioner
having failed to pay a sum of money, as directed by the Supreme Court in a
connected matter, the evidence of the petitioner, filed in the suit, was struck
out.
The contentions raised on behalf of the petitioner are
controverted by the learned advocate for the opposite party.
As regards the question of abatement, the cause of action of the
present suit arises primarily from the notice to quit given by the
plaintiff/opposite party in the year 2012, which is subsequent to the abatement
of the previous suit. As regards the argument that there are contradictory
pleadings as to the status of the petitioner vis-à-vis the suit property and that,
in view of the non-mention of Section 106 of the Transfer of Property Act in
the quit notice, the same was not legally valid, those can only be the subjectmatter
of a decision on merits, to be rendered at the trial of the suit, and cannot
be decided by the court at the juncture of taking up a demurrer application.
Moreover, in view of the evidence of the petitioner having been struck out,
there is limited scope before the petitioner to canvass independent arguments
and the petitioner’s charter remains restricted mostly to point out the lacunae
in the plaint case.
As regards the arbitration clause, the same is not a bar to
continuance of a civil suit ipso facto. Reference of a matter to arbitration is
waiveable and subject to Section 8 of the 1996 Act. Since the petitioner’s bid
to have the matter referred was rejected by the trial court, which order attained finality due to absence of any challenge against the same, the said ground
cannot now be set up for rejection of the plaint.
In view of the observations made above, the trial court was
justified in refusing to reject the plaint of the opposite party.
Accordingly, the revisional application bearing C.O. 1082 of
2019 is dismissed on contest, thereby affirming the impugned order, but with
the rider that none of the observations made in the impugned order would be
construed to be binding on the trial court at any further stage of the suit and
those will be deemed to be tentative as far as the trial of the suit is concerned.
There will be no order as to costs.
Photostat certified copy of this order, if applied for, will be made
available to the applicant within a week from the date of putting in the
requisites.
( Sabyasachi Bhattacharyya, J. )
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