Binita Bhoumik (Malakar) vs Soumen Bhoumik

The defendant-wife has preferred the instant revisional application challenging rejection of an application filed by the present petitioner under Order

VII Rule 11 of the Code of Civil Procedure for rejection of the plaint in a suit filed by the opposite partyhusband for the following reliefs:

(a) A decree of declaration of plaintiff’s right, title and interest over the suitproperty.

(b) A decree of declaration that the impugned Deed of Gift dated 07.02.2018,registered in the office of Additional Registrar of Assurances, ARA-4,

Kolkata, West Bengal being Deed No. 1181/18 is vitiated by fraud and misrepresentation and is not at all binding upon the plaintiff.

(c) An order of permanent injunction may be passed against the defendant, and/orher men, agents and servants restraining them from causing any

wastage and damage over the property and/or from transferring or alienating or parting with possession in respect of the property in suit in favour of

some third party on the basis of the impugned Deed of Gift dated 07.02.2018.

(d) For all costs of the suit.

(e) For other relief or reliefs the plaintiff in law and equity is entitled to get.â€​

It is alleged by learned counsel for the petitioner that previously another suit was filed by the opposite party for cancellation of a deed of gift executed

by the opposite party in favour of the petitioner on February 7, 2018. Despite pendency of such previous suit, the present suit was instituted by the

opposite party-husband on the same ground of alleged fraud and misrepresentation having tainted the execution of the said gift deed.

The petitioner is pressing three grounds for rejection of plaint - respective bars under Section 31 and Section 34 of the Specific Relief Act, 1963, as

well as the bar under Order II Rule 2 of the Code of Civil Procedure. It is submitted that the plaintiff/opposite party could not maintain both suits

together, without seeking specific leave in the second suit to seek such further relief. It is also submitted that in view of the specific provision of

Section 31 of the said Act of 1963, the suit is hit by proviso to Section 34 of the said Act of 1963 for not seeking the further relief of cancellation of

the deed, where the plaintiff was able to do so.

Since, upon hearing parties and going through the relevant plaint, it appears that there is no mention therein of the previous suit, the existence of the

previous suit ought not be considered while deciding an application under Order VII Rule 11 of the Code, which is to be restricted to the plaint itself.

Apart from the fact that the trial court, while passing the impugned order refusing rejection of plaint, did not provide any reasons worth the name for

not rejecting the plaint, there are other considerations on which the plaint actually ought to have been rejected by the trial court. Section 31 of the said

Act of 1963 provides as follows:

“ 31. When cancellation may be ordered.-

(1) Any person against whom a written instrument is void or voidable, and who hasreasonable apprehension that such instrument, if left outstanding

may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be

delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the

officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact

of its cancellation.â€​

A careful scrutiny of the relevant claim in the suit shows that the declaration of the plaintiff’s right, title and interest over the suit property and the

relief of permanent injunction were both consequential and dependent upon relief (b) of the plaint. The plaintiff/opposite party, by virtue of relief (b),

only sought a declaration that the relevant deed was vitiated by fraud and misrepresentation and was not at all binding upon the plaintiff.

It is well settled that a party to a deed, if apprehending any injury due to existence of such deed, has to institute a suit for cancellation of such deed

under Section 31 of the said Act of 1963. It would only be proper to seek the relief that a particular deed was not binding on the plaintiff, for a

stranger to the deed, who was not a party to the same. As such, in view of the specific averments made by the plaintiff/opposite party in the plaint

admitting that the defendant/petitioner was a party to the relevant deed of gift, no cause of action could be said to have been disclosed for the present

suit for declaration that the deed is not binding upon the plaintiff, as framed. Moreover, Section 34 of the said Act of 1963 stipulates as follows:

“34. Discretion of court as to declaration of status or right. â€" Any person entitled to any legal character, or to any right as to any property, may

institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a

declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration

where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation. â€" A trustee of property is a

“person interested to denyâ€​ a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.â€​

A mere glance at the proviso to Section 34 of the said Act of 1963 reveals that no court shall make any declaration where the plaintiff, being able to

seek further relief than a mere declaration of title, omits to do so. In the present case, the plaintiff, although being able to pray for a relief under

Section 31 of the said Act of 1963, as to adjudging the gift deed void and for cancellation of the same, failed to do so. Accordingly, the bar stipulated in

the proviso to Section 34 of the said Act of 1963 is very much attracted and the suit, as framed, is barred by such law.

Accordingly, the court below refused to exercise jurisdiction vested in him by law in not entertaining the prayer of the petitioner to reject the plaint in

Title Suit No. 236 of 2018. Accordingly, C. O. No. 1556 of 2018 is allowed on contest, thereby setting aside the impugned order dated June 4, 2018

passed by the Civil Judge (Junior Division), First Court at Barasat, District- North 24-Parganas, in Title Suit No. 236 of 2018, whereby the

petitioner’s application under Order VII Rule 11 of the Code was rejected.

As a result, the plaint in the aforementioned title suit, that is, Title Suit No. 236 of 2018 pending in the first court of Civil Judge (Junior Division) at

Barasat, District- North 24-Parganas, is hereby rejected. There will, however, be no order as to costs. Urgent certified website copies of this order, if

applied for, be made available to the parties upon compliance with the requisite formalities.