Sumanta Pal vs Jharna Mondal & Ors

Shampa Sarkar, J

The petitioner is the defendant in a suit for declaration and injunction filed by the opposite party no.1 being Title Suit No.22 of 2015 before the learned Civil Judge, Senior Division, First Court, Paschim Medinipore. The opposite party no.2 has not entered appearance in the suit as yet, service of notice of this revisional application upon the said opposite party is dispensed with. The opposite party no.3 is the husband of the opposite party no.1 and is represented.

The petitioner is aggrieved by an order dated August 20, 2019, by which the application under Order 7, Rule 11(d) of the Code of Civil Procedure filed by the petitioner was rejected. The grounds for rejection of the plaint as stated by the petitioner were that the suit was barred under the provision of Section 91(1)(b) of the Code of Civil Procedure and also for non-service of notice upon the municipal authorities before the suit was filed. The learned Court below upon consideration of the plaint has come to a prima facie opinion that the plaint read as a whole, did not disclose that the suit was barred by law as claimed by the petitioner and that the suit was not one, addressing public nuisance or acts affecting the public at large.

I have gone through the plaint. While considering an application under Order 7, Rule 11 of the Code of Civil Procedure, it is settled law that only the plaint has to be looked into in its entirety and nothing could be added or subtracted from the same. The pleadings reveal that the petitioner has alleged that the construction of the defendants contrary to the Building Rules on another plot without leaving a gap was causing hindrance to his peaceful enjoyment of the property. The question whether this suit was a suit addressing a public nuisance or acts which would affect public at large was to be decided at the trial on evidence. The question also whether a service upon the municipal authorities was mandatory and whether the suit should fail for non-service of a notice prior to filing of the suit upon municipal authorities should also be decided as a separate issue at the trial, inasmuch as, only the evidence disclosed will reveal whether any relief was claimed against the municipal authorities or not.

The decision of the Hon'ble Apex Court in Madhav Prasad Aggarwal and Anorther v. Axis bank Limited and Another reported in (2019) 7 Supreme Court Cases 158 relied on by the petitioner is distinguishable, inasmuch as, the Hon'ble Apex Court held that the Court had the power to exercise jurisdiction under Order 7, Rule 11(d) CPC on account of non-compliance with the mandatory requirements at the time of presentation of the plaint but the said power should not be exercised qua other portions of the plaint which did not apply to compliance of mandatory provisions. In this case the plaint read as a whole did not prima facie disclose any relief against the municipal authorities and the Court came to a finding that the suit was not barred by law. Thus the decision cited does not help the petitioner at this juncture.

The allegation of the petitioner was that in Paragraph 6 of the plaint it had been mentioned that the construction made by the defendant/petitioner would cause harm to the public at large and as such the provision of Section 91(1)(b) of the Code of Civil Procedure would be squarely applicable. The Hon'ble Apex Court in the decision of Popat and Kotecha Property v. State Bank of India Staff Association reported in (2005) 7 Supreme Court Cases 510 stated that it is trite law that any particular pleading cannot be considered but the plaint must be read as a whole and while deciding the plaint as to whether a plaint should be rejected on the ground that the same was barred by law, the Hon'ble Apex Court held as follows:

"19. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities."

In this case the plaint read as a whole, prima facie does not appear to be barred under Order 7, Rule 11(d). The conclusion arrived at by the learned Court below is correct and does not call for any interference.

However, as the suit is pending since 2015, the learned Court below is requested to dispose of the suit as expeditiously as possible preferably within one year from the date of communication of this order without granting unnecessary adjournment to either of the parties.

Accordingly, C.O.4116 of 2019 is dismissed.

There will be, however, no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.