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 26th of May, 2006 is illegal, void, collusive, fraudulent and not binding upon the plaintiffs/opposite parties herein and liable to be set 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 2 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 3 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) …………. 4 (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 26th 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. 5 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 6 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.- 7 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 8 the 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 9 another 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 10 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 11 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 12 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. 13 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.) 14