Sections 23 and 29 of the NDPS Act- Essential ingredients of section 23 of NDPS Act.

Head Note: As per the wording of the section there must be import of the contraband to attract punishment under this section but the prosecution could not prove that the Ganja was of foreign origin. Even prosecution could not prove whether the substance so seized was actually Ganja or not because no chemical examination report has been produced in the court in original form neither the chemical examiner was examined to prove them. It has also been submitted that the mandatory provision of, sections 42, 52 and 57 of the act has not been strictly complied with. That apart it has also been submitted that there is no independent witness to support the recovery of contraband and the prosecution failed to examine them.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1027 OF 2008

Union of India                                                                    …Appellant

Versus

Sheo Shambhu Giri                                                       …Respondent

J U D G M E N T : Chelameswar, J.

1.    Aggrieved by the judgment in Criminal Appeal No. 359 of 2003 of the High Court of Patna, the instant appeal is preferred by the Union of India.

2.    By the judgment under appeal, three appeals came to be preferred by the three different accused who were convicted for different offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) by the Court of 5th Additional District and Sessions Judge, Mothari of East Champaran District in Excise Case No. 31 of 2001 by its judgment dated 12th June, 2003. By the judgment under appeal, the conviction of all the appellants was set aside. It is not very clear whether any appeals are preferred against the acquittal of the other two accused except the respondent herein.

3.    The sole respondent along with two other accused was tried for offences under Sections 23 and 29 of the NDPS Act. The trial court found the respondent herein guilty of an offence under Section 23 of the NDPS Act but found that the charge under Section 29 of the Act is not proved against him. He was, therefore, convicted for an offence under Section 23 of the NDPS Act and sentenced to undergo RI for 10 years and also to pay a fine of Rs. 1 lakh for an offence under Section 23 of the NDPS Act.

4.     The High Court, allowed the appeal of the respondent and set aside his conviction under Section 23 of the NDPS Act. Relevant portion of the judgment reads as follows:-

“17. So far as appellant Sheo Shambhu Giri of Cr. Appeal No. 359 of 2003 is concerned he has also assailed his conviction on many grounds including that the Ganja was recovered from his possession. His submission was also that though he was charged under sections 23 and 29 of the act but he was acquitted under Section 29 of the act and was not considered to be a part of conspiracy and admittedly he was only a carrier at the instance of other persons. As such his punishment under section 23 of the Act is also not tenable in the eye of law. That apart it has been submitted that the ingredients of section 23 of the Act is not attracted in this case because there is no evidence to prove that the Ganja was imported from foreign land. As per the wording of the section there must be import of the contraband to attract punishment under this section but the prosecution could not prove that the Ganja was of foreign origin. Even prosecution could not prove whether the substance so seized was actually Ganja or not because no chemical examination report has been produced in the court in original form neither the chemical examiner was examined to prove them. It has also been submitted that the mandatory provision of, sections 42, 52 and 57 of the act has not been strictly complied with. That apart it has also been submitted that there is no independent witness to support the recovery of contraband and the prosecution failed to examine them. Only independent witness is a witness to Panchnama (Ext. 18)”

5.    Dr. Ashok Dhamija, learned counsel appearing for the appellant submitted that the High Court grossly erred in coming to the conclusion that in the absence of proof that the Ganja allegedly seized from the custody of the respondent is of foreign origin, Section 23 of the NDPS Act is not attracted.

6.    The learned counsel further assailed the conclusion of the High Court that the prosecution could not prove that the material seized from the respondent was ganja.

7.    On the other hand, the learned counsel for the respondent submitted that Section 23 of the NDPS Act creates three offences and they are; (i) import into India, (ii) Export out of India; and (iii) Transhipment of any narcotic drug or psychotropic substance. If any one of the three activities is undertaken in contravention of any one of the provisions of the Act or the Rules made there under or in contravention of an order made or condition of licence or permit granted or certificate or authorization issued either under the Act or the Rules. The explanation “tranships” occurring under Section 23 must necessarily be understood in the context of the scheme of the Section and the preceding expressions of “import into India” and “export out of India” to mean only transhipment for the purpose of either import into India or export out of India. The learned counsel further submitted that the High Court rightly concluded in the absence of any proof that the respondent was carrying contraband either in the course of import into India or export out of India, section 23 is not attracted.

8.    We agree with the submission made by the respondent on the construction of Section 23 of the NDPS Act, the expression “tranships” occurring therein must necessarily be understood as suggested by the learned counsel for the respondent. There is yet another reason apart from the construction of the language of Section 23 which compels us to accept the submission made by the learned counsel for the respondent. Section 9(1)(a)(vii) also employs the expression transhipment. Section 9(1) reads as follows;

“9. Power of Central Government to permit, control and regulate. -(1) Subject to the provisions of section 8, the Central Government may, by rules-

(a) permit and regulate-

(i) the cultivation, or gathering of any portion (such cultivation or gathering being only on account of the Central Government) of coca plant, or the production, possession, sale, purchase, transport, import inter-State, export inter-State, use or consumption of coca leaves;

(ii) the cultivation (such cultivation being only on account of Central Government) of the opium poppy;

(iii) the production and manufacture of opium and production of poppy straw;

(iv) the sale of opium and opium derivatives from the Central Government factories for export from India or sale to State Government or to manufacturing chemists;

(v) the manufacture of manufactured drugs (other, than prepared opium) but not including manufacture of medicinal opium or any preparation containing any manufactured drug from materials which the maker is lawfully entitled to possess;

(vi) the manufacture, possession, transport import inter- State, export inter-State, sale, purchase, consumption or use of psychotropic substances;

(vii) the import into India and export from India and transhipment of narcotic drugs and psychotropic substances;

(b) prescribe any other matter requisite to render effective the control of the Central Government over any of the matters specified in clause (a)”

9.    It can be seen from the language of the Section that the Central Government is authorized to make rules which may permit and regulate various activities such as cultivation, gathering, production, possession, sale, transport, inter state import or export of various substances like coca leaves, poppy straw, opium poppy and opium derivatives etc., while the Parliament used the expression transport in the context of inter-state import or export of such material in sub- Section 1(a)(vi), in the context of importing to India and export out of India, Parliament employed the expression transhipment in Section 9(i)(a)(vii).  

10.        Therefore, the High Court rightly concluded that the conviction of the respondent under Section 23 of the NDPS Act cannot be sustained. We see no reason to interfere with the same.

11.        In view of such conclusion, we do not deem it necessary to examine the correctness of other conclusions recorded by the High Court for acquitting the respondents. The appeal is, therefore, dismissed.

………………………………J.

( Dr. B.S. Chauhan )

………………………………J.

( J. Chelameswar )

New Delhi;

March 25, 2014

N.I.Act sect 138 read with 141 / dishonor of cheque by a company..

Head Note : That in this context your petitioner refers to the provisions of Section 141 of the Negotiable Instrument Act, where it has been specifically stated that if the offender is the company then the person who at the time of the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, other Directors, Manager, Secretary or other officers of the company shall be guilty of the offence, unless the persons referred to above prove otherwise, as per the saving clause of the said section. In section 5 of the Companies Act, also made those officers responsible for crime committed by the company.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 213 OF 2006

Mannalal Chamaria & Anr.                                      ....Appellants

Versus

State of West Bengal and Anr.                          ...Respondents

WITH CRIMINAL APPEAL NO. 215 OF 2006

AND

CRIMINAL APPEAL NO. 217 OF 2006

J U D G M E N T: Madan B. Lokur, J.

1.       The question arising for consideration in these appeals relates to the alleged failure (and consequential effect) of Pradip Sarkar to specifically state in his complaint filed under Sections 138 and 141 of the Negotiable Instruments Act, 1881 that the appellants/accused persons were in charge of and responsible for the conduct of the business of M/s. Heritage Herbs Ltd. of which they were said to be Directors.

2.     In a complaint filed on 31st March, 2001, Pradip Sarkar alleged that Heritage Herbs had made an offer for collecting money from the market with a view to allot land to the intending investors. On the basis of the offer made, Pradip Sarkar invested an amount of Rs.1,50,000/- and Heritage Herbs issued three receipt-cum-allotment letters for three plots of land to Pradip Sarkar. At the time of handing over the receipt-cum-allotment letters, Pradip Sarkar was also handed over three cheques of Rs. 61,000/- each post dated to 29th October, 2000. These cheques were issued by Heritage Herbs and were signed by Raj Kumar Chamaria as Chairman of the said concern.

3.     All the three cheques were deposited by Pradip Sarkar but were dishonoured by the concerned bank. This led Pradip Sarkar to take steps to issue a notice to and initiate proceedings against Heritage Herbs and Raj Kumar Chamaria under the provisions of Section 138 read with Section 141 of the Negotiable Instruments Act, 1881.

4.     During the pendency of the proceedings Raj Kumar Chamaria died on 10th December, 2003.

5.      Thereafter, Pradip Sarkar moved an application for impleading the appellants as accused persons. The application was allowed and the appellants were impleaded as accused persons by the concerned Magistrate by an order dated 28th April, 2004 and summons issued to them.

6.     Feeling aggrieved by their impleadment and summons issued to them, the appellants preferred Criminal Revision Petitions in the Calcutta High Court, which dismissed the petitions.

7.      The appellants have challenged the order of the Calcutta High Court and the only contention urged is that no specific allegations were made against them either in the complaint as originally filed on 31st March, 2001 or in the amended complaint filed on 28th April 2004.

8.     We have been taken through both the complaints by learned counsel for the appellants and find that there is no allegation worth the name against any of the appellants in either of the complaints. Insofar as the first complaint is concerned, the appellants were not even made parties and therefore there is no question of any allegations being made against them in that complaint. As far as the second complaint is concerned, the only allegation made is to be found in paragraph 6 thereof which reads as follows:-

“That in this context your petitioner refers to the provisions of Section 141 of the Negotiable Instrument Act, where it has been specifically stated that if the offender is the company then the person who at the time of the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, other Directors, Manager, Secretary or other officers of the company shall be guilty of the offence, unless the persons referred to above prove otherwise, as per the saving clause of the said section. In section 5 of the Companies Act, also made those officers responsible for crime committed by the company.”

9.     The law on the subject is now very well-settled by a series of decisions rendered by this Court and it is not necessary to repeat the views expressed time and again. Suffice it to say, that the law has once again been stated in A.K.Singhania vs. Gujarat State Fertilizer Company Ltd.1 to the effect that it is necessary for a complainant to state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company. Although, no particular form for making such an allegation is prescribed, and it may not be necessary to reproduce the language of Section 138 of the Negotiable Instruments Act, 1881, but a reading of the complaint should show that the substance of the accusation discloses that the accused person was in charge of and responsible for the conduct of the business of the company at the relevant time. From the averment made in the complaint, which is reproduced above, it can safely be said that there is  no specific or even a general allegation made against the appellants.

10.             Under these circumstances, the complaint against the appellants deserves dismissal. A contrary view taken by the High Court cannot be accepted. Accordingly, the appeals are allowed and the order passed by the High Court is set aside.

……………………………………J

(Ranjana Prakash Desai)

……………………………………J

(Madan B. Lokur)

New Delhi;

March 25, 2014

302 IPC- Murder- injuries- to be proved beyond doubt responsible for death

Head Note: In our opinion, for that the prosecution will have to prove that injuries attributable to the appellants or any of them were the cause of death. As observed earlier, the appellants had caused one injury each, whereas the deceased had sustained five injuries. According to the doctor, death had occurred on account of shock and excessive bleeding due to the injuries caused on the person of the deceased. Therefore, the death had not taken place as a result of the injuries caused by the appellants or any one of them. Hence, they cannot be held guilty under Section 302 IPC simplicitor or with the aid of Section 34 IPC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.444 OF 2008

VIJAY SINGH & ANR.                     …APPELLANTS

VERSUS

STATE OF MADHYA PRADESH               …RESPONDENT

J U D G M E N T: CHANDRAMAULI KR. PRASAD,J.

     In the present appeal by way of specialleave, we are concerned with appellants Vijay Singh and Hari Singh.

     According to the prosecution, on 16th of June, 1992 at about 6.30 A.M., a report was lodged by the informant, Pohap Singh (PW-1), alleging that while he was at his house, his father Bhagirath (deceased) was returning home after answering the nature’s call and at that time, 11 accused persons including appellant no. 2 Hari Singh armed with farsa and appellant no. 1 Vijay Singh armed with a ballam and other accused armed with axes surrounded him. Seeing this, according to the informant, his mother Prema Bai (PW-2), his wife Sheela (PW-3) and grandfather Jagannath (PW-6) went to rescue him, whereupon informant Pohap Singh was assaulted by lathi by one of the accused. Meanwhile, appellant no. 2, Hari Singh inflicted an injury on the neck of the deceased with farsa upon which he fell down. Thereafter, all the accused assaulted the deceased with the weapons with which they were armed. It is the case of the prosecution that appellant no. 1, Vijay Singh caused an injury with a ballam near the eye of the deceased and he died on the spot.

      On the basis of the report given by Pohap Singh, a case under Section 147, 148 and 302/149 of Indian Penal Code, 1860 (hereinafter referred to as “the IPC”) was registered. Police after usual investigation submitted the charge-sheet against all 11 accused persons and ultimately they were committed to the Court of Sessions to face the trial. The Sessions Judge acquitted 9 of the 11 accused and convicted the appellants herein for commission of offence under Section 302 of the IPC and sentenced them to imprisonment for life. The learned Judge found the allegations as to the infliction of injuries, on the head and neck of the deceased by specific weapon such as ballam by appellant no.1 and farsa by appellant no.2 respectively, to have been corroborated by the medical evidence. Hence, the two appellants were convicted and sentenced as above. On appeal, the High Court confirmed their conviction and sentence and while doing so,

observed as follows:

“5………Dr. Kapil Dev Singh, who has performed the postmortem of the deceased on 16.6.1992 and found as many as six injuries on the body of the deceased, out of which injury No.1 is caused by some pointed object near the face of the deceased. Thus, the injury attributed to Vijay Singh is corroborated. The other injury was incised wound on the body of the deceased. All the injuries were caused by sharp and edged weapons. As per opinion of Doctor injury No. 1 was sufficient to cause death of the deceased…………

6. After perusal of the statements of PW-1, PW-2 and PW-3, we find that the Sessions Court rightly convicted the present appellants. So far as the other accused are concerned the Doctor has specifically stated that except the injury No.1 which is attributed to Vijay Singh, all other injuries were caused by the same weapon. Thus, the other injuries are attributed to Hari Singh. Moreso, the witness could not point out which of the injuries were caused by other accused, hence, acquitted the other accused. But so far as the present appellants are concerned, there are specific allegation against them for causing injuries to the deceased.

“Underling ours”

     Aggrieved by the same, the appellants are before us.

     At the outset, while assailing the conviction of the appellants, Mr. Rajesh learned counsel appearing for the appellants, submits that the High Court erred in holding that excepting injury no. 1, all other injuries are attributable to Hari Singh. He draws our attention to the evidence of PW-2 Prema Bai and PW-3 Sheela, who claim to be the eye-witnesses to the occurrence and have clearly stated in their evidence that the appellant Hari Singh gave farsa blow on the neck of the deceased and other accused persons (since acquitted) have also assaulted the deceased with farsa.

       We have gone through the evidence of the eyewitnesses and from their testimony it is evident that appellant Vijay Singh had caused one injury to the deceased by ballam whereas appellant Hari Singh caused one injury on the neck by farsa. They have also testified that other accused had also given farsa blows to the deceased. In the face of it, the High Court clearly erred in holding that excepting injury no. 1, all other injuries were caused by the appellant Hari Singh.

      Mr. Rajesh, then submits that the appellants can be held guilty under Section 302 of the IPC only when it is proved that the injuries inflicted by them have resulted into death. He refers to the evidence of PW-7 Dr. Kapil Dev Singh and submits that according to his opinion, the death occurred because of excessive bleeding and shock on account of all the injuries found on the person of the deceased. He points out that this doctor had found 5 injuries on the person of the deceased and all those injuries cannot be attributed to the present appellants. Mr. Rajesh further points out that even if it is assumed that appellant Vijay Singh had assaulted the deceased with ballam on the face and appellant Hari Singh by farsa on the neck, they cannot be held guilty under Section 302 of the IPC as those injuries only did not cause death.

     Mr. C.D. Singh, learned counsel for the State, on the other hand, submits that since the doctor in evidence has stated that injury no. 1 was sufficient to have caused death, the High court rightly convicted the appellants. In any view of the matter, according to Mr. Singh, the deceased died of various injuries caused to him during the occurrence, and therefore, the appellants can well be convicted under Section 302 with the aid of Section 34 of the IPC.

      True it is that the High Court, while upholding the conviction of the appellants, has observed that “as per the opinion of the doctor, injury no. 1 was sufficient to cause death of the deceased”. We have gone through the evidence of PW-7 Dr. Kapil Dev Singh. PW-7 in his evidence stated that during the post-mortem examination, he found the following injuries on the person of the deceased:

“1.Depressed fracture with contusion with open wound cutting front parietal bone 4” x 1½” x bone deep on right side.

2. Incised wound on cheek cutting auxiliary bone 5”x 1/2” x bone deep right side.

3. Incised wound of the size 4” x ½” x muscle deep and cutting breathing pipe and major blood arteries on right side.  

4. Incised wound on superior collar bone right side, 5” x ½” cutting breathing pipe.

5. Incised wound right side on the face cutting right jaw bone size 3” x ½” x bone deep.”

      As regards the cause of death, he has stated as follows:

“In my opinion, all the injuries were caused by sharp and blunt weapon. In my opinion cause of death is excessive bleeding and shock….”

      Thus, the doctor has altogether found 5 injuries on the person of the deceased and the death had occurred due to excessive bleeding and shock on account thereof. Therefore, it cannot be said that only injury no.1 was the cause of the death. Hence, we are constrained to observe that the High Court committed serious error by holding that injury no. 1 was sufficient to cause death of the deceased.

      Nonetheless from the evidence of the prosecution witnesses what is proved beyond doubt is that appellant Vijay Singh caused injury on the face of the deceased by ballam and appellant Hari Singh on neck by farsa. In this backdrop, we proceed to consider the nature of offence. It is relevant here to mention that no charge under Section 34 IPC has been framed against the appellants. Even if we assume in favour of the State, as contended by Mr. Singh, that it is possible to hold the appellants guilty under Section 302 read with Section 34 of the IPC in the absence of charge, in our opinion, for that the prosecution will have to prove that injuries attributable to the appellants or any of them were the cause of death. As observed earlier, the appellants had caused one injury each, whereas the deceased had sustained five injuries. According to the doctor, death had occurred on account of shock and excessive bleeding due to the injuries caused on the person of the deceased. Therefore, the death had not taken place as a result of the injuries caused by the appellants or any one of them. Hence, they cannot be held guilty under Section 302 IPC simplicitor or with the aid of Section 34 IPC.

       However, the prosecution has been able to prove that the appellants have assaulted the deceased with ballam and farsa, which are dangerous weapons. Further, the appellants had caused grievous injuries on the person of the deceased. Hence, they may not be held guilty under Section 302 or 302 read with Section 34 IPC, but surely their acts come within the mischief of Section 326 IPC. Accordingly, we modify the appellants’ conviction and hold them guilty under Section 326 IPC and sentence them to undergo rigorous imprisonment for 10 years each and fine of Rs.5,000/- each, in default to suffer imprisonment for six months. We have been told that both the appellants have already remained in custody for more than the period of their sentence. If that be so, they be released forthwith unless required in any other case.

    In the result, the appeal is partly allowed, the conviction and sentence of the appellants under Section 302 IPC is set aside, instead they are convicted under Section 326 IPC and sentenced to the period as above with the direction aforesaid.

………………………………………………………………J

(CHANDRAMAULI KR. PRASAD)

………………………………………………………………J

(JAGDISH SINGH KHEHAR)

NEW DELHI,

MARCH 25, 2014.

Rejection of Plaint under Order 7 Rule 11C.P.C.

Head Note:

After perusing the order passed by the High Court and the reasoning given therein, it appears to us that the High Court has correctly perused the plaint in its entirety and after deletion of the name of plaintiff No.1 from the said Title Suit, held that the plaint discloses no cause of action after taking into account the fact that the very purpose of the suit has become infructuous in view of the order passed by the High Court to hand over the possession of the rooms in question. Therefore, the foundation of the suit was not subsisting after the handing over of possession to the defendant by plaintiff No.1 in terms of the order.

Now, it is necessary for us to find out whether the plaint discloses any cause of action, after deletion of the name of  plaintiff No. 1 in Title Suit No. 2430 of 2007. We have gone through the averments made in the said plaint. After perusing the averments and on the basis of its entirety and considering that the statements made in the plaint are correct, it appears to us that the plaint discloses no cause of action and thereby it attracts the provisions of Order VII Rule 11(a) of the Code, and accordingly we hold that the High Court has correctly ascertained the position and allowed the said application reversing the order of the City Civil Court at Calcutta.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 4003 of 2014

(Arising out of Special Leave Petition (Civil) No.8578 of 2011)

Soumik Sil                                                                 … Appellant

vs.

Subhas Chandra Sil                                             … Respondent

J U D G M E N T : Pinaki Chandra Ghose, J.

1.      Leave granted.

2.     This appeal is directed against an order passed by the High Court dated February 10, 2011 whereby the application filed by the respondent herein under Order VII Rule 11 of the Code of Civil Procedure (for short ‘the Code’) was allowed and the plaint was rejected. The High Court set aside the order passed by the Trial Court refusing such prayer.

3.    The facts of the case, briefly, are as follows :

3.1.         A suit was filed for declaration and injunction by the appellant along with Smt. Ashima Sen, mother of the present appellant. The appellant herein and plaintiff No.1 (the mother) filed a suit being Title Suit being No.2430 of 2007 before the City Civil Court at Calcutta, and the following reliefs were prayed for in the said suit :

“a) For a decree for declaration that the defendant, his men and agents have no right to obstruct the user of the suit flat by the plaintiffs by any means prejudicial to the interest of the plaintiffs.

b) For a decree permanent injunction restraining the defendants, their men, agents and associated from causing any obstruction towards free ingress and egress of the plaintiffs, for use and occupation of the suit flat at 5, Netai Babu Lane, Kolkata- 700012, in any manner prejudicial to the interst of the plaintiffs.

c) Temporary injunction with ad-interim order in terms of prayer (b) above;

d) Commission;

e) Costs of the suit

f) Any other relief or reliefs as the Ld. Court may deem fit and proper”

3.2.       The said suit was filed on the facts stated in the plaint that plaintiff No. 1 (Smt. Sen) and the defendant – Subhas Chandra Sil were married on 2nd June, 1986. Out of the said wedlock, plaintiff No.2 – Soumik Sil was born on 20th April, 1989. Admittedly, the mother and son resided in the two rooms in the first floor of the premises No.5, Netai Babu Lane, Kolkata-700 012, being the matrimonial home of plaintiff No. 1.

3.3.       Admittedly, the defendant was a joint owner of the said premises along with his two brothers. Subsequently, the eldest brother gifted his 1/3rd share in the said premises to his two brothers, and thereby the defendant and one of his brothers became the owners of the said premises in equal shares. On December 17, 1993 the said property was partitioned between them and the portions were demarcated between the two brothers.

4.     The defendant filed a suit for dissolution of marriage in the City Civil Court at Calcutta which was transferred before the Family Court and on 15th July, 1998 a decree for dissolution of marriage was passed by the Family Court against plaintiff No.1. Being aggrieved, she preferred an appeal before the High Court which, in turn, was pleased to pass the following order :

“In the facts of the present case, we are of the view that a sum of Rs.4,00,000/- should be paid by the husband to the wife provided the wife hands over the vacant possession of the rooms over which she has already filed a suit in the City Civil Court to the husband within a month from today. Simultaneously, with the surrender of possession, the husband will pay a sum of Rs.2,00,000/- by account payee cheque of any nationalised bank in the name of the wife to be handed over to the learned Advocate for the appellant and will pay the balance amount of Rs.2,00,000/- by March, 2009. If the first instalment of Rs.2,00,000/- is paid, from that moment, the husband will pay the monthly alimony at the rate of Rs.2,500/- instead of the existing alimony of Rs.5,000/-. The moment the balance amount of Rs.2,00,000/- will be paid, the husband will not be required to pay any further monthly sum as alimony. If the wife fails to deliver vacant possession of the rooms mentioned above within a month from today, this part of the order granting permanent alimony will stand recalled and the wife would be free to initiate fresh proceedings for fixation of permanent alimony on the basis of the then income of the husband after taking into consideration the conduct of the wife as provided in Section 25 of the Act.

       The decree for divorce is, thus, affirmed with the aforesaid additional direction as regards permanent alimony.”

5.      In these circumstances, in accordance with the said order the wife duly gave effect to the order of the High Court and filed an application before the City Civil Court, Calcutta, for deletion of her name as the plaintiff No.1 from the said suit. In the wake of the above, an application for rejection of plaint under Order VII Rule 11(a) of the Code of Civil Procedure was filed by the defendant (husband/father) and it was stated that the remaining plaintiff had no cause of action to institute the suit against the defendant and that the plaint does not disclose any cause of action.

6.     After hearing the parties, the City Civil Court at Calcutta was pleased to reject the said application on 13th December, 2010. Being aggrieved and dissatisfied with the said order, a revision petition was filed against the said order by Subhas Chandra Sil, being the defendant in the said suit before the High Court. The High Court after perusing the facts as stated hereinabove, and after considering the averments made in the plaint held that after deleting the name of plaintiff No.1 from the plaint, it is clear from the averments that the plaint discloses no cause of action, and accordingly held that plaintiff No.2 has no independent cause of action to proceed with the suit and the handing over of possession of the suit premises is nothing but to carry out an order passed by the High Court and thereby plaintiff No.2 being the son, cannot have any cause of action in the matter. In view of the above, the High Court reversed the order of the trial court, allowed the application and rejected the plaint. Being aggrieved, this appeal has been filed on the ground that the said property is a trust property and that the appellant has a right to reside there as one of the trustees, and that he as a legal heir and son of the respondent, is entitled to reside in the suit property in terms of the trust deed.

7.      It is also to be noted that to assert such right, the appellant herein has already filed a suit before the City Civil Court at Calcutta, being T.S. No. 2451/2008, being a suit for declaration, accounts and permanent injunction and thereby it appears to us that the appellant has already taken steps in the matter to assert his rights and title in respect of the said property in the said suit.

8.     The sole question which arises for our consideration is whether the High Court was right in rejecting the plaint holding that the plaint does not disclose any cause of action.

9.     Learned counsel appearing on behalf of the appellant submitted that the appellant is the son of the respondent and is a trustee of the said trust property and he used to reside at the said premises with his mother. It is further submitted that he has a right to occupy the said premises in terms of the registered deed of settlement. He further stated that in accordance with the deed of settlement, after the death of the original settlor Mrinalini Dassi, the trust property would devolve for the use and benefit of her male heir in the male line in equal shares absolutely and for ever. Therefore, it is contended that he has a right to stay in the said premises, and accordingly submitted that the plaint discloses no cause of action.

10.             Per contra, it is submitted that the possession was handed over by the mother and son pursuant to the directions given by the High Court and the premises were vacated in compliance with the said order. After handing over the possession in terms of the order dated 22nd August, 2008, there was no cause of action subsisting in Title Suit No.2430 of 2007. In these circumstances, it is submitted that the order passed by the City Civil Court, Calcutta, rejecting the said application of the respondent under Order VII Rule 11 is wrong. The ground that the said trial court did not consider that the cause of action in the suit was in connection with the possession of the rooms in question and the said rooms were handed over pursuant to the order passed by the High Court. Therefore, the said cause of action as pleaded in the plaint by the plaintiffs and/or by the son was not subsisting after the order of the High Court. In these circumstances, the High Court correctly reversed the said order by allowing the said application in favour of the respondent after perusing the averments in the plaint. It is further submitted that the appellant is in gross suppression of material facts from this Court that the appellant did institute a suit on the basis of the rights claimed under the said trust deed which is pending for adjudication before the City Civil Court at Calcutta, being Title Suit No.2451/2008. In the plaint the plaintiffs/appellants did not aver that their rights flow from the trust deed as they tried to point out here.

11.   It is necessary for us at this stage to set out the relevant provisions of Order VII Rule 11 of the Code :

“11. Rejection of plaint

The plaint shall be rejected in the following cases:--

a)    where it does not disclose a cause of action;

b)   where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

c)     where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

d)    where the suit appears from the statement in the plaint to be barred by any law:

e)     where it is not filed in duplicate;

f)       where the plaintiff fails to comply sub-rule (2) of rule 9;

Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”

12. After perusing the order passed by the High Court and the reasoning given therein, it appears to us that the High Court has correctly perused the plaint in its entirety and after deletion of the name of plaintiff No.1 from the said Title Suit, held that the plaint discloses no cause of action after taking into account the fact that the very purpose of the suit has become infructuous in view of the order passed by the High Court to hand over the possession of the rooms in question. Therefore, the foundation of the suit was not subsisting after the handing over of possession to the defendant by plaintiff No.1 in terms of the order. Hence, in these circumstances, the High Court held that the plaint discloses no cause of action.

13. Now, it is necessary for us to find out whether the plaint discloses any cause of action, after deletion of the name of plaintiff No. 1 in Title Suit No. 2430 of 2007. We have gone through the averments made in the said plaint. After perusing the averments and on the basis of its entirety and considering that the statements made in the plaint are correct, it appears to us that the plaint discloses no cause of action and thereby it attracts the provisions of Order VII Rule 11(a) of the Code, and accordingly we hold that the High Court has correctly ascertained the position and allowed the said application reversing the order of the City Civil Court at Calcutta.

14. In these circumstances, we do not find any infirmity in the order passed by the High Court. We find no merit in the appeal and the same is, accordingly, dismissed.

…………………………….J.

(Gyan Sudha Misra)

......…………………………J

(Pinaki Chandra Ghose)

New Delhi;

March 25, 2014.