Soumik Sil vs Subhas Chandra Sil

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

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 :

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.

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.

March 25, 2014.