Judgment:
ORISSA HIGH COURT: CUTTACK.
W.P.(C).No.5273 OF 201.In the matter of an application under Articles 226 and 227 of the Constitution of India ----------Sr.Gour Gopal Ghosh …… Petitioner -VersusSr.Lichhi Ram Agarwal For Petitioner For opp.
party: …… Opp.
party : M/S.Goutam Mukherji, P.Mukherji, A.C.Panda, S.Das, S.Mishra & S.D.Ray.
M/s.J.Pal, B.K.Mishra & A.K.Behera.
----------------------Decided on 30.08.2012 --------------------------------PRESENT : THE HONOURABLE SHRI JUSTICE M.M.DAS M.M.DAS, J.
In this writ petition, the petitioner has assailed the order dated 22.2.2012 passed by the learned Civil Judge (Senior Division).Rourkela in C.S.No.19 of 2012 directing return of the plaint.”
2. The petitioner filed the suit , inter alia, alleging that the defendant – opp.
party has entered into an agreement with him to transfer the suit house pursuant to which the petitioner has paid various amounts to the Orissa State Housing Board (for short, ‘the O.S.H.B.’).which allotted the suit house in favour of 2 the defendant.
It was the case of the petitioner that under a self financing scheme, the defendant applied for allotment of a MIG – II-186,Core house, at Chhend, Phase-II (Kalinga Bihar).Rourkela by depositing a sum of Rs.20,000/-.
The O.S.H.B.allotted the house in his favour and demanded for deposit of a further sum of Rs.50,945/- by their letter dated 9.2.1996.
The defendant – opp.
party on receiving the said notice, expressing his inability applied for refund of the initial deposit made by him as EMD to the O.S.H.B.The plaintiff – petitioner upon coming to kNo.of this, as he was in search of a house, approached the defendant to transfer the allotment of the proposed house in his favour and as per their understanding, to prevent cancellation of allotment, the petitioner – plaintiff deposited the amount with the O.S.H.B.as demanded by its letter.
The defendant – opposite party also submitted a letter to the O.S.H.B.for cancellation of his application for refund of the EMd.Parties entered into an agreement on 25.5.1996 when the petitioner – plaintiff alleges that he paid a further sum of Rs.20,000/- to the opp.
party – defendant, who granted a receipt for the entire amount of Rs.70,945/-.
The petitioner – plaintiff claimed for a decree for specific performance of contract and also made ancillary prayer as hereunder:“ (a) Let a decree for specific performance of Contract be passed in favour of the plaintiff directing the defendant to take appropriate steps before the OSHB to transfer the suit house in 3 pursuant to the Agreement dt.
25.5.1996 within a stipulated period.
(b) If the defendant fails to execute and appear before the Orissa State Housing Board within the time stipulated, the same may be executed and transferred by this Hon’ble Court on behalf of defendant and in furtherance of such transfer all necessary act or thing or deed as may be deemed necessary may be done through process of Court for completion of such transfer of ownership of the suit house in all respect by passing such further or other order as may be required under the provisions of law from time to time; Or In the alternative, let a decree be passed directing the defendant to compensate the plaintiff for such amount so as to purchase any similar house in the locality.
(c) For any other decree/order as may be deemed fit and proper in the facts and circumstances of the case in favour of plaintiff.
(d) For orders of injunction permanently restraining the defendant from disturbing the possession of the plaintiff over the suit house.
(e) Cost of the suit be also decreed in favour of the plaintiff.”
.”
3. The learned trial court before admitting the suit perusing the office note found that the petitioner-plaintiff has claimed relief against the O.S.H.B, but the said O.S.H.B.has No.been made as a party in the suit and by order dated 25.1.2012 directed the petitioner-plaintiff to implead O.S.H.B.as a party in the suit and file a consolidated plaint.
The petitioner-plaintiff, 4 however, filed an application under Order 6, Rule 17 C.P.C.to amend the plaint by deleting the word “Orissa State Housing Board”.
from the prayer portion at paragraph – 15(a) of the plaint and to delete the relief claimed by him in paragraph – 15 (b) of the plaint.
The learned trial court by order dated 3.2.2012 rejected the said application for amendment upon coming to the conclusion that if the amendment is allowed, the prayer of the petitioner-plaintiff would be incomplete Thereafter, the petitioner-plaintiff and ambiguous.
impleaded the O.S.H.B.as defendant No.2 and filed an application to grant leave and admit the suit against the O.S.H.B.without service of notice under section 60 of the Orissa Housing Board Act, 1968 (for short, ‘the Act’).The learned trial court by the impugned order dated 22.2.2012, when the suit was posted for removal of defects, referring to the office note with regard to non-service of notice under section 80 C.P.C.and considering the submissions made on behalf of the petitioner-plaintiff that the Chairman, O.S.H.B.has been made as a party in the suit as per the earlier order passed by the learned trial court and the provisions under section 80 C.P.C.is No.applicable to O.S.H.B., but on the other hand, section 60 of the Act is applicable, sought leave of the court to proceed with the suit.
The learned trial court referring to section 60 of the Act concluded that the said section does No.have a provision like the proviso to section 80 (2) of the C.P.C.5 for grant of leave and rejected the said prayer made by the petitioner-plaintiff.
But immediately thereafter, the learned trial court abruptly has directed to return the plaint to the petitionerplaintiff to re-file the same after complying with the provisions laid down under section 60 of the Act.
Learned counsel for the petitioner submits that in 4.
the facts and circumstances of the case, section 60 of the Act is No.attracted to the case inasmuch as, even if the said section applies to the case, the learned trial court has acted without jurisdiction in directing return of the plaint.”
5. Order 7, Rule 10 C.P.C.provides for return of plaint.
The said provision for better appreciation of the case is quoted hereunder:“10.
Return of plaint.- (1) Subject to the provisions of rule 10A, the plaint shall, at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.
Explanation – For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this subrule.
(2) Procedure on returning plaint.- On returning a plaint, the Judge shall endORS.thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it”.The above provision of the C.P.C.can only be made applicable to a suit before appearance of the defendant, as in the present 6 case, if the court finds that it lacks pecuniary or territorial jurisdiction to try the suit.
Whether a suit filed by a plaintiff will be liable to be dismissed or will be held to be No.maintainable on the ground of non-service of notice under section 60 of the Act is a question which should be gone into during trial of the suit if the defendant – OSHB raises such a plea in its written statement.
The defendant when raises a plea with regard to non-maintainability of the suit for want of notice under the provision of any special statute, it is incumbent upon the learned trial court to frame an issue at the time of framing of issues as to whether the suit is No.maintainable due to want of such notice.
The learned trial court, therefore, erred in law in returning the plaint to the plaintiff with a direction to re-file the same after complying with the provisions of section 60 of the Act.
This Court, therefore, finds that the impugned order is unsustainable and accordingly, the said order is set a side with a direction to the learned trial court to proceed with the suit filed by the petitioner-plaintiff by issuing summons for settlement of issues to the defendants.
It is made clear that this Court has expressed no opinion as to whether in the facts and circumstances of the case, a notice under section 60 of the Act is required to be sent to the O.S.H.B.or not.
The said question is left open to be decided by the learned trial court during hearing of the suit. The writ petition is accordingly allowed. The interim order passed on 27.3.2012 shall continue till final disposal of the suit. …………………… M.M.Das, J. Orissa High Court, Cuttack. August 30th, 2012/Biswal. 8