Judgment:
1. Of the several interlocutory applications that have come up for hearing, the one urged first is the defendants application for rejection of the plaint relating to this suit on the principal ground that it is barred by Order II Rule 2 of the Code of Civil Procedure. The defendants say that the first plaintiff had instituted a suit before the Sealdah court and another before the City Civil Court which were based on the same cause of action on which the present suit is founded. The defendants suggest that since the plaintiffs here and the sole plaintiff in the two earlier suits claim on behalf of the Motilal Pyne branch of the family, it would matter little that the second plaintiff, son of Motilal Pyne, was not a party to the previous suits instituted by his mother. The defendants contend that since the plaintiff in the two previous suits had not included the whole of the claim relating to the cause of action without the leave of either court, the plaintiffs here could not have launched this action at all.
2. GA No. 3090 of 2006 is the defendants application for rejection of the plaint relating to the suit as being barred by law. There is also a ground canvassed that this is a suit for land relating to an immovable property situated outside the territorial jurisdiction of this Court. GA No. 2800 of 2006 is the plaintiffs initial interlocutory application. GA No. 365 of 2008 is the plaintiffs second surviving application complaining of the violation of an initial order passed in these proceedings coupled with a prayer for amendment of the plaint. GA No. 413 of 2008 is the plaintiffs further application for restoration of status quo ante based on a complaint of dispossession from a Panihati property which is located several miles north beyond the bounds of the territorial authority exercised on the Original Side. GA No. 3928 of 2008 is the plaintiffs subsequent application for amendment of the plaint and the plaintiffs say that in view of such subsequent, comprehensive application for amendment, the prayers in GA No. 365 of 2008 relating to amendment may be disregarded. GA No. 596 of 2009 is the fourth defendant companys application for liberty to utilise funds lying in its bank accounts to meet its statutory and legal expenses. GA No. 2039 of 2009 is an application by the alleged subsequent purchasers of the Panihati property, who are now proposed to be added as defendants in the plaintiffs amendment application, for vacating an order subsisting in these proceedings that apparently affects them.
3. It is imperative that the frame of the suit, the nature of the cause of action pleaded and the reliefs claimed in this suit be first noticed. The plaintiffs claim that one Chaitanya Charan Pyne was the father of the predecessor-in-interest of the plaintiffs and the defendant nos. 1 and 2. Chaitanya Charan had five sons, each of them named after a precious stone: Hiralal, Motilal, Pannalal, Chunilal and Jaharlal, though not necessarily in that order. Chaitanya Charan also had two daughters but there is no further reference to the daughters beyond the second paragraph of the plaint. According to the plaint, an elder brother of Chaitanya Charan, Gour Mohan, was a member of the Calcutta Stock Exchange and carried on business under the name and style of GM Pyne. The plaintiffs claim that Gour Mohan admitted Chaitanya Charan as a partner of the firm and ultimately left it to Chaitanya Charan to run the business. Gour Mohan was a bachelor and died in 1948. The plaintiffs aver that Chaitanya Charan carried on the business of the firm and acquired substantial properties from the profits of the business and held the properties, inter alia, in the names of limited liability companies. The plaint narrates that Chaitanya Charan inducted his sons into what had then become a family business and for the purpose of acquiring immovable properties for the family, the fourth defendant company was incorporated in whose name the properties were to be parked. At paragraph 8 of the plaint it is stated that the Pyne family, in the name of the fourth defendant, acquired several immovable properties including one at Panihati, another at Amherst Row, a third at China Bazar Street, a fourth at D.L. Roy Street and a fifth at Narkeldanga. The plaintiffs predecessor-in-interest held 1800 shares out of the 4000 issued equity shares in the fourth defendant company at the time of his death in 2002.
4. The plaint says that Motilal bequeathed the 1800 shares in favour of the first plaintiff wife and that after Motilals death the first three defendants have wrongfully sought to alter the shareholding composition in the fourth defendant company. The third defendant is a son of a Hiralal who predeceased Motilal. The plaintiffs have apparently instituted proceedings under Section 111 of the Companies Act, 1956 before the Company Law Board for rectification of the register of members of the defendant company. That petition is pending. After narrating such matters up to paragraph 13 of the plaint, the plaintiffs have thereafter gone back to the 1970s and the subsequent period during the lifetime of Motilal with references to even earlier times. The substance of what the plaint says between paragraphs 14 and 19 is that Pannalal did not take much interest in the family business and the four other brothers conducted the family business on mutual understanding till Hiralals death in 1973 whereupon Hiralals heirs did not object to Motilal, Chunilal and Jaharlal running the family business. Motilal apparently developed a cardiac problem in 1973 and thereafter Chunilal and Jaharlal exercised all control of the family business and assets with Motilal reposing full confidence in his two younger brothers. Pannalal died in 1995 though it is not apparent from the plaint as to whether he had married or had children. After Motilals death his son, the plaintiff no. 2, was inducted on the board of directors of the defendant company in or about the year 2003. Paragraph 17 of the plaint speaks of Motilal Pyne having looked after and managed the Panihati property from the early 1950s and having managed a Simultala property standing in the names of Gour Mohan and Chaitanya Charan from or about 1980. It is necessary for the present purpose that the anomalies and contradictions that scream from the plaint are not noticed since the merits of the claim cannot be adjudicated at this stage. But anomalies and contradictions there are many, and even if it is accepted that there were some other inadvertent errors that had crept into the plaint, there appears to be an unhealthy dollop of unconcern in the manner in which the plaint has been finally prepared. Paragraphs 18 and 19 of the plaint refer to Motilal being in control and supervision of the Panihati and the Simultala properties and the first two defendants not paying maintenance charges in respect of the two properties save on account of the darwans salary for the Panihati property and the caretakers expenses for the Simultala property.
5. Paragraph 20 of the plaint is of some significance and must be noticed as the plaintiffs presented it:
20. After the death of Motilall Pyne the defendant no. 1 wanted the Panihati property to be sold and to dispossess the plaintiffs. The plaintiffs suggested to the defendant no. 1 that all the assets and properties of the joint Pyne family be partitioned but the defendant no. 1 refused to do so. The next paragraph speaks of the first defendant having instituted proceedings under Section 144 of the Criminal Procedure Code in July, 2003 alleging that the first three defendants were in possession of the Panihati property and seeking a direction that the second plaintiff not disturb the first three defendants possession thereof. Paragraph 22 claims that on the strength of the order passed in the Section 144 proceedings, the first defendant with his men and agents called at the Panihati property for the purpose of giving inspection thereof to prospective purchasers. From the general drift of the plaint it is evident that the first defendant had evinced a desire to sell the Panihati property after Motilals death in September, 2002 and prior to launching the criminal proceedings in July, 2003 and it was around the same time that the plaintiffs suggested to the first defendant that the joint family properties be partitioned. Paragraph 22 of the plaint would, therefore, imply that the first defendants initial alleged intrusion into the Panihati property was between July and September, 2003 as shortly thereafter the second plaintiff instituted proceedings under Section 144 of the Criminal Procedure Code and obtained an order on September 24, 2003 restraining all the strangers from entering into the Panihati property (plaint, paragraph 23). At paragraph 24 of the plaint it is said that the first defendant had engineered considerable mischief at the Panihati property in or about May, 2004 and at the following paragraph it is alleged that in June, 2004 the plaintiffs again learnt that the first defendant had visited the Panihati property with prospective purchasers therefor. On June 21, 2004 the plaintiffs obtained an order in fresh proceedings instituted under Section 144 of the Criminal Procedure Code by them for status quo to be maintained in respect of the Panihati property. Paragraphs 26 and 27 of the plaint refer to Title Suit No. 49 of 2005 having been instituted by the first plaintiff in the Sealdah court and the interlocutory proceedings therein. The reliefs claimed in the Sealdah suit (not quoted in this plaint) were as follows:
a) for declaration that the plaintiff has got right, title and interest as of share holders of the defendant No. 1, Company and she is in exclusive possession of the suit property;
(b) for perpetual injunction restraining the defendant No. 2 (Chunilal, who is the first defendant in the present suit), from interfering and/or disturbing the peaceful possession of the plaintiff in the suit property in any manner whatsoever;
(c) for all costs of the suit;
(d) for any other relief or reliefs.
6. The plaint relating to the Sealdah suit recounted that Chaitanya Charan had transferred the Panihati property to the defendant company against 2800 equity shares therein issued to him and other family members. Paragraph 7 of the Sealdah plaint refers to a family settlement shortly after the death of Chaitanya Charan, who died in 1958, under which the five sons of Chaitanya Charan agreed that Motilal would be exclusively allotted the Panihati and the Simultala properties. The Sealdah plaint proceeded to claim that pursuant to such family settlement Motilal obtained exclusive possession of the Panihati and the Simultala properties and had been residing therein alongwith his family members till his death in 2002. After mentioning in passing that Motilal could not take steps for dissolution of the defendant company due to his ill-health, the Sealdah plaint recorded that the Panihati property had been bequeathed by Motilal in favour of his widow and the Will was Probated in P.L.A. No. 101/2004 of the Honble High Court at Calcutta. Paragraph 11 of the Sealdah plaint referred to the Section 144 proceedings instituted by the plaintiff in respect of the Panihati property, the attempts by the first defendant herein in 2004 and 2005 to dispossess the first plaintiff herein from the Panihati property and the order of status quo in respect of such property passed in the subsequent Section 144 proceedings. Paragraph 12 of the Sealdah plaint claimed that though the Panihati property was in the name of the defendant company but the beneficial interest therein as of Director and/or share holders belonged to Motilal Pyne and upon his death belong to the plaintiff
7. To return to the plaint relating to the present suit, at paragraph 28 thereof the plaintiffs have referred to the City Civil Court suit filed in the year 2005 in respect of the Amherst Row, China Bazar Street, D.L. Roy Street and Narkeldanga properties. The appearing parties have submitted at the hearing that the plaint relating to the Sealdah suit has been rejected on the ground that the suit is barred by law and the pltff has no cause of action against the defendant in the instant suit. There is agreement all around that order of July 27, 2006 rejecting the Sealdah plaint has now attained finality. In the City Civil Court suit there is an injunction subsisting in favour of the plaintiffs but the injunction and the dismissal of an application by the defendants therein for rejection of the plaint relating to that suit are pending consideration in appeal. Since a reference to the City Court suit has arisen, a further digression from the plaint relating to the present suit may be in order. The first two introductory paragraphs in the City Court plaint culminate in the assertion that the defendant company purchased and acquired the five immovable properties. The third paragraph of that plaint refers to the board of directors of the defendant company comprising Motilal, Chunilal and Jaharlal immediately prior to the Motilals death. The defendants in the City Court suit are the same as have been arrayed as defendants in the present suit. The fifth paragraph in the City Court suit refers to Motilals 1800 shares in the defendant company; the sixth paragraph alludes to the alleged alteration in the register of members of the company following Motilals death and the resultant company proceedings; the seventh to the thirteenth paragraphs are almost substantially the same as the averments made in paragraphs 15 to 24 of the present suit. The fourteenth to the eighteenth paragraphs of the City Court plaint refer to the Sealdah suit and the proceedings arising therein with an additional statement that the defendants had filed a writ petition before this Court in respect of the Panihati property on which an order was passed on March 2, 2005 directing the Superintendent of Police at Barasat to ensure that there was no breach of peace at such property. Paragraph 19 of the City Court plaint alleges acts of misfeasance and breach of trust on the part of the first three defendants in respect of the Pyne family companies. Paragraph 20 speaks of advertisements issued in April, 2005 inviting offers for sale of the immovable properties. Paragraph 21 claims that Motilals widow asked the defendants to sell their shares to the plaintiff to avoid outsiders obtaining rights in respect of the properties. Paragraph 22 suggests that the said properties were covered by the Memorandum of Articles of Association of the defendant company. Paragraph 23 speaks of the defendants not being entitled to alienate the properties without convening a general meeting of the company and without authority as per Article of Association. Paragraph 24 is an assertion that the defendants were not interested in retaining the said properties and a plea that the defendants be restrained from transferring their shares to outsiders. At paragraph 25 Motilals widow expresses an apprehension that the first three defendants were about to dispose of the suit properties. Paragraphs 26 and 27 are the averments in support of the reliefs of declaration and injunction. The reliefs claimed in the City Court suit are as follows:
(a) Declaration that the plaintiff being the share holder of the defendant no. 4 and of all the properties mentioned in the schedule is entitled to enjoy all the immoveable and moveable properties to the defendant no. 4;
(b) Permanent injunction restraining the defendant nos. 1 to 3 from dealing with and disposing of and/or entering into an agreement and/or alienating, transferring any of their share in the properties mentioned in the schedule to any outsider;
(c) Cost of the suit;
(d) Such other order or orders as the Ld. court may deem fit and proper.
8. To finally complete the narration in the plaint relating to the present suit, paragraph 29 of the plaint as filed (and as is evident from both copies thereof which have been produced by the Department on requisition) states as follows:
29. Al though the plaintiffs are in joint possession the defendants no. 1, 2 and 3 are in the management of the following properties:
(a) Premises no. 618, B.T. Road, P.O. Sikhchar, Panihati, 24-Parganas
(North).
(b) 4A, Amhert Row, Kolkata 700 009.
(c) 9, China Bazar Street, Kolkata 700 001.
(d) 21B, D.L. Roy Street, Kolkata 700 006.
(e) 8/98/H/33/1, Moulana Abul Kalam Azad Sarani, Narkeldanga,Kolkata.
9. Paragraph 30 of the present plaint claims that the defendants have not maintained the said properties and no accounts in respect thereof have been rendered to the plaintiffs despite request and that the condition of the properties has deteriorated. Paragraph 31 says that the first three defendants are guilty of misfeasance and breach of trust in relation to the conduct of the affairs of the family companies, particularly the defendant company. Paragraph 32 alleges that the first three defendants have caused loss to the family companies; paragraph 33 complains of the plaintiffs having informed the other branches of the family of the alleged misdeeds of the first three defendants and of the indifference of such other branches; paragraph 34 is the pleading of the conditions recognised in Section 38 of the Specific Relief Act, 1963; and, paragraph 35 is an assertion that the first two defendants are in wrongful control of various properties belonging to the defendant company.
10. At paragraph 36 of the plaint it is said that the first two defendants are in control of all books, records and documents of the family companies and properties. Paragraph 37 is a grievance that general meetings of the family companies have not been convened after the year 2001. Paragraphs 38, 39, 40 and 41 repeat the allegation that the shares standing in the name of Motilal have been sought to be wrongfully transferred in favour of others by the first three defendants. Paragraphs 42 and 43 complain that no board meetings or general meetings of the defendant company have been held after April 1, 2001 and reflect an apprehension that the defendants may have concocted and fabricated records. Paragraphs 44 and 45 contain the pleading for annulment of all board and general meeting resolutions of the defendant companies shown to have been passed after April 1, 2001. Paragraph 46 of the plaint is an apprehension that the first three defendants may surreptitiously hold board meetings of the defendant company and show business transacted thereat to the prejudice of the plaintiffs. Paragraph 47 is an allegation of the breach of fiduciary obligations owed to the plaintiffs by the first three defendants. Paragraph 48 is the pleading under Section 38(3) of the Specific Relief Act in aid of the perpetual injunction sought. Paragraph 49 is a prelude to one of the injunctions claimed. Paragraph 50 of the plaint is an apprehension of manipulation of records and a plea for cancellation thereof. Paragraph 52 is the pleading in support of the leave under Order II Rule 2 of the Code. Paragraph 53 is the pleading in support of the leave under Order I Rule 8 of the Code. There was, however, no leave under Order I Rule 8 of the Code sought nor was any granted when the plaint was presented on September 5, 2006. Leave was granted under clause 12 of the Letters Patent and under Order II Rule 2 of the Code. The suit is valued at Rs.11 lakh and the reliefs claimed include a declaration that the first two defendants hold the documents and records of the family companies and title deeds of the family properties as trustees for the benefit of other family members and a declaration that the first two defendants are guilty of misfeasance and breach of trust in relation to the family companies including the defendant company. There is a declaration sought that the second plaintiff is a member and director of the company; another as to the paid-up capital of the company; a third as to the shareholding position in the company; and, a fourth that the first plaintiff is entitled to unquantified shares in the company. The further declarations sought include one for annulling all annual returns and shareholding patterns of the company subsequent to April 1, 2001; and, another for annulling minutes and records of all board and general meetings of the company and its statutory documents for the period subsequent to April 1, 2001. Mandatory injunction has been sought against the first two defendants to render accounts and produce books and records of the family companies. Perpetual injunctions have been sought to restrain the defendants from dealing with the properties standing in the name of the company or interfering with the plaintiffs exclusive possession in respect of the properties referred to in paragraph 8 of the plaint. Injunction has also been sought against the defendants inducting any outsider as a director or shareholder of the company and for giving effect to any board or general meeting resolutions of the company shown to have been held subsequent to April 1, 2001. The further reliefs relate to the plaintiffs right to participate in the day-to-day affairs of the defendant company and enjoy its assets; restraining the defendants from operating the bank accounts of the company; restraining the defendants from giving effect to the documents filed with the Registrar of the Companies subsequent to April 1, 2001 and from altering the share capital thereof. There is also an injunction claimed to restrain the defendants from dealing with or disposing of or parting with possession of any of the properties of the defendant company and from convening board and general meetings of the company. The final substantial relief is for rectification of the records of the company to reflect its correct affairs. It is extremely difficult to assess the cause of action of the plaintiff, in the legal sense, through the ramblings in the plaint. It does not reflect the character of a derivative action nor are the reliefs claimed for the benefit of the fourth defendant company. The plaintiffs personal cause is mixed up with the pretended cause espoused on behalf of the company and from its beginning to its end the plaint is replete with contradictions. There are several averments in this plaint which are contrary to the allegations made in the plaints relating to the earlier suits and it is difficult to imagine that this plaint could either have been lodged or allowed to adorn the records of this Court even a few years back. But the anguish at the quality has to be brushed aside at this stage and only the challenges as canvassed by the defendants need to be assessed. The principal thrust of the defendants contention is that since the plaintiffs omitted to sue or intentionally relinquished a portion of the claim in the earlier suits, they are precluded from subsequently suing in respect of the portion omitted or relinquished. There is also an argument that this suit is essentially for the protection of the plaintiffs alleged possession of the Panihati property and the court must see through the other averments and the myriad irrelevant reliefs claimed to recognise the action as one in furtherance of the plaintiffs alleged title to or possession of the Panihati property. The plaintiffs rely on the principle recognised in Order VII Rule 13 of the Code that the rejection of a previous plaint would not bar the institution of a subsequent action founded on the same cause of action. Both parties have relied on a decision reported at AIR 1949 PC 78 (Mohammad Khalil Khan v. Mahbub Ali Mian) that was originally carried by the defendants in support of their challenge under Order II Rule 2 of the Code. Paragraph 61 of the report enunciates the applicable principles and is educative: [61] The principles laid down in the cases thus far discussed may be thus summarised: (1) The correct test in cases falling under O. 2, R. 2, is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. Moonshee Buzloor Ruheem v. Shumsunnissa Begum, (1867-11 M.I.A. 551 : 2 Sar. 259 P.C.) (supra).
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Read v. Brown, (1889-22 Q.B.D. 128 : 58 L.J.Q.B. 120) (supra).
(3) If the evidence to support the two claims is different, then the causes of action are also different. Brunsden v. Humphrey, (1884-14 Q.B.D. 141 : 53 L.J.Q.B. 476) (supra).
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical. Brunsden v. Humphrey, (1884-14 Q.B.D. 141 : 53 L.J.Q.B. 476) (supra).
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. Muss. Chandkour v. Partab Singh, (15 I.A. 156 : 16 Cal. 98 P.C.) (supra). This observation was made by Lort Watson in a case under S. 43 of the Act of 1882 (corresponding to O. 2, R. 2), where plaintiff made various claims in the same suit.
11. The defendants have also placed a judgment at reported at (1977) 4 SCC 467 (T. Arivandandam v. T.V. Satayapal) where the Supreme Court advocated that counsel should screen wholly fraudulent and frivolous litigation and refuse to be beguiled by dubious clients. The defendants, however, rely on the legal principle recognised therein that a court should exercise its power under Order VII Rule 11 of the Code to nip a manifestly vexatious and meritless suit in the bud. The plaintiffs have, on the other hand, relied on a judgment reported at (1997) 1 SCC 99 (Bengal Waterproof Ltd v. Bombay Waterproof Manufacturing Co), though the principle in that case may not strictly apply in the present suit. In a case of infringement of the plaintiffs trademark, the Supreme Court held in that case that a continuing deceit would give rise to a fresh cause of action notwithstanding a previous suit.
12. In furtherance of their challenge under Order II Rule 2 of the Code, the defendants refer to an unreported judgment of a learned Single Judge of this Court rendered on June 30, 2009 in SA No. 97 of 2006 (Sm. Kalabati Debi & ors v. Sm. Pratapi Devi). In that case the plaintiff had filed a first suit on the allegation that the defendants had taken forcible possession of the suit premises.
13. During the pendency of such suit a second suit was filed claiming possession of the suit premises which was not a relief claimed in the original suit. The first suit was withdrawn subsequent to the institution of the second suit but without leave to file a fresh suit or liberty to pursue the second action. In the unreported judgment it has been held that since the plaintiff chose to restrict the claim in the first suit only to the relief of injunction, without leave of court under Order II Rule 2 to sue for further relief, the plaintiff was precluded from initiating a fresh suit to claim the relief of possession. It is not necessary to dwell much on the first count of the defendants attack. The averments in the Sealdah plaint have been substantially reproduced earlier in this judgment and it is evident therefrom that the cause of action in that suit, however recklessly the plaint there may have been drafted, was in respect of the plaintiffs alleged rights in respect of the Panihati property. The plaint relating to that suit has been rejected and even if a subsequent suit is founded on the same cause of action, Order VII Rule 13 of the Code mandates the acceptance and continuation of the later action. The City Court suit, which is still alive, is in respect of the four properties other than the Panihati property and, notwithstanding the narration as to the acts of alleged misfeasance and breach of trust of the first three defendants in respect of the affairs of the defendant company, no relief relating thereto has been claimed in such suit. The cause of action of the first plaintiff here in the City Court suit is restricted to the preservation of the four immovable properties other than the Panihati property which form the subject-matter thereof and, in any event, since such suit has not been disposed of yet the bar under Order II Rule 2 of the Code in respect of the present suit may not come into play. As to whether the present suit is a suit for land relating primarily to the Panihati property has to be discerned from the intention of the plaintiffs and the assessment of the primary objective of the suit. Though the defendants have not expressly sought revocation of the leave granted under clause 12 of the Letters Patent, the primary prayer in GA No. 3090 of 2006 is for rejection of the plaint which is a higher prayer than one for revocation of leave under clause 12 and, in any event, is capable of being seen to have incorporated the lesser request for revocation of the leave. The defendants have urged that the suit relates to the control, management and possession of the plaintiffs in respect of immovable properties situated outside the territorial jurisdiction of this Court. Paragraph 9 of the defendants application contains the relevant averment. It is, however, the proposed added defendants who have pressed the point more vociferously as they urge the court to sift through the web of irrelevance that the plaintiffs have spun around the defendant company in their feigned attempt to present the company as the party which has been wronged. It is necessary in such context to introduce the amendment of the plaint that has been sought by way of GA No. 3928 of 2008. In the petition in support of the proposed amendment, the plaintiffs claim as follows at paragraph 5 thereof: 5. The plaint as filed by the petitioners contains inadvertent typographical errors. During the pendency of the instant suit, there had been developments which necessitates amendment of the plaint filed by the petitioners. The later amendment application needs to be seen not so much to assess the desirability of allowing the same but to bring home a most distressing aspect that can scarcely be ignored. The plaintiffs have sought to add several parties who are said to be the transferees of the Panihati property. GA No. 3928 of 2008 is the plaintiffs third application for amending the plaint. Though at paragraph 4 of the petition relating to GA No. 3928 of 2008 the plaintiffs have referred to GA No. 365 of 2008 being the only previous application for amendment, and such application having apparently been withdrawn on February 26, 2008, by the order of February 26, 2008 GA No. 3028 of 2006 was permitted to be withdrawn and not GA No. 365 of 2008. GA No. 3028 of 2006 was the first amendment application that is now gone; GA No. 365 of 2008 is the second application for amendment of the plaint which includes other prayers; and, GA No. 3928 of 2008 is the third application for amendment. As is the practice, a copy of the proposed amended plaint has been appended to the petition in GA No. 3928 of 2008. Again, as per the practice, the proposed amendments have been indicated in red ink, be they deletions or additions. Red ink is used to indicate a first amendment. Subsequent amendments are indicated in different colours. It is expected of a party applying for amendment that a copy of the original pleading with the proposed amendments incorporated therein would be placed before court. It would do well now to see as to whether these plaintiffs have acted accordingly. Paragraph 29 of the plaint is a key paragraph in that it refers to the several immovable properties and the plaintiffs contention as to the possession and management thereof. Paragraph 29 of the plaint has been quoted above. Paragraph 29 of the plaint, incorporating the proposed changes, as it appears in the proposed amended plaint appended to the petition in GA No. 3928 of 2008, reads thus:
29. The plaintiffs are in joint possession and residing at premises No. 618, B.T. Road, Sukchar, P.S. Khardha, Kolkata 115 and the plaintiff no. 1 and the defendant nos. 1, 2 and 3 are in joint possession and management
of the following properties:
(a) Premises No.618, B.T. Road, P.O. Sikhchar, Panihati, 24- Parganas (North)
(a) (b) 4A, Amherst Row, Kolkata 700009;
(b) (c) 9, China Bazar Street, Kolkata 700001;
(c) (d) 21B&C;, D.L. Roy Street, Kolkata 700006;
(d) (e) 8/98/11/33/1, Moulana Abul Kalam Azad Sarani, Narkeldanga, Kolkata.
14. The unamended opening lines of paragraph 29 of the plaint, as reflected in the copy of the proposed amended plaint, bear no resemblance to the opening lines of paragraph 29 of the plaint that is filed in court. It is disturbing and a matter of regret and concern that a party or its agent would be, if one were to be charitable, so careless. There are several other places where the copy of the proposed amended plaint is at variance with the plaint filed in court. There is an undeniable problem of quality all around and the perceived predicament of quantity in the judiciary may have more to do with quality as unmeritorious claims and defences and avoidable errors abound and needless lenience is accorded to them to clog the system and leave the worthy unattended to. To get back on track, the key assessment here has to be as to whether the plaintiffs have camouflaged their claim in respect of their alleged rights relating to the Panihati property in a window-dressed corporate action. The proposed added defendants insist that relief (p) in the plaint tucked away as it is between other reliefs apparently claimed for the benefit of the company is the real essence of the claim. Such relief seeks a perpetual injunction restraining the defendants in any way interfering with exclusive physical possession of the plaintiffs over the immovable properties referred to in paragraph 8 of the plaint. Paragraph 8 of the plaint mentions the five properties including the Panihati and Narkeldanga properties which are obviously beyond the territorial limits over which this Court exercises jurisdiction on its Original Side.The proposed added defendants rely on a Division Bench judgment reported at AIR 1978 Cal 133 (Mst. Zohra Khatoon v. Janab Mohammad Jane Alam) for the principle that the granting of an amendment postulates the authority of the court to entertain the suit. In other words, where the court lacked the jurisdiction to entertain the suit in the first place, it would not have the authority to allow any amendment. The point that the proposed added defendants seek to make is that if it is apparent that the primary motive of the plaintiffs was to assert their title or possessory rights in respect of the Panihati property, leave under clause 12 of the Letters Patent could not have been obtained and ought now to be revoked. The proposed added defendants rely on another Division Bench judgment reported at AIR 1983 Cal 420 (Tridandeeswami Bhakti Kusum Sraman Maharaj v. Mayapore Sree Chaitanya Math) for the proposition that despite the ostensible frame of the suit, it is the primary object of the suit which has to be ascertained; and, if it appears to the court that the primary object of the suit is to assert title or seek or preserve possession of a property situate outside jurisdiction, the court would revoke the leave granted under clause 12 of the Letters Patent. The sequence of events that appears from the plaint and the manner in which the plaintiffs have conducted the proceedings say it all. Paragraph 20 of the plaint declares that after the death of Motilal the first defendant wished to sell the Panihati property and dispossess the plaintiffs for such purpose (whether or not the plaintiffs were in actual possession thereof). The plaintiffs claim to have then suggested to the first defendant that the assets of the Pyne family be partitioned but the first defendant apparently disregarded such request. Motilal died on September 6, 2002 (paragraph 11 of the plaint) and according to paragraph 21 of the plaint, the first defendant instituted proceedings under Section 144 of the Criminal Procedure Code in July, 2003 falsely alleging that the defendant nos. 1, 2 and 3 are in possession of Panihati property and the plaintiff no. 2 is causing mischief The skirmish as to the Panihati property continued through 2003 and 2004 and resulted in the Sealdah suit being instituted by the first plaintiff in 2005 (paragraphs 22 to 26 of the plaint). The plaint relating to the Sealdah suit was rejected on July 27, 2006. The City Court suit was instituted in respect of the properties other than the Panihati property where the Narkeldanga property has been included in the schedule to the plaint by hand. Though there was no sequitur thereto, the first plaintiffs complaints relating to the Panihati property find mention in the City Court plaint. Paragraphs 9 to 18 of the City Court plaint reflect the grievance of the plaintiff in that suit in respect of the Panihati property though no relief in such regard has been as it could not have been claimed save in the omnibus wording of the first relief for a declaration. It is of some significance that there is no injunction or other relief claimed in support of the declaratory relief sought in the City Court suit since the substance of the second relief claimed is confined to the schedule to that plaint which does not include the Panihati property. On a reading of the Sealdah plaint and the City Court plaint it is apparent that the primary bone of contention between Motilals heirs and the defendants was as to the right to possession or control of the Panihati property. In the Sealdah suit there are several instances cited in the plaint of the alleged disturbance by the first defendant and his supporters in the plaintiffs alleged possession of the Panihati property. In the City Court plaint the disputes relating to the Panihati property have been detailed but the only allegation as to the alleged invasion of the plaintiffs rights in respect of the properties referred to in the schedule to that plaint is of some advertisement published in newspapers inviting offers for sale of the properties. Clearly, it is the Panihati property over which Motilals branch sought to assert its possessory or other rights and the second suit in respect of the other properties was to ensure that the defendants were kept under pressure in respect of such properties despite the real issue being the control of the Panihati property. The driving force of the action in the present case is also the Panihati property. With the Sealdah plaint gone and only an injunction in the City Court suit to show in respect of the other properties that the plaintiffs may not be very keen to preserve, an effective way had to be devised for protecting the plaintiffs control of or demand and desire for - the Panihati property. It is evident that it was in such circumstances that the facade of a corporate action was drawn up with scant regard to the elementary requirements of a derivative action to cloak the real purpose for launching the suit in this Court. There is no averment in the plaint that any attempt was made by the plaintiffs to have the matters resolved in the domestic forum of the company. After all, a company has a structure which has been judicially compared to the parliamentary form of governance. It is not evident on a scrutiny of the plaint as to whether all shareholders of the company have been impleaded. Not only has no leave under Order I Rule 8 of the Code been sought or obtained, the cause title does not indicate that the action is for the benefit of the company. There is no direct pleading as to the exact directorial and shareholding composition of the company or a categorical assertion that wrongdoers are in control of the company who would not allow the companys name to be used as plaintiff for the redressal of the wrongs done to the company. There is no relief claimed to rid the victim company of the wrongdoers or for the supersession of its board of directors. Indeed, the crying call of the plaint and the overwhelming motive of the suit is the personal benefit of the plaintiffs as they suggest that notwithstanding the Panihati property standing in the name of the company, it is the plaintiffs who are entitled thereto. It would also be evident from the averments in the Sealdah plaint that the plaintiff therein claimed title to the Panihati property adverse to the company. This is not a partition suit and the manner in which it has been framed does not permit the court to treat it as such. Not all members of the Pyne family have been impleaded, nor has a partition of the family assets and properties been sought. The daughters of Chaitanya Charan are not mentioned beyond the second paragraph of this plaint though the Sealdah plaint indicates that Chaitanya Charan the person under whom all the properties were apparently acquired by the family died post-1956. That is not to suggest that the plaintiffs have been altogether unable to give a glimpse of the cause for their grievance, but in such an action in the adversarial scheme of adjudication, the civil court cannot be expected to search out the real grievance of a claimant when the claimant has camouflaged it in the first place. In course of the interlocutory proceedings in the present suit it is the Panihati property and the Panihati property alone that has been the focus. The orders that the plaintiffs have sought and obtained relate primarily to the Panihati property. The plaintiffs initial application, as is wont, reflects the plaint and incorporates interlocutory prayers in aid of most of the reliefs claimed in the suit. It is the plaintiffs second application that would be a better indicator. In the petition relating to GA No. 365 of 2008 it is the Panihati property which blatantly takes centre-stage and interlocutory orders sought therein and amendments proposed to the plaint all concern the Panihati property save prayer (j). The plaintiffs shed their vestige of pretence and concern for the company to make a single-minded, no-holds-barred, frontal campaign for the Panihati jewel in the Pyne crown. The substantial amendments sought, both in GA No. 365 of 2008 and GA No. 3928 of 2008, are in respect of the Panihati property. The proposed added defendants are the alleged transferees of the Panihati property. It is the Panihati property that screams from the head, body and tail of this plaint and that is at the heart of this action. Since the Panihati property is situated beyond the territorial limits of this Court and since it is such immovable property which is the very soul of the present action, CS No. 219 of 2006 is found to be a suit for land in respect of an immovable property situated beyond jurisdiction. Consequently, the leave granted under clause 12 of the Letters Patent is revoked. GA No. 3090 of 2006 is disposed of. In the wake of the leave granted under clause 12 of the Letters Patent being revoked, all interim orders passed in the suit stand vacated with immediate effect. The receiver stands discharged without being required to file any accounts since he did not deal with any funds. The receiver will hand over the keys relating to the Panihati property to such person as may be found entitled thereto by any order of an appropriate forum that may be passed within a period of three months from date, but the receiver will no longer be deemed to be in possession of the Panihati property. The plaintiffs are directed to pay the receiver a final remuneration of 2000 GM. GA No. 2800 of 2006, GA No. 365 of 2008, GA No. 413 of 2008 and GA No. 3928 of 2008 are dismissed. GA No. 596 of 2009 and GA No. 2039 of 2009 are disposed of without any order since the subsisting interim orders in the suit stand vacated. The plaintiffs will pay costs assessed at 3000 GM to the West Bengal State Legal Services Authority within a fortnight from date which the plaintiffs will be entitled to recover from advocateon- record representing them in this suit. Urgent certified photocopies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.