Govind Agarwal Vs Ashok Shee and Ors.

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17.06.2025

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Item No.46

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Court No.25 sg

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C.O. 1915 of 2022

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Govind Agarwal Vs. Sri Ashok Shee & Ors.

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Mr. Pinaki Ranjan Mitra ….for the petitioner. Mr. Sukumar Bhattacharyya Ms. Puja Sonkar ….for the opposite party no.1.

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1. Present petition has been filed challenging the order dated 21^st May, 2022 whereby the learned Civil Judge (Senior Division), 2^nd Court, Howrah decided the preliminary issue against the petitioner/defendant no.1. Before proceedings further it is necessary to advert to certain basic facts. The opposite party/plaintiff filed a Title Suit No. 407 of 2019 before the 4^th Civil Judge (Junior Division) at Howrah in November, 2019. It is pertinent to mention that the suit was filed by the plaintiff no.1 Sri Ashok Shee, along with five others plaintiffs namely Smt. Jharna Shee, Sri Sanjoy Shee, Sri Sandip Shee, Smt. Srabonti Koley, Smt.Chhabi Shee. The suit was filed against the Sri Govind Agarwal, Smt. Manju Shee. It is also

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necessary to reproduce relevant paragraph of the cause of action and relief claimed.

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“20.That the cause of action of the suit arose on and from 30.3.2012, 18.4.2012. 5.5.2015, 22.2.2019 and gradually day to day thereafter in holding no. 31, sitahath Bose Lane, within H.M.C. Ward no. 10, P.S. Golabari, Dist. Howrah-711 106.

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23. That the pltffs. pray:

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a) a decree on declaration that the pltff. is entitled to 40% share of the four storied (G) building in holding no.31, Sitanath Bose Lane, P.S. Golabari, Howrah.

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b) a decree on declaration that the pltff. have lawful right to get / obtained flats as per 40 % share as mentioned in the development agreement dated 30.3.2012 in finished condition.

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C) decree on declaration that the defdt. no. 1/ developer has no right to transfer flat of the building without delivery of flats to the pltffs. d) decree on declaration that the defdt. no. 1 has no right to make any unauthorised construction on violation of the development agreement dated 30.3.2012.

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e) a decree on declaration that the defdt. no. 1 is bound to deliver 40% share of the building (G+4) the pltffs. in finished condition. f) a decree on declaration that the defdt. no. 1 has no right to make any unauthorized construction i.e. 4^th , 5^th and 6^th and 6th floor over and above the roof of the G+ 3 building.

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g) a decree for permanent injunction against the defdt.no. 1 on restraining him from selling any flat or shop or rooms etc. and / or making any further construction of the building situated in the schl. mentioned property. h) a decree for temporary injunction.

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i) a decree for all cost of the suit.

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j) Any other relief to which the pltffs. are entitled both in law and equity”

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2. Subsequently, the plaintiff no.1, in the earlier suit, alone filed a Title Suit No. 502 of 2019 before the learned Civil Judge (Senior Division), 2^nd Court, Howrah against Smt. Govind Agarwal, Smt. Manju Shee. The remaining plaintiffs in the earlier suit i.e., Smt. Jharna Shee, Sri Sanjoy Shee, ,Smt. Shrabonti Koley and Smt. Chhabi Biswas were impleaded as proforma defendants. This time the plaintiff enhanced the valuation of the suit from

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Rs. 500 to Rs. 60,500/- so as to bring the same within pecuniary jurisdiction of Civil Judge (Senior Division).

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3. Admittedly the filing of the earlier suit was not mentioned in the subsequent suit. It is also necessary to reproduce relevant paragraph of the cause action and relief claimed which are as under; “20. That the cause of action of the suit arose on and from 30.3.2012, 18.4.2012, 5.5.2015, 22.2.2019, 3.9.2019, 12.9.2019, 18.9.2019 and gradually day to day thereafter in Holding No. 31, Sitanath Bose Lane, within H.M.C. Ward No. 10, P.S. Golabari, District Howrah711106.

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22. That the plaintiff prays :-

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a) a decree on declaration that the plaintiff and proforma defendants are entitled to 40% share of the four storied (G+3) building in Holding No. 31, Sitanath Bose Lane, P.S.

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Golabari, District Howrah.

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b) A decree on declaration that the plaintiff and proforma defendants have lawful right to get/obtained flats as per 40%. share as mentioned in the Development Agreement dated 30.3.2012 in finished condition.

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c) A decree on declaration that the defendant No. 1/developer has no right to transfer flat of

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the building without delivery of flats to the plaintiff and proforma defendants.

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d). A decree on declaration that the defendant No.1 has no right to make any unauthorized construction on violation of the development agreement dated 30.3.2012.

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e) A decree on declaration that the defendant No.1 is bound to deliver 40% share of the building (G+4) to the plaintiff and proforma defendants in finished condition.

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f) A decree on declaration that the defendant No. 1 has no right to make any unauthorized construction i.e. 4th, 5th and 6th floor over and above the roof of the G+3 building.

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g) A decree for permanent injunction against the defendant No.1 to restrain him from selling any flat or shop or rooms etc. and/or making any further construction of the building situated in the schedule mentioned property. h) A decree for all cost of the suit.

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i) Any other relief to which the plaintiff is entitled both in law and equity.”

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4. It is also not disputed that the subject matter of the property is identical in both the suits. Learned counsel for the opposite party has made an attempt to defend the order of the learned Trial Court on a technical ground that this Court in its jurisdiction

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has limited power only to examine the order as to its correctness. Learned counsel submits that the learned Trial Court has rightly interpreted Order 2 Rule II of the CPC and has returned the finding on the basis that Order 11 Rule 2 of the CPC was not attracted.

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5. At the outset, this Court is shocked and is at pain to find out that how the opposite party/plaintiff has misused and abused the process of the Court. The Constitutional Courts have time and again reiterated that a party should come to the Court with clean hands. A party approaching the Court with dirty hands must be penalized so as to set as an example for others.

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6. The present petition has been filed under Article 227 of the Constitution of India. The High Court while exercising such jurisdiction has to ensure, being a Court of equity that the litigants who have misused and abused the process of the Court should be dealt with iron hand. The suppression of fact material facts is definitely an attempt to misuse and abuse the process of the Court and an attempt to pollute the stream of administration of justice.

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7. This Court is equally pained to see that the learned Trial Court while deciding the issue of preliminary issue, merely went into the ambit of

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Order 11 Rule 2 of the CPC, but did not care to see even the plaint filed in Title Suit No. 407 of 2019 and Title Suit No. 502 of 2019. It has been stated at Bar during the course of submission that earlier Title Suit no. 407 of 2019 was withdrawn by the plaintiff after filing of Title Suit No. 502 of 2019. Thus filing of the subsequent suit on the same cause of action by concealing the filing of the earlier suit merely on enhancing the valuation of the suit is certainly to be deprecated. It is also pertinent to mention that the opposite party/plaintiff at no point of time made any submissions that he moved the Learned Trial Court, where Title Suit No. 407 of 2019 was filed, for enhancement of valuation for the purpose of jurisdiction. Had the plaintiff been bona fide, the procedure as provided under Order VII Rule 10 of the Civil Procedure Code could have been put to use.

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8. The Court must come with the heavy and firm hands on such parties. The Court therefore allows the present petition and dismiss in its extra ordinary jurisdiction, Title Suit No. 502 of 2019 as allowing the same to remain on board shall amount to perpetuating of illegality, which cannot be allowed by this Court.

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9. The Court would also be failing in duty if it does not impose a cost upon the opposite party/plaintiff for making such sinister attempt to interfere into the administration of justice.

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10. Hence petition is dismissed with cost of Rs. 25,000/- to be deposited with the Calcutta High Court Bar Association Lawyers’ Benevolent Fund. Compliance report be file within eight weeks from the date.

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11. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all formalities.

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12. List in the Combined Monthly List of August, 2025.

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(Dinesh Kumar Sharma, J.)

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Govind Agarwal v. Ashok Shee and Ors.

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Govind Agarwal v. Ashok Shee and Ors.

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