Kishorilal Agarwal v. Durgadutt Hariram — 1995 DIGILAW 196 (CAL)

JUDGMENT Ruma Pal, J. The order dated 21st November, 1994, passed by this Court on the application of the defendant No.2 for taking the plaint off the file, is recalled. The application was heard and the order was passed without hearing the submission of the plaintiffs who were not represented by Counsel when the hearing was going on. At the time when the order was being dictated, the learned Counsel for the plaintiffs appeared and prayed for leave to make submissions at that stage This Court was of the view that the order would stand unless the plaintiffs could convince the Court that the said order had been wrongly passed. It appears now that this would unnecessarily complicate the matter as it would require hearing in a matter which has already been technically disposed of. 2. Accordingly, the matter is treated on the Day's List and is disposed of after giving the parties an opportunity of being heard. 3. At today's hearing it was argued that the suit is liable to be rejected basically on three grounds. The first ground is that one of the grounds on which the suit has been filed were maintainable in law. The second ground is that the suit was bad for mis-joinder of causes of action and in the absence of leave having been obtained under Order 2 Rule 4 of the Code of Civil Procedure the suit was liable to be rejected. The third ground is that the suit had been grossly over-valued. It is said that the claim for mesne profits was not sustainable in view of the decision of the Supreme Court in Chanderkali Bali vs. J. S. Thakur, reported in AIR 1977 SC 2262 . It is therefore stated that the addition of mesne profits to the claim of the plaintiff for the purpose of valuation was wrong. It is submitted that the plaintiff could in a suit for eviction only value the suit on the basis of the monthly rent for the last 12 months. Reliance has been placed on section 8 of the Suits Valuation Act read with section 7 sub-clause 13(d) of the Court Fees Act, 1970. Reference has also been made to the decision of this Court reported in 69 CWN 469. 4. It has also been argued that the other grounds on which the suit has been valued at over Rs. Reliance has been placed on section 8 of the Suits Valuation Act read with section 7 sub-clause 13(d) of the Court Fees Act, 1970. Reference has also been made to the decision of this Court reported in 69 CWN 469. 4. It has also been argued that the other grounds on which the suit has been valued at over Rs. 10 lakhs should not be accepted by this Court. It is said that the entire property had been purchased in 1991 @ Rs. 7.5 lakhs. In 1993 the suit had been filed only in respect of a portion of the premises. According to the defendant No.2 the claim of the value of the suit premises at over Rs. 10 lakhs was in circumstances absurd. The valuation of the damages has also been challenged on the ground that it is absurd valuation. 5. In support of the first contention it has been argued by the defendant No. 2 that the plaint had been filed on the basis of four grounds. (a) reasonable requirement; (b) default in making payment of rent; (c) wrongful subletting or transfer of the demise premises; and (d) violation of clauses on o an P of section 108 of the Transfer of Property Act under section 13(1)(b) of the West Bengal Premises Tenancy Act. As far as the ground (a) is concerned it is said that the claim is barred under section 13(3A) of the Tenancy Act which prohibits the institution of any suit on the ground of reasonable requirement within three years of the date Of purchase. In this case the suit premises had been purchased admittedly on June, 11 1991 and suit had been filed on September 1, 1993 within the prohibited period. 6. As far as ground (b) is concerned it is said that no suit could lie for the purposes of default in payment of rent in view of the fact that the defendant No.2 had already made an application under section 17(2) of the Tenancy Act and that application is still pending. 7. 6. As far as ground (b) is concerned it is said that no suit could lie for the purposes of default in payment of rent in view of the fact that the defendant No.2 had already made an application under section 17(2) of the Tenancy Act and that application is still pending. 7. With regard to grounds (c) and (d) it has been conceded by the Learned Counsel appearing on behalf of the defendant No 2 that these are really a question of fact and could not be argued in support of an application under Order 7 Rule 11 However, it was urged by a Learned Counsel appearing on behalf of the defendant No. 2 that under Order 7 Rule 11, the Court was competent to reject a portion of the suit, In this case, it is submitted, the portion of the suit in so far as it relates to grounds (a) and (b) noted above should be rejected. 8. The plaintiff has opposed the application and has submitted that the application is misconceived. Accordingly to the plaintiff the defendant No.2's application proceeds on the basis that the plaintiff has no cause of action. It is pointed out by the plaintiff that the language of Order 7 Rule 1 (a) does not permit this to be a ground for rejection of the plaint. It is stated that on a plain reading of the' provisions of Order 7 Rule 11(a) in an application under that section it must be shown that the plaint does not disclose a cause of action. According to the plaintiff this was not the basis of the defendant No. 2's application at all. Reliance has been placed on the decision reported in 89 CWN 1117 in this context. 9. It is also submitted by the plaintiff that it is clear from the provision of Order 7 Rule 11 (d) that the application thereunder must be determined "from the statements in the plaint." On the basis of the statements contained in the plaint, it is argued, the defendant / applicant must show that the suit is barred. The suit according to the plaintiff means the entire suit and not a portion of it. The suit according to the plaintiff means the entire suit and not a portion of it. It is said that a suit may comprise of several causes of action and it is only when the plaintiff is wholly non-suited by any law that an application under Order 7 Rule 1 (d) pay. It is argued that as the defendant applicant had himself conceded that at least two of the grounds for eviction were available to the plaintiff in the sense that they could be rejected out of hand. That meant that the suit itself could not be rejected. The plaintiff has drawn a distinction between the provisions of Order 7 Rule 11 and Order 6 Rule 16 of the Code of Civil Procedure. It is urgued that the later provision allowed for striking out of pleadings there was no question of the suit itself being rejected on that ground 10. On the question of valuation it has been submitted that in the plaint, the plaintiff had fi1ed the suit not only against the defendant No.2 for eviction as qua tenant but also against the defendant No.3 as a trespasser. As such even assuming that the relief against the defendant No.2 was liable to be valued only under the provisions of section 7(xiii)(d) of the Court Fees Act, 1970, the relief against the defendant No. 3 could be valued under the provisions of section 7(vi)(a; of the b70 Act. 11. It has also been pointed out that in the plaint valuation had been made on the ground of recovery of possession not only against the defendants Nos 1 and 2 but also against the defendant no 3. The present market value of the flat, according to the plaint, was Rs. 10 lacs In addition, the plaintiff has also claimed and valued its relief on the basis of the alleged violation of Clauses (m), (n), (0) and (p) of section 108 of the Transfer of Property Act 1882 at Rs. 10,00,000/-. Both these valuations were in addition to the basis of the meme profits. On such basis it is argued that the suit could not be said to be below the pecuniary jurisdiction of this Court. 12. 10,00,000/-. Both these valuations were in addition to the basis of the meme profits. On such basis it is argued that the suit could not be said to be below the pecuniary jurisdiction of this Court. 12. In answer to the defendant-applicant's submissions regarding the obtaining of leave under Order II Rule 4 of the Code of Civil Procedure, it is submitted that such leave is necessary only when there are different sets of "facts for different reliefs. In this case the same set of facts would have to be gone into and the plaintiff was entitled to join the cause of action both against the defendants Nos. 1 and 2 and the defendant No.3 under the provisions of Order 1 Rule 3 of the Code of civil Procedure. 14. Having heard the submissions of the parties, I am of the view that the application must be dismissed. The provisions of Order VII Rule 11 of the Code of Civil Procedure can be resorted to only on the basis of the allegations contained in the plaint. I am of the view that these provisions do not allow for a partial rejection of the plaint. The language of Order 7 Rule 11 militates against it. No authority has been cited in support of the submissions of the defendant-applicant that the Court can under those provisions of law reject the plaint partially. Therefore, even assuming that the defendant-applicant is correct in its submission regarding the non-availability of Ground (a) and Ground (b), referred to above, this would not make the plaint as a whole liable to be rejected in limine. It may be that the plaintiffs' claim for recovery of possession on the ground of reasonable requirement is a bad one, but the other grounds cannot be said as not being available to the plaintiffs when the suit was filed. It may also be that the plaintiffs are denied the relief on the ground of default in payment of rent by the defendant-applicant, if the application of the defendant-applicant under section 17 (2) of the West Bengal Premises Tenancy Act is allowed. But, this, in my view, would not make the suit itself bad, nor can be said that the suit was barred by law or that it did not disclose any cause of action. But, this, in my view, would not make the suit itself bad, nor can be said that the suit was barred by law or that it did not disclose any cause of action. Non-payment of rent is a recognized ground for eviction under section 13 (1) of the West Bengal Premises Tenancy Act. The relief that may ultimately be granted to the plaintiffs cannot determine the maintainability of the suit. 14. The case of over-valuation, as made out by the defendant-applicant, is also not acceptable by the Court as a ground for a rejection of the plaint in the facts of this case. Even on the question of mesne profits it would be difficult to say at this stage whether the plaintiffs are entitled to claim mesne profits at the rate claimed or at all in view of the decision of the Supreme Court in the case of Smt. Nandita Bose vs. Ratanlal Nahata, reported in AIR 1987 SC 1947 . In that case the Supreme Court in a similar fact situation appeared to hold that a claim for mesne profits could be made in a suit for eviction under the Tenancy Act. In this case the suit is not only one for eviction of a tenant simplicitor. An alternative case has been made against the defendants Nos. 1 and 2 as trespassers (vide paragraph 16 of the plaint), Additionally, a claim has been made for recovery of possession from the defendant No.3 who, according to the plaint, was never a tenant under the plaintiff. In such a case, the provisions of section 7 (VI) (a) of the West Bengal Court Fees Act, 1970 would be applicable. It is .noteworthy that under section 21 (2) of Act 10 of 1970 where more reliefs than one is based on the same cause of action either jointly or in the alternative, the fee shall be paid according to the value of the reliefs in respect of which the largest fee is payable The plaintiff has in addition to claiming recovery of possession of the property from the defendant No.3 also claimed damages valued at Rs. 10,00,000/-. It cannot be said on the basis of the plaint alone that the claim for damages is no excessive or unreasonable that the assesment of damages by the plaintiffs must be rejected. 10,00,000/-. It cannot be said on the basis of the plaint alone that the claim for damages is no excessive or unreasonable that the assesment of damages by the plaintiffs must be rejected. There is no objective standard, either pleaded or shown by the defendant-applicant, which could be applied for the purpose of holding that the claim for damages at Rs. 10,00.000/- was a case of deliberate over-valuation justifying rejection of the plaint. 15. The last submission of the defendant applicant on the basis of the provisions of Order 2 Rule 4 of the Code of Civil Procedure is also not tenable Order 2 Rule 4 provides that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property except claims for mesne profits or arrears of rent, claims for damages for breach of any contract under which the property is held or claims in which the relief sought is based on the same cause of action. The plaintiffs in this case have claimed recovery of possession of immovable property, mesne profits which they are permitted to do under Order 2 Rule 4(a) of the Code of Civil Procedure, and decree for damages which they are permitted to do under Order 2 Rule 4 (b) and (c). 16. For the reasons aforesaid, the application cannot succeed and the same is dismissed. 17. Costs of this application will be the cost in the cause. 18. All parties concerned are to act on a xeroxed signed copy of the operative portion of the Judgment and Order on the usual undertaking. Application dismissed.