In re: Shyamal Sundar Roy v. Nirmal Kumar Ghose — 1995 DIGILAW 358 (CAL)

JUDGMENT The present revisional application is directed against Order No.18 dated 3.5.1995 passed by the 2nd Court of Assistant District Judge at Alipore in Title Suit No.72 of 1994. By the impugned order, a petition under Order 7 Rule 10 of the Code of Civil Procedure is taken up for consideration. The defendant filed the said petition stating therein that the suit has been valued at Rs. 12,000/- for ejectment and Rs. 19,000/- for mesne profit as a result of which the jurisdiction of the concerned Court has been invoked. The defendant has prayed before the trial Court to direct the plaintiff to withdraw the suit from that Court and to file the same before the proper Court as, according to its contention, the said Court has no pecuniary jurisdiction. It has been alleged by the defendant that the suit has been over-valued and there is no basis for overvaluing the suit on the score of mesne profits. Mr. Dasgupta, the learned Advocate, has contended that the valuation made on the score of mesne profit does not fit in with the connotation of the same as envisaged in the Definition Column of Section 2(12) of the Code of Civil Procedure. Mesne profits primarily connote the accural of those profits in favour of the person in unlawful possession of the suit property. In the said context, Mr. Dasgupta has also referred to the definition of tenant as contemplated in Section 2(h) of the West Bengal Premises Tenancy Act and he has laid special stress because of non-inclusion of any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction. According to Mr. Dasgupta, before the decree and/or order for eviction is passed, a tenant cannot be said to be in unlawful occupation of the suit premises and accordingly the question of mesne profits does not and cannot arise. Accordingly to Mr. Dasgupta even in the remote context of passing of a decree for eviction there is provision under a separate self-contained statute where the Court can make enquiry as to the mesne profits being determined. Mr. Dasgupta has been categorical in laying one of the corner stone of the foundation of his case by laying a categorical line of distinction between the damages and mesne profits and according to him, the same is not capable of being confused. Mr. Dasgupta has been categorical in laying one of the corner stone of the foundation of his case by laying a categorical line of distinction between the damages and mesne profits and according to him, the same is not capable of being confused. The said controversies have arisen in the wake of disposal of a petition under Order 7, Rule 10 of the Code of Civil Procedure which postulates that at any stage of the suit the plaint may be returned to be presented to the Court in which the suit should have been instituted. According to the said submission this Court has been attempted to be impressed with the argument that the concept of mesne profits does not enter into the arena of consideration so long a decree of eviction is not passed. Since a tenant until a decree of eviction is passed remains in rightful occupation, therefore the concept of mesne profits does not enter into the arena of controversy. 2. This Court is primarily concerned as to the stage when the question of mesne profits can be decided. If the plaint is directed to be returned before the Court having the pecuniary jurisdiction, then the Court will be required to express an opinion as to the validity of valuation of mesne profits. This Court is not unmindful about the difficulty to arrive at an inference and/or finding about mesne profits at its threshold of the commencement of the proceeding. This Court is not oblivious of the well accepted proposition of the premis that the plaintiff has choice in respect of the valuation of the suit and the forum before which it will espouse its cause. From the reading of the valuation statement of the plaint, it appears that rightly or wrongly the valuation was given by the plaintiff. Therefore, it should have been filed before the Court having pecuniary jurisdiction in terms of Section 15 of the Code of Civil Procedure from the bear reading of the plaint and its valuation statement. At the initial stage of the commencement of the proceedings the Court cannot go into the question of the veracity of the valuation statement unless on visual glimpse the same appears to be absurd. The determination of the mesne profits will arise at the time of delivery of the judgment and/or the conclusion of the proceedings. At the initial stage of the commencement of the proceedings the Court cannot go into the question of the veracity of the valuation statement unless on visual glimpse the same appears to be absurd. The determination of the mesne profits will arise at the time of delivery of the judgment and/or the conclusion of the proceedings. The question of mesne profits may assume a vexed question of fact and law and it may require arithmetical computation. Number of decisions have been cited by the learned Advocates of the respective parties and this Court after going through the same has selected some of the crucial judgments which may have pivotal bearing on the controversy. It is needless to say that the Court has discretionary power to pass a decree for mesne profits but in a suit to which the provisions of Order 20, Rule 12 of the Code of Civil procedure apply, the Court has a discretionary power to pass a decree directing an enquiry into the mesne profits and the Court may grant a general relief though it is not specifically asked for. In this context, a reference may be made to the case of (1) Gopal Krishna Pillai & Ors. v. Minakshi Ayal & Ors. reported in AIR 1967 Supreme Court page 155 which have been sought to be argued by placement of reliance by both the parties. In the case of (2) Smt. Nandita Bose v. Ratanlal Nahata reported in AIR 1987 Supreme Court page 1947 where the Apex Court has held that the High Court was in error in pre-judging the issue relating to the right of landlady to claim mesne profits and damages and in directing that the plaint should be returned for presentation to the proper Court. One is entitled to claim mesne profits or damages in respect of the period in question or could not have been disposed of at a preliminary stage even before the trial had commenced. The said question has to be decided on the conclusion of trial along with other issues. One is entitled to claim mesne profits or damages in respect of the period in question or could not have been disposed of at a preliminary stage even before the trial had commenced. The said question has to be decided on the conclusion of trial along with other issues. The Apex Court in the said decision unequivocally expounded that the question whether a party would be entitled to a decree for mesne profits or damages at a particular rate can be decided in the suit if ultimately it is found that the plaintiff is not entitled to get mesne profits either for the period or at the rate claimed, the same may be dismissed but the said question could not have been disposed of at a preliminary stage before the trial had commenced. According to Supreme Court, that question has to be decided at the conclusion of the trial along with other issues arising in the suit. The acceptance of the view put forward by a tenant at a point of commencement of proceeding may lead to elongation of dilatory litigation unless it is found on evidence at trial that the claim for the mesne profits/damages had been made without good faith and that the sole object of instituting the suit before a forum which had no jurisdiction to try the same. The passing reference can be made to another aspect of submission of Mr. Dasgupta. In this context wherein Mr. Dasgupta has said that the earlier decision as referred to here reported in AIR 1967 Supreme Court (supra) does not stand in consonance with the ratio of law propounded in AIR 1987 Supreme Court as dealt with here and in view of discrepant element in formation of proposition of law much reliance should not have been placed on the latter decision. This Court has carefully read both the judgments and found that mesne profits may have two dimensions namely, past and future mesne profits. As soon as the question of enquiry comes in with regard to the determination of mesne profits, the same can come up only at a time of the passing of the decree and not before. The argument of Mr. Dasgupta seems to be based on a misplaced emphasis as to the stage when the question of mesne profits can be determined. There is no inconsistency in the aforesaid two judgments. The argument of Mr. Dasgupta seems to be based on a misplaced emphasis as to the stage when the question of mesne profits can be determined. There is no inconsistency in the aforesaid two judgments. If it is to be determined at the time of the conclusion of the trial that does not prevent a litigant from valuing the suit as per his own assessment about mesne profits and damages and if a litigant voluntarily values his relief, the Court on bare statement of the valuation, will be required to see as to whether proper Court fees have been paid or not. Even on a question of Court fees, in the case of (3) Laxmi Ammal v. K.M. Madhaba Krishnan reported in AIR 1978 Supreme Court page 1607 where the Supreme Court has made a salient observation that the Court should not dilate on periferial issues leaving aside the real issues of controversy being fought between the parties so that they can come up leisurely. Access to jurisdiction is on the basis of legal system and the gateway should not be blocked if it can be otherwise found from the reading of the plaint that a valuation statement has been given by the litigant or by the party concerned. In order to arrive at an inference about valuation, the plaint is required to be read on the basis of valuation statement given by the party concerned in the plaint and unless the valuation is ex facie found to be non-sustainable the Court cannot go into that question. Anywhere, when the scrutiny of mesne profits is involved, the Court cannot on the reading of the plaint as such arrive at an inference about the same because the prayer of the mesne profits will be required to be acceded to at the time of the passing of the decree. A pre-mature exercise by way of tentative finding on mesne profits is itself debatable because mesne profits may be one of the reliefs of the decree. It is very difficult to form any opinion so early that the claim for the mesne profits has been made without good faith and with the sole object of instituting the suit in a higher forum of pecuniary jurisdiction. The Court can assess the evidence and can reject the entire claim of mesne profits on proper adjudication. It is very difficult to form any opinion so early that the claim for the mesne profits has been made without good faith and with the sole object of instituting the suit in a higher forum of pecuniary jurisdiction. The Court can assess the evidence and can reject the entire claim of mesne profits on proper adjudication. The apprehension that has been expressed by the defendant may not lead to sufferance of any prejudice to the said defendant/petitioner if the proceeding is expired as the Apex Court has given a caution that the Court should not encourage a party to carry on a dilatory litigation. A further reference may be made to an unreported decision of the Court in the case of C.O. No. 2134 of 1994 between (4) Sukalyan Acharya v. Smt. Sanchita Sanyal and this Court also tends to rely on the same. This Court once again makes it clear that the question of valuation is to be read from the valuation statement made by a party valuing his relief tentatively or finally and scrutiny of correctness of the valuation of the mesne profits can only be gone into at the time of conclusion of the proceeding on total assessment of evidence. As such, this Court does not feel inclined to interfere with the order under challenge but not on the reasons mentioned therein but on the reasons as expressed hereinbefore. The revisional application, accordingly, stands dismissed on contest as the same fails. There shall, however, be no order as to cost.