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2000 DIGILAW 291 (CAL)

Indian Bank v. Arundhuti Maity

2000-06-16

Gorachand De, Samaresh Banerjea

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Judgment Gorachand De, J. This appeal is directed against the judgment and decree dated 22.7.94 passed by Shri K. Chatterjee, Assistant District Judge of the first court at Midnapore in Other Suit No. 24 of 1992. 2. Briefly stated the plaint case is that the plaintiff, Smt. Arundhuti Maity as the owner of the premises let out a two-storeyed pucca building having a carpet area of 1985 sq. ft. in municipal holding No.8 within Midnapore Town (hereinafter referred to as the 'suit premises') to the Indian Bank at a monthly rental of Rs.6,969/- payable accordingly to English calendar month. In terms of an agreement between the parties, the tenancy actually connenced w.e.f. 18.12.90 after the premises was renovated by the plaintiff spending a substantial amount. But the defendant opted not to carryon its business from the suit premises and also did not pay rent from June, 1991. Accordingly, the tenancy was determined and the defendant was directed to quit and vacate the suit premises on the expiry of the month of December, 1991. But as no heed was paid to the notice, the instant suit was filed on 10.2.92 praying for a decree of eviction against the defendant, all costs and other relief or reliefs as may be found in the law and equity, after valuing the suit at Rs.83,628/- being the twelve months rent of the suit premises. 3. The defendant contested the suit after filing a written statement denying the material allegations made in the plaint. His specific defence is that in spite of giving notice to the plaintiff to take possession of the suit premises, no action was taken on her behalf. However, the defendant deposited all the arrears of rent after the institution of the suit and is also depositing the current rent month by month in court. Several other allegations are also made against the plaintiff for not cooperating in proper functioning of the bank from the suit premises. 4. On the basis of the respective pleadings, the ld. Assistant District Judge framed the following eight issues: 1) Is the suit maintainable in its present form and prayer? 2) Has the defendant deposited the admitted rent duly and regularly? 3) Has the defendant complied with the provision of W.B.P.T. Act? 4) Has the plaintiff served a notice to the defendant in respect of the suit premises prior to termination of the tenancy right? 2) Has the defendant deposited the admitted rent duly and regularly? 3) Has the defendant complied with the provision of W.B.P.T. Act? 4) Has the plaintiff served a notice to the defendant in respect of the suit premises prior to termination of the tenancy right? 5) Has the defendant made out any sufficient ground for the ejectment as per requirements of section 13(1) of W.B.P.T. Act? 6) Is the plaintiff entitled to get a decree in this suit as prayed for? 7) To what other relief, if any, is the plaintiff entitled? 8) Is the relation between the plaintiff and the defendant a landlord and tenant? 5. During the pendency of the suit the plaintiff filed petitions under sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act on 17.3.92, but subsequently those petitions were rejected on 14.7.92. The plaintiff thereafter filed a petition under section 17(3) of the West Bengal Premises Tenancy Act and by order No. 42 dated 2.7.94 the said petition was allowed on contest after hearing both the parties and the defence against delivery of possession was struck out. 6. During trial two witnesses were examined on behalf of the plaintiff and one witness was examined on behalf of the defendant. Documents were also produced .on behalf of the defendant to show that an offer was made to the plaintiff to take over possession of the suit premises by 12 noon of 16.12.92 (Ext. 'c'). But actually possession was not delivered on that date. So placing reliance on record the trial court came to a finding that the defendant was a defaulter in payment of rent, that the suit premises was kept under lock and key by the defendant and that the plaintiff was entitled to get a decree for eviction along with the entire arrear rent. The suit was accordingly decreed and the defendant was directed to deliver khas possession of the premises to the plaintiff within fifteen days. The defendant was also directed to make payment of the entire outstanding red due to the plaintiff before the date of delivery of possession. 7. The suit was accordingly decreed and the defendant was directed to deliver khas possession of the premises to the plaintiff within fifteen days. The defendant was also directed to make payment of the entire outstanding red due to the plaintiff before the date of delivery of possession. 7. In course of hearing of this appeal, it appears to us that the following facts are admitted: i) The plaintiff as the owner of the suit premises let it out to the defendant at a monthly rent of Rs.6,969/- ; ii) The defendant did not pay any rent since June, 1991; iii) The tenancy was determined on the basis of a notice of ejectment; iv) The defence against delivery of possession was struck out under section 17(3) of the West Bengal Premises Tenancy Act; v) Till the date of judgment, the defendant did not vacate the suit premises. 8. In course of hearing of this appeal it was contended that actually the possession in respect of the suit premises was delivered on 10.9.94 but practically no material was produced before this court in support of this claim. The ld. counsel for the appellant tried to attack the judgment of the trial court mainly on the ground that the trial court had no authority to pass a decree for arrears of rent as it was not specifically claimed in the plaint itself. Placing reliance on the provision of Order 7 Rule 7 of the Civil Procedure Code, the ld. counsel contended that the plaintiff was not entitled to get a decree for arrears of rent as the relief was not specifically claimed in the plaint itself. The ld. counsel on this score placing reliance on a Division Bench judgment of this Court reported in AIR 1967 Calcutta 461 (Union of India vs. Jyotirmoyee Sharma) contended that as the relief for arrear of rent was not specifically pleaded, the plaintiff is not entitled to get an order for the same. But it appears to us that in the cited decision while examining the provision of Order 7 Rule 7 of Civil Procedure Code this Court took the view that the relief though not specifically claimed in the plaint, it could be granted. But it appears to us that in the cited decision while examining the provision of Order 7 Rule 7 of Civil Procedure Code this Court took the view that the relief though not specifically claimed in the plaint, it could be granted. In fact, the Court held that in a suit for damages for wrongful dismissal, a decree for arrears of salary can be given as the objection is a matter of form than of substance. 9. In the above cited decision the view of the Apex Court taken in Bhagwati vs. Chandra Maul, reported in AIR 1966 SC at page 738, was relied upon which is reproduced below: "There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim which is entirely new.....But in considering the application of this doctrine to the facts of the present case, it is necessary to bear in mind the other principle that consideration of form cannot override the legitimate consideration of substance." 10. The ld. counsel appearing for the appellant placed reliance on some other judgments of different High Courts for strengthening his argument that unless the relief for arrear of rent is specifically claimed in a suit for eviction, the plaintiff is not entitled to get a relief as it is barred under Order 7 Rule 7 of the Civil Procedure Code. But in almost all the cited decisions, the view is taken that if the plaint contains allegation, offering issues on facts that are material, the plaintiff is entitled to the relief which those facts will sustain; but he cannot desert the specific relief claimed, and under the claim for general relief ask for specific relief of another description, unless the facts and circumstances alleged on the pleadings will, consistently with the rules of the court maintain that relief. In fact, under Order 7 Rule 7, the court has inherent power to grant either general relief or other relief which appears to it to be legitimate and proper, in any case, even though such reliefs have not been specifically asked for. 11. In fact, under Order 7 Rule 7, the court has inherent power to grant either general relief or other relief which appears to it to be legitimate and proper, in any case, even though such reliefs have not been specifically asked for. 11. It appears to us that after the amendment of Order 20 Rule 12 of the Civil Procedure Code in 1976, a court can pass a decree for the rents which have accrued on the property during the period prior to the institution of the suit and may also direct an inquiry as to rent till the delivery of possession to the decree-holder. So, it was within the competence of the trial court to pass a decree for arrears of rent that accrued during the period prior to the institution of the suit till the delivery of possession. Moreover, in view of the provisions of Order 7 Rule 7 of the Civil Procedure Code and the omnibus prayer made in paragraph 10(C) of the plaint, a decree for recovery of arrear of rent could be passed though not specifically the relief is claimed in the plaint itself. So, the only objection raised by the appellant in this appeal does not call for any interference of the judgment passed by the trial Court. 12. However, we are not unmindful of the fact that no court fees has been paid on the arrears of rent and the trial court also did not pass any order as regards the court fees payable on the outstanding rent. It is needless to mention that the amount of monthly rent is not disputed. Similarly the period of default in payment of rent is also not in dispute. So, the defendant is liable to pay the entire outstanding rent to the plaintiff upto the date of delivery of possession and the plaintiff can withdraw it only on payment of additional court Fees. Accordingly it appears to us that a direction should be added in the ordering portion of the judgment to the effect that the plaintiff will get a decree for arrear of rent upto the date of delivery of possession on payment of additional court fees and after an enquiry under Order,20 Rule 12 of the Code of Civil Procedure. 13. Accordingly it appears to us that a direction should be added in the ordering portion of the judgment to the effect that the plaintiff will get a decree for arrear of rent upto the date of delivery of possession on payment of additional court fees and after an enquiry under Order,20 Rule 12 of the Code of Civil Procedure. 13. In view of the above discussion and keeping in view the materials on record, we do not find any reason to interfere with the judgment and decree of the trial court excepting the addition of the direction of court fees in the ordering portion of the judgment. The appeal is accordingly dismissed. The judgment and decree of the trial court are hereby confirmed with the modification that the plaintiff do get a decree for arrear of rent upto the date of delivery of possession on payment of Additional Court Fees and after an enquiry under Order 20 Rule 12 of the Code of Civil Procedure. Considering the circumstances the parties do bear their own costs of this appeal. Later Learned advocate to the appellant prays for stay of operation of this judgment. The prayer is considered and rejected. Let the Lower Court records be sent down forthwith to the court below. Urgent certified xerox copy of this judgment, if applied for be granted as expeditiously as possible. Samaresh Banerjea, J: I agree. Appeal dismissed.