NELLIMARLA JUTE MILLS CO. LTD. v. RAMPURIA INDUSTRIES & INVESTMENTS LTD. — 2004 DIGILAW 1402 (SC)

ORDER 1. THIS ORDER SHALL DISPOSE OF CIVIL APPEAL NO. 4978 OF 2000 AND CIVIL APPEAL NO. 4979 OF 2000. A COMMON ORDER IS BEING PASSED IN BOTH THE APPEALS AS THE APPEALS ARE INTERDEPENDENT AND THE DECISION IN ONE APPEAL WOULD AFFECT THE RESULT OF THE OTHER APPEAL. RAMPURIA INDUSTRIES & INVESTMENTS LTD. BEING THE LANDLORD HAS FILED CIVIL APPEAL NO. 4979 OF 2000 WHEREAS NELLIMARLA JUTE MILLS CO. LTD. BEING THE TENANT HAS FILED CIVIL APPEAL NO. 4978 OF 2000. FOR CONVENIENCE SAKE THE PARTIES WOULD BE REFERRED AS LANDLORD AND TENANT. REFERENCE MAY NOT BE TREATED AS A FINDING REGARDING THEIR INTER SE RELATIONSHIP. 2. LANDLORD BY A REGISTERED LEASE DEED DATED 10-12-1973 LEASED A 5000 SQ FT FLAT SITUATED AT 3-A, SHAKESPEARE SARANI, CALCUTTA TO THE TENANT FOR A PERIOD OF 21 YEARS W.E.F. 1-3-1974 AT A RENT OF RS 5000 PER MONTH FOR THE ENTIRE PERIOD OF LEASE. IT WAS STIPULATED IN THE LEASE THAT ON THE EXPIRATION OF THE LEASE BY EFFLUX OF TIME THE TENANT WOULD DELIVER POSSESSION OF THE DEMISED PREMISES TO THE LESSOR "PEACEABLY AND QUIETLY". LANDLORD ISSUED A NOTICE DATED 30-12-1994 TO THE TENANT INTIMATING IT OF THE IMPENDING EXPIRY OF THE LEASE AND REQUESTING IT TO VACATE THE DEMISED PREMISES BY 1-3-1995 I.E. THE DATE OF DETERMINATION OF THE LEASE. 3. THE TENANT FILED TITLE SUIT NO. 603 OF 1995 AGAINST THE LANDLORD IN THE CITY CIVIL COURT, CALCUTTA SEEKING, INTER ALIA, A DECLARATION THAT THE LEASE WAS A MONTHLY TENANCY AND PROTECTED UNDER THE WEST BENGAL TENANCY ACT, 1956 (FOR SHORT "THE ACT"). THE LANDLORD AFTER THE EXPIRY OF THE PERIOD OF LEASE ON 7-4-1995 FILED SUIT NO. 119 OF 1995 IN THE HIGH COURT OF CALCUTTA CLAIMING A DECREE FOR VACANT POSSESSION OF THE DEMISED PREMISES AND FOR MESNE PROFITS PER DIEM ON AND FROM 2-3-1995 TILL VACANT POSSESSION WAS MADE OVER TO IT. IT WAS CONTENDED BY THE LANDLORD THAT THE TENANT, BEING IN ILLEGAL OCCUPATION OF THE PREMISES, WAS A TRESPASSER AFTER 1-3-1995. IT, THEREFORE, VALUED THE SUIT AT THE MARKET VALUE OF THE PREMISES UNDER SECTION 7(VI)(A) OF THE WEST BENGAL COURT FEES ACT, 1970 (10 OF 1970) (HEREINAFTER REFERRED TO AS "THE COURT FEES ACT"). THE MARKET VALUE OF THE PREMISES WAS ASSESSED AT RS 10 LAKHS AND, AD VALOREM, MAXIMUM COURT FEE OF RS 10,000 PAID ON THE SAID VALUATION. 4. THE MARKET VALUE OF THE PREMISES WAS ASSESSED AT RS 10 LAKHS AND, AD VALOREM, MAXIMUM COURT FEE OF RS 10,000 PAID ON THE SAID VALUATION. 4. TENANT ON 15-5-1995 FILED AN APPLICATION IN SUIT NO. 119 OF 1995 CONTENDING THAT THE PLAINT BE RETURNED TO THE LANDLORD FOR BEING PRESENTED IN THE COURT IN WHICH THE CASE SHOULD HAVE BEEN INSTITUTED. ACCORDING TO THE TENANT EVEN ASSUMING THAT THE TENANCY HAD EXPIRED IT WAS, AT THE VERY LEAST, A TENANT "HOLDING OVER" AND, THEREFORE, THE SUIT OUGHT TO HAVE BEEN VALUED UNDER SECTION 7(XIII)(D) OF THE COURT FEES ACT. AS SUCH, IT WAS CONTENDED THAT THE A SUIT SHOULD HAVE BEEN VALUED "ACCORDING TO THE AMOUNT OF THE RENT ... , PAYABLE FOR THE YEAR NEXT BEFORE THE DATE OF PRESENTING THE PLAINT". UNDER THIS CALCULATION THE SUIT VALUE WOULD FALL BELOW THE LIMIT PRESCRIBED FOR THE HIGH COURT. 5. SINGLE JUDGE OF THE HIGH COURT REJECTED THE APPLICATION FILED BY THE TENANT FOR "RETURN OF THE PLAINT". IT WAS HELD, INTER ALIA, THAT SUIT NO. 119 OF B 1995 FILED BY THE LANDLORD HAD BEEN CORRECTLY INSTITUTED AGAINST THE TENANT AS THE TRESPASSER. IT WAS HELD THAT ONCE THE TENANCY STOOD TERMINATED BY EFFLUX OF TIME AND GIVEN THAT THE LANDLORD HAS NOT ACQUIESCED IN ANY MANNER TO THE CONTINUED OCCUPATION THEREAFTER, THE TENANT BECAME A "TRESPASSER". SUCH A TENANT COULD NOT BE EQUATED WITH A TENANT "HOLDING OVER". IT WAS HELD THAT THE LANDLORD HAD PAID THE COURT FEE CORRECTLY ON ITS SUIT UNDER SECTION 7(VI)(A) OF C THE COURT FEES ACT AND THE HIGH COURT HAD THE JURISDICTION TO TRY THE SUIT. 6. AGGRIEVED AGAINST THE ORDER OF THE SINGLE JUDGE THE TENANT FILED APPEAL NO. 257 OF 1997 BEFORE THE DIVISION BENCH. THE DIVISION BENCH BY THE IMPUGNED JUDGMENT HAS REVERSED THE ORDER OF THE SINGLE JUDGE AND HAS HELD THAT SUIT NO. 119 OF 1995 HAD BEEN WRONGLY VALUED UNDER SECTION 7(VI)(A) OF D THE COURT FEES ACT AND DIRECTED THAT THE PLAINT BE RETURNED TO THE LANDLORD FOR BEING PRESENTED IN AN APPROPRIATE COURT HAVING JURISDICTION IN THE MATTER. THE DIVISION BENCH HELD THAT UNDER THE ACT "TRESPASSER" MEANS A PERSON WHO HAS BEEN ONE FROM THE VERY BEGINNING AND NOT ONE WHO HAD ORIGINAL TITLE BUT LOST THE SAME BECAUSE OF EFFLUX OF TIME OR BY OPERATION OF LAW. THE DIVISION BENCH HELD THAT UNDER THE ACT "TRESPASSER" MEANS A PERSON WHO HAS BEEN ONE FROM THE VERY BEGINNING AND NOT ONE WHO HAD ORIGINAL TITLE BUT LOST THE SAME BECAUSE OF EFFLUX OF TIME OR BY OPERATION OF LAW. BY THIS REASONING, THE DIVISION BENCH EQUATED THE TENANT "HOLDING OVER" WITH A "TENANT BY E SUFFERANCE" AND HELD THAT THE SUIT AGAINST BOTH CATEGORIES OF PERSONS WAS COVERED BY SECTION 7(XIII)(D) OF THE COURT FEES ACT. 7. IN TITLE SUIT NO. 603 OF 1995 FILED BY THE TENANT IN THE CITY CIVIL COURT, CALCUTTA THE LANDLORD FILED AN APPLICATION IN THE HIGH COURT UNDER CLAUSE 13 OF LETTERS PATENT FOR TRANSFER OF TITLE SUIT NO. 603 OF 1995 FROM THE CITY CIVIL COURT OF CALCUTTA TO THE HIGH COURT. THE APPLICATION CAME UP F BEFORE THE SINGLE JUDGE WHO BY HIS ORDER DATED 13-6-1997 ORDERED THE TRANSFER OF TITLE SUIT NO. 603 OF 1995 FROM THE CITY CIVIL COURT OF CALCUTTA TO THE HIGH COURT IN VIEW OF THE FACT THAT EVIDENCE IN THE SAID SUIT WOULD BE SIMILAR TO THE EVIDENCE TO BE ADDUCED IN SUIT NO. 119 OF 1995 FILED BY THE LANDLORD. 8. THE TENANT BEING AGGRIEVED BY THE ORDER OF THE SINGLE JUDGE IN TRANSFERRING HIS SUIT (NO. 603 OF 1995) TO THE HIGH COURT HAS COME UP IN APPEAL IN CIVIL APPEAL NO. 4978 OF 2000 WHEREAS THE LANDLORD BEING AGGRIEVED AGAINST THE ORDER PASSED BY THE DIVISION BENCH IN HOLDING THAT THE HIGH COURT DID NOT HAVE THE JURISDICTION TO TRY THE SUIT FILED BY THE LANDLORD AND IN DIRECTING THAT THE PLAINT IN SUIT NO. 119 OF 1995 BE RETURNED TO THE LANDLORD FOR PRESENTATION IN THE APPROPRIATE COURT HAS FILED CIVIL APPEAL NO. 4979 OF 2000. 9. THE SUIT FILED BY THE LANDLORD AS WELL AS THE TENANT RELATE TO THE SAME DEMISED PREMISES AND REQUIRES THE INTERPRETATION OF THE SAME DOCUMENT. THE EVIDENCE IN BOTH THE SUITS IS LIKELY TO BE THE SAME OR SIMILAR. TO AVOID CONFLICTING AND INCONSISTENT JUDGMENTS ON THE SAME/SIMILAR EVIDENCE ON THE INTERPRETATION OF THE SAME DOCUMENT IT IS NECESSARY THAT BOTH THE SUITS SHOULD BE HEARD TOGETHER. THE RESULT OF CIVIL APPEAL NO. 4978 OF 2000 FILED BY THE TENANT WOULD BE DEPENDENT ON THE DECISION IN CIVIL APPEAL NO. 4979 OF 2000 FILED BY THE LANDLORD. 10. TO AVOID CONFLICTING AND INCONSISTENT JUDGMENTS ON THE SAME/SIMILAR EVIDENCE ON THE INTERPRETATION OF THE SAME DOCUMENT IT IS NECESSARY THAT BOTH THE SUITS SHOULD BE HEARD TOGETHER. THE RESULT OF CIVIL APPEAL NO. 4978 OF 2000 FILED BY THE TENANT WOULD BE DEPENDENT ON THE DECISION IN CIVIL APPEAL NO. 4979 OF 2000 FILED BY THE LANDLORD. 10. WE AGREE WITH THE VIEW EXPRESSED BY THE SINGLE JUDGE IN ALP NO. 1 OF 1995 THAT BOTH THE CASES FILED BY THE LANDLORD AS WELL AS THE TENANT SHOULD BE HEARD TOGETHER AS MOST OF THE EVIDENCE IN THESE TWO SUITS WOULD BE COMMON AND REQUIRE THE INTERPRETATION OF THE SAME DOCUMENT. 11. THE DIVISION BENCH IN THE CONTEXT OF THE COURT FEES ACT AND THE PECUNIARY JURISDICTION OF THE COURT CAME TO THE CONCLUSION THAT SUIT OF THE LANDLORD OUGHT TO HAVE BEEN VALUED UNDER SECTION 7(XIII)(D) OF THE COURT FEES ACT AS THE SUIT FOR THE RECOVERY OF IMMOVABLE PROPERTY INCLUDING THE TENANT HOLDING OVER AFTER THE DETERMINATION OF THE TENANCY. THE DIVISION BENCH FURTHER HELD THAT UNDER THE COURT FEES ACT "TRESPASSER MEANS A PERSON WHO HAS BEEN ONE FROM THE VERY BEGINNING AND NOT ONE WHO HAD ORIGINAL TITLE BUT LOST THE SAME BECAUSE OF EFFLUX OF TIME OR BY OPERATION OF LAW". 12. WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE DIVISION BENCH. THE JUDGMENT HAS BEEN GIVEN BY THE DIVISION BENCH IN THE CONTEXT OF THE COURT FEES ACT ON THE PECUNIARY JURISDICTION OF THE COURT TO TRY THE CASES. IN THE CIRCUMSTANCES OF THE CASE WE ARE NOT INCLINED TO INTERFERE WITH THE SAME AND DISMISS THE APPEAL FILED BY THE LANDLORD I.E. CIVIL APPEAL NO. 4979 OF 2000. 13. AS WE ARE OF THE VIEW THAT BOTH THE SUITS SHOULD BE TRIED TOGETHER, WE ACCEPT THE APPEAL OF THE TENANT I.E. CIVIL APPEAL NO. 4978 OF 2000 AND RETRANSFER TITLE SUIT NO. 603 OF 1995 FILED BY THE TENANT TO THE CITY CIVIL COURT. SUIT NO. 119 OF 1995 FILED BY THE LANDLORD AND TITLE SUIT NO. 603 OF 1995 FILED BY THE TENANT SHOULD BE TAKEN TOGETHER AND DISPOSED OF SIMULTANEOUSLY. 4978 OF 2000 AND RETRANSFER TITLE SUIT NO. 603 OF 1995 FILED BY THE TENANT TO THE CITY CIVIL COURT. SUIT NO. 119 OF 1995 FILED BY THE LANDLORD AND TITLE SUIT NO. 603 OF 1995 FILED BY THE TENANT SHOULD BE TAKEN TOGETHER AND DISPOSED OF SIMULTANEOUSLY. PLAINT WHICH WAS ORDERED TO BE RETURNED BY THE DIVISION BENCH TO THE LANDLORD FOR ITS PRESENTATION BEFORE A COURT OF COMPETENT JURISDICTION MAY NOW BE PRESENTED BEFORE THE CITY CIVIL COURT WITHIN FOUR WEEKS FROM TODAY. IN CASE THE PLAINT IS SO PRESENTED THE SUIT BE TREATED WITHIN LIMITATION. SINCE THE SUITS WERE FILED IN THE YEAR 1995, WE WOULD REQUEST THE COURT DEALING WITH THESE TWO SUITS TO DISPOSE OF THEM EXPEDITIOUSLY. 14. CIVIL APPEAL NO. 4978 OF 2000 IS ALLOWED AND CIVIL APPEAL NO. 4979 OF 2000 IS DISMISSED. PARTIES SHALL BEAR THEIR OWN COSTS IN THE APPEALS BEFORE US.