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2008 DIGILAW 615 (CAL)

Kamakhya Singhdeo v. Modula India

2008-06-25

JAYANTA KUMAR BISWAS

body2008
Judgment :- (1) THE Court: The sole defendant in the suit, instituted on August 3rd, 1979 for its eviction from the suit premises being flat No. 3 at premises No. 3-E, Camac Street, Kolkata, has taken out this application dated June 12th, 2008 praying that the issue of jurisdiction of this Court to receive, try or determine the suit may be tried first as a preliminary issue and settlement of the other issues may be postponed until after determination of that issue. The sole plaintiff is contesting the application without filing any opposition. (2) THE only ground on which the defendant says that this Court had no jurisdiction to entertain the suit is that though being a suit by a landlord for recovery of immovable property from his tenant, in view of the provisions of the West Bengal Court-fees Act, 1970, section 7 (xiii), the amount of fee payable was to be computed according to the amount of the rent of the immovable property to which the suit referred, payable for the year next before the date of presentation of the plaint, and thus the suit was to be valued only at Rs. 12000/-, the agreed a months rent for the suit premises being Rs. l. 000/-, only for invoking the jurisdiction of this Court the plaintiff deliberately overvalued it at Rs. 52,950/-, when in view of the provisions of the West Bengal Premises Tenancy Act, 1956, section 20 read with the first schedule, the actual value of the suit being not exceeding Rs. 50,000/-, only the City Civil Court at Calcutta, and not this Court, was competent to entertain and try it. (3) THE defendant was inducted in the suit premises as a tenant on December 28th, 1977. The rent was Rs. 1,000/ -. According to the plaintiff, on December 28th, 1977 itself the defendant gave him a notice in writing that it would quit and vacate the suit premises on February 1st, 1978. Thus according to the plaintiff the tenancy was created only for one month. His further case is that in compliance with the quit notice dated December 28th, 1977 the defendant failed and neglected to deliver vacant possession of the suit premises to him, and hence with effect from February 1st,. Thus according to the plaintiff the tenancy was created only for one month. His further case is that in compliance with the quit notice dated December 28th, 1977 the defendant failed and neglected to deliver vacant possession of the suit premises to him, and hence with effect from February 1st,. 1978 it continued to occupy the suit premises wrongfully and illegally as a trespasser, and as a result, he became entitled to get a decree for recovery of vacant and peaceful possession of the suit premises, and also a decree for Rs. 40,950/-on account of damages at the rate of Rs. 75 per diem from February 1st, 1978 till July 31st, 1979, since the reasonable letting out value of the suit premises was Rs. 75 per diem. Claiming these relief, and also a decree for future mesne profits at the rate of Rs. 75 per diem from the date of filing the suit till delivery of vacant possession of the flat, he instituted the suit valuing it for the purpose of jurisdiction and Court fees at Rs. 52,950/ -. (4) THERE is no dispute that the tenancy was regulated by the provisions of the West Bengal Premises Tenancy Act, 1956, section 13 (1) whereof provides that notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds mentioned therein, and the grounds mentioned in clauses (j) and (k) thereof are: "(j) where the tenant has given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice; (k) where subsequent to the creation of the tenancy, the tenant having agreed in writing with the landlord to deliver vacant possession of the premises to the landlord has failed to do so. " Section 17 of the Act mentions the circumstances when a tenant can get the benefit of protection against eviction. " Section 17 of the Act mentions the circumstances when a tenant can get the benefit of protection against eviction. Sub-section (3) of section 17 says: "if a tenant fails to deposit, or pay any amount referred to in sub-section (1) or sub-section (2) within the time specified therein or within such extended time as may be allowed under clause (a) of sub-section (2a), or fails to deposit or pay any installment permitted under clause (b) of sub-section (2a) within the time fixed therefore, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. " There is no dispute that under section 17 (3) defence of the defendant was struck out, on an application filed by the plaintiff, by an order dated September 30th, 1982 made by this Court. The matter was taken up to the apex Court that gave the decision dated September 27th, 1988 upholding the order dated September 30th, 1982 striking out the defence of the defendant. The apex Court decision was reported at AIR 1989 SC 162 . It is, however, to be noted that after entering appearance the defendant filed its written statement on November 26th, 1979. I am told that no order was ever made framing and recording the issues. It is against this backdrop of facts that this application has been filed. (5) MR Sinha, counsel for the defendant, has made the following arguments. Since no opposition to the application has been filed, the correctness of the allegation that the suit was overvalued for invoking jurisdiction of this Court, essentially a question of fact, cannot be disputed by the plaintiff. In view of the provisions of section 7 (xiii) of the West Bengal Court-fees Act, 1970 the value of the suit could be only Rs. 12. 000/-, being the rent payable for twelve months at the rate of Rs. l. OOO/-per month. On account of past mesne profits, though the assessed value thereof was not to be taken into consideration for determining the value of the suit, no claim was made, though a claim on account of future mesne profits at the rate of Rs. 75 per diem was made. l. OOO/-per month. On account of past mesne profits, though the assessed value thereof was not to be taken into consideration for determining the value of the suit, no claim was made, though a claim on account of future mesne profits at the rate of Rs. 75 per diem was made. In view of the definition of the expression "mesne profits" given in section 2 (12)of the Code of Civil Procedure, 1908, there is absolutely no scope to say that damages at the rate of Rs. 75 per diem claimed by the plaintiff could be considered his claim for past mesne profits at that rate. In view of what was held in Gopal krishna Pillai and Ors. v. Meenakshi Ayal and Ors. , AIR 1967 SC 155 , causes of action for past and future mesne profits being distinct and separate, there has to be a claim for past mesne profits in the plaint for getting a decree therefor. Since the plaintiff consciously claimed damages, and not mesne profits, now he cannot say that his claim for damages should be considered a claim for past mesne profits, because, as was held in Govinda Kumar Sur and Ors. v. Mohini Mohon Sen and Ors. , AIR 1930 Cal 42, a plaintiff cannot be permitted to change the character of his suit. In Smt. Krishna Subala Bose and Ors. v. Dhanapatidutta and Ors. , AIR 1957 Cal 59 a Division Bench of this Court noticed the manner how a suit is to be valued. The definition of the expression "mesne profits" was examined by the apex Court in Fateh Chand v. Balkishan Doss, AIR 1963 SC 1405 , and it will appear therefrom that mesne profits are not the same as damages that are actually in the nature of compensation for a loss suffered by the claimant, as will appear from the provisions of sections 73 and 74 of the Indian Contract Act, 1872. Relevant aspects of valuation of a suit such as the present one were examined by a Division Bench of this Court in Nellimarla Jute Mills Co. Ltd. v. Rampuria Industries and Investments Ltd., 2000 (2) CLJ 70, and it is an authority for the proposition that in a suit for recovery of possession, the landlord cannot seek any relief on account of damages. Ltd. v. Rampuria Industries and Investments Ltd., 2000 (2) CLJ 70, and it is an authority for the proposition that in a suit for recovery of possession, the landlord cannot seek any relief on account of damages. It is to be noted that for valuation the plaintiff has not pleaded joinder of any causes of action. In any case, when the rent for the suit property was Rs. 1000/- per month, there was absolutely no reasonable basis to claim damages at the rate of Rs. 75/- per diem, which also, even if taken to be correct, could not entitle the plaintiff to invoke the jurisdiction of this Court. (6) ON the other hand, Mr Mitra, counsel for the plaintiff, has made the following submissions. There is no dispute that at the date the suit was instituted the City Civil Court at Calcutta was competent to entertain and try ejectment suits such as the present suit valued at not exceeding Rs. 50,000/ -. The instant suit valued at a sum exceeding Rs. 50,000/- was to be entertained and tried by this Court, in view of the provisions of section 20 of the West Bengal Premises Tenancy Act, 1956, provided there was nothing wrong with the valuation of the suit made by the plaintiff. The apex Court decision in Smt. Nandita Bosev. Ratanlal Nahata, AIR 1987 SC 1947 is an authority to say that a suit such as the present one is to be valued taking into consideration the claim made by the landlord on account of mesne profits or damages. Whether the plaintiff will ultimately, be entitled to mesne profits or damages at the claimed rate is not a question relevant while examining whether the suit has been properly valued. What is to be seen is whether the plaintiff has grossly overvalued or undervalued the suit with a view to invoking somehow the jurisdiction of the Court concerned. Defence of the defendant having been struck out, today it is not entitled to say in defence that damages at the rate of Rs. 75 per diem claimed by the plaintiff has no reasonable basis. There is no reason to say that mesne profits are actually not in the nature of damages. Defence of the defendant having been struck out, today it is not entitled to say in defence that damages at the rate of Rs. 75 per diem claimed by the plaintiff has no reasonable basis. There is no reason to say that mesne profits are actually not in the nature of damages. Hence the plaintiffs claim on account of damages, for all practical purposes, has to be considered a claim for past mesne profits, and this is clear from the definition of the expression "mesne profits" given in section 2 (12) of the Code of Civil Procedure, 1908. (7) IN reply, Mr Sinha has said that the decision in Nandita Bose, given under special circumstances, as will appear from the judgment itself, cannot be relied on to say that the ratio thereof is that a claim for damages made in an eviction suit by a landlord can validly be considered his claim for past mesne profits. On the strength of Oriental Insurance Company Limited v. Smt. Raj Kumari and Ore. , AIR 2008 SC 403 he has submitted that a decision is an authority only for what it decides, and not for any other thing. (8) THE first question that requires consideration is whether, on the facts of the case, there is any requirement of framing and recording issues in the suit, because the question of trying the issue relating to jurisdiction of this Court as a preliminary issue first can arise only if issues including the issue relating to jurisdiction are to be framed and recorded. (9) IN view of the provisions of Order 14, R. 1 (5) of the Code of Civil Procedure, 1908 issues are to be framed and recorded at the first hearing of a suit. The Court has to frame and record the issues on which the right decision of the case appears to depend. But in view of the provisions of Rule 1 (6) of Order 14, nothing in R. 1 thereof shall require the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence. The Court has to frame and record the issues on which the right decision of the case appears to depend. But in view of the provisions of Rule 1 (6) of Order 14, nothing in R. 1 thereof shall require the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence. Drawing Mr Sinhas attention to these provisions, I wanted to know from him whether today the Court is required to frame and record any issue at all in the suit, since under the provisions of section 17 (3) of the West Bengal Premises Tenancy Act, 1956 the defence of the defendant was struck out as back as September 30th, 1982. To this, he has said that before September 30th, 1982 the defendant had made out its defence by filing the written statement dated November 26th, 1979, and hence for the event happened thereafter leading to striking out of its defence, for which it was not responsible, the provisions of Orderl4, Rulel (6) cannot be invoked. (10) I am unable to agree with him. The provisions of section 17 (3) of the West Bengal Premises Tenancy Act, 1956 mandate that once defence of the tenant against delivery of possession is struck out thereunder, the Court shall proceed with the hearing of the suit. Issues, in view of the provisions of Orderl4, R. 1 (5), are to be framed and recorded at the first hearing of the suit, and that is not required, if at the first hearing of the suit the defendant therein makes no defence. The first hearing of this suit was not fixed for November 26th, 1979 when the defendant filed its written statement. As a matter of fact, it is to be fixed hereafter, and as the position stands today the defendant is not entitled to take any defence in the suit. In my opinion, this position is identical with the one mentioned in Order 14, Rule 1 (6) that says that nothing in Rule 1 of Order 14 shall require the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence. In my opinion, this position is identical with the one mentioned in Order 14, Rule 1 (6) that says that nothing in Rule 1 of Order 14 shall require the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence. Hence there is no requirement of framing and recording of any issue, and in view of the mandate of the provisions of section 17 (3) of the West Bengal Premises Tenancy Act, 1956 this Court has to proceed with the hearing of the suit. Besides, I do not see any valid reason why at this distance of time, this suit was instituted as back as August 3rd, 1979 and it was for recovery of possession of a rented immovable property, at the instance of the defendant a preliminary issue relating to jurisdiction of this Court should be settled and decided as the first issues. The course, if adopted, in my opinion, will cause serious injustice to the plaintiff. (11) ASSUMING I am wrong in my foregoing view, I proceed to examine whether the suit could be entertained by this Court. For this, what is to be seen is whether it was grossly overvalued by the plaintiff only for the purpose of invoking the jurisdiction of this Court. (12) THERE cannot be any dispute that in view of the provisions of section 7 (xiii) of the West Bengal Court-fees Act, 1970, if it were a suit only for recovery of possession, the plaintiff was to value it only at Rs. 12,000/-, a months rent for the suit premises being Rs. 1,000/- undisputedly. In such case, he could not institute the suit in this Court, and the Court competent to entertain and try the suit would have been the City Civil Court at Calcutta, in view of the provisions of section 20 of the West Bengal Premises Tenancy Act, 1956, read with the provisions of the first schedule thereto. He, however, valued the suit adding to the sum of Rs. 12, 000/-, the amount he claimed on account of damages, calculated at the rate of Rs. 75 per diem. If it is found that he was entitled to add the amount on account of claimed damages, then the contention of the defendant, unless, however, the claim on account of damages is found to be absurd or imaginary, must be turned down. 75 per diem. If it is found that he was entitled to add the amount on account of claimed damages, then the contention of the defendant, unless, however, the claim on account of damages is found to be absurd or imaginary, must be turned down. (13) ACCORDING to Mr Sinha damages and mesne profits are two distinctly separate things, and the claim for damages by no stretch of imagination can be considered the plaintiffs claim for past mesne profits, though that he was entitled to make. Regarding the propositions of law explained in the authorities I have been referred to, there is no dispute. There is no dispute that in a suit the plaintiff can claim both past and future mesne profits, and that claims on these accounts constitute separate causes of action. There is absolutely no scope to permit a plaintiff to change the nature and character of his suit, once it is instituted making specific claims and seeking decrees on the basis thereof. How a suit shall be valued has been clearly mentioned in the provisions of section 7 of the West Bengal Court-fees Act, 1970. (14) MR Sinha relies on Fateh Chand in support of his contention that mesne profits and damages are not one and the same thing. I do not think for ascertaining what is meant by the expression "mesne profits" of property it is necessary to examine the provisions of sections 73 and 74 of the Indian Contract Act, 1872. The expression has been defined by section 2 (12) of the Code of Civil Procedure, 1908 to mean "those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession". In Fateh Chand also in the context of the provisions of section 74 of the Indian Contract Act, 1872 the question of entitlement to mesne profits was considered by their Lordships, as will appear from para 17 of the report. (15) IN Nandita Bose, Nandita instituted the suit as landlord for recovery of possession of the suit property and rent arrears, and past mesne profits or damages at the rate she thought just and proper. There a months rent of the suit property was Rs. (15) IN Nandita Bose, Nandita instituted the suit as landlord for recovery of possession of the suit property and rent arrears, and past mesne profits or damages at the rate she thought just and proper. There a months rent of the suit property was Rs. 1400/-, and Nandita claimed past mesne profits or damages at the rate of Rs. 7800/- per month. Nothing wrong was found with her valuing the suit at Rs. 1,06,000/- for the purpose of instituting the ejectment suit in this Court, and the contention of the tenant that the suit ought to have been instituted in the City Civil Court at Calcutta was rejected. In my reading and understanding Nandita is definitely an authority for the proposition that in a suit for recovery of immovable property from his tenant the landlord can legitimately include a quantified claim for damages or mesne profits: and Nellimarla is not an authority to say that he cannot do so. In Nellimarla the question was whether the plaintiff concerned was entitled to value his suit for recovery of immovable property from his former tenant describing him as a trespasser; and it was answered in the negative, in view of the provisions of section 7 (xiii) of the West Bengal Court-fees Act, 1970. Rather it will appear from paras 5 and 20 of the report that their Lordships did not make any distinction between mesne profits and damages. (16) I am unable to agree with Mr Sinha that mesne profits are not in the nature of damages. In my view, mesne profits are actually in the nature of damages, and a landlord instituting a suit for recovery of possession, required to value his suit in terms of the provisions of section 7 (xiii) of the West Bengal Court-fees Act, 1970, can legitimately add to the amount calculated on the basis of twelve-month rent, the amount claimed by him on account of past mesne profits or damages, by whichever expression he describes it. Damages claimed by the plaintiff at the reasonable letting out value of the suit premises alleging that by remaining in wrongful possession of the property the defendant became liable to pay that are nothing but mesne profits within the meaning of section 2 (12) of the Code of Civil Procedure, 1908. Damages claimed by the plaintiff at the reasonable letting out value of the suit premises alleging that by remaining in wrongful possession of the property the defendant became liable to pay that are nothing but mesne profits within the meaning of section 2 (12) of the Code of Civil Procedure, 1908. (17) THERE is no prima facie reason to say that here the plaintiff grossly overvalued his claim on account of damages. The property is in a prime location of the city and there is no basis to say that after one month it could not be rented for double the amount for which it was rented to the defendant. In any case, the justifiability of the rate is not to be examined at this stage, but at the stage of final decision. There is substantial force in Mr. Mitras submission that since the tenancy in question was created only for one month, in all probability the parties agreed to a rent lower than the rent for which the property could be let out in ordinary course. He is also right in saying that today the defendant may not be entitled to take this defence, though that will not entitle the plaintiff to get a decree for damages by way of mesne profits at the rate claimed by him, unless he establishes his case. I therefore do not see any reason to say that the suit was overvalued, and that the course was adopted only to invoke the jurisdiction of this Court. (18) FOR these reasons, I dismiss this application and order the defendant to pay to the plaintiff Rs. 15,000/- costs within a fortnight from today. Payment of costs is made condition precedent to the defendants participating in the trial of the suit that shall appear for hearing after three weeks. Application dismissed.