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2009 DIGILAW 556 (CAL)

Modula India v. Kamakhya Singh Deo

2009-07-29

PINAKI CHANDRA GHOSE, SANKAR PRASAD MITRA

body2009
JUDGMENT Pinaki Chandra Ghose, J.: This appeal is directed against an order dated 25th June, 2008, passed by the learned Trial Court refusing the prayer made by the appellant in the application. The facts revealed that the appellant is a tenant in respect of the flat No.3, on the ground floor of the premises No.3E, Camac Street, Kolkata-700 016. The landlord plaintiff/respondent filed a suit in this 2. Court for eviction of the appellant. The appellant although filed its written statement but defaulted in depositing the rent during the pendency of the suit and on the basis of an application filed by the respondent/plaintiff, the defence of the appellant in the suit was struck off. The said order was affirmed by the Supreme Court subject to the entitlement of the appellant to cross-examine the plaintiffs' witnesses and to argue the case at the time of hearing of the suit. The suit came up before the Court for hearing and the appellant filed an application under Order 14 Rule 2(2) of the Code of Civil Procedure contending that this Court has no pecuniary jurisdiction to receive the suit for trial or determination. The said application was dismissed by the learned Trial Court on 25th June, 2008. 3. Mr. Hirak Mitra, learned Senior Advocate appearing in support of this appeal submitted as follows: a) In a suit for ejectment the only method of assessment of jurisdiction is under the provisions of the West Bengal Court-Fees Act, 1970 (hereinafter referred to as "the said Act"). Section 7(XI)(D) of the said Act provides that in suits between landlord and tenant for the recovery of immovable, property from a tenant including a tenant holding over after the determination of the tenancy, the amount of fee payable under the said Act shall be computed according to the amount of rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint. The plaintiff did value the suit accordingly; but added thereto his claim for damages for Rs.40,950/- to achieve an aggregate value of Rs.52,950/- to enable him to file the suit in this Court. b) Ordinarily the valuation of suit has to be done under the Suits Valuation Act, 1887. However, in respect of suit other than those covered under sections 7(v), (vi), (ix) and (x)(d), Court-Fees payable will determine jurisdiction. b) Ordinarily the valuation of suit has to be done under the Suits Valuation Act, 1887. However, in respect of suit other than those covered under sections 7(v), (vi), (ix) and (x)(d), Court-Fees payable will determine jurisdiction. In the instant case, the plaintiff has sued on a cause being that of a landlord against his tenant for the recovery of the immovable property from him who is holding over the same after the tenancy has allegedly come to an end. The plaintiff for the purpose of Court-Fees was obliged to value his suit at Rs.12,000/- being the annual aggregate rent. The plaintiff also claimed the further relief of damages arising out of such cause. As such under section 21(2) of the West Bengal Court-Fees Act, 1970, the Court Fees payable was according to the value of relief in respect of which the largest fee was payable. Therefore, the plaintiffs suit on the date of institution was valued at Rs.40,950/- which was below the limit over which this Court had pecuniary jurisdiction. c) The plaintiff by relying on Order 2 Rule 4 of the Code of Civil Procedure sought to urge that he had two separate and distinct clauses of action, one for eviction and the other for mesne profits which could be joined and the separate fees payable thereon were chargeable in aggregate. The decisions which were relied upon by the plaintiff before us are as follows : 1. ILR (XIX) Cal 615 (Lalrssor Babui & Ors vs. Janki Bibi); 2. AIR 1972 Bombay 326 (FB) (Sadhu Singh vs. Pritam Singh); 3. AIR 1976 Punjab and Haryana (FB) (Sadhu Singh vs. Pritam Singh); 4. 2007 (8) SCC 600 (Shiv Kumar Sharma vs. Santosh Kumari). 4. According to Mr. Mitra, none of the said decisions can lend any help to the plaintiff/respondent for the purpose of interpreting section 21(c) of the West Bengal Court-Fees Act, 1970 (hereinafter referred to as "the said Act"). The said section provides for Court-Fees payable for the purpose of determining the jurisdiction. The golden rule of interpretation, of statutes by giving literal meaning to the words used therein must be applied. According to him, the cause of action of the plaintiff is for eviction the rent for damages flow out of the said claim. Therefore, it cannot be stated that the said damages can be treated as separate or distinct cause of action. 5. According to him, the cause of action of the plaintiff is for eviction the rent for damages flow out of the said claim. Therefore, it cannot be stated that the said damages can be treated as separate or distinct cause of action. 5. Section 21(1) of the said Act provides for fees chargeable in aggregate for suits having separate and distinct causes of action that may have been joined. Therefore, that cannot be equated with the separate and independent transactions between the parties at different times prior to filing of the suit. 6. He also drew our attention to section 21(2) of the said Act in support of such contention. In this context he submitted the decision in the case of Hemanga Bhusan Roy Choudhury vs. Bhim Gharami & Ors., reported in AIR 37 Cal 761 (DB) has no application in the facts and circumstances of the present case. 7. He also drew our attention to section 17 of the Court-Fees Act, 1870 and submitted that section 21 of the West Bengal Court-Fees Act, 1970 and section 17 of the said Act are different. 8. He submitted that the document dated 28th December, 1977 being the foundation of the suit cannot be looked into since the said document is not a registered document under section 17 of the Registration Act. According to him, the essential pre-requisite for a lease is periodically both in relation to time and payment and the right was confined to one month only. Therefore, the said document has no value under the provisions of law. 9. He further submitted that the decision of Hardesh Ores (P) Ltd. vs. Hede & Company with Ors., reported in 2007(5) SCC 614 , which was relied on by the respondent/plaintiff, cannot be a help to them since the question of registration was not decided by the Hon'ble Supreme Court. Therefore, the said decision is of no effect in the facts and circumstances of this case. Accordingly, he submitted that this appeal should be allowed and this Court has no jurisdiction to hear out the suit. 10. On the contrary, Mr. Surojit Mitra, learned Advocate appearing on behalf of the respondent contended as follows: (i) The cause of action for a suit for recovery of immovable property is separate and distinct from the cause of action for a claim for mesne profits. 10. On the contrary, Mr. Surojit Mitra, learned Advocate appearing on behalf of the respondent contended as follows: (i) The cause of action for a suit for recovery of immovable property is separate and distinct from the cause of action for a claim for mesne profits. (ii) Under Rule 3(2) of Order 2 of the Code of Civil Procedure, 1908, provides that where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters on the date of instituting the suit. 11. In view of section 21(1) of the said Act, in such a case the aggregate amount of Court-fees would be chargeable under the said Act. (iii) Under Rule 4 of Order 2 of the Code of Civil Procedure, 1908, the cause of action for claims for mesne profits of the suit property can be joined, without the leave of the Court, with a suit for recovery of immovable property. 12. Thus, Rule 4 of Order 2 clearly shows that the cause of action for recovery of immovable property and the cause of action for claim for mesne profit in respect of the same property are different. 13. Accordingly, the provision of sub-section (2) of section 21 of the West Bengal Court-Fees Act, 1970 does not apply to the facts of the present case. 14. He relied on a decision in the case of Lalrssor Babui & Ors vs. Janki Bibi, reported in ILR XIX Calcutta 615, where the Court held that the claims for the recovery of possession of immovable property and for mesne profits are distinct claims, and separate suits will lie in respect of each claim. 15. He also relied on the decision in the case of Hemanga Bhusan Roy Choudhury vs. Bhim Gharami & Ors., reported in AIR 1937 Calcutta 761, where the Court held that the value of the land plus the mesne profits for the period up to the date of the suit would determine the jurisdiction of the Court. 16. In the present case, the Court-Fees payable for the claim for decree of eviction against a monthly tenant is governed by the provision of section 7(xiii) of the said Act and, therefore the present suit has been valued at Rs.52,950/-. 16. In the present case, the Court-Fees payable for the claim for decree of eviction against a monthly tenant is governed by the provision of section 7(xiii) of the said Act and, therefore the present suit has been valued at Rs.52,950/-. Therefore, according to him, this Court had pecuniary jurisdiction on August 3, 1979, the day, on which the suit was instituted in this Court. 17. He drew our attention in a case of Shankarlal Laxminarayan Rathi & Ors. vs. Gangabisen Maniklal Sikehi & Anr, reported in AIR 1972 Bombay 326 (FB) (Para 21 at Page 333) which is reproduced hereunder: "21. ..................Necessarily, it seems to us that we must construe "claims" in clauses (a), (b) and (c) of Rule 4 to be equivalent to "cause of action" in that rule. The different words are used only in order to avoid repetition and for convenience of expression, specially having regard to the language of clause (c)." 18. He further relied on the decision in the case of Sadhu Singh & Ors. vs. Pritam Singh & Anr., reported in AIR 1976 Punjab & Haryana 38 (FB) (Para 11 at Page 42) which is reproduced hereunder: "11. .....................The conclusion, therefore, which inevitably seems to flow from reading Rule 2 and Rule 4 together is that Order 2 treats a cause of action for recovery of immovable property as distinct from a cause of action for the mesne profits thereof." 19. He also drew our attention on the decision in the case of Shiv Kumar Sharma vs. Santosh Kumari, reported in 2007(8) SCC 600 (Para 20 at Page 607) which is reproduced hereunder: "20. ...........................For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order 2 Rule 4 of the Code, however, such causes of action can be joined and therefore, no leave of the Court is required to be taken..................". 20. He also relied upon the decision in the case of Nandita Bose vs. Ratan Lal Nahata, reported in AIR 1987 SC 1947 , where the Hon'ble Supreme Court held that the right of landlady to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper Court. 20. He also relied upon the decision in the case of Nandita Bose vs. Ratan Lal Nahata, reported in AIR 1987 SC 1947 , where the Hon'ble Supreme Court held that the right of landlady to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper Court. The landlady was entitled to claim mesne profits or damages in respect of the period in question could not have been disposed of at a preliminary stage even before the trial had commenced. That question has to be decided at the conclusion of the trial along with other issues arising in the suit. 21. Regarding the contention of the appellant in respect of the provisions of section 17(1)(b) of the Registration Act, 1908, Mr. Surojit Mitra, learned Advocate appearing on behalf of the respondent submits that in view of the provision of section 18(c) of the Registration Act, 1908, registration of the letter dated December 28, 1977 is not compulsory. Furthermore, the question as to whether the said letter requires registration is not a question which can be gone into before the trial of the suit. In this context he relied on the decision in the case of Hardesh Ores (P) Ltd. vs. Hede & Company with Ors., reported in 2007(5) SCC 614 . 22. Mr. Mitra further pointed out that AIR 1972 Calcutta 190 (Ram Singh vs. B. S. Surana) does not apply to the facts of the present case. 23. Hence, he submitted that the appeal should be dismissed. 24. After considering the facts and circumstances of this case and after hearing the learned Senior Advocates for the parties, it appears to us that the suit was filed in the year 1979, as there was failure on the part of the defendant appellant herein, to deposit the rent in accordance with the provisions of law. The steps were taken by the plaintiff/respondent and the defence of the defendant was struck out. The steps were taken by the plaintiff/respondent and the defence of the defendant was struck out. Ultimately, the Supreme Court was pleased to hold that even in a case where the defence against the delivery of possession has struck out under section 17(3) of the West Bengal Premises Tenancy Act, 1956, the defendant subject to exercise of an appropriate discretion by the Court and on the facts of the particular case would be entitled, inter alia, to cross-examine the plaintiffs witnesses to the extent as mentioned in the case of Modula India vs. Kamakhya Singh Deo, reported in AIR 1989 SC 162 . 25. It appears that the suit was filed in the year 1979 for eviction of the defendant/appellant herein. The suit was ready and was running in the list for hearing at this stage. The appellant herein filed an application on June 12, 2008, praying for that (a) the suit be disposed of on the issue of law being whether this Court has jurisdiction to receive, try or determine the suit and (b) settlement of other issues in suit be postponed until the issue of the jurisdiction has been determined. 26. It further appears to us that the appellant had right as has been bestowed upon them by an order passed by the Supreme Court to reach the matter at the time of hearing of the suit in question. Therefore, the right of the appellant has not been curtailed by any order to reach the said point or harped on the same at the time of the trial and so to be advanced at the time of hearing. It appears that the appellant took steps in the matter when the matter is in the list to prevent the Court to proceed with the matter before deciding such application which could nothing but, in our considered opinion, to stand in the way to proceed with the hearing of the suit in question by the Court. 27. We have also considered the sections which have been referred to by the learned Senior Advocates before us and we have duly considered the same. In view of section 21(1) of the West Bengal Court-Fees Act. 1970, it appears to us that the true reliefs being the decree for vacant possession and the decree' for pre-suit mesne profit are based on the same cause of action. In view of section 21(1) of the West Bengal Court-Fees Act. 1970, it appears to us that the true reliefs being the decree for vacant possession and the decree' for pre-suit mesne profit are based on the same cause of action. Accordingly, in view of that the steps have to be taken to pay the Court-Fees in terms of section 21(2) of the West Bengal Court-Fees Act, 1970. 28. It further appears to us that the submission as has been put forward by Mr. Surojit Mitra has a substantial force to accept that the provision of sub-sections (2) of section 21 of the West Bengal Court-Fees Act, 1970. which does not apply to the facts and circumstances of the present case, since we hold that the cause of action for claims with mesne profit of the said property can be joined without the leave of the Court in a suit for recovery of immovable property. 29. We have also analyzed the decisions cited before us and we have been able to find out that the present suit has been valued at Rs.52,950/taking into account with Rs.1,000/- per month as a rent for 12 months. It would be Rs.12,000/- and the mesne profits which have been claimed in the suit itself at the rate of Rs. 75/- per diem and it has been claimed for 546 days by the respondent/plaintiff would show that it would be Rs.40,950/- and by adding the same, it would be Rs.52,950/- and, therefore, on August 3, 1979, the High Court had pecuniary jurisdiction to entertain, try and determine the suit which was valued at Rs.50,000/-. 30. Therefore, we do not have any hesitation to hold at this stage that prima facie question should be left open to the Trial Court to be decided at the time of hearing of the suit. We restrain ourselves from making any comment thereon since in our opinion, if we express our opinion, parties in the suit may be affected. Hence, we keep it open and to be decided at the time of trial by the Trial Court. 31. In our considered opinion, we do not find any merit in this appeal and the order so passed by the learned Trial Court on June 25, 2008 does not suffer from any irregularity or illegality. Hence, we dismiss this appeal and affirm the order so passed by the learned Trial Court. 32. 31. In our considered opinion, we do not find any merit in this appeal and the order so passed by the learned Trial Court on June 25, 2008 does not suffer from any irregularity or illegality. Hence, we dismiss this appeal and affirm the order so passed by the learned Trial Court. 32. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Sankar Prasad Mitra, J.: I agree. Appeal dismissed.