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2010 DIGILAW 496 (CAL)

Ms. Shipra Ghose @ Shipra Ghose Jain v. Bharat Petrolium Corporation Limited

2010-05-06

PATHERYA

body2010
JUDGMENT: The Court: G. A. No.101 of 2008 has been filed under Order 7 Rule 11 of the Code of Civil Procedure by the defendant No.1 for rejection of the plaint on the ground of lack of pecuniary jurisdiction. The case of the defendant No.1 is that in C. S. No.4 of 2006 the plaintiff has sought for a decree on account of arrear rents from May, 1982 till 31st July, 2005. The only arrear rents which it would be entitled to is for 3 years prior to the filing of the suit, in 2006. The claim for the period May 1, 1982 to 2002 is barred by laws of limitation. On a calculation of the yearly rent payable as the amount does not exceed Rs.10 lacs this Court lacks pecuniary jurisdiction to entertain the instant suit. Article 52 of the Limitation Act contemplates filing of suits for realisation of arrear rents within 3 years when the arrears became due. Reliance is placed on AIR 1966 SC 153 and 2006 (5) SCC 638 . The instant suit has been filed on 4th January, 2006 and 3 years prior thereto would be 4th January, 2003. Therefore, any claim on account of arrear rents for the period prior to December, 2002 is barred by laws of limitation and, therefore, the plaint be rejected. Counsel for the plaintiff submits that the relationship of lessor and lessee came to an end on expiry of the lease by efflux of time on 31st July, 2005. As the defendant continued to remain in occupation of the said premises mesne profit has been claimed from 1st August, 2005 to 31st December, 2005 aggregating to Rs.6 lacs. In fact arrear rents is payable to the plaintiff on and from May, 1982 till 31st July, 2005. The same has not been paid by the defendant as the Thika Tenancy (Acquisition and Regulation) Act, 1981 came into force on 2nd November, 1981 and the defendant no.1 stopped payment of the lease rent on and from May, 1982. Although requests for payment was made but no sums were paid. Several writ petitions were filed challenging the provisions of the 1981 Act and in particular Section 5. A writ petition was also filed by the predecessor-in-interest of the plaintiff and the proforma defendant being C. R. No.4872 (W) of 1983 and an order of stay was granted. Although requests for payment was made but no sums were paid. Several writ petitions were filed challenging the provisions of the 1981 Act and in particular Section 5. A writ petition was also filed by the predecessor-in-interest of the plaintiff and the proforma defendant being C. R. No.4872 (W) of 1983 and an order of stay was granted. Subsequently, a writ petition on the selfsame issue was decided on 8th September, 1987 by the Special Bench of the Calcutta High Court. By letter dated 21/25th January, 1988 the arrear rents for the period May, 1982 to 1988 was forwarded by the defendant no.1 to the predecessor-in-interest of the plaintiff. Such cheque forwarded was conditional to the order that may be passed by the Supreme Court of India. The said condition was not accepted and, therefore, the cheque returned. From the judgment of the Special Bench, Special Leave Petitions were filed by the State of West Bengal and an interim order of stay was granted. Such interim order was, however, vacated on the withdrawal of the special leave petition on 19th August, 2003. Therefore, in view of the acceptance of the judgment of the Special Bench by the State of West Bengal on 19th August, 2003 right accrued in favour of the plaintiff for realization of the arrear rents. It is for exercise of such right that the instant suit has been filed. The defendant no.1 by its letter dated 21st/25th January, 1988, acknowledged its liability to make payment. In the instant suit, a claim, therefore, has been made for the said period and the claim, in view of the pendency of the proceedings, is not barred by laws of limitation. Therefore, the suit has not been over valued and this Court has jurisdiction to entertain the same and the application filed be dismissed. The decisions cited are distinguishable on facts. The right to realise sums in view of the pendency of the issue before the Special Bench and the Supreme Court of India till August, 2003 remained suspended. In reply Counsel for the defendant no.1 submits that the order of the Supreme Court is not an order in rem and the plaintiff is not a party before the Supreme Court, therefore, the said order is not binding on it. The plaintiff or her predecessor-in-interest was entitled to initiate Court proceedings. In reply Counsel for the defendant no.1 submits that the order of the Supreme Court is not an order in rem and the plaintiff is not a party before the Supreme Court, therefore, the said order is not binding on it. The plaintiff or her predecessor-in-interest was entitled to initiate Court proceedings. No appeal was filed by the plaintiff nor any exemption has been claimed. The order on the writ petition was passed on 28th May, 1983 and is continuing even today as the said writ petition has not been dismissed or disposed of. Accordingly, Section 15(2) and 15(1) of the Limitation Act has no application. Having considered the submissions of the parties, it cannot be disputed that the 1981 Act came into force on and from 2nd November, 1981. The defendant no.1 voluntarily stopped payment of the lease rent on and from May, 1982 and on determination of the issue raised before the Special Bench, in the case of Lakshimoni Dasi in 1987 by a letter of 1988, the defendant no.1 forwarded the lease rent from May, 1982 to 1988. Therefore, it was in view of the 1981 Act that the payment was stopped and it was sought to be resumed after the decision of the Special Bench in 1987. In January, 1988 an interim order was passed by the Supreme Court of India in the special leave petition filed before it which ultimately was dismissed by withdrawal on 19th August, 2003. This resulted in the interim order being vacated. It will not be out of place to mention that the letter under which the rents for the period May, 1982 to July, 1988 was forwarded was dated 21st/25th January, 1988. In fact, all writ petitions filed on the selfsame issue stood disposed of by the decision of the Special Bench. The writ petition of the plaintiff’s predecessor-in-interest and the proforma defendant no.2 was also on the selfsame issue and stood by the decision decided in the case of Lakshimoni Dasi. Therefore, to contend that the plaintiff or her predecessor-in-interest would not be entitled to exemptions on account of pendency of the Court proceedings would be contrary to the intentions of the parties as envisaged. Therefore, to contend that the plaintiff or her predecessor-in-interest would not be entitled to exemptions on account of pendency of the Court proceedings would be contrary to the intentions of the parties as envisaged. In fact the defendant No.1 also awaited the outcome of the Special Leave Petition as inspite of the direction of the Supreme Court of India on 25th January, 1988 no step was taken to deposit rent with the Controller, Thika Tenant, Calcutta. There is no dispute with the propositions of law in the cases cited by the defendant No.1 but for the reasons stated above cannot be applied to the facts of the case. Accordingly, this application cannot be entertained and is dismissed. Later: In view of the order passed this day, let G.A 1875 of 2006 be listed in the Monthly List of June, 2010. All parties concerned are to act on a Photostat signed copy of this order on the usual undertakings.