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2020 DIGILAW 281 (CAL)

Arijeet Doss Mullick v. Government Of West Bengal

2020-02-26

ARINDAM MUKHERJEE

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JUDGMENT Arindam Mukherjee, J. - In a suit for eviction wherein the plaintiffs case is that tenancy is governed under the provisions of the Transfer of Property Act, 1882, the defendant has taken out an application for rejection of plaint and / or dismissal of the suit on the ground that the estimate of mesne profit made by the plaintiff and included in claim for computing the suit value is excessive. This has been purposely done to invoke the pecuniary jurisdiction of this Court. 2. In a suit for recovery of possession by a landlord against his/her tenant, the plaintiff can for the purpose of valuation include therein mesne profits and arrears of rent apart from the rent for the year next before the date of presenting the plaint. The valuation of the plaint, therefore, can include Rs.2,63,952/- along with mesne profit and arrears of rent, if any. The estimate of plaintiff's mesne profit is Rs.25,000/- per diem which works out to Rs.10,50,000/- for the period from 22nd April, 2016 to 2nd June, 2016, as mentioned in paragraph 17 of the plaint. There are no arrears of rent and, as such, the suit can be valued at Rs.13,13,952/-, even if interest charged by the plaintiff is excluded. The pecuniary jurisdiction of this Court can, therefore, be attracted since it is in excess of Rs.10 lakhs. The question then arises is whether the estimate of mesne profit for computing the suit value is arbitrary and absurd. 3. The suit property comprises of the 2nd, 3rd and 4th floors of premises no.16, Rabindra Sarani, Kolkata-700001 (hereinafter referred to as the "suit property"). The total area comprised in the suit property is 12,333 Sq. ft. The mesne profit estimated by the plaintiff is Rs.25,000/- per diem which comes to Rs.7,50,000/- per month. If one divides the said sum of Rs.7,50,000/- by the area of the suit property, i.e., 12,333 sq. ft., it comes to about Rs.60/- per sq. ft. 4. The defendant says that the estimate of mesne profit is defined under Section 2(12) of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code"), it is such profits which the person in wrongful occupation of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits. ft. 4. The defendant says that the estimate of mesne profit is defined under Section 2(12) of the Code of Civil Procedure, 1908 (hereinafter referred to as the "Code"), it is such profits which the person in wrongful occupation of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits. It is further submitted that the original deed of lease executed by the predecessor-in-interest of the plaintiff and / or defendant contains a clause by which the Land Acquisition Collector is empowered to decide the rate of rent. The said lease dated 29th February, 1968, has expired. The rent assessed by the Land Acquisition Collector on 3rd July, 2019 was Rs.21,996/- which comes about Rs.1.78/- per sq. ft. and, as such, the mesne profit could not have been estimated at about Rs.60/- per sq. ft. for filing the suit. It is further submitted by the defendant that the said defendant could not have received or might have received about Rs.60/- per sq. ft. in accordance with the provisions of section 2(12) of the Code of Civil Procedure, 1905 assuming without admitting that the defendant is in wrongful possession of the suit property. 5. Several judgments have been cited by the defendant as to the permissibility of the plaintiff's estimate of mesne profit for computing the valuation of the suit. Before I deal with such judgments, the point of maintainability of the application as raised by the plaintiff has to be gone into. 6. The plaintiff has submitted that the application cannot be one under the provisions of Order VII Rule 11 of the Code, as it does not fit into any of the clauses of Order VII on which the plaint can be rejected and / or suit be dismissed. At best the plaintiff can file an application under Order VII Rule 10 of the Code and the Court, if not satisfied with the valuation made by the plaintiff, will allow the plaintiff to cure the same, thereafter only if the plaintiff does not take any steps within the time fixed by the Court for curing such defect in valuation, the suit can be dismissed under the provisions of Order VII Rule 11 of the Code. In the instant case, no such exercise has been undergone by the Court at the invitation of the defendant. 7. In the instant case, no such exercise has been undergone by the Court at the invitation of the defendant. 7. Posed with the question of maintainability, the defendant submits that the provisions of Order VII Rule 10 of the Code is not applicable to this Court being a Chartered High Court. Alternatively, the defendant submits that the suit is barred by law because it is overvalued to attract the jurisdiction of this Court when the plaintiff knew that such estimate of mesne profit does not satisfy the requirements of the definition of mesne profit as given under Section 2(12) of the Code. Moreover, over valuation as in the instant case deliberately made to attract the pecuniary jurisdiction of this Court should be held as a bar imposed in law. The defendant invites the Court to enquire into the valuation made by the plaintiff to institute the suit in this Court by treating it as an application under Order VII Rule 10, if this Court is not inclined to pass an order of rejection of plaint and / or dismissal of suit as prayed for by the defendant. The defendant on merits submits that in any event, the estimate of mesne profit made by the plaintiff is a realistic one and cannot be said to be either arbitrary or absurd to bring the suit under the mischief of raising the valuation to invoke the pecuniary jurisdiction of this Court to even attract the provisions of Order VII Rule 10 of the Code. 8. The following judgments have been cited at the bar and the relevant portions whereof are set out hereunder :- a) In the judgment of Tara Devi vs. Sri Thakur Radha Krishna Maharaj, through Sebaits Chandeshwar Prasad and Meshwar Prasad and Another, 1987 4 SCC 69 , it was held as follows:- ".....In Sathappa Chettiar V. Ramanathan Chettiar and Meenakshisundaram Chettiar V. Venkatachalam Chettiar that in a suit for declaration with consequential relief falling under Section 7(iv) (c) of the Court Fees Act, 1870, the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purposes of court fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same....." "Question whether 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. Plaintiff has the right to value the relief claimed according to his own estimation. Principles of law enunciated in the aforesaid reported order of rejection of the application under Order 7 Rule 10 of the Code of Civil Procedure passed by the learned Court below is not vitiated by any jurisdiction error....". b) In the case of Nandita Bose v. Ratanlal Nahata, 1987 3 SCC 705 it was held as follows:- "......The valuation of a suit depends upon the reliefs claimed therein and the plaintiffs' valuation in his plaint determines the court in which it can be presented. But the plaintiff cannot invoke the jurisdiction of a court by either grossly overvaluing or grossly undervaluing a suit. The court always has the jurisdiction to prevent the abuse of the process of law." "Whether in the present case the plaint has been grossly over-valued with the object of bringing it within the jurisdiction of the High Court. The tenancy is a matter which has to be decided in the suit could not have been disposed of at a preliminary stage even before the trial had commenced. The acceptance of the view respondent may lead to encouraging a tenant who has forfeited his right to the tenancy to carry on a dilatory litigation without "dishonestly and intentionally inflated the value of the suit in order to invite the jurisdiction of a particular court which has no jurisdiction otherwise". Premises of the nature in question which is situated in Calcutta does not appear to be fanciful having regard to the prevailing situation.....". "....the defendant/petitioner filed an application under Order 7 Rule 10 of the Code of Civil Procedure which has arisen out of the landlord cannot claim mesne profits. Petitioner that the valuation of the said suit for the purpose of jurisdiction is malafide and wrongful. Plaintiff is thus deliberate and illegal attempt to invoke the jurisdiction of the learned Civil Judge. "....the defendant/petitioner filed an application under Order 7 Rule 10 of the Code of Civil Procedure which has arisen out of the landlord cannot claim mesne profits. Petitioner that the valuation of the said suit for the purpose of jurisdiction is malafide and wrongful. Plaintiff is thus deliberate and illegal attempt to invoke the jurisdiction of the learned Civil Judge. Accordingly the defendant/petitioner has filed an application under Order 7 Rule 10 of the Code of Civil Procedure praying for return of the plaint filed in the said suit to the plaintiff for presenting. That the suit is maintainable and the trial suit has been instituted is well within its jurisdiction to entertain and try the said suit and that there is no necessity for return of plaint. Rejection of the application under Order 7 Rule 10 read with section 151 of the Code of Civil Procedure." c) In the judgment of In re Smt. Dalia Ghosh, 1991 2 CalLJ 226 it was held as follows:- "..Ad valorem Court fees liberty to value a suit and to determine the forum on the basis of such determination lies with the plaintiff unless the valuation put by the plaintiff can be demonstratively shown to be arbitrary and unreasonable. Mesne means those profits which the person in wrongful possession actually received or might with ordinary diligence receive profits due to improvements made by the person in wrongful possession. Separate proceeding under Order 20 Rule 12 of the Code of Civil Procedure trial Court whereupon Court fees on such amount of mesne. d) In the judgment of Coal India Limited Vs. Apeejay House Private Ltd, 2013 AIR(Cal) 66 , it was held as follows:- "...plaintiff having the carriage of proceeding was entitled to put its own valuation. Unless it was demonstrated to be ridiculous or arbitrary or unreasonable the Court would ordinarily rely on such valuation and entertain the suit if it was within its pecuniary limit valuation. ratio of this decision is applicable in the facts and circumstances of this case otherwise also, the provisions under Schedule IV(b) do not create any bar to value the plaintiff in a reasonable manner...". e) Then again in the judgment of M/s Dinwara Engineers Private Limited Vs. ratio of this decision is applicable in the facts and circumstances of this case otherwise also, the provisions under Schedule IV(b) do not create any bar to value the plaintiff in a reasonable manner...". e) Then again in the judgment of M/s Dinwara Engineers Private Limited Vs. Amitava Banerjee, 2002 2 CalLT 253 (HC) , it was held as follows:- "...Monthly tenancy can be terminated upon notice to the tenant and on such termination, the tenant would deserve no right to hold on to the tenancy. However, under the tenancy law, protection was given to those tenancy although terminated by notice was pending for consideration before a decree for eviction passed the tenant was entitled to continue to remain in possession as a statutory tenant did not enjoy such protection. Protection, if any, enjoyed Tenancy Law stood withdrawn on repeal of the Tenancy Law and on termination of his tenancy under Section 106 of the Transfer of Property Act he would be considered to be illegal occupant attracting mesne profit to be awarded against him. The calculation of mesne profit would depend upon the anticipated value of the commercial exploitation of the tenancy that the plaintiff could enjoy had the tenant been not in possession." 9. After considering the rival contentions, the materials on record and the judgments cited, I am of the view that the said application is liable to be rejected for the following reasons :- i. The plaintiff has not made any application under the provisions of Order VII Rule 10 of the Code read with Section 11 of the Suit Valuation Act, 1887. In absence of such an application, the Court cannot be invited to enquire into the valuation. Unless such exercise is undertaken the question of coming to a conclusion that the suit is overvalued and thereby returning the plaint to the plaintiff for being presented to the competent Court does not arise. ii. In the instant case, the defendant is complaining of overvaluation. Even if, I accept the submission of the defendant that I should form an opinion as to the plaint being overvalued and the same is to be returned for being presented in the competent Court holding that this Court does not have the pecuniary jurisdiction then also such an exercise cannot be undergone in an application under Order VII Rule 11 of the Code. It has to be done under the provisions of Order VII Rule 10 of the Code. iii. In the instant case, since it is alleged that the suit has been overvalued only the plaint can be returned. The plaint can neither be rejected nor can the suit be dismissed on that ground at this stage. iv. So far as the non applicability of the provisions of Order VII Rule 10 of the Code to a Chartered High Court is concerned, I am constrained to refer to the judgment reported in [ UCO Bank Versus Sm. Ratni Devi Jain & Ors., 1997 2 CalLT 321 ]. It will appear from the said judgment that "by Order 49, Rule 3, sub-rule (1) of the Code the provisions contained in Order 7 Rule 10 was made inapplicable to Chartered High Courts in exercise of their ordinary original civil jurisdiction. By the amendment dated 14th May, 1974, published in the Calcutta Gazette part (1) dated 1st August, 1974, of the High Court Rules, Original Side of this court, the provisions contained in Order 49 Rule 3 sub-Rule (1) were deleted in so far as this Chartered High Court is concerned. Therefore, since 1st August, 1974 the provisions contained in Order 7 Rule 10 of the Code are applicable to this court". v. The alternative argument of the defendant to treat the application as an application under the premises of Order VII Rule 10 of the Code also fails in view of the aforesaid findings. That apart and in any event it is settled principle of law that the inherent powers of the Court under section 151 of the Code cannot be invoked if there is a specific prevision for such purpose under the Code. One can rely upon the Division Bench judgment reported in [ Tulsiram Bhagwandas V. Sitaram Srigopal, 1959 AIR(Cal) 389 ]. It will appear from the said judgment that "The essence of the Code, as is well-known, is to be exhaustive so far as it goes and as respects matters for which the Code expressly provides, there is no room for the exercise of any additional jurisdiction under Sec. 151". vi. It will appear from the said judgment that "The essence of the Code, as is well-known, is to be exhaustive so far as it goes and as respects matters for which the Code expressly provides, there is no room for the exercise of any additional jurisdiction under Sec. 151". vi. The defendants other alternative argument that the suit is barred by law cannot also be accepted as over valuation if any, cannot be said to be an embargo in law particularly when Order II Rule 4 of the Code allows inclusion of mesne profit in a suit for eviction. Since the defendant has asked for rejection of plaint and / or dismissal of the suit on the ground of overvaluation, such prayer cannot be allowed on the strength of the case made out by the plaintiff in the application. vii. Even going by the estimate made by the plaintiff as to the mesne profit, it cannot be said that the estimate of mesne profit taken for the purpose of computing of valuation is so absurd or arbitrary on face of it that it is required to be interfered with by returning the plaint. The suit property is situated almost adjacent to the northern side of Lalbazar, the Police Headquarter of Kolkata and is, therefore, in a locality where the rent commanded is very high. If the defendant was to take similar premises, the defendant would have to pay rent at the present market value. It cannot be said at this stage without any evidence being laid at that trial that the defendant will not be required to pay rent at about Rs.60/- per sq. ft. for hiring similar premises. This is also an angle from which mesne profit can be viewed. If that be so, it will be preposterous to come to a finding that the estimate of mesne profit taken for computation of the valuation of the suit is either absurd or arbitrary at this stage to command return of the plaint. I am not required to give a finding as to the quantum of mesne profit claimed at this stage as the same will amount to pre-judging an issue which may have an impact at the trial in respect of mesne profit. 10. Considering all these aspects, the application being G. A. No.2829 of 2019 is liable to be dismissed and is accordingly dismissed. 11. 10. Considering all these aspects, the application being G. A. No.2829 of 2019 is liable to be dismissed and is accordingly dismissed. 11. Let the suit appear under the heading "witness action" on 25th March, 2020. 12. There shall, however, be no order as to costs. 13. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis after compliance with all necessary formalities.