Calcutta High Court
Dinwara Engineers Private Limited vs Amitava Banerjee on 26 March, 2002
Equivalent citations: (2002)2CALLT253(HC)
JUDGMENT A.K. Bisi, J.
1. The instant revisional application under Article 227 of the Constitution of India preferred by the petitioner is directed against Order No. 15 dated 16-1-2001 passed by the leaned Civil Judge (Senior Division) 9th Court, Alipore, South 24-Parganas in T.S. No. 1 of 2000. By the impugned order the learned trial Court rejected the application under Order 7 Rule 10 of the Code of Civil Procedure filed by the defendant/ petitioner.
2. The facts leading to the instant revlsional application may breifly be stated thus, The defendant/petitioner filed an application under Order 7 Rule 10 of the Code of Civil Procedure which has arisen out of the suit for recovery of khas possession, mesne profits and damages valued at Rs. 30,200/- i.e., Rs. 7,200/- for recovery of khas possession, Rs. 10,000/-as mesne profits and Rs. 13,000/- as damages tentatively. It has been contended by the defendant/petitioner that in a suit like the present one a landlord cannot claim mesne profits for any period prior to a decree for possession and as such the claim for mesne profits as made by the plaintiff/ opposite party prior to a decree for possession, is barred by law. It has been further alleged by the petitioner that the valuation of the said suit for the purpose of jurisdiction Js malafide and wrongful and the said valuation of the suit as assessed by the plaintiff is thus deliberate and Illegal attempt to Invoke the Jurisdiction of the learned Civil Judge (Senior Division), 9th Court, Alipore, 24-Parganas (South) although the said learned. Judge does not have jurisdiction to entertain, try and determine the said suit. It has been further alleged by the petitioner that the suit should have been instituted in the Court of the Civil Judge (Junior Division) 3rd Court, Alipore, 24-Parganas (South). 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 the same to the Court of the learned Civil Judge (Junior Division), 3rd Court, Alipore, 24-Parganas (South)..
3. The said application has been contested by the Opposite Party/ Plaintiff contending inter alia that the application is not maintainable and the same is barred by law and that the application has been filed by the defendant to cause delay and harass the plaintiff. It has been further contended by the O.P/Plaintiff that the suit is maintainable and the trial Court where the 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 the plaint. As contended by the O.P/Plaintiff, the valuation of the suit has been correctly assessed. Under the above circumstances the O.P./Plalntlff has prayed for rejection of the application under Order 7 Rule 10 read with Section 151 of the Code of Civil Procedure.
4. The learned Civil Judge (Senior Division). 9th Court. Alipore, has considered the materials on record and rejected the application under Order 7 Rule 10 of the Code of Civil Procedure.
5. Being aggrieved by the Impugned order of rejection of the application under Order 7 Rule 10 of the Code of Civil Procedure passed by the learned trial Court the petitioner/defendant has preferred the Instant application under Article 227 of the Constitution of India alleging Inter alia that the learned Civil Judge (Senior Division), 9th Court, Allpore, 24-Parganas (South) failed to exercise jurisdiction vested in him by law by not returning the plaint filed in T.S. No. 1 of 2000 for presenting the same to the learned Civil Judge (Junior Division), 3rd Court, Allpore, 24-Parganas (South), that the learned Court below failed to exercise jurisdiction vested in him by law in not holding that the plaintiff/opposite party's claim for mesne profits for the period prior to his obtaining a decree, if any, for eviction of the petitioner was barred by law and not maintainable and that the learned Court below failed to exercise its jurisdiction in not holding that the plaintiff/opposite party's valuation of the said suit was deliberate, malafide and wrongful.
6. The sole point arising for consideration is whether or not the Impugned order passed by the learned Court below is legally sustainable on the face of the materials on record.
7. From the materials on record it appears that the plaintiff presently OP instituted the suit for recovery of khas possession of the suit premises by evicting the defendant therefrom and for a decree of mesne profits as provided under Order 20 Rule 12 of the Code of Civil Procedure. The suit was valued at Rs. 30,200/- i.e., Rs. 7,200/- for recovery of khas possession and Rs. 23,000/- per mesne profits as well as damages tentatively and the plaintiff has paid the ad valorem Court fees for the same. It is contended by Mr. Deb learned Senior Advocate appearing for the petitioner/defendant that the plaintiff as landlord cannot claim mesne profits prior to his obtaining a decree for eviction of the tenant and the mesne profits cannot be claimed at the rate higher than the contractual rent. It is further submitted by Mr. Deb that in the Instant case the suit was overvalued and the claim mesne profits made by the plaintiff is much higher than the contractual rent Mr. Roychowdhury learned Senior Advocate appearing for the plaintiff/opposite party on the other hand has contended that the 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. He has cited the decision reported in re; Smit, Dalia Ghosh, 1991(2) CLJ 226 in support of his contention.
8. Mesne profits of property as defined in Section 2(12) of the Code of Civil Procedure means 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. It is settled law that after passing of the decree for eviction of a tenant the mesne profits are to be ascertained by the trial Court on enquiry in a separate proceeding under Order 20 Rule 12 of the Code of Civil Procedure and after such ascertainment mesne profits are to be assessed by the trial Court whereupon Court fees on such amount of mesne profits assessed by the trial Court are to be paid by the plaintiff. In the instant case, as already referred to, the plaintiff has prayed for a decree for mesne profits as provided under Order 20 Rule 12 of the Code of Civil Procedure and tentatively valued the claim for mesne profits and damages at Rs. 23,000/-.
9. In re: Smt. Dalia Ghosh (supra) the defendant/tenants alleged that both the suits had been grossly overvalued to attract the jurisdiction of higher Court and prayed for returning of the plaint to the Courts of lesser Jurisdiction. The Division Bench of this Court in the said case at page 228 (para 6) observed as follows:--
"In the case of (1) Nandtta Base v. Ratanlal Nahata report d m and (2) Tara Debt v. Shri Thakur Radha Krishna Maharaj, Their Shebalt Chandreswar Prasad and Maheswar Prasad and Anr., reported in the same volume at page 1987 SC 2085 the ratio as propunded by the Supreme Court appears to be that the liberty to value the suit and to determine the forum on the basis of such valuation lies with the plaintiff normally, unless the valuation put by the plaintiff can be demonstratively shown to be arbitrary and unreasonable. The term "demonstrate" means "to make manifest"; "to give proof of"; "to prove with certainly"; to exhibit by practical means". To express succinctly, the valuation has to be established patently to be arbitrary and unreasonable. In the instant cases, no material appears to have been placed before the Courts below to satisfy the above test laid down by the Supreme Court and we agree with the view expressed by the Courts below that to hold at this stage that the valuation was arbitrary or unjust would be to prejudge the question. It is pertinent to consider in this connection that it has also been laid down by a Division Bench of this Court in the case of (3) Mantrampore Cultural Association v. Mantrampore Junior High School and Ors. reported in 92 CWN 502 that the Court will consider such questions and take into consideration the fact that the Jurisdiction of a higher forum is not ousted even if on the conclusion of the 'trial the suits are found to have not been properly valued".
10. The ratio of the above noted case applies with full force to the facts and circumstances of the instant case.
11. In Nandlta Bose v. Ratanlal Nahata the landlady claimed a decree for Rs. 78,000/- for certain period on the footing that the tenants's possession was unauthorized or illegal after termination of tenancy and he was liable to pay mesne profits or damages and on that basis filed suit in the High Court on valuation of mesne profits. The High Court accepted the contention of the tenant that the tenant even after the termination of the tenancy did not cease to be statutoiy tenant and was liable to pay only agreed rent and when arrears were calculated on that basis the tenant would not be liable to pay arrears which would attract the pecuniary Jurisdiction of the High Court and directed to return the plaint for presentation to proper Court. The claim for mesne profits/ damages was not palpably absurd or imaginary considering the location of the premises. In the said case the Supreme Court has held that the High Court was in error in prejudging the Issue relating to the right of landlady to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper Court. It has been further held by the Supreme Court that the 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 commenced and that question has to be decided at the conclusion of the trial along with other issues arising in the suit.
12. It is settled law that the plaintiff has the right to value the relief claimed according to his own estimation and such valuation has to be ordinarily accepted. Reference can be made in this context to Smt. Tara Deul v. Thakur Radha Krishna Maharaj, , Sathappa Chetttar v. Ramanathan Chetttar, as well as Meenakshisundaram Chettiar v. Venkatachalam Chetttar, .
13. Applying the principles of law enunciated in the aforesaid reported decisions to the facts and circumstances of the case in hand I find that the Impugned 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 jurlsdlctlonal error, which can warrant Interference of this Court in revision. There being no merit in this application under Article 227 of the Constitution of India, the same is bound to fall. The Instant application under Article 227 of the Constitution of India is accordingly dismissed. Interim order passed earlier stands vacated.
There will be no order as to costs.
Xerox certified copy of this order. If applied for, be given to the parties as expedltlously as possible.