Calcutta High Court
Pradip Kumar Saha & Ors. vs Indian Hotel & Anr. on 21 August, 2000
Equivalent citations: (2001)1CALLT29(HC)
JUDGMENT V.K. Gupta, J.
1. This Appeal is directed against an order dated 27th July, 1998 passed by a learned single Judge of this Court whereby an application made by the plaintiffs/appellants for originating Summons in Suit No. C.S. 151 of 1997 was dismissed by the learned single Judge in holding that the Suit was not maintainable as far as originating summons under Chapter XIII of the Original Side Rules of this Court was concerned but by giving liberty to the plaintiffs/Appellants to apply before the appropriate Forum for appropriate order, if as advised, including the filing of the Civil Suit in an appropriate Civil Court. The brief facts leading to the filing of this Appeal are that the plaintiffs/ appellants purchased the property in question by several conveyances, all dated 18th November, 1988 from the erstwhile owner, namely Smt. Lila Bati Dutta in 1937 had inherited this property and since then, until its sale to the appellant/plaintiffs had remained its sole and absolute owner. Earlier, on a point of time, by an Indenture of lease dated 26th April 1919 the Predecessors-in-interest of Smt. Lila Bati Dutta had granted a lease in favour of one Chimanlal Ganeriwalla and one Jiban Krishna Mitra for a period of 81 years. This lease was to operate till 25th April 2000. Chimanlal Ganeriwalla in 1936 however had assigned his interests in the aforesaid lease in favour of Jiban Krishna Mitra with the result that Jiban Krishna Mitra became the sale lessee of the property under the aforesaid lease executed on 26th April, 1919. In or about 1985 Jiban Krishna Mitra died and the leasehold interest in the property in question devolved upon Gopal Krishna Mitra and Sachindra Narayan Dutta. It is the case of the appellants-plaintiffs that these two lessees by a deed of surrender executed on 1st January, 1988 surrendered their leasehold rights in favour of the plaintiff-appellants.
2. It is interestingly also the case of the appellants themselves that during the tenure of the aforesid lease the lessees in accordance with the power conferred upon them under the terms of the lease had let out a portion of the ground floor of the property in question to the prodecessors-in-interest of the defendants and it is by virtue of the aforesaid letting out that the defendants are presently in occupaton of the said portion of the ground floor of the property.
3. The plaintiffs/appellants claim that because they had purchased the property from the erstwhile owners in the year 1988 (18th November 1988) and because the lessees had surrendered the leasehold rights in respect of the property vide the aforesaid dated 1st January, 1988, the plaintiffs are entitled to recover the possession of the property from the defendant and that the defendants are liable to hand over such possession of the property to the plaintiffs. Plaintiffs accordingly filed the Suit for originating Summons with the prayer that the learned trial Court may determines the questions formulated by the plaintiff/appellants in para-13 of the application. Those questions are reproduced as hereunder :
"(a) Whether by reason of surrender or the lease dated 1st January, 1988 by the lessees, the defendants as under lessee/sub-tenant can lawfully occupy the said property until expiry of the original lease i.e., on 25th April, 2000.
(b) Whether the defendants as under lessees/subtenants are obliged to give vacant and peaceful possession to the plaintiffs of their respective portions of the said property in view of the surrender of the lease dated 1st January, 1988.
(c) Is the plaintiff entitled to receive rent from the defendants in accordance with the lessee? If so, would such acceptance of rent be treated as fresh tenancy agreement with the defendants attaching the provisions of the West Bengal Premises Tenancy Act, 1956 ?
(d) Whether the defendants as under-lease/sub-tenant are obliged to vacate and delivery peaceful vacant possession to the plaintiffs of their respective portions on expiry of the period of the original lease dated 26th April, 1919 i.e., on 25th April, 2000?."
4. Undoubtedly the plaintiffs/Appellants seek reliance on the deed of surrender allegedly executed on 1st January, 1988. They do not also dispute that on 8-01 -1990 they had asked for and called upon the defendants to atom their tenancy in favour of the plaintiffs/appellants and to pay them rent in respect of the said tenancy. This request for atornment was made in this letter on the basis of the information provided that by the aforesaid four conveyances dated 27.10.1988 the plaintiffs/appellants had purchased the property in question from Smt. Lilabati Dutta for valuable consideration.
5. Learned single Judge dismissed the Suit on the ground that an earlier Suit for Orginating Summons had been filed by the Appellants with regard to the same subject matter and based on the same cause of action and since that Suit had been dismissed by the Trial Court for default of appearance and the application for restoration had also been dismissed, the new Suit on the same cause of action with respect to the same subject matter was not maintainable.
6. We have given our thoughtful consideration to the submissions made before us by the learned Advocate appearing for the Appellants. We have also carefully gone through Rules 1, 4, 9, 10 and 18 in Chapter-XIII of the Original Side Rules of this Court. Rules-1 clearly stipulates that the Executors or Administrators of a deceased person or anyone of them, and the Trustees under any instrument or any of them and any person claiming to be interested in the relief sought as creditor, legatee, hair or legal representatives etc, or any beneficiary under any trust or instrument etc., may take out, as a matter of course, Originating Summons for reliefs of such nature or kind as are mentioned therein or as may by the Summons be specified. Clauses (a) to (g) of Rule-1 specify such classes and circumstances under which Originating Summons may be taken out. Rule-4 provides that a Vendor or purchaser of immovable property or his representative may at any time, but not as a matter of course also take out Originating Summons for the determination of any question which may arise in respect of any request or objections or any claim for compensation, or any question arising out of or connected with the aforesaid contract. Rule-9 provides that any person claiming to be interested under a Will or written instrument may apply in chambers by Originating Summons for the determination of any question of construction arising under the instrument or for declaration of the rights of the person interested. The learned Advocate for the appellant/plaintiffs heavily relied upon Rules 4 and 9 alternatively to stress that their Suit for Originating Summons was based on either the Sale Deed executed in 1988 in terms of Rule 4 (supra) or the will earlier executed in terms of Rule 9 (supra) was maintainable. We do not agree with the contention and for a very simple reason.
7. Whereas Rule-1 in details provides for various types of originating Summons for being taken out either by the executors or administrators of a deceased person, or any of them or by the Trustees under any instrument or any of them and by various other categories of persons mentioned therin, as a matter of course. Rule-4 is a special category and not as a matter of course provides that the summon may also be obtained by the vendor or purchaser of any immovable property but for the determination of any question which may arise in respect of such property alone. Similarly Rule-9 talks of a person obtaining Originating Summons with respect to a will or other such-like instrument for determination of any question of construction arising under the aforesaid instrument, namely either the will or such like instrument. A simple Suit for adjudication of a landlord-tenant dispute with respect to an immovable property, whereby the landlord claims that the tenant or the person in occupation is required to vacate the property, in our opinion, is not at all covered by either Rule 1, or Rule 4 or for that matter Rule 9 of Chapter-XIII of the Rules. On the own showing of the plaintiff/Appellants the defendants came to occupy the property on the basis of some alleged leasehold rights granted to them, whether those presently subsist or not being a different question. Because of some dispute regarding this question the defendants cannot be held to be trespassers or illegitimate/illegal occupiers of the property in question. Whether under the normal Civil Law they are liable to be evicted or not is an entirely different question altogether. We are not expressing any opinion or making any comments upon that aspect of the matter. All that we are saying is that with respect to such a dispute relating to such a proposed eviction of the defendants, it is not open to the plaintiff/ appellants to apply for Originating Summons either under Rule-1, or under Rules 4 or 9, Chapter-XIII of the Original Side Rules of this Court.
8. The purpose of applying for and issuance of Originating Summons, as would be eivident from the Scheme of Chapter XIII of the Original Side Rules is clearly related to the determination of questions arising in the administration of an Estate or a Trust or for settling questions between the Vendors and the purchasers of a property, or for foreclosure or redemption of mortgages or for that matter determining other questions with regard to the construction of an instrument and for related purposes. Even though the proceedings relating to grant of Originating Summons are classified as Suits, such Suits are of a very peculiar nature. These Suits cannot be equated with ordinary Civil Suits requiring adjudication of disputed questions of fact and law. Where a party asserts that a person is liable to be eivcted from a property under his occupation because the leasehold rights have been extinguished or because the lease period is over, or, because of some event the occupier has lost the right to occupy, and if in such a Suit the defendant-occupier refutes such assertions and sets up a defence that he cannot be evicted on one ground or the other, because of some protection available to him under some law or the other, surely such a matter cannot be disposed of by the issuance of Originating Summons under Chapter XIII of the Original Side Rules of this Court. Such a plaintiff has to take recourse to the remedy of filing of an ordinary Civil Suit under section 9 of the Code of Civil Procedure. The scope of Chapter XIII, Rules 1, 4 or 9 is entirely distinguishable and cannot be hold applicable to such type of litigation between two adversarial parties.
9. Notwithstanding whether Rules 1, 4 or 9 are applicable or not, in a given situation, the Court still has the power and the discretion to refuse to entertain a Suit for issuance of Originating Summons. It is evident from a clear and plain reading of Rules 10 and 18 of Chapter XIII. These two Rules also provide that where the Court thinks fit it may refuse to pass any order on the Summons and refer the parties to a Suit in the ordinary course. A combined reading of Rules 10 and 18 therefore leaves us in no manner of doubt that in a situation or a case where a plaintiff simplicitor is asking for eviction of a defendant from the suit property, the plaintiff should take recourse to the ordinary remedy of filing a regular Civil Suit so that the defendant/tenant/occupier avails of the usual defences available to him under law.
10. Apart from the fact the learned single Judge had dismissed the Suit on the ground of the earlier Suit having been dismissed on the same cause of action with respect to the same property and that application for restoration having also been dismissed (we find ourselves in agreement with that finding of the learned single Judge as well) the Suit for originating summons was also not maintainable for the grounds indicated hereinabove. The Appeal, therefore, in our view has no merit, the same accordingly is dismissed, but in the light of the observations made by us hereinabove the plaintiffs/appellants have full liberty to take recourse to alternative remedies, as observed by the learned single Judge in the Judgment under Appeal. No order as to costs.
11. Later:
Let a xerox copy of this Judgment, duly counter-signed by the Assistant Registrar of this Court, be given to the parties upon their undertaking to apply for and obtain certified copy of the same upon usual undertaking.
A. Barua, J.
12. I agree.
13. Appeal dismissed