Calcutta High Court
Ajay Kumar Rathod vs Ranbaxy Laboratiories Ltd on 19 May, 2011
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
GA No. 570 of 2011
GA No. 650 of 2011
CS No. 151 of 2010
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
AJAY KUMAR RATHOD
Versus
RANBAXY LABORATIORIES LTD.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 19th May, 2011.
Appearance:
Mr. Abhrajit Mitra, Adv.
Mr. Jishnu Chowdhury, Adv.
Mr. Chayan Gupta, Adv.
Mr. M. M. Chandra, Adv.
Mr. Sandip Bhattacharya, Adv.
Mr. S. Bose, Adv.
Mr. R. Sen, Adv.
The Court : The affidavit-in-opposition filed to the application under Chapter XIIIA of the Rules on the Original Side of this Court would require serious introspection at the bar. A defence founded on 2 adverse possession has been pleaded without any understanding of what amounts to adverse possession.
The suit is for eviction of the defendant from a property at R. N. Mukherjee Road, which is within jurisdiction. The case of the plaintiff is that the predecessor-in-interest of the plaintiff granted a lease for a period of slightly less than 20 years in favour of the defendant some time in the early 1970s and after such lease ran out by efflux of time the defendant continued in possession as a monthly tenant at an agreed rate of rent. It appears to be the undisputed position from the pleadings that the last paid rent was about Rs.27,000/- per month.
The plaintiff issued a notice under Section 106 of the Transfer of Property Act, 1882 on November 9, 2009. The notice clearly referred to the space on the first floor of the building by the name of Raja Terrace at 25, R. N. Mukherjee Road, Calcutta - 700 001 measuring approximately 2467 sq ft. The notice demanded the tenant to make over possession of the premises upon the expiry of 15 days from the date of receipt thereof. It also specified that it should be read to be a notice under Section 106 of the Transfer of Property Act.
By a letter dated November 23, 2009 the defendant replied to the notice. The defendant alleged that the plaintiff was in the habit of issuing notices to the defendant each time the plaintiff desired to 3 increase the monthly rent payable for the premises. The defendant asserted that a draft tenancy agreement had been prepared by the defendant and despatched to the plaintiff which the plaintiff had not approved or returned. Though the reply termed the notice to be "ex facie bad, " and otherwise alleged that the notice under Section 106 was defective, it did not indicate as to why the notice was deficient. The tenant alleged that the demand for delivery of possession of the property was uncalled for and unwarranted and insisted that it was not a trespasser or a wrongful occupant in respect of the office space.
The first relief claimed in the suit is for a decree for recovery of possession relating to the property as "more fully described in the schedule hereunder written."
The first, and probably the best, point taken in course of the final hearing on behalf of the defendant is that there is no schedule to the plaint and as such, the primary relief sought is vague. It is true that there is no schedule to the plaint. But it is also evident that the parties are aware of the immovable property which is the subject- matter of the suit. Indeed, the defendant has appended a copy of the deed of lease executed some time in 1972 to its affidavit and there is no whisper in such affidavit of the defendant being unable to appreciate the extent of the property which has been referred to in the plaint. The 4 plaintiff should be penalised for the negligence on its part, but it would not entail the dismissal of the application for summary judgment merely on such ground.
In the affidavit-in-opposition, the only ground of defence is that the defendant is in adverse possession of the premises. No submission has, however, been made in support of such ground at the hearing. The defence is so childish and ridiculous that it almost does not merit a single line to be expended for its rejection. It is evident that neither the defendant nor the person whose assistance may have been obtained for preparing the affidavit has the faintest idea of the concept of adverse possession. In any event, the reply to the notice under Section 106 of the Transfer of Property Act would preclude the defence of adverse possession being set up by the defendant.
The affidavit has referred to a letter issued in 1991 by the defendant to the plaintiff and/or to persons then deemed to be entitled to the property. Even such letter asserted that the defendant was a bona fide monthly tenant in respect of the property. The fundamental basis for claiming adverse possession is that the possession must be retained for the statutory period by the person claiming adverse possession after having openly claimed title hostile to the title of the original owner. There is nothing in the affidavit filed by the defendant 5 or in the documents appended in support thereof which would give such defence even the courtesy of a second look.
The defendant has also relied on a judgment reported at 2009 AIR SCW 7424 in support of the defendant's contention that there is a triable issue and the matter should be sent to trial. The defendant has relied on the report from paragraph 21 onwards. The Supreme Court concluded on the basis of its appreciation on the facts in the case that there was a triable issue.
In the instant case, there is no triable issue that has been raised by the defendant. Apart from the frivolous ground of adverse possession that appears from the affidavit-in-opposition, the only other point taken is at paragraph 8 thereof which says that since the defendant company has its registered office outside the jurisdiction of this Court, this suit should not have been filed in this Court. Again, such pleading potrays the complete lack of knowledge of the defendant and of any person who may have participated in preparation of the affidavit. This is a suit relating to an immovable property, seeking eviction of the defendant. Any first entrant to this Court ought to know that this is a suit for land. A suit for land has to be filed before the Court which exercises jurisdiction over the area, subject to pecuniary considerations.6
Since there does not appear to be any plausible defence that has been shown by the defendant, GA No. 650 of 2011 is allowed. There will be a decree in favour of the plaintiff in terms of prayer (a) of the master's summons dated February 28, 2011 except that the schedule referred to in the prayer should be read as the schedule to the notice under Section 106 of the Transfer of Property Act being annexure - A to the affidavit in support of the summons.
Mr. Arindam Sinha, Adv. is appointed as Special Referee to assess the mesne profits demanded in terms of prayer (b) of the master's summons. The mesne profits will be assessed for the period beginning 15 days from the date of receipt of the notice under Section 106 of the Transfer of Property Act by the defendant. The Special Referee will be paid a consolidated remuneration of 2500 GM to be shared in equal measure by the parties; and the assessment should be completed within four months from date.
Despite the plaintiff's entitlement, the plaintiff will not be awarded any costs for this application for its negligence in the principal relief in the suit referring to a schedule but the plaint not carrying one.
The defendant's prayer for stay of operation of the decree is rejected.
7
In view of this order, the defendant's application for extension of time to file its written statement (GA No. 570 of 2011) stands dismissed without any order as to costs.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) kc.
AR(CR)