Calcutta High Court
Debonair Vanijya Pvt. Ltd vs Eshrat Jahan Also Known As Ishrat Jahan & ... on 5 February, 2024
Author: I. P. Mukerji
Bench: I. P. Mukerji
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present :- Hon'ble Mr. Justice I. P. Mukerji
Hon'ble Mr. Justice Biswaroop Chowdhury
APO/54/2023
with
CS/43/2020
DEBONAIR VANIJYA PVT. LTD.
Versus
ESHRAT JAHAN ALSO KNOWN AS ISHRAT JAHAN & ANR.
For the Appellants :- Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Sankarsan Sarkar,
Mr. Mehaboob Rahman &
Mr. Shayak Mitra, Advs.
For the Respondents :- Mr. Shyamal Chakraborty
Mr. Debajyoti Mondal, Ms. Anjana Das & Mr. Sayan Ghosh, Advs.
Judgment On :- 05.02.2024 I. P. Mukerji, J.:-
The question which arises for determination in this appeal is whether the court during the pendency of the suit for eviction of an occupier of a premises and determination of mesne profits, can order interim mesne profits or occupation charges to be paid to the plaintiff by the defendant? The appellant/plaintiff, sometime in 2020, filed this suit in this court against the respondents/defendants for a decree for vacant and peaceful possession of a shop room measuring 98 sq. ft. in the north west corner of the ground floor of premises no.2/1, Ho Chi Minh Sarani, Kolkata-700071. In addition to this, they claimed mesne profits of Rs.34,69,200/- from 12th July, 2011 to 30th November, 2019, of which Rs.29,40,000/- was the principal amount at the rate of Rs.300/- per sq. ft. per month and Rs.5,29,200/- as interest at the rate of 18% per annum for this period. From 1st December, 2019 mesne profits at the rate of Rs.980/- per day and interest were claimed, aggregating to Rs.7,69,481.30/- upto 30th September, 2021.
The appellant/plaintiff took out the application (GA 2 of 2021) for an order inter alia, asking the respondents to secure the sum of Rs.34,69,200/- and Rs.7,69,481.30 claimed as mense profits in the suit. By his judgment and order dated 14th March, 2023 a learned single judge of this court was pleased to dismiss the said application. Hence this appeal.
It is significant to mention here that the respondents have not preferred a cross appeal or cross objection from that order.
Now, the facts in some detail.
The original tenant of the suit premises was one Rahamatullah. He died on 12th July, 2006. By that time the West Bengal Premises Tenancy Act, 1997 had come into force. Rahamatullah had died leaving behind the first respondent, his widow and the second respondent, his daughter. According to the appellant the tenancy was commercial in nature. Assuming the respondents to be dependants of Rahamatulla, latest, it came into an end on 12th July, 2011 under Section 2(g) of the said Act.
On the ground that the respondents had become rank trespassers five years after the death of Rahamatullah, the appellant/plaintiff filed the instant suit (CS No.43 of 2020) for recovery of possession of the said premises from the respondents and for mesne profits from 12th July, 2011. The learned single judge seems to have dismissed the application solely on the ground that under the existing law, a plaintiff is not entitled to recover mesne profits or occupation charges from an occupier during the pendency of the suit.
However, arguments in this appeal were not confined to this issue alone. Several other issues were canvassed which I shall discuss as I proceed further with this judgment.
2 In a previous suit (CS 771 of 1981) the lessor Tarun Kumar Ghosh and others had obtained a decree for eviction of the defendant, the Credit Union Co-Operative Enterprise Limited. Execution proceeding (EC 346 of 2015) had also been started to execute the decree when the respondents filed the application (GA 1540 of 2016) to assert their right, title and interest in the said shop room as a monthly tenant. On 20th May, 2016 in that application an interim order was passed restraining the receiver from taking possession of the portion in occupation of the petitioner. On 12th June, 2018 the application was disposed of by a very short order. It was said that the decree holder had neither appeared nor filed any affidavit-in-opposition. Therefore, the averment made in the petition stood uncontroverted. Hence, the said interim order made on 20th May, 2016 stood confirmed. The appellant is the purchaser of the suit property and the successor-in- interest of the decree holder.
Mr. Shyamal Chakraborty, learned counsel for the respondents argued that the proceedings were under order 21 Rule 97-105 of the Civil Procedure Code. It had to be taken as a suit. The order dated 12th June, 2018 was in reality a decree declaring that the respondents had an independent right to occupy the premises and could not be evicted by the appellant. The issue had become res judicata.
To this Mr. Surajit Nath Mitra, learned senior counsel for the appellant replied that in the said execution proceeding no stand had been adopted by the decree holders to bind the respondents to the decree and to evict them along with the judgment debtor. On this apprehension the respondents had approached the court with the said application to declare their rights. Since the decree holders were not taking any steps against them, they did not feel it necessary to contest the said application taken out by the respondents in the execution proceedings.
3 Mr. Shyamal Chakraborty also submitted that the rent last paid by the respondents was Rs.45/- per month for occupation of the suit property. They were depositing rent with the Rent Controller. The appellant/plaintiff had filed the suit in this court grossly overvaluing it. The court had no jurisdiction to entertain, try and determine the suit. Learned counsel also raised the point that the suit was non-commercial in nature and that the occupancy of the respondents was residential. Hence, as the widow of Rahamatullah, the respondent No.1 would be a lifelong tenant under the said Section 2(g).
In answer to this Mr. Mitra submitted that the valuation of the suit was on the cause of action of wrongful occupation by the respondents after cessation of the commercial tenancy on expiry of five years after the death of Rahamatullah. There was no question of valuing the suit on the basis of the paltry rent of Rs.45/- per month paid by the respondents. He argued that the plea that the respondents were not engaged in commercial activity in the said premises was not taken in the written statement.
As far as the nature of occupancy is concerned he showed us the affidavit affirmed before the Rent Controller, Kolkata on 18th October, 2006 in which Abdul Mannan claiming himself to be the agent of the respondents admitted that the space occupied by the respondents was a shop room (Pg 181 of the paper book).
Next he showed us the Rent Control form No.III being a challan where the occupancy was described as a shop room (Pg 182 of the paper book). He also referred to the report of the Special Officer at pages 267 to 269 of the paper book where the Special Officer stated that he was informed that the heirs of Rahamatullah ran business from the said premises. In the Certificate of Enlistment issued by the Licence Department of the Kolkata Municipal Corporation, the respondents were described as "seller of Food 4 and Non-Food Items-Cigarette, Biscuit & Airated Water". Mr. Mitra said that the above admission clearly established that the nature of tenancy was commercial which came to an end five years after the death of Rahamatullah.
The first issue before us was with regard to the status of the respondents and related to it the valuation of the suit. From the above facts it is quite clear that the tenancy was commercial in nature as Rahamatullah and the respondents appeared to have carried out the business of cigarette, aerated water biscuits and so on from the suit premises. On the death of Rahamatullah in 2006, the respondents, assuming them to be the dependant heirs of Rahamatulla could occupy as a tenant the said premises for a period of only five years after his death. Under Section 2(g) of the said Act the extended tenancy in favour of the said dependant heirs ceased on 12th July, 2011. Therefore, the suit as framed, describing the respondents as trespassers was legally proper. Hence, the suit was not required to be valued on the basis of the last paid rent or occupation charges of Rs.45/- per month and has been correctly valued taking into account the value of the property in the wrongful possession of the respondents and the mesne profit or damages they are liable to pay for such use.
Now the question arises whether any issue raised in this application or in this appeal has become res judicata by virtue of the decision of the court in the said application for execution.
The said application was made under Order 21 rules 97-105 of the Civil Procedure Code. Order 21 rule 97 lays down that if a decree holder or purchaser is resisted by any person while taking possession of a property he may apply to the court complaining of such resistance. Order 21 Rule 99 stipulates if any person other than the judgment debtor is dispossessed by the decree holder or by the purchaser he also may come forward before the court complaining of it. In this case, the respondents were neither 5 decree holders under Order 21 rule 97 nor any dispossessed occupier under Order 21 rule 99. On the apprehension of dispossession the respondents made the application. The decree holder who is not the appellant but its predecessor-in-interest did not contest. Mr. Mitra stated that the decree holder was not levying execution against the respondents in the suit (CS 71 of 1981). Learned counsel submitted that by this reason they were not required to participate in the application. In our opinion the right, title and interest of the respondents in the said premises could not have been and were not issues in that application. In the absence of the decree holder the court disposed of respondents' application by confirming the interim order that the receiver should not interfere with their possession. Now this finding was in the context of the said application. It cannot be taken as a finding regarding the right, title and interest of the respondents in the said premises as against the appellant. Thus, by no stretch of imagination the order dated 12th June, 2018 was res-judicata between the parties. Therefore, an independent suit lay to assert the right of the parties in the said premises. It is now quite well settled that in eviction cases under the Rent Act, a plaintiff lessor who obtains a decree for eviction against the lessee is entitled to receive occupation charges from him from the date of the decree till he obtains possession of the suit premises. This is so because a lessee is treated to be a statutory tenant till the date of the decree. If the lease is not covered by the Rent Act then the lessor becomes entitled to occupation charges even from an earlier date, i.e. the date of determination of the lease. From that date he is a trespasser. When the lessee prefers an appeal from such a decree the courts have protected the interest of the respondent lessor by directing payment of occupation charges at such rate as assessed by the court for occupation of the suit property by the lessee. The courts have tried to justify such an order on the pretext that there is already a decree for eviction.
6 The principles may be stated in this way.
The claim to occupation charges or mesne profit is seen as akin to a claim for unliquidated or unquantified damages. Unliquidated damages "does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a court or other adjudicatory authority" as held in Union of India vs. Raman Iron Foundry reported in (1974) 2 SCC 231 :
AIR 1974 SC 1265. This principle was reiterated in Jai Balaji Industries Ltd. vs. Hyquip Systems Pvt. Ltd. reported in 2010 (4) CHN 87 and Dena Bank vs. K. Motiram Vakil reported in 70 Company Cases 350. However in eviction cases where the lessee preferred an appeal from a decree for eviction, the Supreme Court was prepared to modify this principle by directing the occupier to pay such occupation charges as might be reasonably assessed to the lessor for occupation of the suit property, as in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 and Purushottam Das Bangur vs. B Majumdar Samajpati & Sons Hotel Private Limited reported in (2008) 7 SCC 447.
Now the question is whether the same principle can be applied to cases where a decree for eviction has not been passed, the suit is pending and the lessee in occupation of the premises?
The case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 was primarily concerned with the terms and conditions which a court could impose while staying a decree for eviction under Order 41 Rule 5(3)(c) of the Code of Civil Procedure. The decree holder, according to the court enjoying a decree for eviction of the judgment debtor could not be deprived of the fruits of the decree by the judgment debtor preferring an appeal which was likely to take some time to be disposed of. A reasonable sum could be ordered to be paid by the judgment debtor during pendency of the appeal. In that case the sum over the contractual rate ordered to be paid by the tribunal but set aside by the 7 High Court was restored by the highest court and held to be proper, setting aside the order of the High Court.
Could interim mesne profits or occupation charges be granted pending trial of a suit for eviction?
In Steelco Syndicate vs. Sashi Prasad Goenka reported in 2011 (2) CHN (Cal) 687 a dvision bench of this court relying on Nandita Bose vs. Ratanlal Nahata reported in AIR 1987 SC 1947 opined that where the existence or date of determination of the lease was doubted, mesne profits could only be decided after the trial of the suit. In Kanak Projects Limited Vs. Oil and Natural Gas Corporation Limited reported in (2014) 2 CHN 405 this court observed that an appeal was a continuation of the trial court proceedings. Once an appeal had been preferred from the decree for eviction the issue was res integra. The same principle could be applied in granting mesne profits or occupation charges to the plaintiff where the suit for eviction was pending, provided the defendant had practically no defence to the claim.
In K.K. Saha & Co. Pvt. Ltd. vs. Ashok Agarwal reported in (2018) 1 CHN 497 a division bench of this court on a referral by the learned single judge of this court in K.K Saha & Co. Pvt. Ltd. vs. Ashok Agarwal reported in (2016) SCC Online (Cal) 5489, differing with the view expressed in Kanak Projects concurred with the view in Steelco Syndicate by stating the following:-
"Such being the position in law, we are unable to agree with the views expressed by the learned Single Judge of this Court in Kanak Projects' case that even the learned Single Judge can issue direction upon the defendant/tenant to pay occupational charges at the market rent by way of damages in absence of any provision in law. Even direction for deposit of damages with any officer of the Court is not permissible as we have already held above that such direction can only be passed after the issue as to the legality of the possession of 8 the defendant in the suit premises is finally decided in the suit."
Subsequently a single bench of this court in SAJ Food Products Pvt. Ltd. vs. Prasanta Sen reported in (2018) SCC Online (Cal) 10421 endorsed this view.
However in Utpal Ghosh vs. Manas Kumar Mukherjee reported in 2020 SCC Online (Cal) 528 a learned single judge of this court relying on Atma Ram and Kanak Projects opined in favour of grant of occupation charges to the landlord pending trial of the suit in the following terms:-
"12. Learned advocate for the opposite party relying upon a decision reported in 2014(2) ICC 349 rendered by Learned Single Judge of a Coordinate Bench of this Court in the case of Kanak Projects vs. Oil and Natural Gas Corporation Ltd. submitted that in a pending suit it was very much within the authority of the learned trial court to grant occupational charges on a provisional estimation subject to the adjudication at the time of final hearing of the suit.
13. While rendering such decision by a Coordinate Bench of this Court the Learned Judge had relied upon a decision rendered in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 amongst others shown in the body of the judgement. The principle enunciated in the case of Atma Ram Properties (P) Ltd. (Supra) was thus borrowed while putting the defendant on terms for occupation of the property, the defendant held, on a provisional estimation. Since it is a settled proposition of law that even an illegal occupier/trespasser cannot be thrown out of the property, before a decree is passed by a Court, the scope of granting occupational charges was conceptualised.
14. A specific period has been mentioned in Section 2(g) of the W.B.P.T. Act, 1997 permitting the legal heirs to occupy the tenanted premises in the event of death of an original inducted tenant retaining possession of the tenanted premises, and beyond the period of which is supposed to be governable by the mischief contained in such provision.
15. It was not in dispute with the quantum of the occupational charges granted by the learned trial court, but the dispute was with 9 regard to the maintainability of the claim of occupational charges, as advanced by the o.p./landlord. It is the spirit of the law that the petitioner should not be placed in a more favoured position than that of a tenant. The principle of law laid down by the Hon'ble Apex Court in the case of Atma Ram Properties (P) Ltd. (Supra) being considered in the judgement as referred by the opposite party, in the absence of anything others to the contrary being strongly shown by the petitioner assailing the order impugned, this Court would sincerely accept the same subscribing similar view, as already reached by the Learned Single Judge of this Court.
16. Since the schedule premises being situated within a prime locality of Kolkata, the quantification of provisional estimation of occupational charges, though not challenged, fixed at the rate of Rs.3,000/-, cannot be doubted branding the same to be perverse. With the discussion made hereinabove, the revisional application fails being without any merits.
17. The impugned order No.14 dated 13.03.2018 passed by Learned Judge, VIII Bench, City Civil Court, Calcutta in Title Suit No.1360 of 2015, would, thus, go unaltered.
18. The instant revisional application accordingly stands disposed of."
On consideration of the above authorities, there is as such no clash of principles between the judgments delivered by this court. They are as follows:
Where the defence of the tenant or occupier is practically absent and the case of the plaintiff correspondingly very strong, the principle in Atma Ram could be extended and applied to pending suits to award mense profits or occupation charges to the plaintiff. It is to be assumed in such a case that the wrongfulness of the occupation of the defendant or date of determination of the lease and the date from which the occupation of the defendant became wrongful is almost certain. The defendant may be directed to pay reasonable mesne profits at such rate as determined by the court as an interim relief to the plaintiff subject to its final determination at the time of passing of the decree.
10 Application of the principle would depend on the facts and circumstances of each case.
Where the right of the defendant to possession is in dispute and such dispute is prima facie held to be bona fide and substantial or the defendant has made out an arguable case to protect his possession then an order for payment of rent or occupation charges over and above the contractual rate cannot be made till the trial of the suit is concluded finally determining the dispute.
In this case, prima facie:
a) According to the evidence produced so far and discussed above, the tenancy was commercial in nature and could not have continued beyond a period of five years after the death of Rahmatullah.
b) The respondents were trespassers on expiry of five years after the death of the original tenant.
Thus, there is practically no dispute with regard to the determination of tenancy or the rights of the parties with regard to possession.
c) In those circumstances, the valuation of the suit has also been correctly made.
d) Again this proceeding is an independent proceeding taken out by the appellant against the respondents. The issue regarding the status of the respondents did not arise nor was it decided in the proceeding under Order 21 Rule 97 to 105 of the Civil Procedure Code. So, it cannot be res judicata.
I have taken into account the business carried on by the respondents at the suit property. Their learned counsel stated that they were making a profit of Rs.25,000/- to Rs.30,000/- per month running a shop. The Supreme Court in Atma Ram has said that computation of occupation charges should be reasonable.
11 I hold that on such a strong prima facie case made out by the appellant, the respondents are liable to pay occupation charges at a reasonable rate. I direct that the respondents shall pay to the appellant occupation charges at the rate of Rs.2,000/- per month from a date three years before institution of the suit until further order, ad hoc, subject to the decree to be passed. The current occupation charges shall be paid every month by the 15th of each month. The arrear occupation charges may be paid in equal monthly installments without interest over a period of three years, beginning from March, 2024.
All findings are tentative. All issues are kept open at the trial of the suit. The appeal is accordingly allowed to the above extent.
(I. P. Mukerji, J.) Biswaroop Chowdhury, J.:-
I have perused the judgement of my Learned brother, and I have due respect for the same. However as I could not agree with all the grounds I am delivering a separate judgement.
The appellant before this Court is the Plaintiff in a suit for eviction and is aggrieved by the Order dated March 14, 2023 passed by a Learned Single Judge of this Hon'ble Court in G.A No - 2 of 2021 arising out of C.S. No - 43 of 2020 refusing to grant relief by directing the respondents/defendants and each one of them to secure the sums of Rs. 34, 69,200/- and Rs. 7, 69,481.30 p and from directing the respondents and each one of them to pay monthly occupational charges at the rate of Rs. 980/- per day. The Appellant/Plaintiff being aggrieved by the Order dated March 14, 2023 has come up with the instant appeal.
The Case of the plaintiff/Appellant before the Learned Trial Court in the application filed may be summed up thus:
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1. The Plaintiff/Petitioner is the sole and absolute owner of a property being premises no. 2/1, Ho Chi Minh Sarani (formerly known as 2/1, Harrington Street), Police Station Shakespeare Sarani Kolkata -
700071 having an area of 1 Bigha, 17 Cottahs, 5 Chittaks and 32 sq ft (hereinafter referred to as the 'said premises'). The Petitioner became the owner of the said premises by virtue of a deed of conveyance dated March 15, 2007 wherein the petitioner purchased the said premises, from one Tarun Kumar Ghosh, since deceased, Subrata Kumar Ghosh and Tapan Kumar Ghosh being the then executors to the Estate of Smt Durgabati Ghosh deceased, being the erstwhile owner of the said premises wherein Tarun Kumar Ghosh since deceased, Subrata Kumar Ghosh, Tapan Kumar Ghosh, Smt Debjani Ghosh Aurnab Ghosh, Sudeepa Ghosh had joined in as consenting parties.
2. At all material times and until his death on 10th November 1975, one Rabindra Chandra Ghosh was the sole and absolute owner of the said premises. The Said Rabindra Chandra Ghosh having died issueless and intestate the said Premises had devolved on his sole widow, Smt Durgabati Ghosh since deceased.
3. The said Durgabati Ghosh died on or about 11th January 1992, after making and publishing her last will and testament dated 11th March 1990 whereby and where under she appointed Tarun Kumar Ghosh, Mukul Ghosh, Subrata Ghosh and Tapan Kumar Ghosh as Executors of her said Will and had also devised and bequeathed all her properties including the said premises into and in favour of the said Tarun Kumar Ghosh, Mukul Ghosh, Subrata Ghosh and Tapan Kumar Ghosh absolutely and forever and in equal 1/4th undivided shares each. Probate of the said Will and Testament dated 11th March 1990 so made and published by the said Smt Durgabati Ghosh was granted by this Hon'ble Court on or about 10th August 1994 in PLA Case No. 219 of 1993. However before administration of the Estate of 13 late Durgabati Ghosh could be completed and on 17th February 2003, the said Mukul Ghosh being one of the Executors and beneficiaries died intestate leaving behind him surviving his widow Smt Debjani Ghosh and two sons namely Aurnab Ghosh and Sudeepta Ghosh.
4. The surviving Executors had thereafter sold the said premises to the petitioner. The beneficiaries including the heiress and heirs of late Mukul Ghosh had joined in the execution of such deed of conveyance in favour of the petitioner as consenting parties.
5. One Rahamatullah since deceased was a monthly tenant in respect of one shop room measuring about 98 sq. ft. On the north western corner of the ground floor of the said premises. ("hereinafter referred to as the suit property") initially under the said Rabindra Chandra Ghosh and after his death under his widow Smt Durgabati Ghosh both since deceased.
6. As far as the Petitioner/Appellant is aware the said Rahmatullah during his life time had stopped paying rent to the said Smt Durgabati Ghosh, since deceased and had started depositing the rent payable in respect of the suit property in the office of the Rent Controller Calcutta. The Appellant is not aware as to whether the respondents are now depositing the rent payable with respect to the said suit property to the Rent Controller Kolkata.
7. The suit property being a shop room was let to the said Rahmatullah since deceased for commercial/non-residential purpose. The said Rahmatullah and after his death his heiresses used to sell food and non-food items like cigarettes, biscuits aerated drink etc. from the suit property.
8. The said Rahmatullah died intestate on July 12, 2006 leaving behind him his wife being the defendant no. 1 and his daughter being the defendant no - 2. After the death of said Rahmatullah as aforesaid 14 the respondents being his spouse and daughter respectively remained in possession and occupation of the suit property.
9. In view of the provisions contained in the West Bengal Premises Tenancy Act 1997, the right of the respondents to remain in possession and occupation of the suit property if any ceased with effect from July 12, 2011, and since thereafter the respondents are occupying the suit property as trespassers therein.
10. In an execution case being E.C. No - 346 of 2015 arising out of C.S.No - 77 of 1981 (Tarun Kumar Ghosh VS the Credit Union Co- operative Enterprise Ltd), the respondents herein filed an application, being G.A. No. 1540 of 2016, inter alia, alleging that they have a separate independent right in respect of the suit property and that they are not bound by the decree of eviction dated September 3, 2013 passed in C.S. 771 of 1981.
11. Ultimately the said application of the respondents herein being G.A. No. 1540 of 2016 was disposed of by an order dated June 12 2018 by confirming the interim order passed on May 20, 2016, wherein the receiver appointed was restrained from taking possession of the suit property on the basis of the said decree of eviction dated September 3, 2013. By the said order it was also recorded inter alia, that the said decree of eviction dated September 3, 2013, will not be enforceable against the respondents therein.
12. That either the spouse or the daughter of a deceased tenant is not entitled to protection from eviction in respect of premises let out for non-residential purposes beyond the period of five years from the date of death of the original tenant if such original tenant died after the coming into force of the West Bengal Premises Tenancy Act 1997.
13. The original tenant of the said non-residential suit property, namely Rahamatullah died on July 12, 2006, i.e. after coming into force of the West Bengal Premises Tenancy Act 1997. Therefore his spouse being the respondent no. 1 herein and his daughter, being 15 respondent no. 2 herein both are not entitled to continue to remain in possession and occupation of the said suit property beyond the period of five years and from the date of death of the original tenant. Thus on and from July 12, 2011 both the respondents became and are rank trespassers in the said suit property and as such they became and are liable to be evicted therefrom.
14. On account of such wrongful and illegal possession and occupation of the respondents in respect of the suit property, your petitioner became entitled to claim damages and/or mesne profit at a rate of Rs. 980/- (Rupees Nine Hundred and Eighty) per day being the rate which the respondents in wrongful possession of the suit property might with ordinary diligence have received therefrom together with interest on and from July 12, 2011 until actual delivery of possession.
15. The petitioner is also entitled to claim and claims interest @ 18 per cent p.a. being the rate charged by the nationalized banks in respect of commercial transactions.
16. Under the circumstances as on 30th November 2019 an aggregate sum of Rs. 34, 69,200/- (Rupees Thirty four lakhs Sixty Nine Thousand Two Hundred only) became and is due and payable by the respondents and each one of them to the appellant/petitioner as per the following particulars.
i) Mesne Profit @ 300 per day from July 12, 2011 to 30th November 2019.
ii) Interest thereon @ 18 per p.a. upto. - Rs. 5, 29,200/- 30th November 2019.
17. In the facts and circumstances the appellant/petitioner on or about December 18, 2019, was constrained, to institute suit before this Hon'ble Court being C.S. 43 of 2020 claiming.
a) A decree for recovery of vacant and peaceful possession of the suit property being the shop room having an area of 98 sq ft on the North 16 Western Corner in the ground floor of the building situated at Premises No. 2/1, Ho Chi Minh Sarani (formerly known as 2/1. Harringrton street) Police station Shakespeare Saranil, Kolkata - 700071, as morefully described in schedule marked by evicting the respondents and each one of them, their respective men, servant, agents and assigns therefrom;
b) A decree of Rs. 34, 69,200/- by way of damages and/or mesne profits as per paragraph 18 of the plaint.
c) Further damages and/or future mesne profit until delivery of possession of the suit property @ Rs. 980 per day from 1st December 2019.
d) In the alternative an enquiry into damages suffered by the petitioner/Appellant and a decree for the amount found due upon such enquiry.
e) Interim interest and interest on judgment @ 18 per p.a.
f) Judgment upon admission.
g) Attachment before judgment.
h) Receiver.
i) Injunction.
j) Costs.
k) Further and/or other reliefs.
18. That the respondents/defendants have no legal right whatever to remain in possession and occupation of the suit property as their alleged right, if any to remain in possession and occupation of the suit property came to an end by operation of law long back and in July 2011.
19. The claim for damages and/or mesne profit has been made by the petitioner on the basis of the prevailing rate of rent in the area.
20. That the respondents/defendants have no defence to the claim of the petitioner against them. The respondents are wrongfully and illegally continuing to occupy the suit property since July 12, 2011 without paying any occupation charges thereof.
17
21. That from 1st December 2019 till 30th September 2021, a further sum of Rs.7,69,481.30 (Rupees Seven lakh Sixty Nine Thousand Four Hundred Eighty One and thirty paisa only) had become due and payable by the respondents and each one of them to the appellant/petitioner as per the following particulars.
i) Further damages and/or mesne profit @ Rs. 980/- per annum from 1st December 2019 to 30th September 2021.
ii) Interest thereon @ 18 per annum upto 30th September 2021.
Total: Rs. 1, 12,881.30
Rs. 7, 69,481.30
22. As far as the petitioner has been able to ascertain the respondents do not have any asset out of which the appellant/petitioner would be in a position to realize its lawful dues. Under these circumstances the respondents should be directed to secure the entire amount claimed by the petitioner against the respondents aggregating to Rs. 42,38,681 (Rupees Forty two lacs Thirty Eight Thousand Six Hundred Eighty one and Thirty Paise only) and to pay to the petitioner the occupation charges at the rate of Rs. 980/- per day.
23. The respondent no - 1 is not only old but is also ailing and it is reasonably apprehended by the petitioner that the respondents have already parted with possession of the suit premises in favour of some third party who is profitably running the business from the suit premises by alleging himself to be a distant relative of the respondents.
24. From a letter dated July 22, 2021, received by the petitioner from Mr. Asim Kumar Sarkar, a real estate broker the petitioner/appellant came to know that the respondents are trying to further part with possession of the suit premises and are trying to induct third parties into the suit premises. The petitioner has reasons to apprehend that the respondents, knowing 18 fully well that they have no legal right to remain in possession and occupation of the suit property and they are likely to be evicted, and are now trying to induct such third parties into the suit property not only to make unlawful gain but also to cause further prejudice to the petitioner.
25. On enquiry the petitioner has come to know that the respondents never go to the suit premises. The suit property is now presently being managed and controlled by a person whose identity is not known to the petitioner.
26. A, fit person be appointed as the receiver to make an inventory of the suit property and submit a report before this Hon'ble Court and remain in symbolic Possession of the suit property till disposal of the suit.
27. The respondents/defendants and each one of them be directed to pay monthly occupational charges at the rate of Rs. 980/- per day with respect to the said suit property until actual delivery of possession.
28. An order of injunction be passed restraining the respondents each one of them, their respective servants agents and/or assigns from in any way parting with possession of the suit premises and/or encumbering and/or creating any third party interest over the suit premises. The Respondents/Defendants filed written objection to the petition denying the allegations contained therein.
The Respondents/Defendants have denied that the petitioner/appellant is the sole and absolute owner of Premises No. 2/1 Ho Chi Minh Sarani, Kolkata - 700071 and have disputed the area of the property described therein, and have further disputed the alleged transfer of premises No. 2/1. Ho Chi Minh Sarani Kolkata - 700071 in favour of the Petitioner/Appellant. The respondents have denied that the petitioner is not aware as to whether the respondents are now depositing any rent with respect to the suit property in the office of the Rent Controller or not. The respondents have contended that they are regularly depositing rent in the office of the Rent Controller. The respondents have stated that the suit room was let out for 19 both commercial as well as residential purpose. They have denied that the said shop room was let out only for commercial/non-residential purpose as alleged in paragraph-9. They have denied that after death of Rahamatullah his heiress used to sale food and non-food items like cigarettes, biscuits etc. the respondents also have denied that their right to remain in occupation over the suit property ceased with effect from 12th July 2011 or since then the defendants are occupying the suit property as trespasser. The respondents have contended that the said tenancy was granted both residential and non-residential purpose and Section 2(g) of the said West Bengal Premises Tenancy Act 1997 shall not apply to the Present case. The respondents have denied that on expiry of 5 years from the date of death of the original tenant the defendants became rank trespasser thereto. The respondents have further denied that the plaintiff is entitled to interest at a rate of 18 per annum or as on 30th November 2019, an aggregate sum of Rs 34, 69,200/- has become due and payable by the defendants and each of them. The defendants have contended that there is no relationship of landlord and tenant in between defendants/respondents and the Plaintiff/Appellant. The defendants/respondents have denied that a further sum of Rs. 7, 69,481.30 has become due and payable from 1st December 2019 till 30th September 2021. The defendants/respondents have denied that the defendants have already parted with possession of the suit premises in favour of third party who is allegedly profitably running his business from the suit premises by alleging himself to be a distant relative of the defendants. They have contended that Abdul Mannan who has affirmed the affidavit before the Rent Controller is none but the own brother of Rahamatullah, original tenant and brother in law of defendant no - 1 and no inference can be drawn from such affidavit that the suit property has been transferred to third party The defendants/respondents have further contended that Asim Kumar Sarkar is none but own set up person of the plaintiff. It is denied that the plaintiff came to know from the alleged letter dated 22nd July 2021 given by Asim Kumar Sarkar that the 20 defendants are trying to induct third party into the suit premises to make wrongful gain on knowing that they must lose in the suit and they have no right to remain in possession. The respondents/defendants have also contended that the plaintiff/petitioner is trying to oust the defendants/respondents from the suit property by creating an unnecessary and unlawful pressure upon the defendants/respondents so that the defendants being poor persons are compelled to leave and vacate the suit property in favour of the plaintiff without getting the chance of trial. The Learned Trial Court upon hearing the Learned Advocates and considering the facts of the case was pleased to dispose the application being G.A 2/2021 by rejecting prayer (b) of the application where direction was sought upon the respondents to secure the sums of Rs. 34, 69,200/- and Rs. 7,69,481.30 P as pleaded in paragraph 18 and 23 of application and prayer (C) of the application where direction was sought upon the respondents to pay monthly occupational charges at the rate of Rs 980/- per day with respect to the suit property until actual delivery of possession. The Learned Trial Judge while rejecting prayer (b) and (c) of GA 2 of 2021 was pleased to observe as follows:
After constitution of a special Division Bench in the case of K.K. Saha and CO. Pvt Ltd (supra) the special Bench held that Trial Court cannot pass any direction upon the defendant/tenant for payment of damage during the pendency of the suit.
The Appellant/Plaintiff being aggrieved by the order passed by the Learned Trial Judge has come up with the instant appeal.
It is the contention of the appellant that the learned Judge while passing the impugned order has failed to appreciate that since the suit property being a Shoproom was let out for commercial/non-residential purpose to Rahamatulla being the tenant by virtue of section 2(g) of the West Bengal premises Tenancy Act 1997 the defendants are not entitled to continue to 21 be in possession of the suit property beyond the period of 5 years from July 12, 2006 being the date of death of the said Tenant and thus on and from July 12, 2011, both the defendants became and are rank trespassers in the suit property and are to be evicted for forthwith. It is further contended that the learned Judge while passing the impugned order has failed to appreciate that on expiry of 5 years from the death of the said tenant being Rahamatullah on July 12, 2006, by operation of law i.e. Section 2(g) of the Act 1997 the status of his heirs being the defendants became that of trespassers that is on and from July, 12, 2011. It is also contended that the learned Judge while passing the order has failed to appreciate that there is no landlord tenant relationship existing by and between the parties and as such there is no question of determination of any tenancy. It is contended that the learned Judge while passing the impugned order erred in law as well as on facts by not appreciating the fact that upon completion of 5 years from the date of death of the tenant with effect from July 12, 2011 the defendants became and are trespassers in respect of the suit property which being a shop room is admittedly a non-residential property. It is further contended that the Learned Single Judge while passing the impugned order failed to appreciate that reliance on Section 7 (xi) of the West Bengal Court Fees Act 1970 is totally misplaced as the above suit is not a suit for recovery of possession from persons whose statutory right to remain in possession expired by operation of law making them trespassers. It is also contended that the Learned Judge erred by failing to appreciate that for determining the question whether the plaintiff is entitled to get damages/ mesne profit, no trial is necessary. According to the Appellant the impugned order passed by the learned Trial Judge is bad in law and liable to be set aside.
Heard Learned Advocate for the appellant and Learned Advocate for the respondent. Perused the petition of appeal and materials on record. 22 Learned Advocate for the appellant submits that it is an admitted fact that one Rahamatullah since deceased was a monthly tenant in respect of the suit room initially under one Rabindra Chandra Ghosh and after his death under his widow Smt. Durgabati Ghosh. The said Durgabati Ghosh having died testate, this Hon'ble Court on 10th August 1994 had granted probate of her last Will and Testament dated 11th March 1990. The Plaintiff/appellant purchased premises No. 2/1, Ho-Chi-Minh Sarani Kolkata in its entirety by a registered deed of conveyance from the executors named in the said Will of Late Durgabati Ghosh. The Beneficiaries under the said Will had joined in the execution of the said deed of conveyance as confirming parties. Learned Advocate further submits that since the said Rahamatullah died on 12th July 2006, after the provisions of the West Bengal Premises Tenancy Act 1997 came into force and since the said shop-room was let out to the said Rahamatullah, since deceased for commercial/non-residential purpose as aforesaid, his heiresses being the respondents had lost the right to remain in possession and occupation of the said shop-room being the suit property with effect from 12th July 2011 in view of the provisions of Section 2(g) of the West Bengal Premises Tenancy Act, 1997 and their occupation of the suit property being the said shop-room became that of trespassers. On such ground the plaintiff instituted the instant suit being C.S. No. 43 of 2020 for recovery of vacant and peaceful possession of the suit property being shop-room along with decree for damages and/or mesne profit and other reliefs. Learned Advocate also submits that in the said suit an interim order of injunction was prayed for was passed on 24th November 2021 when a Special Officer was also appointed to make inventory of the suit property and to submit a report. In the said application an affidavit in opposition has been filed only by the defendant no. 1 which was affirmed by her on 3rd February 2022. No affidavit in opposition has been filed by and/or on behalf of the defendant no. 2. Under the circumstances the statements and claims made by the plaintiff in the said application remain uncontroverted by the defendant no. 2. Learned 23 Advocate submits that the defence of the defendants/respondents that the suit property is let out both for residential and commercial purpose is not made out by the defendants in their joint written statement. Learned Advocate draws attention to paragraphs 7 and 9 of the plaint wherein it is contended that the suit property was let out for commercial/non-residential purpose and submits that there is no denial of such contention in paragraph 31 and 32 of the written statement. It is submitted by the Learned Advocate that in an execution proceeding arising out of an earlier suit the respondents had made an application under Order XXI Rules 97-101 of the Code of Civil Procedure, 1908. In the said application also the respondents did not make out such case. Learned Advocate further submits by referring to the Rent, Control Challan, Certificate of Enlistment issued by the Kolkata Municipal Corporation, that the suit room was used for commercial/non-residential purpose. Learned Advocate submits that the plea of the defendant that the suit has been overvalued to bring it within the jurisdiction of this Court is without any basis. Learned Advocate further submits that in terms of Section 7(vi) (a) of the West Bengal Court Fees Act 1970, for recovery of possession of immoveable property from a trespasser the suit is to be valued on the basis of the amount at which the relief sought is valued in the plaint. Learned Advocate further submits that the defence of the respondents that their right to occupy the suit property was upheld by this Hon'ble Court is nothing but frivolous. It is submitted that the earlier suit referred to being C.S. No - 771 of 1981 was instituted by the predecessors in title of the plaintiff against the Credit Union Cooperative Enterprise Limited who was a lessee of the major portion of the said premises No. 2/1, Ho-Cho-Minh Sarani, Kolkata. On a decree for eviction being passed against the said lessee, the said decree was put in an execution case being E.C. No. 346 of 2015. In the said execution application, the respondents herein had filed an application under Order XXI Rules 97-101 of the Code of Civil Procedure, 24 1908 alleging that some men by describing themselves as representatives of the Landlord/Landlady came over the said premises and stated to the petitioners therein being the respondents, herein that they are to leave and vacate the said shop-room. The said application was made by the respondents herein claiming independent right and alleging that they were not bound by the decree passed in the said suit. It is also submitted that as the respondents herein were not and could not be bound by the decree passed in the said suit being CS No. 771 of 1981 instituted by the predecessors in title of the plaintiffs against The Credit Union Co-operative Enterprise Limited, the plaintiffs/decree-holders in the said suit did not even contest the said application of the respondent herein. Learned Advocate submits that the judgments sought to be relied on by the respondents are all distinguishable.
Learned Advocate submits that in the judgments sought to be relied on by the respondents there is a clear Landlord tenant relationship which when determined by way of a notice could lead to two possible situations. Firstly where the notice determining the tenancy is upheld by the Court and secondly where the notice determining the tenancy is declared to be invalid by the Court. In view of the second scenario, the Courts held that claiming occupational charges prior to the suit being decreed is not tenable. In the instant case there is no landlord tenant relationship and the respondents are mere trespassers on and from July 12, 2011 by virtue of Section 2(g) of the West Bengal Premises Tenancy Act 1997 after the death of the original tenant, namely Rahamatullah on July 12, 2006 and as such, there is no question of determination of tenancy by a decree. Furthermore the petitioner in the said application has prayed for depositing the occupational charges in Court by modifying the prayer made in the said application, which will avoid the situation of any unjust enrichment. Learned Advocate submits that the following judgments thus can be distinguished. 25
i) K.K. Saha and Co. Pvt Ltd VS Ashok Agarwal [reported in (2016) SCC Online (Cal) 549.]
ii) K.K.Saha and Co. Pvt. Ltd. VS Ashok Agarwal [reported in (2017) SCC Online (Cal) 2123/2018.]
iii) SAJ Food Products Pvt. Ltd. VS Prasanta Sen [reported in 2018 SCC Online (Cal) 10421.]
iv) CO. No. 3777 of 2016 with C.O. No. 2200 of 2018.
Learned Advocate submits that the judgment of the Hon'ble Supreme Court of India M/S. Atma Ram Properties(P) Ltd VS M/S. Federal Motors Pvt Ltd. Decided on December 10, 2004 though factually is distinguishable as the respondents herein are trespassers and not tenants in respect of the suit property but the notice actually helps the petitioner as it holds that the tenant is liable to pay mesne profit or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises.
Learned Advocate further submits that the judgment of the Hon'ble Supreme Court of India in the matter of Vashu Deo VS Bal Kishan decided on January 11, 2002 reported at (2002) 2 SCC 50 @ para 12 is distinguishable as in facts of the said case, the appellant had accumulated arrears of rent and as such, the respondent served a notice under Section 13(1) of the Rajasthan Premises Act 1950, and filed a suit for recovery of rent from the appellant/tenant. In view of such fact it has been held that until and unless a decree of eviction is passed on one of the grounds available under the aforementioned Act and the termination of the tenancy of the appellant is upheld by a judicial verdict the appellant would remain a tenant under the Trust. The case of the appellant is clearly contrary to the case made out by the appellant/plaintiff herein, as the respondent herein has become a trespasser by operation of Law under Section 2(9) of the Act of 1997, and as such there is no question of either determination of tenancy or terminator of tenancy which needs to be adjudicated either by way of a decree of a Civil 26 Court or by any judicial verdict by virtue of operation of law as stipulated under Section 2(g) of the said Act 1997.
Learned Advocate submits that the judgment of the Hon'ble Supreme Court of India in the case of Smt Chander Kali Bai and ors-VS Shri Jagdish Singh Thakur and Anr reported at (1977)4 SCC 402 is factually distinguishable as the ratio laid down in the judgment says that a tenant even after termination of his contractual tenancy does not become an unauthorized occupant of the accommodation but remains a tenant, known as a statutory tenant. In the instant appeal, the appellant/Plaintiff herein has neither terminated nor determined the tenancy of the respondent herein. On the contrary after the death of the original tenant in the year 2006, the heirs of the original tenant being the respondents herein after a lapse of 5 years, have become trespassers by operation of law under Section 2(g) of the said Act of 1997.
Learned Advocate for the appellant has relied upon the following judicial decisions:
1. Nasima Naqi Vs Todi Tea Company Limited others [Reported in (2019) IC MN - 348/2018 SCC Online Cal 16823.]
2. Nasima Naqi Vs Todi Tea Company Limited and others [Reported in 2019 SCC Online 1601.]
3. Kanak Projects Limited V Oil and Natural Gas Corporation Limited [Reported in (2013) SCC Online (Cal) 22871.]
4. K.K. Saha and Co Pvt Ltd Vs Ashok Agarwal [Reported in (2016) SCC online (Cal) 5489]
5. K.K.Saha and Co Pvt Ltd Vs Ashok Agarwal [Reported in (2017) SCC online (Cal) 2123]
6. SAJ Food Products Pvt Ltd Vs Prasanta Sen [Reported in (2018) SCC Online (Cal) 10421]
7. C.O 3777 of 2016 with C.O 2200 OF 2018
8. Utpal Ghosh Vs Manas Kumar Mukherjee [Reported in 2020 SCC online (Cal) 528] 27 Learned Advocate for the defendant/respondent submits that the respondents are monthly tenants in respect of one small room at a monthly rental of Rs 45/- per month payable according to English Calendar month but on raising the valuation by seeking mesne profit at an exorbitant rate suit has been filed before this Hon'ble Court . Learned Advocate further submits that the rent of the defendants/ respondents is only Rs 45/- per month and accordingly as per the court fee and the valuation act, the suit for eviction is to valued on the basis of annual rent last paid and accordingly, the value of the suit property as per Court fees can be established around Rs 500/- only. The plaintiff/appellant instead of filing the suit before the Presidency Small Causes Court, Calcutta where the suit is to be filed, filed it before the Original Side of the Hon'ble High Court at Calcutta by claiming mesne profit at a fabulous and fictitious rate. Learned Advocate also submits that the respondents/defendants appeared and on appearance filed written statements and contested the suit challenging the jurisdiction of this Hon'ble Court where suit has been filed. It is submitted that the suit has been over-valued and filed in a court not having jurisdiction. Learned Advocate submits that the present appellant's predecessor obtained a decree for eviction against the alleged lessee regarding the premises in suit and on the basis of such decree sought to evict the present defendants/respondents. The present defendants/respondents intervened into the execution case and filed application on following the provision of Order 21 Rule 97, 99 and 101 of the Code of Civil Procedure. On hearing this Hon'ble Court initially granted interim order and the said order was made absolute. In the said proceedings the respondents herein established that the decree passed against the Judgement Debtor in the said suit is not binding upon the petitioner being the respondents herein. The said orders attained finality and such orders have not been assailed. The said decision is binding upon the present plaintiff who allegedly purchased the suit property from the previous owners/ landlords who initiated the earlier suit against the alleged 28 lessee. Since the predecessor of the present plaintiff got the chance to evict the present respondents in the said earlier proceeding by establishing that as per provision of section 2(g) of the West Bengal Premises Tenancy, the respondents have no right to continue the occupation the respondents would have been evicted in connection with the earlier execution case.
Learned Advocate further submits that the instant suit alleging the occupation of the respondents as illegal is barred under the principle of res judicata and/ or constructive res judicata. It is submitted that the plaintiff/ appellant filed application for direction upon the respondent/defendant to pay interim mesne profit at a rate of Rs 980/- per month per day claiming several lakhs of rupees to non-suit the defendant. Learned Advocate also submits that the judgement passed in Nasima Naqi Vs Todi Tea Company is not applicable to the facts of the case as in the said matter the issue regarding payment of interim mesne profit was not an issue. Learned Advocate submits that the judgement of Kanak Projects Private Limited Vs Oil and Natural Gas Corporation Limited, delivered by my Learned Brother while sitting singly was differed by another co-ordinate Bench in K.K.Saha and Company Private Limited and Steelco Syndicate , and in the matter of Sag Food Products Pvt Ltd Vs Prasanta Sen the matter was referred to the Hon'ble Division Bench and the Hon'ble Division Bench comprising of Hon'ble Justice Jyotirmoy Bhattacharya and Hon'ble Justice Asha Arora was pleased to refuse mesne profit and/or damages at the interim stage. Learned Advocate refers to decision of the Hon'ble Supreme Court in the matter of Bhasu Deo- Appellant- Versus Balkishan and submits that it was observed by the Hon'ble Supreme Court that unless and until a decree for eviction on any of the grounds available has been passed against a tenant till then a defendant cannot be considered to be a trespasser. Learned Advocate submits that the decision of Atma Ram Properties Pvt Ltd Vs M/S Federal Motor Private Limited reported in 2005(1) Supreme Court passed order for payment of occupational charges after decree for eviction is passed. Learned Advocate submits that the 29 judgements of the Hon'ble Division Bench of this court in the matter of K.K.Saha and Company Private Limited and Steello Syndicate will go to show that no damages and/or mesne profit can be granted at the interim stage before Trial is completed. Learned Advocate also submits that there is no provision in the Code of Civil Procedure regarding awarding of the mesne profit and/or damages at the interim stage and before trial is completed. Section 2(12) of the Code of Civil Procedure prescribes that mesne profit is the profit which a party is unable to derive out of the illegal possession of the other party. The possession of a person is illegal can be said only after the full fledged trial and not before that.
Learned Advocate relies upon the following Judicial Decisions:-
• Steelco Syndicate Vs Sashi Prasad Goenka [Reported in 2011(2) CHN ( Cal) 687] • K.K.Saha and Co Pvt Ltd Vs Ashok Agarwal [C.O-3777 of 2016] • M/S Atma Ram Properties (P) Ltd Vs M/S Federal Motors Pvt Ltd [Appeal (Civil) 7988 of 2004] • Vashudeo Vs Balkrishan [2002 Vol 2. SCC.50] • Smt Chander Kali Bai and Ors Vs Sri Jadish Singh Thakur [Reported in 1977 Vol IV SCC 402] • Nillimarla Jute Mills Co Ltd Vs Rampuria Industries and Investment Ltd [2000(2) CLJ P-70] The bone of contention of the plaintiff/appellant is that the Respondents/Defendants have ceased to become a tenant in terms of Section 2(g) of the West Bengal Premises Tenancy Act 1997 they have no right to remain in the suit property, and is liable to be evicted. According to the plaintiff/ appellant as the defendants/respondents have no defence in the suit they are liable to pay mesne profits/damages during pendency of the suit. Before considering the right of the plaintiff/appellant to claim 30 mesne profits at the very outset it is necessary to consider the definition of mesne profit and definition of tenant.
Section 2(12) of the Code of Civil Procedure defines 'mesne profits' as follows:
'Mesne Profits' of property 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.
Section 2(g) of the West Bengal Premises Tenancy Act 1997 defines tenant as follows:
'tenant' means any person by whom or on whose account or behalf the rent of any premises is or but for a special contract would be payable, and includes any person continuing in possession after termination of his tenancy and in the event of death of any tenant also includes for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act whichever is later his spouse son daughter parent and the widow of his predeceased son who were ordinarily living with the tenant upto the date of death of the tenant as the members of his family and were dependant on him and who do not own or occupy any residential premises and in respect of premises let out for non- residential purpose his spouse, son, daughter and parent, who were ordinarily living with the tenant upto the date of his death as members of his family, and were dependant on him or a person authorised by the tenant who is in possession of such premises] but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction provided that the term limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant upto his death as a member of his family and was dependant on him and who does not own or occupy any residential premises : provided further that the son, daughter, parent or the widow of the predeceased son 31 of the tenant who was ordinarily residing with the tenant in the said premises upto the date of death of the tenant as a member of his family and was dependant on him and who does not own or occupy any residential premises shall have a right of preference for tenancy in a fresh agreement in respect of such premises [on condition of payment of fair rent]. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose.
The case of the plaintiff is that the Original Tenant of the Suit property was One Rahamatullah who died on 12th July 2006 leaving behind the defendants as his legal heirs the said defendants have lost the right to remain in possession of the suit room/shop room with effect from 12th July 2011, in view of the provisions of Section 2(g) of the West Bengal Premises Tenancy Act 1997. The plaintiff has further contended that as the defendants have no defence in the suit they should be directed to pay occupational charges at the market rate during pendency of the suit. Now whether the defendants have any defence to contest the suit should be ascertained from the written statement filed by them. The first point taken by the respondents/defendants is that the suit is not maintainable before this Hon'ble Court on account pecuniary jurisdiction. According to the defendants/respondents the valuation in respect of the suit for eviction to evict a monthly tenant as assessed on the basis of annual rent which is equivalent to 12 months rent and on such calculation the value of the vsuit be Rs 45 * 12=Rs 540 and accordingly the suit is to be filed before the Presidency Small Causes Court at Calcutta not before this Hon'ble Court. It is their contention that the plaintiff with a view to drag the defendants to this Hon'ble Court assessed the value of the suit by claiming mesne profit and/or damages at a rate of Rs. 980/- per day and that too has been calculated from July 2011 and on such basis valued the suit illegally and wrongfully as Rs. 34,69,200/- and filed the same in the original side of this Hon'ble Court.
32 The Second defence by the defendants/respondents is that the defendants/respondents denied that the suit property was let out only for commercial purpose or non-food items like Cigarette, Biscuits etc were sold from the said shop.
Thirdly the defendants/respondents have denied that the plaintiff is sole owner of the property being Premises No. 2/1C, Ho-Chi-Minch Sarani Kolkata-700071 which was previously known as 2/1 Harrington Street Kolkata - 700071. It is contended by the defendants that the plaintiffs have not annexed any document to prove and establish that the plaintiff is the owner of premises No. 2/1 Ho-Chi-Minch Sarani, Kolkata - 700071, and further contended that the present plaintiff never demanded that they have acquired the suit premises by purchase or otherwise nor the tenancy of the defendants had been attorned in favour of the plaintiff. Fourthly the defendants have pleaded the ground of estoppel, and have contended that the present plaintiff who contested the previous proceedings in connection with E.C. No. 346 of 2015 had the opportunity to establish that the present defendants are trespassers having no right of seeking protection, but same could not be proved and/or established by the plaintiff and/or by their legal representatives and/or their predecessor-in-interest and as such the petition filed by the plaintiff claiming that the defendants are trespassers since 12th July 2011 is misconceived bad in Law and the same is not sustainable.
With regard to the issue of pecuniary jurisdiction of this Court Learned Advocate for the defendant/respondent has relied upon the following judicial decision.
Nellimarla Jute Mills Company Ltd. Vs Rampuria Industries and Investment.Ltd. [reported in 2000(2) CLJ. 70.] This Hon'ble court in the case of Nellimarla Jute Mills Company Ltd observed as follows:
"There cannot be any doubt that the tendency of a litigant to choose his own forum by reason of over valuing the suit has to be discouraged. 33 If the plaintiff does so, an application in demurer is maintainable in terms of Section 11 of the West Bengal Court Fees Act.
In (9) Ram Narain Prosad v. Atul Chander Maitra reported in 1994(4) SCC 349, it has been held;-
Section 7 of the Court Fees Act, 1870 sets out how Court fees are to be computed upon certain suits. By reason therefore, on a suit between a Landlord and Tenant for the recovery of immovable property from the tenant, Court fees are to be paid according to the amount of the rent of the immovable property to which the suit refers, payable for the year next before the date of presenting the plaint.
The plaint in this case sought the relief of eviction of the first respondent from the suit property upon the averments that the appellants were the landlords and the first respondent was their tenant and he was in arrears of rent. The suit could only be valued as an eviction suit, regardless of the fact that the first respondent had denied the appellant's title to the suit property so that this became an issue in the suit."
As the issue of pecuniary jurisdiction is raised by the defendant/respondent and no observation is made on this by the Learned Trial Judge this issue is required to be framed and decided by the Learned Trial Judge in accordance with law.
Secondly with regard to the defence taken by the respondent that the suit room was not exclusively held for commercial purpose Learned Advocate for the plaintiff/appellant submits that the denial is an evasive denial and it amounts to admission. Learned Advocate has also submitted that the rent control challan filed by the defendant/respondent clearly shows that it was used for non-residential purpose, thus the defendant/respondent has no defence that the suit room was not used for non-residential purpose. As the status of the widow of a deceased tenant in case of residential premises is different from that of non-residential premises it is necessary to decide as to whether the suit premises was exclusively used for non-residential purpose or not. In order to frame the issue as to whether a particular 34 premises was used exclusively for non-residential purpose, it is necessary to consider the pleadings of the parties, and materials on record. Thus no observation with regard to framing of issue should be made at the stage of appeal from an interlocutory order. Hence this discretion of framing the issue is left open to the trial court.
Thirdly the defendant/respondent has denied the relationship of Landlord- tenant with the plaintiff. It is contended that the plaintiff is not the landlord of the defendants as the tenancy of the defendants has not been attorned in favour of the present plaintiff and the relationship of landlord and tenant has not been established as yet. In a suit for eviction of a tenant, landlord- tenant relationship is to be established first. However as the allegation of the plaintiff is that the defendants have ceased to be tenant on and from 12th July 2011, and the defendants are the trespassers of the suit property, the plaintiffs are required to prove their ownership in the suit property at the time of trial as the defendants apart from denying Landlord tenant relationship have denied that the plaintiff/ appellants is sole owner of the property being premises No 2/1C, Ho Chi Minh Sarani Kolkata- 700071. Defendants have contended that the present plaintiff never demanded that they have acquired the suit premises by purchase or otherwise nor the tenancy of the defendants have been attorned in favour of the plaintiff. Thus the issue of ownership of suit property is also required to be decided. Fourthly with regard to the plea of the defendant that the suit is barred by res judicata in view of the previous proceedings in connection with E.C, No 346 of 2015 where the present plaintiff contested the matter, it is for trial court to decide after considering the matter in ISSUE of the present suit and the matter in ISSUE of the previously instituted proceedings being E.C. No 346 of 2015 as to whether they were directly and substantially the same or not and thereafter consider whether issue of res judicata to be framed or not.
Now the point for consideration is whether interim mesne profits can be awarded to the plaintiff when the issue of pecuniary jurisdiction is to be 35 decided as well as the issue as to whether plaintiff is the sole owner of the property being premises No 2/1C Ho Chi Minh Sarani Kolkata-700071 and the Learned Trial court has to consider whether the issue of res judicata, and the issue whether suit room was exclusively used for commercial purpose, has to be framed. The answer is obviously in the negative. The question of awarding interim, mesne profit comes when the defendant occupying the suit premises have no defence to contest the case. In case of rent control legislation which are welfare legislations it may not be reasonable to award interim mesne profits/ interim damages during pendency of the eviction proceedings. Although the plaintiff has alleged in the plaint that the defendant is not a tenant under section 2(g) of the W.B.P.T Act 1997 but a trespasser but the rights of the plaintiff in the suit property is to be first established by evidence as per the defence taken by the defendant. Secondly the pecuniary jurisdiction of this court with regard to the suit filed has also to be decided. Apart from the plea of the defendant it is to be considered as to whether heirs of the deceased tenant has any limited right with regard to non-residential tenancy in terms of section 2(g) of the West Bengal Premises Tenancy Act 1997.
Before considering the rights of the defendants/respondents in the suit property and the right of the plaintiff to claim interim mesne profits it is necessary to consider some judicial decisions as relied upon by the parties. In the case of Kanak Projects Limited Vs Oil and Natural Gas Corporation Limited reported in 2 CHN-405 (2014) passed by my Learned Brother sitting singly the observations are as follows:
"Although Atma Ram dealt with the power of the Appeal Court to grant provisional mesne profit, the principles are the same, if applied to an eviction suit pending before the Trial Court. When a suit for eviction is pending before the Appeal court the appeal is merely a continuation of the Trial Court proceedings. It is true that when the case is before the Appeal Court, there is already a decree of eviction. At the Trial Court there is no such decree. But the same principles, in my opinion, can be applied. If the 36 Trial Court finds that there is absolutely no defence that the defendant has to the claim for eviction made by the plaintiff and that eviction would be a matter of course it can apply the principles in Atma Ram's case for award of interim mesne profits pending passing of the final decree. This is more the need when the case is pending for a long time. This is one such case where considering the duration I would apply the said principle as laid down in the case of Atma Ram.The Hon'ble Supreme Court has gone to the extent of saying in this case that the Court has the power of awarding any reasonable compensation for continued use of the property by the defendant. I quote the dicta of the Supreme Court as stated in paragraph 19 and 20 of the judgement:
"19. To sum up, our conclusions are:
(1) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the Appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable.
(2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (1) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law;
it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits for compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree. 37
(3) The doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date.
20. In the case at hand, it has to be borne in mind that the tenant has been paying Rs. 371.90p. rent of the premises since 1944. The value of real estate and rent rates have skyrocketed since that day. The premises are situated in the prime commercial locally in the heart of Delhi, the capital city, it was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq ft have been recently let out on rent at the rate of Rs. 3,50,000 per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs 15,000 per month as charges for use and occupation during the pendency of appeal. The Tribunal took extra care to see that the amount was retained in deposit with it until the appeal was decided so that the amount in deposit could be disbursed by the Appellate Court consistently with the opinion formed by it at the end of the appeal. No fault can be found with the approach adopted by the Tribunal. The High Court has interfered with the impugned order of the Tribunal on an erroneous assumption that any direction for payment by the tenant to the landlord of any amount at any rate above the contractual rate of rent could not have been made. We cannot countenance the view taken by the High Court. We may place on record that it has not been the case of the respondent tenant before us, nor was it in the High Court, that the amount of Rs 15,000 assessed by the Rent Control Tribunal was unreasonable or grossly on the higher side."
In the case of Nasima Naqi V Todi Tea Company Limited and others reported in 2019, SCC Online S.C.1601 the Hon'ble Supreme Court observed as follows "The effect of the first proviso is that the time limit of five years is not to apply to the spouse of the tenant who was ordinarily living with the tenant 38 up to his death as a member of the family and, besides being dependant on him, does not own or occupy residential premises. Thus, in the case of residential premises, the time limit of five years is not applicable to the spouse of the deceased-tenant who fulfills the requirements which have been specified. The limit of five years does not apply to a spouse where the premises are residential. Under the second proviso, a right of preference for tenancy is granted in a fresh agreement in respect of the premises, subject to the condition of payment of fair rent. The right is granted in favour of a son, daughter, parent or widow of a pre-deceased son of the tenant who was ordinarily residing with the tenant in the premises up to the date of death as a member of the family and was dependant on the tenant and who does not own or occupy any residential premises. However, the legislature, while enacting the second proviso, has not included the spouse of a deceased-tenant in recognizing a right of preference for tenancy in a fresh agreement in respect of the premises. The last sentence of the second proviso states that it shall apply mutatis mutandis to premises let out for non-premises, a provision has been made in the second proviso under which a right of preference is granted to stipulated heirs of the deceased- tenant where a fresh agreement is to be entered into in respect of the premises. The effect of the second proviso is that the legislature has not recognized the entitlement of the spouse while conferring a right of preference for tenancy in a case of fresh agreement. The High Court was correct in observing that this is a case of casus omissus on the part of the legislature. This is evidently an inadvertment omission. The exclusion of a spouse of a deceased tenant is without rationale, discriminatory and deprives and surviving spouse of a valuable entitlement granted to the other heirs. There is a valid justification for amending the provision so as to bring the widow within the ambit of the second proviso. This is a matter which, in our view, deserves to be considered by the legislature. Having due regard to the object and purpose underlying the recognition of a right of preference under the second proviso and the social welfare purpose 39 underlying the enactment of the legislation, it would be appropriate if this aspect is considered. The recognition of a right of preference by the second proviso is intended as a measure of protection for the heirs of a deceased tenant and it would but be appropriate and proper if the same protection which is extended to a son, daughter, parent or widow of a pre-deceased son in the matter of a fresh agreement of tenancy is also recognized to inhere in the spouse of a deceased tenant. The High Court was right in coming to the conclusion that this would require a substantive amendment to the second proviso since it is not open to the court to introduce words in the second proviso which have the effect of including one class of heirs, namely, a spouse of a deceased-tenant whom the legislature has left out of the terms of the second proviso. Absent such a protection, the spouse of a deceased tenant would be left without the protection which is conferred upon the son, daughter, parent or widow of a pre-deceased son. There would appear to be no justification for not considering the grant of such a protection on the spouse of the original tenant. We hope and trust that this aspect of the omission in the second proviso will engage the attention of the law makers so as to fulfil the salutary purpose of the provision." In the case of Utpal Ghosh Vs Manas Kumar Mukherjee reported in 2020 SCC Online Cal-528 this Hon'ble Court Observed as follows:
'Learned Advocate for the opposite party relying upon a decision reported in 2014 (2) ICC 349 rendered by Learned Single Judge of a Coordinate Bench of this Court in the case of Kanak Projects V. Oil and Natural Gas Corporation ltd submitted that in a pending suit it was very much within the authority of the learned trial court to grant occupational charges on a provisional estimation subject to the adjudication at the time of final hearing of the suit.
While rendering such decision by a Coordinate Bench of this court the learned judge had relied upon a decision rendered in the case of Atma Ram Properties (P) Ltd V Federal Motors (P) Ltd reported in (2005) 1 SCC 705 40 amongst others shown in the body of the judgement. The principle enunciated in the case of Atma Ram Properties (P) Ltd (Supra) was thus borrowed while putting the defendant on terms for occupation of the property, the defendant held, on a provisional estimation. Since it is a settled proposition of law that even an illegal occupier/trespasser cannot be thrown out of the property, before a decree is passed by a court, the scope of granting occupational charges was conceptualised. A specific period has been mentioned in section 2(g) of the W.B.P.T. Act, 1997 permitting the legal heirs to occupy the tenanted premises in the event of death of an original inducted tenant retaining possession of the tenanted premises, and beyond the period of which is supposed to be governable by the mischief contained in such provision.' In the case of K.K.Saha and Co Pvt Ltd Vs Ashok Agarwal being C.O 3777 of 2016 this Hon'ble Court observed as follows:
'Existence of relationship of landlord and tenant between the parties and/or the legality of service of notice under Section 106 of the Transfer of Property Act upon the tenant are not issues, which are in the nature of preliminary issue as per the provision of Order 14 Rule 2(2) of the Civil Procedure Code, and as such, such issues cannot be decided as preliminary issues in the suit by deferring the decision on the other issues which may be raised in the suit.
We have already mentioned above that until and unless service of notice under Section 106 of the Transfer of Property Act upon the defendant is held to be good, valid and sufficient, the character of occupation of the defendant in the suit premises cannot be decided even on prima-facie basis in the suit unless there is admission on the part of the defendant about the existence of relationship of landlord and tenant between the parties and the valid termination of his tenancy by service of notice under Section 106 of 41 the Transfer of Property Act in an earlier suit when the tenancy is governed under the Transfer of Property Act.
Such being the position in law, we are unable to agree with the views expressed by the Learned single Judge of this court in Kanak Projects' case that even the learned trial judge can issue direction upon the defendant/ tenant to pay occupational charges at the market rent by way of damages in absence of any provision in law. Even direction for deposit of damages with any officer of the court is not permissible as we have already held above that such direction can only be passed after the issue as to the legality of the possession of the defendant in the suit premises is finally decided in the suit. Though Civil Procedure Code was amended by several states by introducing a new order being Order No XV Rule 5A in the Civil Procedure Code, dealing with striking of defence of the lessee in the suit for eviction filed by lessor, but such provision is absent in our State.' In the case of Vashudo Vs Balkishan reported in 2002 Vol 2 SCC P-50 the Hon'ble Supreme Court observed as follows:
'The respondent's tenancy will not come to an end unless and until a decree for eviction on one of the grounds available under the Rajasthan Act has been passed against him and termination of his tenancy upheld by a judicial verdict. Till then he would remain a tenant of the Trust. Mere institution of a suit for eviction by the Trust, the owner of the property, against the respondent does not bring the tenancy of the respondent to an end. The respondent cannot be said to have been evicted by title paramount. It cannot be said that the respondent-tenant does not have any defence nor that he cannot lawfully resist the suit filed by the owner Trust. The plain and simple legal position which flows is that the appellant must discharge his statutory obligation to put his landlord, that is, the respondent in possession of the premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his 42 own landlord, that is, the Trust, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end.' In the case of Smt Chander Kali Bai and ors Vs Sri Jagdish Singh Thakur reported in 1977 Vol IV SCC P-402 the Hon'ble Supreme Court observed as follows:
'For the reasons stated above it is manifest that the defendants remained in occupation of the accommodation on and from January 1, 1973 as a tenant, conveniently to be called statutory tenant, under the Act. Their occupation was not unauthorised or wrongful until a decree for eviction was passed by the first appellate court on August 11, 1975. Their occupation became unauthorised or wrongful only from that date. They are not, therefore, liable to pay any damages or mesne profits for the period commencing from January 1, 1973 and ending on August 10, 1975. Decree for damages either in respect of the two months prior to the institution of the suit or for the subsequent period must therefore be set aside. The defendant- appellants will be liable to pay damages or mesne profits at the rate of Rs 125 per month ( the rate of damages could not be and was not challenged before us) from August 11, 1975 only, until the delivery of the vacant possession of the accommodation.' Upon considering the judicial decisions and the facts of the case, the first and foremost thing which will appear is that while interpreting the letter and spirit of Rent Control Legislations it should be considered as welfare legislations for the protection and welfare of tenants to guard against unreasonable eviction and collection of excessive rents. In the case of Jivanlal and Co. Vs Manat and CO. 64. CWN. 932 it was observed that the object of the West Bengal. Act is to protect tenants as long as possible and to eject them when it is not otherwise possible.
As West Bengal Premises Tenancy Act provides the grounds to be established for eviction of a tenant and Section 2(g) of the West Bengal 43 Premises Tenancy Act 1997 defines the word Tenant and the persons falling under the category a person claiming status of a tenant can be given that status if he falls within that category. The plaintiff/appellant all along contended that the defendants/respondents after July 12, 2011 are rank trespassers. Now it is to be considered as to whether the defendants can be given the nomenclature of trespasser or some less harsh words can be used even it is admitted that the defendants cease to be tenant after July 12, 2011 in terms of Section 2(g) of the West Bengal Premises Tenancy Act 1997. West Bengal Premises Tenancy Act 1997 does not contain the definition trespasser nor unauthorised occupant or the said words are used in the statute. Thus when a contract of tenancy is terminated by landlord, the tenant concerned becomes a statutory tenant. On the other hand when the tenancy comes to an end by efflux of time or by statutory enactments, the tenant who was inducted cannot be said to be trespasser but is either tenant by sufferance, or tenant by holding over depending upon the facts of the case. The case of the plaintiff is that the defendants are trespassers as they have no right to reside at the suit premises in terms of Section 2(g) of the West Bengal Premises Tenancy Act 1997. Thus it is not a case that by efflux of time fixed by contract the defendants are trespassers. Expiry of tenancy by efflux of time fixed by contract cannot be equated in all cases where expiry of tenancy is by statutory enactments. In case of expiry of tenancy by efflux of time it is well known to the tenant about his duty to vacate tenanted premises on the other hand expiry of tenancy by statutory enactments or government notifications laying down some conditions it is always not possible to know about the enactments and comply the same. In such a situation it is just and proper for a landlord to intimate the tenant by notice in writing about statutory enactments and granting him reasonable opportunity either to vacate tenanted premises or make such other request/ offer to landlord for consideration in accordance with law as the tenant may deem fit upon receipt of the notice. Although a tenant who has lost his rights in terms of Section 2(g) of the West Bengal Premises 44 Tenancy Act 1997 can be evicted without notice but issuance of notice although is not the requirement of law but it is an act of prudence and reflects bonafide. Although in some of the decisions the word trespasser is used in case of heirs of tenant who have lost tenancy right in terms of section 2(g) of the West Bengal Premises Tenancy Act 1997 but the Hon'ble Supreme Court in the case of Nasma Naqi (Supra) has nowhere used the word trespasser. Moreover proviso to Section 2(g) of the West Bengal Premises Tenancy Act 1997 gives limited right to the heirs of the deceased tenant thus the nomenclature trespasser is not just and proper. As per the said proviso the son, daughter, parent or the widow of the pre-deceased son of the tenant in the said premises upto the date of death of the tenant as a member of his family and was dependant on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such Premises [on condition of payment of fair rent]. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose. Thus even if the defendants have no right of tenancy as per 2(g) of the West Bengal Premises Tenancy Act 1997 but defendant no 2 is entitled to a preference in the event the suit room is let out. Hence from the statutory provision it can be inferred that the landlord has to take a clear stand when heirs of deceased tenant loses tenancy right under section 2(g) of the West Bengal Premises Tenancy Act 1997, whether to use the tenanted room for his own use and occupation or to let out. In the event the landlord intends to let out he should by written notice intimate the same to the heirs of the deceased tenant mentioning about fair rent. On the other hand, if the landlord intends to use the tenanted premises for himself or his family he must specify the same in written notice and give the heirs of the tenant a reasonable time to vacate. Although service of notice is not mandatory but the same makes the act of the landlord transparent and reasonable. The landlord apart from making his stand clear in the notice shall also state in the plaint in a suit for eviction that he intends to use the tenanted premises for his own use and 45 occupation and shall not let out the same. In the absence of specific averments the stand of the landlord is not transparent and the tenant in such a case may take the plea in written statement to consider his case for new tenancy on payment of fair-rent to be fixed under Section-17 of the West Bengal Premises Tenancy Act 1997 by the appropriate authority. However in the event Landlord makes an averment to use the tenanted premises for his own use and occupation the tenant has every right to admit or deny such averments. In the event the tenant chooses to deny such averments the burden of proof is upon the tenant. As the object of rent control statutes is to prevent unreasonable eviction and also to control rents it is necessary to ensure that the objects are fulfilled. In the instant case the plaintiff although have claimed to be owner of suit property but at no point of time has intimated the defendants in writing about their ownership in the suit property neither there is any attornment by defendants in this matter, nor any notice issued upon the defendants by the plaintiff to quit . The defendants who were depositing rent in the office of the Rent Controller had no scope to know about plaintiff's ownership of suit property. Thus they cannot be said to be trespasser. The plaintiff although have alleged that the defendants are trespassers from July 12,2011 but after remaining silent for more than seven years have filed suit for eviction claiming mesne profits. This delay in filing the suit also shows plaintiff had no urgency and is also another ground to disentitle the plaintiff to claim interim mesne profit.
Awarding Mesne Profit is the discretion of the Court and is not indefeasible right of the parties. While considering the issue of mesne profits the conduct of the parties is important apart from other conditions. Whether plaintiff was diligent and prompt in instituting suit or whether there was considerable delay or laches without sufficient cause is a ground to be considered for awarding mesne profit. Secondly conduct of the defendant is to be considered. Whether the defendant was bona fide contesting the suit 46 without causing delay or there was no ground for the defendant to contest and intentional delay caused by the defendant is also to be considered. Further it is to be seen as to whether the defendant was in a position to make profit due to wrongful possession. When defendant is not in a position to make profit Mesne Profit may not be awarded. In this regard it is necessary to refer to a judicial decision. In the case of Jugeshwar Tewari and others VS Sheopujan Tiwari and ors reported in the Hon'ble Patna High Court observed as follows:
'I therefore allow the appeal partly with respect to schedule 5 land as mentioned in the written statement of defendant No. 2 and dismiss their appeal claiming title and possession to schedules 1 to 4 lands of the written statement of defendant No. 2. I do not however allow any mesne profits for schedule 5 land because they claim dispossession in the year 1969, and the suit has been instituted in the year 1970. Further, according to the plaintiffs own case the suit lands are frequented by floods. Therefore the prayer for mesne profits is rejected.' Thirdly uniform yardstick cannot be used for calculating mesne profits in all cases. The mesne profit to be granted in case the suit property is used for business purpose by the defendant cannot be the same when the suit property is used for any social or charitable purpose. Similarly when the defendant is having sufficient means and income and is also an able-bodied person the mesne profits yardstick will not be the same when the defendant is an old aged ailing person having meagre income. Thus Courts have power to decide after trial and on collecting evidence as to how much mesne profit is to be awarded, and if there are special reasons for refusing mesne profits may refuse mesne profits.
Although in different Judicial Pronouncements it is held that normally the period for which mesne profit should be claimed is 3 year period upto date of institution of suit but the plaintiff has claimed mesne profit for entire 47 period from the date of cause of action till the institution of the suit, which is about 7 and half year.
In the case of Prabir Kumar Jalan VS Lakmi Narayan Jalan reported in (2013) 2 WBLR (CAL) 264 my Learned brother sitting singly was pleased to award mesne profits by observing that the period should not commence earlier than three years from the date of institution of the suit. However as the issue before this Court is awarding of interim mesne-profits I do not want to make any further observation at this stage and leave the same for the trial Court to decide.
Thus considering the defence of the defendants in the written statement, and the issues to be framed and decided, and the considerable period of delay of the Plaintiff/Appellant in instituting the suit as observed above I am of the view that it would not be just and proper to saddle the defendants who are widow and daughter of deceased tenant with ad-interim mesne profit at this stage. Similarly the prayer for occupation charges at the market rate is also refused.
Now the point for consideration is the quantum of rent to be paid by the defendant during the trial of the suit. As the defendants have claimed themselves to be the tenants in the suit property and are depositing rent before the Rent controller they are to continue paying rent till disposal of the suit. As this suit is not under the West Bengal Premises Tenancy Act 1997, the question of depositing last paid rent does not arise. On the other hand as the plaintiff is not entitled to collect occupation charge at the market rate at this stage the said question also does not arise. The defendant/tenant however has an obligation to go on paying rent during the pendency of the suit to show their bona-fide. The rent which can be charged from the tenant by Landlord should not be more than the fair rent as defined in section 2(b) of the West Bengal Premises Tenancy Act 1997. Similarly a tenant has also a duty to pay fair rent to the Landlord. 48 In Mohammud Ahmed Vs Atma Ram reported in (2011) 7 SCC 755 the Hon'ble Apex Court has formulated the following guidelines and norms with regard to reasonable rent.
i) The tenant must enhance the rent according to the terms of the agreement or at least by ten per-cent after every three years and enhanced rent should then be made payable to the landlord. If the rent is too law (in comparison to market rent) having been fixed almost 20 to 25 years back then the present market rate should be worked out either on the basis of valuation report or reliable estimates of building rentals in the surrounding areas, let out on rent recently.
ii) Apart from the rental property tax, water tax maintenance charges, electricity charges for the actual consumption of the tenanted premises and for common areas shall be payable by the tenant only so that the landlord gets the actual rent out of which nothing would be deductible. In case there is enhancement in property tax, water tax or maintenance charges, electricity charges then the same shall also be borne by the tenant only.
iii) The parties shall be at liberty to get the rental fixed by the official value or by any other agency having expertise in the matter.
iv) The rent so fixed should be just proper, and adequate keeping in mind the location type of construction accessibility to the main road, parking space facilities available therein etc. Care ought to be taken that it does next end up being a bonanza for the landlord. As per West Bengal Premises Tenancy Act 1997 power to fix fair rent is conferred upon the rent controller in accordance with section 17 of the said Act. Fixation of fair rent under the Act is his exclusive jurisdiction and the jurisdiction conferred on him by the statute cannot be taken away or interfered with in any way by any court or any other authority. Thus the parties should be referred to the Rent Controller for fixing the fair rent. However as this matter is sub-judice before the Court and for about fifty 49 years the rent of the suit premises which was initially fixed at Rs 47/- (forty seven only) was not enhanced and the matter for fixation of fair rent may take some time it would be fit and proper to fix a provisional rent referred before referring the parties to the Rent Controller. In the instant matter, upon considering the fact that rent was not enhanced for a period of fifty years, the area of the tenanted premises and the place where it is situated the provisional rent should be Rs 2000/- per month. This rent is subject to final decision of Rent Controller in application for fixation of fair rent. Either of the parties may move the Rent controller for fixation of fair rent under Section 17 of the West Bengal Premises Tenancy Act 1997. Till the fair rent is fixed Defendants are to pay Rs 2000/- to the plaintiff or deposit with the Registrar Original Side within 7th day of each succeeding month. Upon fair rent being fixed the same shall be paid to the plaintiff or deposited with the Registrar Original Side. It is however made clear that the payment of Fair Rent is without prejudice to the rights of the parties to be decided on adjudication of the suit.
I am grateful to my Learned Brother for referring to different provision of law from which I enlightened myself although I could not agree on all the grounds and I thank the Learned counsels who have rendered their true assistance to the Court Hence the Appeal being APOT-121 of 2023 stands disposed. Impugned Order dated 14th March, 2023 passed by Learned Trial Court in G.A. No 2 of 2021 arising out of C.S. No 43 of 2020 in rejecting prayer(D) of G.A.No 2 of 2021 is affirmed. However with regard to prayer(C) of G.A. 2 of 2021 the impugned order of the Learned Trial Court stands modified to the extent that the defendants are to pay Rs 2000/- (Rupees two thousand only) till Fair Rent is fixed by the Rent Controller in accordance with the observations made hereinabove.
(Biswaroop Chowdhury, J.) 50 Summary:-
Questions of law:-
On the following questions of law there is unanimity between us: The principle on which mesne profits or occupation charges can be directed to be paid to the plaintiff pending appeal by the defendant against an order of eviction as laid down in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 would also apply in case of suits for eviction against occupiers and mesne profits pending trial. This is subject to the plaintiff establishing prima facie that the defendant has practically no defence to the claim of the plaintiff. The award of mesne profits or occupation charges need not be based on the market value of the property. It should only satisfy the test of reasonableness. In our opinion, this view is also compatible with the ratio enunciated in Steelco Syndicate vs. Sashi Prasad Goenka reported in 2011 (2) CHN (Cal) 687, Kanak Projects Limited Vs. Oil and Natural Gas Corporation Limited reported in (2014) 2 CHN 405, K.K. Saha & Co. Pvt. Ltd. vs. Ashok Agarwal reported in (2018) 1 CHN 497, SAJ Food Products Pvt.
Ltd. vs. Prasanta Sen reported in (2018) SCC Online (Cal) 10421, Utpal Ghosh vs. Manas Kumar Mukherjee reported in 2020 SCC Online (Cal)
528. Questions of facts:-
On factual conclusions there are differences between us on some issues mentioned below:
There is disagreement with regard to the nature of occupation charges to be paid and the time period for its payment. The main difference is that the appellant/plaintiff has been unable to make out such a strong prima facie case so as to suggest that the respondents/defendants have no defence to their claim in the suit.
The reasons are as follows:-
51 The following can only be determined at the trial of the suit:
(a) Whether the appellant/plaintiff is the owner of the suit property?
(b) Whether the tenancy was commercial or residential?
(c) Whether the status of the respondents/defendants was determined under Order 21 Rule 97-105 of the Civil Procedure Code in the application G.A 1540 of 2016 connected with the execution application (E.C 346 of 2015) in the suit (CS 771 of 1981)?
(d) Whether the pecuniary jurisdiction of the suit was wrongly invoked by overvaluing the suit?
One of us (Biswaroop Chowdhury, J) has held that since the respondents are claiming to be tenants under the West Bengal Premises Tenancy Act, 1997 they should be obliged to pay a provisional fair rent at the rate of Rs.2000/- per month from date. According to (I.P. Mukerji, J) prima facie the respondents/defendants have no defence to the claim of the plaintiff for eviction, have become trespassers from 2011 and are liable to pay reasonable occupation charges for a period of not more than 3 years prior to the date of the institution of the suit. The rate of rent suggested by Biswaroop Chowdhury, J. and I.P. Mukerji, J. are the same at the rate of Rs.2000/- per month but the time period would be different. Since there is agreement between us regarding the monthly occupation charges, we direct the respondents to pay Rs.2000/- per month as such charges from February 2024, payable in advance by the 15th of the month. Therefore, we send this matter to the Hon'ble Chief Justice with a request to his lordship to refer the same to an Hon'ble third Judge to rule on the above differences between us on facts.
Urgent certified photo copy of this judgment and order if applied for be furnished to the appearing parties on priority basis upon companies of necessary formalities.
(Biswaroop Chowdhury, J.) (I. P. Mukerji, J.)
52