Calcutta High Court
The Calcutta Gujarati Education ... vs Budge Budge Company Ltd on 13 December, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
CS/317/2003
THE CALCUTTA GUJARATI EDUCATION SOCIETY & ANR.
VS
BUDGE BUDGE COMPANY LTD
For the Plaintiffs : Ms. Noelle Banerjee, Adv.
Mr. Prithwish Roy Chowdhury, Adv.
Mr. Dipak Dey, Adv.
For the Defendant : Mr. Moloy Kumar Ghosh, Sr. Adv.
Mr. Sakya Sen, Adv.
Ms. Nilanjana Adhya, Adv.
Mr. Atish Ghosh, Adv.
Mr. Tanmoy Sett, Adv.
Ms. Antara Dey, Adv.
Hearing concluded on : 20/11/2024
Judgment on : 13/12/2024
Sugato Majumdar, J.:
This is a suit for eviction and recovery of possession, and mesne profit. The sum and substance of the plaint case is as follows:-
i) The Plaintiff no. 1 is a society registered under the West Bengal Society Registration Act, 1860 having its registered office at 29, Pollock Street, 2 Kolkata - 700001. The Plaintiff no. 2 is the Secretary of the Plaintiff no. 1. The Defendant is a company registered under the Companies' Act, 1956 having its registered officer at 16A, Brabourne Road, Kolkata
- 700001.
ii) In terms of an agreement dated 29.10.1973, the entire 9th floor of the building standing on 16A, Brabourne Road, Kolkata - 700001 (also known as Biplabi Troilakhya Maharaj Sarani) was let out to the Defendant at a monthly rent of Rs.11,025/-. This is the suit premises.
Subsequently, the Defendant paid such monthly rent along with property tax at a rate of Rs.385.88p. and surcharge at a rate of Rs.1378.38p. aggregating to Rs.12,789.26p. per month.
iii) The Defendant defaulted in payment of rent. The Plaintiffs served upon the Defendant statutory notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 determining the tenancy and instituted Ejectment Suit No. 419 of 1992 in the City Civil Court at Calcutta. Since the suit was not heard, the Plaintiffs filed an application on or about 24/03/2003 for withdrawal of the suit. In terms of the Order No. 89 dated 08/04/2003, the Learned 7th Bench of the City Civil Court was pleased to dismiss the suit. In the withdrawal application it was categorically stated by the Plaintiffs that they did not want to proceed with the suit under the West Bengal Premises Tenancy Act, 1956.
iv) After withdrawal of the suit the Defendant paid rent to the Plaintiffs at the old rate from the months of April to August 2003.
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v) The Plaintiffs terminated the tenancy of the Defendant in terms of a notice dated 05/07/2003, under Section 106 of the Transfer of Property Act, 1882, written and communicated by the Learned Lawyer of the Plaintiffs. The tenancy of the Defendant stood terminated with the end of the month of August 2003.
vi) The Defendant, in spite of termination of the tenancy failed to hand over peaceful and vacant possession of the suit property, continued possession and became a trespasser in the suit premises with effect from 01/09/2003.
The Defendant contested the suit by filing the written statement denying all the allegations made in the plaint. Contentions of the Defendant may be summarized as follow:
a) The first defense of the Defendant is that the suit is deliberately overvalued to bring the same within pecuniary jurisdiction of this Court. It is contended that sometime in the month of April 2003 the Plaintiffs, in terms of the letter dated 24/04/2003, called upon the Defendant to enhance the monthly rent to Rs.73,500/- w.e.f the month of June 2003. Shortly thereafter, the Plaintiffs instituted the instant suit valuing the same at Rs.11,02,500/- by allegedly claiming the said sum on account of alleged profit calculated upto 30/11/2003 at a rate of Rs.50/- per square feet. The purported claim of mesne profit is ex-facie absurd.
Valuation of the suit should be based on annual rent at a rate last payable under the provisions of the West Bengal Court Fees Act, 1970. 4 On that basis the valuation should stand at Rs.1,53,394/- (Rs.12,782/- *12). This should be valuation of the suit for the purpose of jurisdiction under the Suit Valuation Act, 1887. In nutshell, it is contended that this Court has no pecuniary jurisdiction to entertain this suit.
b) The next point contended is that the suit is not correctly framed under Section 6 of the Societies Registration Act, 1860. Under the new Act, namely, West Bengal Societies Registration Act 1961, a suit neither can be filed nor be defended by a society and the institution of the suit is bad is law. The Plaintiff no. 2 is styled as the Secretary of the society. The name of the said secretary has not been mentioned in terms of the requirement of Section 19 of the West Bengal Societies Registration Act, 1961. As such the suit is not properly instituted.
c) Thirdly, it is contended that neither the plaint is proved nor supported by any affidavit and has not been signed by the Plaintiffs offending the provisions of Order XIV Rule 6 of the Code of Civil Procedure, 1908.
d) Fourthly, it is contended that the previous suit namely Ejectment Suit No. 419 of 1992 was filed by the Plaintiffs for eviction of the Defendant and recovery of khas possession in respect of self-same suit premises. On the basis of an application filed by the Defendant, the trial court passed an order dated 11/03/1998 directing the Plaintiffs to repair the roof of the premises. Since the Plaintiffs did 5 not repair the same, the Defendant, on their own cost repaired the roof. Cost, so incurred should be adjusted against the rent.
e) The Ejectment Suit No. 419 of 1992 was dismissed for non- prosecution finally on 29/04/2006. The instant suit was filed in the year 2003. There was a time when both the proceedings were pending. The instant suit is bad for multiplicity of proceeding, therefore.
f) For instituting the instant suit on the self-same cause of action, for similar reliefs in respect of the self-same suit properties, leave should be taken from the City Civil Court to institute a fresh suit. But no leave was obtained. Therefore, the instant suit is not maintainable. The instant suit is barred under the provision of Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908.
g) It is stated that the Defendant tendered rent and the Plaintiffs accepted the same till the month of August, 2003. It is further contended that the notice dated 05/07/2003 is invalid. The notice is not in accordance with the contract of tenancy. This notice did not change the cause of action of the suit for recovery of possession. Tenancy was not validly determined. It is denied that the Defendant is liable for payment of any mesne profit. According to the Defendant, the instant suit is liable to be dismissed.
h) Another contention is that after withdrawal of the earlier suit being Ejectment Suit of 419 of 1992, the Plaintiff by their letter dated 24/04/2003, sought for enhancement of rent at a rate of Rs.73,500/- 6 per month from the month of June 2003. The Defendant duly replied the said letter through its Learned Advocates, inter alia, stating that enhancement of rent can be considered if only the Plaintiff executed necessary repair works and provide essential services and maintenance in terms of the tenancy agreement. However, even after issuance of the notice of enhancement of rent, the Plaintiffs continued demanding rent at the old rate and the Defendant duly tendered the same which was also accepted by the Plaintiff till the month of August 2003.
i) It is further contended that the notice dated 05/07/2003 is invalid and is not in accordance with agreement between the parties. The agreement contemplates a termination of tenancy by the Plaintiff only if there is a default in payment of rent by the Defendant. The Defendant did not default in payment of rent. The Defendant denied that the Plaintiff was entitled to issue the notice of termination under Section 106 of the Transfer of Property Act, 1882. Since the first ejectment suit was withdrawn without seeking any leave to file another suit on the self-same cause of action, the instant suit is bad in law. The purported notice dated 05/07/2003 did not change any cause of action.
j) It is further pleaded that the previous suit was instituted under the West Bengal Premises Tenancy Act, 1956. At the time when the previous suit was withdrawn, the new Act, namely, the West Bengal Premises Tenancy Act, 1997 had already been promulgated and it came into force w.e.f 10/07/2001. The new Act of 1997 Specifically 7 provided that all the suits and proceedings under the old Act of 1956, pending at the time of commencement of the Act of 1997, should continue and be disposed of in accordance with the provisions of the Act of 1956, as if the said Act of 1956 continued to be in force and the new Act of 1997 had not been passed. The Plaintiff had already instituted a suit against the Defendant under the provisions of the Act of 1956 and the same continued and was pending even after the commencement of the Act of 1997. Therefore, the Plaintiff cannot seek redressal under the Act of 1997 in complete ignorance of law and repealing provisions of the new Act of 1997.
k) In nutshell, denying all other allegations made in the plaint, the Defendant pleaded that the suit shall be dismissed with costs. On the basis of rival pleadings, the following issues were framed:
1. Whether the suit is maintainable under the law and fact?
2. Whether the suit discloses any cause of action?
3. Whether the notice under Section 106 of the Transfer of Property Act was properly served by the Plaintiff upon the Defendant?
4. Whether the determination/termination of tenancy of the Defendant is valid and proper? What is the status of the Defendant at present?8
5. Whether Plaintiff waived its contention contained in the letter dated April 24, 2003 by demanding and accepting monthly rent at the old rate from the Defendant?
6. Whether the Defendant is liable to be evicted?
7. Whether the Plaintiff is entitled to the decree prayed for?
8. Whether the Plaintiff is entitled to any mesne profit? If so, to what extent?
9. Whether the Plaintiff is entitled to any other relief/reliefs?
Both the parties adduced oral as well as documentary evidences. Issue No. 1:
Mr. Ghosh, the Learned Counsel for the Defendant argued at the outset that the instant suit is not maintainable. This suit was filed in the year 2003 when the earlier suit being Ejectment Suit No. 419 of 1992 had been pending in the City Civil Court. The instant suit is, therefore, bad for multiplicity of judicial proceeding.
Ms. Banerjee, the Learned Counsel appearing for the Plaintiff argued, on the contrary, that during pendency of the earlier suit being Ejectment Suit No. 419 of 1992, the West Bengal Premises Tenancy Act, 1997 came into being, taking the instant tenancy out of the purview of the tenancy since rent payable was more than Rs.10,000/- per month. This prompted Plaintiff, therein, to withdraw the suit. Application for withdrawal was made on 24/03/2003. The application was allowed by order dated 08/04/2003, passed by the Learned 7th Bench of the City Civil Court, dismissing the earlier suit. After institution of the instant suit in the month of 9 December 2003, the Defendant preferred Civil Revisional Application in this Court directed the City Civil Court to rehear the application for withdrawal. Therefore, the matter revived, although the instant suit was pending. Ultimately the City Civil Court allowed the application for withdrawal in terms of the Order dated 29/04/2006. She submitted that at the time of institution of the instant suit, no other suit was pending. Therefore, according to Ms. Banerjee, the argument of multifariousness of litigation holds no ground at all.
Certain facts are undisputed. The previous tenancy was determined in terms of the notice dated 18/02/1992. Thereafter, the present Plaintiff instituted the previous suit, namely, Ejectment Suit No. 419 of 1992 for recovery of possession of the suit premises from the Defendant. That suit was dismissed for non-prosecution by the City Civil Court of Calcutta dated 29/04/2006. Certified copy of the order- sheet which is adduced in evidence shows that no leave was granted to file suit afresh on the same cause of action. Order XXIII Rule 1 put embargo on the Plaintiff to institute a fresh suit, once the previous suit is withdrawn in respect of the subject matter of such suit or such part of claim. Explaining this scope of Order XXIII Rule 1, the Supreme Court of India in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwalior & Ors. [(1987 (1) SCC 5] explained:
"7. The Code as it now stands thus makes a distinction between "abandonment" of a suit and "withdrawal" from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a 10 plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur -- the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the court." 11
In fact, as observed by the Supreme Court of India, the term 'subject matter' contemplated in the provision is interpreted synonymously with cause of action or in the same breath.
Coming to the case in hand, after withdrawal of the suit, where no leave was granted to file it a fresh, admittedly the Plaintiff asked for rent and the Defendant paid the same at old rent. This is admitted position and finds place in pleading of both the parties. This is the plaint case as well as in the written statement. Section 113 of the Transfer of Property Act, 1882:-
"113. Waiver of notice to quit.-- A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting."
After determination of the earlier tenancy and acceptance of rent from the tenant subsequent to such determination establish consent of the Plaintiff in the Defendant's continued possession. This is tantamount to waiver of the earlier notice and the doctrine of holding over contemplated in Section 106 of the Transfer of Property Act, 1882 comes into play. A subsequent notice to quit issued under Section 106 of the Transfer of Property Act, 1882 dated 5th July, 2003, is a notice determining the fresh tenancy post withdrawal of the suit. The instant suit is based on determination of that tenancy. This cause of action is, of course, not the earlier cause of action. It is a different cause of action arose out of determination of the tenancy by holding over.
As stated above, the instant suit is based on the separate cause of action. Absence of liberty, contemplated in Order XXIII Rule 1 put an embargo on the 12 Plaintiff to file a fresh suit on the self-same cause of action. But here cause of action is different.
Once the suit was withdrawn and new tenancy was created, the Plaintiff determined the same and instituted the instant suit for recovery of possession. Thereafter, as evident from record, the Defendant moved an application before the City Civil Court for setting aside the order. Matter came up to this Court and was again remanded to the City Civil Court for hearing a fresh withdrawal application. At that time, the instant suit had already been instituted on a different cause of action, as stated above, the Defendant pursuing the earlier suit based on a different cause of action. In view of this Conspectus of facts, neither it can be said that the suit is barred under Order XXIII Rule 1 or bad for multiplicity of proceedings.
I disagree with the submissions and argument made by the Learned Senior Counsel Mr. Ghosh.
This issue is decided in favour of the Plaintiff.
Issue No. 1(a):
Mr. Ghosh, the Learned Senior Counsel for the Defendant argued under this issue that valuation of the suit is inflated in order to bring the subject matter and dispute within jurisdiction of this Court. It is argued that the suit should be valued on the basis on annual rent in accordance with Section 7 (xiii)(d) of the West Bengal Court Fees Act, 1970. In this instant case annual rent is (Rs.12782/-*12=1,53,384/-). But the Plaintiff also valued the suit property on the basis of mesne profits calculated at a rate of Rs.50/- per sq. ft. per month for 7350 sq. ft. area from 01/09/2003 to 30/11/2003 [Rs.50/-*7350*3=11,02,500/-]. The suit is valued on this basis. In tune 13 of this argument, it is further contended that the Plaintiff treated the Defendant as "trespasser" w.e.f. 01/09/2003, as mentioned in the letter dated 05/07/2003 issued under Section 106 of the Transfer of Property Act, 1882.
Tenancy of the Defendant began on and from 16/10/1973. Induction of the Defendant as tenant was under the agreement dated 29/10/1973. Induction of the Defendant was lawful, under an agreement. The Defendant's entry into and occupation of the suit premises was under a lease agreement. The Defendant came to occupy the premises lawfully and was a tenant. Even after determination his position is not that of a trespasser, genesis of whose possession is illegal and unauthorized from the very inception.
Mr. Ghosh, the Learned Senior Counsel for the Defendant relied on the decision of the Division Bench of this Court in Nellimarlah Jute Mills Company Ltd. Vs. Rampuria Ind. & Investments Ltd. [1999 SCC OnLine Cal 464], to argue that -
a) A suit for recovery of immovable property from a tenant including a tenant by holding over after determination of tenancy, a suit for eviction will still be a suit between a landlord and tenant, not a suit between the owner and a rank trespasser.
b) Valuation of the suit was required to be done, as if a suit between a landlord and tenant.
c) So far as mesne profit is concerned, the same is to be computed upto the date of institution of the suit and not on the basis of any hypothesis.14
d) Valuation of suit for the purpose of determination of court fees, averments and reliefs sought for in the plaint determines the valuation of the suit. Clause (v)(a) of Section 7 of the West Bengal Court Fees Act, 1970 is not applicable. The said provision is applicable where the suit is filed against a rank trespasser.
Mr. Ghosh also referred to the decision of the Supreme Court of India in Nellimarla Jute Mills Company Vs. Rampuria Industries & Investments Ltd. [(2004) 13 SCC 448] affirming the judgment of the Division Bench. Noting that the Division Bench came to the conclusion that the suit ought to have been valued under Section 7 (xiii)(d) of the West Bengal Court Fees Act, 1970. This judgment was upheld.
It is next argued by Mr. Ghosh that suit was filed in the City Civil Court at Calcutta. The Defendant was a statutory tenant in respect of the demised premises at the time of filing of the instant suit. Referring to Chander Kali Bai Vs. Jagdish Singh Thakur [(1977) 4 SCC 402], it was argued that the Defendant is a statutory tenant whose occupation can be unauthorized only if a decree is passed against him. Until that the Defendant's occupation is not unauthorized and the Defendant is not liable to pay any mesne profit. This argument is related to the issue of pecuniary jurisdiction because, if the Defendant is not liable to pay any mesne profit till the institution of the suit. Cause of action and valuation of the suit in respect of mesne profit for the period prior to institution of the suit will not stand. Consequently, valuation of the suit including mesne profit will stop and pecuniary jurisdiction of the Court will go.
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Per contra, Ms. Banerjee, the Learned Counsel for the Plaintiffs contended that the contention that suit should be valued under Section 7 (vi)(a) of the West Bengal Court Fees Act, 1970 is not applicable. This argument is contrary to the Order passed on 19/07/2005 in an application filed under Order VII Rule 11 by the Defendant. In deciding the application, a Co-Ordinate Bench held that the suit was undervalued. The Plaintiff was directed to pay deficit court fees. It was observed that the Plaintiff paid court fees only in respect of mesne profit, and not in respect of the annual rent. The Plaintiff, on direction paid court fees on annual rent. Therefore, the issue has been fully and finally decided leaving no scope of reopening.
The next point of argument was with reference to Section 7 (i) of the West Bengal Court Fees Act, 1970 which provides for payment of court fees for damages or compensation, arrears of maintenance and others. According to the Learned Counsel for the Plaintiff Court fees have been paid for recovery of mesne profit or compensation in respect of the suit premises and have been paid accordingly.
It is further argued by Ms. Banerjee that valuation of past mesne profit accrued at the time of the institution of the suit. Gopalakrishna Pillai & Ors. Vs. Meenakshi Ayal & Ors. (AIR 1967 SC 155) was relied upon. Order passed by the Co-Ordinate Bench dated 19/07/2005 operates as res judicata, a concept which can be invoked not only in separate proceedings but also in the subsequent stage of litigation Y. B. Patil & Ors. Vs. Y. L. Patil [(1976) 4 SCC 66] was relied upon. The said order which decides the nature of the court fees would be a judgment, as held in Shah Babulal Khimji Vs. Jayaben D. Kania [(1981) 4 SCC 8]. It was further held in this case that an order which affects the question of a court's jurisdiction will constitute a judgment finally determining such controversy being the subject matter of the suit. This was approved in Shyam Sel & Power Ltd. & Anr. 16 Vs. Shyam Steel Industries Ltd. [(2023) 1 SCC 634] holding that any order of a trial judge which has the trapping of finality, would constitute a judgment.
It is further contended that Nellimarla Jute Mills' case (supra) is not applicable in the present case as the Plaintiff has not valued the suit for recovery of possession under Section 7 (vi)(a) but has valued the same in terms of Section 7
(xiii)(b), as is evident from the Order dated 19/06/2005 [Ext.16]. The Plaintiff is entitled to claim mesne profit from the date of expiry of the eviction notice and the status of the Defendant is that of a trespasser. Ram Bhorsey Lal Gupta & Ors. Vs. Hindustan Petroleum Corporation Ltd. & Anr. [(2013) 9 SCC 714] was referred to substantiating the contention that after termination of tenancy, the Defendant continued to possess as a trespasser, liable to pay mesne profit. The Learned Counsel also referred to Indian Oil Corporation Ltd. Vs. Sudera Realty Pvt. Ltd. [(2022) SCC OnLine SC 1161], to argue that a tenant who once entered into the possession lawfully and continues in possession after expiry, determination or termination of lease, has extinguished right to possession and he is liable to pay mesne profit. According to Ms. Banerjee, it is not observed or held by the Supreme Court of India that mesne profit should be payable only after passing of a decree of eviction, in a case like this one.
Ms. Banerjee also argued on quantum of mesne profit, but that shall be taken up for consideration in later part, contextually with the issues concerned. I have heard rival submissions.
Argument of Mr. Ghosh, the Learned Senior Counsel for the Defendant is that Section 7 (vi)(a) will not be attracted of the West Bengal Court Fees Act, 1970 is not applicable in the instant suit since the Defendants are not rank trespassers. It is not 17 in dispute that the Defendants came into possession under agreement for lease and was a lessee until it was determined. The Plaintiff nowhere stated that the Defendants possession was that of a rank trespasser from the very beginning. The case set up by the Plaintiff is that the Defendants became rank trespasser ought to be treated as a trespasser after termination of lease. It is basically as suit for recovery of possession not for a rank trespasser but from a lessee whose lease is determined. Since, after determination of lease the possession of the lessee become unlawful, is liable to pay mesne profit accordingly.
The issue of pecuniary jurisdiction along with sufficiency or insufficiency of Court fees was agitated before this Court. The issue was decided by a Co-Ordinate Bench of this Court in terms of the Order dated 19th July, 2005. A Co-Ordinate Bench of this Court observed that suit was undervalued and deficit Court fees was to be paid. It was further observed that the Plaintiff failed to pay Court fees in respect of annual rent although Court fees was paid in respect of the claim mesne profit. In terms of the said order the Plaintiff was directed to put additional Court Fees of a sum of Rs.1,53,394/- over and above the sum of Rs.11,02,500/-. There was no appeal from that order. Firstly, the Plaintiff paid court fees in terms of Section 7 (xiii)(b) of the West Bengal Court Fees Act, 1970, since valuation included annual rent. In Y.B. Patil & Ors. Vs. Y.L. Patil [1976 (4) SCC 66] observation of the three Judges Bench is very relevant:
"It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding."18
Observation of the Three Judges Bench of the Apex Court in Shah Babulal Khimji Vs. Jayaben D. Kania & Anr. [(1981 (4) SCC 8] is relevant. Regarding payment of court fees it was observed that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard.
In the case in hand I am of opinion that firstly, court fees was paid in accordance with section 7 (xiii)(d) of the W.B.C.F Act and secondly that the issue was finally decided by the Co-Ordinate Bench, leaving no space for re-agitation. This issue is decided in favour of the Plaintiff holding that this Court has pecuniary jurisdiction to entertain the suit.
Issue Nos. 2, 3, 4, 5 and 6:
All these issues are taken up together for the sake of convenience are these issues are correlated.
Mr. Ghosh, in course of his argument, referred to the factual backgrounds and course of proceedings.
The Plaintiff filed Ejectment Suit No. 419 of 1992 before the City Civil Court at Calcutta. On 27/03/2003, the Plaintiff filed an application praying for withdrawal of the said Ejectment Suit. On 08/04/2003, the City Civil Court dismissed the suit for non-prosecution. Thereafter the Plaintiff called upon the Defendant to pay monthly 19 rent at enhanced rate of Rs.73,500/- per month from the month of June 2003. Thereafter, the Plaintiff issued a notice dated 05/07/2003 under Section 106 of the Transfer of Property Act, 1882 determining the tenancy. On 07/07/2004, the Defendant filed an application under Article 227 of the Constitution of India, on the basis of which this Court set aside the Order dated 08/04/2003, passed by the City Civil Court dismissing the suit for non-prosecution. As a result, the previously instituted Ejectment Suit No. 419 of 1992 revived. The Defendant filed an application before the City Civil Court on 05/08/2004 praying for deposit of arrear rent from the month of September, 2003 to July, 2004 and thereafter, month by month, at a rate of last paid monthly rent. The Defendant continued to deposit rent from the month of September 2003 to March 2006. The Plaintiff did not challenge the order directing deposit of rent. On 27/03/2003, the Plaintiff again filed an application before the City Civil Court in Ejectment Suit No. 419 of 1992, praying for dismissal of the suit. The suit was dismissed by the order dated 29/04/2006. The Defendant's appeal to higher forums ended in failures. It is contended by Mr. Ghosh, that the Plaintiff did not return the security deposit in spite of determination of tenancy with effect from the month of September, 2003. It is further argued in continuation that the Plaintiff, by letter dated 10/11/2010 (Ext. 8) demanded rent for the period April, 2006 to August 2010, amounting to Rs.6,77,446/-. The Plaintiff further demanded rent for the period September, 2003 to March 2006, amounting to Rs.3,96,242/-. The Defendant, in terms of the letter dated 02/12/2010(Ext.10) paid rents to the Plaintiff from April 2006 to August 2010 at a rate of Rs.12,782/-per month. The Plaintiff accepted rent.
Mr. Ghosh, in this conspectus of facts, argued that the Defendant, being the lessee remained in possession after termination of lease and the Plaintiff continued 20 to retain security deposit. The Plaintiff also demanded and received rent from the Defendant. Referring to the provisions of Section 113 and 116 of the Transfer of Property Act, 1882 Mr. Ghosh argued that the Plaintiff waived the notice of termination dated 05/07/2003 and otherwise assented to the Defendant's continued possession of the suit premises. There is, therefore, according to Mr. Ghosh, a subsisting tenancy which is not determined. This leads to further conclusions that the suit does not disclose any cause of action, as the tenancy is subsisting and the Plaintiff, therefore, is not entitled to the decree prayed for. In other words, the Defendant is not liable to be evicted. Mr. Ghosh relied upon Nellimarla Jute Mills Company Ltd. Vs. Rampuria Industries & Investments Ltd. [(2002) 2 Cal LJ 70] and [(2004) 13 SCC 448].
In nutshell, it is argued by Mr. Ghosh that the suit does not disclose any cause of action, there is a subsisting tenancy without the same being determined as a result, the Defendant is not liable to be evicted and the suit is liable to be dismissed.
Per contra, Ms. Banerjee, the Learned Counsel for the Plaintiff argued first that the Plaintiff being the admitted landlord, has cause of action to file the present suit.
Next it is argued that there is no denial of receipt of the eviction notice. Validity of the notice has not been challenged. There is no pleading or evidence in this regard. Therefore, the status of the Defendant, in view of the judgment of the Supreme Court of India, in Ram Bhorosey (supra) is that of a trespasser. In an eviction suit if the jural relationship of landlord and tenant and receipt of notice under Section 106 is admitted, then there remains no further question than to pass a decree of eviction Payal Vision Vs. Radhika Choudhary [(2012) 11 SCC 405] 21 and Kaiser Begum Vs. E. D. Enterprises [(2023) SCC OnLine Cal 766] were relied upon. It is further argued that the Court can suo motu invoke the provision of Order XII Rule 6 of the Code of Civil Procedure, 1908 and pass a decree on admission. Surjit Sachdev Vs. Kazakhstan Investment Service [(1997) SCC OnLine Del 129] was relied upon.
The next limb of argument was on holding over, which issue had been pressed hard by Mr. Ghosh. It was argued that the Plaintiff never waived its contention. It was argued that rent had been deposited by the Plaintiff for the month of September 2003 to June 2004, pursuant to the order passed by the City Civil Court dated 05/08/2004 and deposits were made by the Plaintiff at its own risk. From the month of July 2004 onwards rents had been deposited on the basis of the order passed by the City Civil Court dated 05/08/2004. From the month of April, 2006 to August 2010, amount had been paid by four pay orders, as recorded in the order dated 15/12/2010 in GA No. 2107 of 2010. From the month of September 2010 onwards payments were made pursuant to the order passed by this Court dated 14/09/2010. It was clarified in the order dated 15/12/2010 passed in GA No. 2107 of 2010 that payments were made without prejudice to the rights and contentions of the parties. It was ordered that rate at which rent was to be paid was Rs.30,000/- and the order was not passed on consent of the parties.
It was further argued that the plea of holding over was not taken in the written statement. It erupted at the time of argument only. Without pleading this point cannot be heard Surjit Sachdev's case (supra) was referred to. Pleas of adjustment of security deposit against rents for the month of September, October and November 2003 is absent in the written statement. Ms. Banerjee relied upon C. Albert Morris Vs. Chandrasekharan [(2006) 1 SCC 228], Thakuruddin Ramjash 22 Vs. Sourndra Nath Mukherjee, [AIR 1982 Cal 133]; Panchanan Basak & Ors. Vs. Ishanitosh Ghatak & Ors. [(1964) 1 CLJ 127]. According to the Learned Counsel, the letter issued by the Plaintiff's advocate dated 10/11/2010 contained mere request to the Defendant to pay the amount in terms of the order passed by this Court without intending to allow the Defendant to continue possession. According to Ms. Banerjee, the whole gamut of argument is an afterthought without having any space in the pleading, hence should be discarded.
It is next argued that the Plaintiff has prayed for future mesne profit in terms of Section 2 (12) read with Order XX Rule 12(1) of the Code of Civil Procedure, 1908. It is very much within jurisdiction of this Court to pass decree for possession of the property and also for mesne profit without directing any enquiry into that. Evidence had been adduced on prevailing market rate in the area by disclosing four other rental agreements in the same building for the period between 2008 and 2012. Such documents evidencing the prevailing rent can be looked into even though unregistered for the purpose of ascertaining the rate of rent.
In nutshell, it is argued that the suit should be decreed, as prayed for. Before considering the rival submissions, it is useful to look into certain provisions of the Transfer of Property Act, 1882, referred to in the arguments. Section 106 of the Act provides that in absence of a contract or local law or usage to the contrary, a lease of immovable property for any purpose other than agricultural or manufacturing purposes shall be deemed to be a lease from month to month terminable, on the part of either the lessor or lessee, by fifteen days' notice. Then Section 111(h) of the Act provides:-23
"111. Determination of lease.-- A lease of immoveable property determines--
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(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
Section 113 of the Act provides:-
"113. Waiver of notice to quit.-- A notice given under section 111, clause
(h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting."
Section 116 of the Act provides for holding over.
"116. Effect of holding over.-- If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106."
In the instant case, the lease is neither for manufacturing nor for agricultural purpose. It is nobody's case. It was a lease which, by nature, ran month to month terminable by fifteen days' notice.
The original lease was determined and a suit was instituted for recovery of possession, as stated above. The suit was withdrawn. The lessor, the Plaintiff asked the Defendant to pay rent. It is admitted in the written statement that rent was paid 24 by the Defendant accordingly till the month of August, 2003. Rent was paid at old rate. Tendering and acceptance of rent, by virtue of express provision of Section 116 created a new tenancy month to month since there was no agreement to the contrary. This new tenancy was determined by the letter dated 05.07.2003 (Ext. D). Since possession was not handed over, the instant suit has been instituted. D.W. 1, in course of examination-in-chief never stated that the notice was not served. It is nobody's case that Ext.-D was not served upon the Defendant. The main thrust of argument of Mr. Ghosh was that by retaining security deposit and applying the same towards rents for subsequent three months preceding the institution of the suit coupled with subsequent demand of payment of rent in terms of the letter dated 10/11/2010 (Ext.8), a consent is manifested and the notice determining tenancy is waived. Mr. Ghosh pressed into operation of Section 113 of the Act, as aforesaid.
Perusal of Section 113 shows that there must be consent either express or implied which would lead to waiver of notice. Unless there is consent, there cannot be waiver. This consent obviously may be express or implied. Whatever that might be and in whatever form that might be, a consent must be there. In Sarup Singh Gupta Vs. S. Jagadish Singh & Ors. [(2006) 4 SCC 205] scope of Section 113 of the Act was considered by the Supreme Court of India. It was observed:
"6. The learned Senior Counsel also relied upon a decision of a learned Single Judge of the Calcutta High Court in Manicklal Dey Chaudhuri v. Kadambini Dassi [AIR 1926 Cal 763 : 43 Cal LJ 272] wherein it was held that where rent is accepted after the notice to quit, whether before or after the suit has been filed, the landlord thereby shows an intention to treat the lease as subsisting and, therefore, where rent deposited with the Rent Controller under the Calcutta Rent Act is 25 withdrawn even after the ejectment suit is filed, the notice to quit is waived. In our view, the principle laid down in the aforesaid judgment of the High Court is too widely stated, and cannot be said to be an accurate statement of law. A mere perusal of Section 113 leaves no room for doubt that in a given case, a notice given under Section 111 clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative."
It was further observed that mere acceptance of rent did not by itself constitute on act of the nature envisaged by Section 113 of the Act showing the intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and treat the lease as subsisting. Further observation of the Court is that to avoid controversy, in the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for use and occupation of the premises, an amount equal to the monthly rent payable by tenant. It cannot be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. It is also relevant, in this 26 context, to consider the observations made by three Judges' Bench of the Supreme Court of India in Calcutta Credit Corporation Ltd. & Anr. Vs. Happy Homes (P) Ltd. [AIR 1968 SC 471]. It was observed that clearly Section 113 contemplates waiver of notice by an act on the part of the person giving it, if such act shows an intention to treat the lease as subsisting and the other party gives consent express or implied thereto. Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of notice, the tenancy is at an end, unless the consent of the other party to whom the notice is given is agreed to be treated as subsisting. The principle of law was reiterated by the Supreme Court of India in C. Albert Morris Vs. K. Chandrasekaran & Ors. [(2006) 1 SCC 228]:
"We are, therefore, of the opinion that mere acceptance of rent by the landlord, the first respondent herein, from the tenant in possession after the lease has been determined either by efflux of time or by notice to quit would not create a tenancy so as to confer on the erstwhile tenant the status of a tenant or a right to be in possession. We answer this issue accordingly."
The underlying principle of law in Section 113 of the Act was explained and elucidated by the three Judges' Bench of the Supreme Court of India in Calcutta Credit Corporation's case (supra). It was explained that intention, either express or implied is necessary for waiver of notice to quit. The subsequent decisions, as mentioned above, clarified that mere acceptance of rent after service of notice to quit and determination of tenancy does not establish such intent or is tantamount to express or implied waiver of notice.
In the instant suit, the Defendant filed written statement. No plea of waiver of notice, as argued, under Section 113 of the Transfer of property Act, 1882 is taken. 27 Intent of waiver of notice to quit is a mixed question of law and fact. But the fact of waiver and intention to waive the notice to quit must be or should be in the pleading, namely, in the written statement. No plea is taken in the written statement that security deposit has been adjusted against rents payable for three months immediately preceding the institution of the suit. However, in course of cross- examination, it was put to PW 1 that the Plaintiff is holding the security deposit for three months which is equivalent to Rs.33,075/- i.e. three months' rent in terms of Clause 4 of the agreement dated 29/10/1973 (Ext.B) to which PW 1 answered positive. PW 1 refuted and answered negative to the suggestion put to him that the Plaintiff had accepted rent from the Defendant for the period after 31st August, 2003 or that the Plaintiff has otherwise assented to the Defendant in continuation of possession of the suit premises after expiry of 31st August, 2003. DW 1, in course of examination-on-chief, admitted that the Plaintiff refused to accept rent after issuance of notice of eviction dated 5th July, 2003. Co-Ordinate Bench of this Court, in terms of Order dated 14th September, 2010, directed the Defendant to pay a lump sum amount Rs.30,000/- per month from the month of September, 2010 until disposal of the suit till further order. This order was passed without prejudice to the rights and contentions of the Plaintiff regarding mesne profit.
The conspectus of facts, as stated shortly herein above, do not disclose any evidence by which intention of waiver of the notice to quit dated 5th July, 2003 (Ext.D) is manifest. Rather, as discussed above, evidence indicates to the contrary. Rent was paid without deciding or without prejudice to the rights and interests of the parties as directed by this Court and acceptance of such rent without anything else is not tantamount to waiver of notice. Though the argument of Mr. Ghosh, the Learned 28 Senior Counsel is impressive but the same lacks any support of substantial evidence to stand.
A plea was taken in the written statement that termination of notice was bad on the ground that termination cannot be affected or tenancy cannot be determined, as contemplated in Ext. B, except on the ground of the defaulter. However, this point was not robustly argued. As discussed above on acceptance of rent, after determination of the earlier tenancy, doctrine of holding over came to play and this tenancy, by virtue of Section 116, was created which ran from month to month determinable by fifteen days' notice. There is no evidence that a notice was not served on the Defendant. Therefore, the tenancy was validly determined in terms of the notice to quit dated 5/07/2003.
Plethora of authorities laid down the status of the lessee after determination of lease. Nature of possession of lessee is akin to that of a trespasser. Although the lessee came into possession under possessory title but once it is determined, he is nothing but a trespasser. In Ram Bharosa Lal Vs. Hindustan Petroleum Corporation Ltd. [(2013) 9 SCC 714], Bijay Kumar Manish Vs. Ashwin Bhanulal [(2024) SCC OnLine SC 980] the position of the lessee was explained succinctly.
In Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. [(2005) 1 SCC 705] it was observation of the Supreme Court of India:
"11. Under the general law, and in cases where the tenancy is governed only by the provisions of the Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession 29 of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant."
In Indian Oil Corporation Ltd. Vs. Sudera Realty (P) Ltd. [(2023) 16 SCC 704, this proposition was reiterated:
"64. A tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant continuing after the expiry of the lease, his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits."
Referring to Indian Oil Corporation Ltd.'s case (above mention), the Supreme Court of India again reiterated the principle in Bijay Kumar Manish Kumar (HUF) Vs. Ashwin Bhanulal Desai [(2024) 8 SCC 668]. It is settled position of law that after determination of lease, the erstwhile lessee is nothing but a tenant at sufferance whose position is akin to that of a trespasser and is liable to pay mesne profit.
It can be concluded that termination of the tenancy of the Defendant is valid and proper and position of the Defendant is akin to that of a trespasser from first day of September 2003. It is, therefore, natural corollary that the Defendant is liable to be evicted and is also liable to account for mesne profit. 30
Issue nos. 2 to 6 are, accordingly, decided in favour of the Plaintiff. Issue Nos. 7, 8 and 9 In view of forgoing discussions and the conclusion arrived at, this Court finally decide that the Issue nos. 7, 8 and 9 are also considered in favour of the Plaintiff.
It is decided that the Plaintiff is entitled to decree prayed for the Defendant is liable to be evicted and is also liable for mesne profit.
The Plaintiff has prayed for mesne profit from 1st December 2003 till delivery of vacant and peaceful possession. In absence of prayer for mesne profit for the months of September, October and November 2003 and in absence of evidence, as discussed above, that security deposit has not been applied against rents for these three months, it will be deemed that Plaintiff has waived mesne profit for these three months. In absence of prayer for mesne profit for these three months, preceding the institution of the suit, which constitute a separate cause of action, the Plaintiff is deemed to waive cause of action for mesne profit for these three months.
In nutshell, Issue nos. 7, 8 and 9 are decided in favour of the Plaintiff. The instant suit is allowed.
It is ordered that the Plaintiff do get a decree for recovery of possession of the suit premises in eviction of the Defendant. The Defendant shall hand over the suit premises to the Plaintiff within three months from the date of drawing up of the decree, in default, the Plaintiff shall be at liberty to put the decree in execution. The Plaintiff is also entitled to mesne profit from first December, 2003 till recovery of the suit property or peaceful and vacant delivery of possession of the suit property, as the case may be.
31Fix 20/01/2025 for consideration of mesne profit.
Decree for recovery of possession may be drawn up.
(Sugato Majumdar, J.)