Calcutta High Court
Economic Transport Organisation ... vs Poddar Projects Limited & Anr on 22 August, 2017
Equivalent citations: AIR 2018 CALCUTTA 42, (2018) 1 RENTLR 36, (2018) 1 ICC 24, (2017) 178 ALLINDCAS 763 (CAL), (2017) 4 CAL HN 100, (2017) 4 CALLT 537
Author: Biswanath Somadder
Bench: Biswanath Somadder
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Original Side
Present :
THE HON'BLE MR. JUSTICE BISWANATH SOMADDER
AND
THE HON'BLE MR. JUSTICE SANKAR ACHARYYA
APD No. 86 of 2017
G.A. No. 902 of 2017
OCOT No. 3 of 2017
With
G.A. No. 2883 of 2013
C.S. No. 142 of 2013
Economic Transport Organisation Limited
-Vs.-
Poddar Projects Limited & Anr.
For the Appellant : Mr. Abhrajit Mitra, Senior Advocate,
with
Mr. Chayan Gupta
Mr. S. K. Kundu ....... Advocates
For the Respondents : Mr. Samit Talukdar, Senior Advocate,
with Mrs. V. Bhatia Mr. Debajyoti Dutta Mr. Ganesh P. Shaw Mr. Debnath Ghosh Mr. R. Jaiswal.............Advocates Heard on : 22.03.2017, 29.03.2017, 25.04.2017, 02.05.2017, 03.05.2017, 11.05.2017, 16.05.2017, 07.06.2017, 20.06.2017, 22.06.2017, 29.06.2017, 04.07.2017, 11.07.2017, 13.07.2017, 18.07.2017, 19.07.2017 & 25.07.2017 Judgement on : 22.08.2017.
The Court :-
Respondents as plaintiffs filed Civil Suit (C.S.) No. 142 of 2013 against appellant as defendant for eviction from suit premises measuring an area of 9725 square feet situated at 18, Rabindra Sarani, Kolkata-700001 after service of notice under section 106 of the Transfer of Property Act, 1882, determining the tenancy. Respondents / plaintiffs claimed that they are the joint owners of the suit premises and the appellant / defendant was a tenant under them at a monthly rent of Rs.12278/-. The appellant / defendant appeared and prayed for time to file written statement. The respondents / plaintiffs filed an application, being G.A. No. 2883 of 2013, under Chapter XIIIA of the Original Side Rules of this High Court for final judgement in their favour as they believed that there was no defence against their claim in that suit.
Upon receiving summons of said application, the appellant / defendant filed affidavit against respondents / plaintiffs' prayer for final judgement. Appellant / defendant challenged maintainability of the suit alleging misjoinder of causes of action and misjoinder of parties and also challenged the legality of the notice under section 106 of the Transfer of Property Act as well as the pecuniary jurisdiction of the Court. Appellant / defendant contended that in the suit premises there are two separate and distinct tenancies where appellant / defendant is tenant. In premises measuring 6670 square feet in Udyog Building at a monthly rent of Rs.8421/- appellant / defendant is tenant under plaintiff no. 1 and in another premises, measuring 3055 square feet in PPL building at a monthly rent of Rs.3857/-, the appellant / defendant is a tenant under plaintiff no. 2. Therefore, appellant / defendant's tenancy in each of those two premises is governed by the West Bengal Premises Tenancy Act, 1997 and the jurisdiction of this High Court to entertain the suit is excluded. There is a categorical denial of the appellant / defendant against the respondents / plaintiffs' claim of joint ownership in the suit property. Appellant / defendant prayed for dismissal of respondents / plaintiffs' application under Chapter XIIIA of the Original Side Rules.
Appellant / defendant filed a supplementary affidavit, annexing copies of challans showing deposit of rent before the Rent Controller, Kolkata, in favour of each of the respondents / plaintiffs. Respondents / plaintiffs filed a supplementary affidavit in reply refuting the appellant / defendant's plea. They also referred to two letters of the year 1969 as proof against defence plea. In that affidavit, respondents / plaintiffs referred to some other documents as evidence in support of the plaint case. With leave of the Court, the appellant / defendant filed a supplementary affidavit as rejoinder against the supplementary affidavit of plaintiffs. In that rejoinder, appellant / defendant re-affirmed its earlier plea and alleged that the letters of the year 1969 - which were referred by the respondents / plaintiffs - were forged and fabricated.
In the impugned judgement, the learned Single Judge granted conditional leave in favour of appellant / defendant to defend the suit. Such condition was to the effect that the appellant / defendant - upon payment of occupational charge at the rate of Rs.4,00,000/- per month on and from March, 2017 till the disposal of the suit - shall be entitled to defend the suit. In case of default of making payment of the monthly occupational charge for the month of March, 2017 or any future monthly occupational charges, the decree for khas possession shall automatically follow, for which there would be no need to apply afresh.
Both the appellant / defendant and respondents / plaintiffs are dissatisfied with the impugned judgement dated 28th February, 2017.
Appellant / defendant has challenged the condition imposed for defending the suit and has filed this appeal. Respondents / plaintiffs have challenged the decision rendered in the impugned judgement granting leave to defend in favour of appellant / defendant by filing a cross objection.
In this appeal, the moot question for our consideration is whether granting leave in favour of appellant / defendant to defend the suit is proper and if so, whether the condition imposed upon the appellant / defendant to pay monthly occupational charge of Rs.4,00,000/- to enjoy the leave to defend is proper or not.
At the time of hearing of this appeal Mr. Abhrajit Mitra, learned senior counsel for the appellant / defendant, has argued that the cross-objection of the plaintiffs / respondents in this appeal is not maintainable. According to him, the respondents / plaintiffs do not have right to appeal against the impugned judgement granting leave in favour of the appellant / defendant to defend the suit. In support of his arguments he has cited one decision of this Court in Suresh Chandra Das Vs. Calcutta Metropolitan Development Authority reported in (1980) 2 CHN 20 and another decision of the Hon'ble Supreme Court in Shah Babulal Khimji Vs. Jayaben D Kania & Anr. reported in (1981) 4 SCC 8. On the other hand, Mr. Samit Talukdar, learned senior counsel for the respondents / plaintiffs, has argued that an appeal by the respondents / plaintiffs against judgement of a learned Single Judge granting leave to defend under Chapter XIIIA of the Original Side Rules is maintainable - being a judgement within the meaning of Clause 15 of the Letters Patent - on the ground that the impugned judgement leaves the plaintiff to fight out the suit at the trial, very much like an order refusing to reject the plaint under Order VII Rule 11 of the Code of Civil Procedure leaving the appellant / defendant to fight out the suit at the trial. By this analogy, according to Mr. Talukdar, the order denying the respondents / plaintiffs. An immediate relief of a summary judgement, is appealable by the respondents / plaintiffs. In this context, he has cited a decision of the Supreme Court in Liverpool & London S.P. & I, Association Limited Vs. M.V. See Success I and Another reported in 2004 (9) SCC 512.
There are provisions relating to cross-objection in Order XLI, Rule 22 of the Code of Civil Procedure, 1908. Under sub-rule 1 to the said Rule, any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal. Under sub-rule 4, where, in any case in which any respondent has under
Rule 22 filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. Akin to sub-rule 4, Rule 28 of Chapter XXXI of the Original Side Rules provides that in case an appeal for any reason is not brought to a hearing on the merits, any notice of objection under Order XLI, Rule 22 of the Code, may be treated as a cross-appeal on the application of the respondent by whom the same was given on such terms as the Appellate Court shall think fit.
As such, under sub-rule 1 of Rule 22 of Order XLI of the Code of Civil Procedure, 1908, a respondent in an appeal may state that the finding against him in the Court below in respect of any issue ought to have been in his favour and (emphasis is supplied by us) he may also take any cross-objection to the decree which he could have taken by way of appeal (emphasis is supplied by us). Substantive procedure for preferring an appeal is in section 96 of the Code of Civil Procedure but the said section does not specify as to who may file appeal from an original decree. Thus, the competence of a person for the purpose of filing an appeal must depend upon facts of the case in order to determine whether the intending person is aggrieved by any finding made in the impugned judgement and whether his substantial right has been affected. Such right must not be speculative or contingent.
In a civil suit, ordinarily a defendant possesses absolute right to defend himself by filing a written statement unless such right is denied by an order of a Court exercising its special power like the power vested in the High Court under Chapter XIIIA of the Original Side Rules. Conversely though, the plaintiff does not possess such an absolute right to get a summary judgement in a civil suit. The maxim, 'audi alterem partem' is the basic rule of law which is in favour of a defendant in a suit brought by a plaintiff as 'dominus litis'.
Rule 3 of Chapter XIIIA reads as :-
"Where the defendant in any suit which is within the terms of Rule 1 has entered appearance the plaintiff may, as regards any claim which is within the terms of Rule 1, on affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no defence to the claim, apply to the Judge for final judgment for the amount claimed together with interest, if any, or for the recovery of the land (with or without rent or mesne profits) as the case may be and costs :
Provided that as against any defendant who has filed a written statement such application shall not be permissible unless the summons is taken out as in Rule 4 mentioned within ten days after receipt of notice of the entering of appearance under Chapter VIII, Rule 18".
Rule 5 under Chapter XIIIA of the Original Side Rules relates to appellant / defendant's showing cause by affidavit against plaintiff's application under Rule 3 for final judgement. In that affidavit, the appellant / defendant shall state whether the defence alleged goes to the whole or to part only and (if so) to what part of the plaintiff's claim and shall deal specifically with all matters of fact. If the Court thinks fit, it may order the appellant / defendant or in the case of a Corporation, any Officer thereof to attend and be examined upon oath or to produce any lease, deed-book or document or copy of or extract therefrom.
In the suit under our consideration, respondents / plaintiffs made an application under Rule 3 of Chapter XIIIA and the appellant / defendant had shown cause by affidavit under Rule 5 of the said Chapter. Learned Single Judge did not pass any order directing any officer of the appellant / defendant company to attend Court for his examination on oath or for production of any document.
Rule 6 under Chapter XIIIA is vital in the present scenario. Rule 6 reads as follows:-
"Upon such application the Judge may, unless the defendant by affidavit or otherwise as the Judge may direct shall satisfy him he has a good defence to the claim on its merits or disclose such facts as may be deemed sufficient to entitle him to defend, make an order refusing leave to defend and forthwith pronounce judgment, in favour of the plaintiff".
The interpretation of Rule 6 is necessary for consideration as to whether refusal by Court of the defendant's prayer for leave to defend in the suit ipso facto entitles a plaintiff to get a final judgement in his favour. If the answer is in the affirmative, the plaintiff shall acquire a vested right to get a final judgement in terms of his prayer made in the application under Rule 3 without proving his case by adducing evidence. In such a case, there will not be any option before the Court to insist upon the plaintiff for proving his case. But if the answer is in the negative, the Judge shall have the power to exercise his discretion and in an appropriate case, order the plaintiff to prove his plea by adducing evidence. In such a case, a plaintiff's right to get a judgement in his favour shall depend upon such proof, even if ex parte. As such, that right is contingent because if he can prove the facts as alleged by him and can establish that there is no legal impediment in passing of a final judgement in his favour, only then a final judgement shall be passed in his favour. On the other hand, if the defendant can satisfy the Judge that he has a good defence to contest the suit, then the defendant shall be able to contest the suit in regular course leaving aside the exceptional procedure as envisaged under Chapter XIIIA of the Original Side Rules.
This aspect may be considered by an illustration. We may imagine a case where a plaintiff files a suit alleging that an office belonging to the Government is being run in a building owned by the plaintiff. The defendant was entrusted and deputed by the plaintiff for collecting rent from the Government. The defendant discharged his duty faithfully but when the plaintiff withdrew the defendant's authority to collect rent, the defendant did not stop collection of rent. Not only that, he (the defendant) started claiming himself as the landlord of the building. The plaintiff, without making the State Government a party to the suit, prays for recovery of the building from the defendant. After the defendant enters appearance in the suit, plaintiff files an application under Rule 3 of Chapter XIIIA of the Original Side Rules for a final judgement in his favour. Defendant files affidavit with evasive denial against plaintiff's allegations and the alleged cause of action stating that he has no objection against passing of a final judgement in favour of the plaintiff, but he prays for leave to defend. Since it is established that defendant has no good defence, learned Judge refuses to grant leave to defend. The question is, whether in such a case - as illustrated - the Court will not be able to call the plaintiff to prove his case and to establish his legal right to get a favourable judgement. Our considered opinion is that in such a case, the Court must insist upon the plaintiff to prove the facts as alleged in the plaint and establish his legal right.
The above illustration is incorporated by us in order to interpret Rule 6 of Chapter XIIIA of the Original Side Rules. Relooking at the last part of the said Rule "...... make an order refusing leave to defend and forthwith pronounce judgment, in favour of the plaintiff" it seems that if leave to defend is refused, judgement in favour of the plaintiff shall have to be pronounced forthwith. However, what cannot be overlooked or lost sight of is that the said Rule 6, significantly, begins with "Upon such application the Judge may, ......". The word 'may', therefore, qualifies the expression 'make an order refusing leave to defend' and also "forthwith pronounce judgement, in favour of the plaintiff'. In fact, Rule 6 is a discretionary power of the Judge to refuse the defendant grant of leave to defend against the plaintiff and also to pronounce judgement in favour of plaintiff. Such discretion, therefore, is expected to be exercised with sound and cogent reasons, both of which are judicially recognisable.
In the light of our observations as made hereinabove, granting of leave to defend in favour of an appellant / defendant in a suit does not tantamount to arriving at any finding against plaintiff on merit of the suit or on any issue involved therein. Such matter cannot be compared with refusal to reject a plaint under Order VII Rule 11 of the Code of Civil Procedure. If any decision is taken by a Court against an appellant / defendant relating to the appellant / defendant's prayer for rejection of plaint on a particular ground, the same may not be agitated again in that suit on the ground of res judicata. But by granting leave to defend, there cannot be any bona fide apprehension on part of a plaintiff of such an injury being akin to refusal of prayer for rejection of plaint. Moreover, if appellant / defendant's prayer for rejection of plaint is allowed, the suit shall be disposed of forthwith on final adjudication. On the other hand, if appellant / defendant's prayer for leave to defend is refused under Rule 6, then plaintiff's prayer for passing of a final judgement will not be automatic but shall be squarely within the realms of discretion of the Judge in view of the word, "may", as discussed hereinbefore.
In this appeal, it is undisputed that the impugned judgement is appealable. However, the question is, whether respondents / plaintiffs are entitled to prefer an appeal against the judgement granting conditional leave in favour of appellant / defendant to defend the suit or file a cross objection in the appellant / defendant's appeal.
Such question of filing of an appeal by the respondents / plaintiffs may be determined in the light of the principles discussed in para-113 of Shah Babulal Khimji Vs. Jayaben D. Kani & Anr. reported in (1981) 4 SCC 8 (supra) :
"....... For instance, where the Trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to rebut that evidence. As such an order vitally affects a valuable right of the defendant it will undoubtedly be treated as a judgment within the meaning of the Letters Patent so as to be appealable to a larger Bench. Take the converse case in a similar suit where the Trial Judge allows the defendant to defend the suit in which case although the plaintiff is adversely affected but the damage or prejudice caused to him is not direct or immediate but of a minimal nature and rather too remote because the plaintiff still possesses his full right to show that the defence is false and succeed in the suit. Thus, such an order passed by the Trial Judge would not amount to a judgment within the meaning of Clause 15 of the Letters Patent but will be purely an interlocutory order. .......................".
The issue as to whether the respondents / plaintiffs would have a right of appeal in such a fact situation as presented before us has been answered squarely in the negative by the Supreme Court in Shah Babulal Khimji since the order passed by the learned Single Judge cannot be termed as a "judgement" within the meaning of Clause 15 of the Letters Patent so far as the respondents / plaintiffs are concerned. The Liverpool & London S. P. judgement cited by Mr. Talukdar thus cannot be an authority for the proposition that an order denying the respondents / plaintiffs immediate relief of a summary judgement - in the given fact situation - is appealable as a "judgement" as defined under Clause 15 of the Letters Patent. This issue simply is no more res integra in view of the categorical observation made by the three Judges Bench of the Supreme Court in Shah Babulal Khimji's case, as quoted above. As a necessary corollary, we hold that a cross-objection by the respondents / plaintiffs in the appellant / defendant's appeal - in the given fact situation - is not maintainable either.
It can, therefore, be held that refusal of an appellant / defendant's prayer for leave to defend in a suit may be challenged by the appellant / defendant in a Letters Patent appeal. Conversely though, in case of allowing such a prayer of the appellant / defendant for leave to defend, a plaintiff cannot challenge it by filing a Letters Patent appeal or file a cross-objection in a Letters Patent appeal preferred by the defendant who has been denied such leave to defend in a suit.
In the present case, appellant / defendant's prayer for leave to defend has been allowed but with a stringent condition of payment of Rs.4,00,000/- per month as occupational charge despite the fact that contractual monthly rent of the entire 9725 square feet suit premises was Rs.12,278/- only, as alleged by respondents / plaintiffs. In our view, imposition of such a stringent condition gives right to the appellant / defendant to prefer this appeal. We are of the opinion that imposition of such a stringent condition amounts to almost refusal of appellant / defendant's prayer for leave to defend. For such reason alone, the impugned judgement is appealable by the appellant / defendant. However, there is no plausible reason to accept the right of respondents / plaintiffs to prefer appeal against that judgement since the damage or prejudice - even if caused - is not direct or immediate but of a minimal nature and rather too remote because the plaintiffs still possess their full right to show that the defence is false and ultimately succeed in the suit. Therefore, while summing up, we would like to say that a judgement in a summary proceeding - such as a proceeding under Chapter XIIIA of the Original Side Rules - may be otherwise appealable, but each party to such a judgement may not have a right to prefer an appeal therefrom.
In the interest of justice, it is also the concern of this Court to see whether an appeal has been filed by a person who cannot be said to be truly aggrieved by a judgement, even if that judgement is appealable otherwise. Logically and also under the provisions of Order XLI Rule 22 of the Code of Civil Procedure, the person who cannot file memorandum of appeal against a judgement is not authorised to file memorandum of cross-objection in an appeal filed against him. In this appeal, we, therefore, accept the arguments of Mr. Mitra, as we have held earlier that the cross- objection filed by the respondents / plaintiffs is not maintainable. However, we make it clear that in the appellant / defendant's appeal, the respondents / plaintiffs have a right to contest in order to defeat the grounds of appeal.
Having considered the pleadings of the parties filed in the suit, it is ex facie palpable that the respondents / plaintiffs claim appellant / defendant's occupation in the suit premises was a single tenancy, which has been determined by service of notice under section 106 of the Transfer of Property Act, while on the other hand, the appellant / defendant's plea is that there are two tenancies in the suit property. Neither party has referred to any written agreement regarding creation of tenancy or tenancies. Therefore, the controversy should be adjudicated upon taking oral and documentary evidence which cannot be summarily decided in a proceeding under Chapter XIIIA of the Original Side Rules. In the appellant / defendant's claim, applicability of the provisions of the Transfer of Property Act, validity of notice of determination of tenancy and pecuniary jurisdiction of Court are involved and thus defence on such issues of law cannot be termed as bogus or moonshine or no defence at the primary stage of the suit. In this context, one may take notice of the observations made by this Bench in a recent judgement rendered on 13th June, 2017 in APD No.510 of 2015 (W. Newman & Company Limited Vs. Apollo Zipper India Limited). Beside this, the respondents / plaintiffs intended to use two letters of 1969 as vital pieces of evidence in support of the plaint case, which documents have been challenged by the appellant / defendant upon affirming an affidavit with contention that the same are forged and fabricated. Such a defence also cannot be treated as weak/flimsy/evasive defence for which a stringent condition should be imposed upon the appellant / defendant to place such a defence for trial. From the affidavits of the parties it can be said at this stage that there was/is a relationship of landlord and tenant between the respondents / plaintiffs and appellant / defendant in respect of tenancy/tenancies authorising appellant / defendant's occupation of 9725 square feet suit property/properties at a contractual monthly rent of Rs.12,278/-. There is no claim of the respondents / plaintiffs that before the alleged determination of tenancy, any step was taken by respondents / plaintiffs to enhance the rent. As such, when obviously it cannot be said that appellant / defendant has no defence, it is not proper for the Court to fix an exorbitant amount as occupational charge payable by the appellant / defendant as a pre-condition under Chapter XIIIA to take his defence in the suit.
Mr. Talukdar cited a series of decisions of the Supreme Court as well as of this High Court and Allahabad High Court in order to substantiate the respondents / plaintiffs' case on its merit for the purpose of defeating the contentions of the appellant / defendant, which indicates existence of defence to be taken in the suit. Mr. Mitra, also cited several decisions of this High Court and the Supreme Court in order to establish that the appellant / defendant has a strong arguable case on merit in the event of holding of trial of the suit. Since in the present appeal we are not concerned with any adjudication on merits of the allegations and counter allegations made in the suit, we do not deem it proper for coming to any finding on any issue in controversy - either on facts or in law - in the suit.
In conclusion, we find and hold that there is a good defence of the appellant / defendant for contesting the suit in trial and to use such defence, the appellant / defendant need not be burdened to pay a lumpsum money of Rs.4,00,000/- at monthly intervals. The impugned judgement is required to be modified and we do modify it upon granting unconditional leave in favour of appellant / defendant to defend the suit. Accordingly, the appeal is allowed and cross-objection is dismissed as not maintainable in the light of our observations made in this judgement.
Urgent photostat certified copy of this judgement and order, if applied for, be supplied to the parties on priority basis.
(SANKAR ACHARYYA, J.) (BISWANATH SOMADDER, J.)