Calcutta High Court
Debonair Vanijya Private Limited vs Eshrat Jahan & Anr on 14 March, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 2 of 2021
In CS 43 of 2020
Debonair Vanijya Private Limited
Vs.
Eshrat Jahan & Anr.
Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Sanskarsan Sarkar
Mr. Shayak Mitra
Mr. Mehboob Rahaman
Ms. Tahmina Aslam
... for the plaintiff.
Mr. Shyamal Chakraborty
Ms. Manju Jaiswal
Ms. Sneha Shaw
Mr. Debajyoti Mondal
... for defendants.
Heard on : 25.01.2023, 02.02.2023, 03.02.2023 & 24.02.2023
Judgment on : 14.03.2023
2
Krishna Rao, J.:
The plaintiff has filed the instant application praying for an order directing the respondent to secure the sum of Rs. 34,69,200/- and Rs. 7,69,481.30/- being the damage/mesne profit @ Rs. 980/- per diem from December 1, 2019 to September 30, 2021 along with interest at the rate of 18% per annum up to September 30, 2021 and Rs. 980/- per day being the occupational charges till the delivery of possession.
The petitioner says that the petitioner is the sole and absolute owner of the property being premises No. 2/1, Ho Chi Minh Sarani having an area of 1 Bigha, 17 Cottahas, 5 Chittaks and 32 sq. ft. One Rahmatullah, since deceased was a monthly tenant in respect of one shop room measuring about 98 square feet on the North-Western corner of the ground floor of the premises initially under one Rabindra Chandra Ghosh, and after his death under his widow Smt. Durgabati Ghosh both since deceased.
The said Rahmatullah during his lifetime had stopped paying monthly rent to Smt. Durgabati Ghosh and had started depositing the rent payable in respect of the suit property in the office of the Rent Controller, Calcutta. The suit property being a shop room was let out to the said Rahmatullah, since deceased for commercial/non-residential purpose. After the death of Rahmatullah, the heiresses used to sell food and non-food items like cigarette, biscuits, aerated drink etc. from the suit property. Rahmatullah died intestate on July 12, 2006 leaving behind his wife, being the defendant no.1 and his daughter being the defendant no. 2 herein. After the death 3 Rahmatullah, the defendants therein being the wife and daughter respectively remained in possession and occupation of the suit property.
Mr. Surajit Nath Mitra, Learned Senior Advocate representing the plaintiff submits that as per the provision contained in West Bengal Premises Tenancy, 1997, the right of the defendants to remain in possession of the property is ceased with effect from July 12, 2011 and since thereafter the defendants are the trespasser in the said property.
One, Tarun Kumar Ghosh during his lifetime had filed a suit being C.S No. 77 of 1981 against the Credit Union Co-operative Enterprises Ltd. and had obtained decree. In terms of the decree, an Execution case was filed wherein the defendants have filed an application being G.A. No. 1540 of 2016 and in the said application, the receiver was restrained from taking possession of the property from the defendants on the basis of the decree of eviction dated 3rd September, 2013 and in the said order, it was recorded that the decree of eviction dated September 3, 2013 will not be enforceable against the defendants.
Mr. Mitra submits that either spouse or the daughter of a deceased tenant is not entitled to protection from eviction in respect of the premises let out for non-residential purpose beyond the period of five years from the date of death of original tenant, if, the original tenant died after coming into force of the West Bengal Premises Tenancy Act, 1997.
Mr. Mitra submits that the original tenant Rahmatullah died on July 12, 2006 i.e. after coming into force of the Act of 1997 and, therefore, the 4 defendants being the spouse and daughter are not entitled to remain in possession and occupation of property beyond the period of five years.
Mr. Mitra submits that as the defendants are in illegal possession and occupation of the property, therefore, the plaintiff is entitled to get damage/mesne profit at the rate of Rs. 980 per day being the rate which the defendants in wrongful possession of the suit property might with ordinary diligence have received therefrom together with interest from July 12, 2011 until actual possession is delivered.
Mr. Mitra submits that the claim of damage/mesne profit has been calculated by the plaintiff on the basis of the prevailing rate of rent in the said area. Mr. Mitra submits that the defendants have already parted with possession of the suit premises in favour of some third party who is profitably running the business from the suit property alleging himself to be a distant relative of the defendants. Mr. Mitra submits that one Mr. Abdul Mannan, had filed an affidavit before the Learned Rent Controller, Kolkata under Section 21 of the West Bengal Tenancy Act, 1997 for depositing monthly rent.
Mr. Mitra submits that on July 22, 2021, the plaintiff received a letter from one Asim Kumar Sarkar, a Real Esstate broker and the plaintiff came to know that the defendants are trying to further part with possession of the premises and trying to induct third party into the premises. Mr. Mitra submits that the defendants knowing fully well that they have no legal right to remain in possession and occupation of the said property and they are likely to be evicted, are now trying to induct such third parties into the 5 property not only to make unlawful gain but also to cause prejudice to the plaintiffs.
Mr. Mitra relied upon the judgment reported in 2018 SCC Online Cal 16823 (Nasima Naqi -vs- Todi Tea Company Ltd. and Ors.) and submits that the spouse of a deceased tenant is not entitled to protection from eviction in respect of the premises let out for non-residential purpose 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. Mr. Mitra submits that the order passed by the Division Bench of this Court was challenged before the Supreme Court and the Supreme Court had upheld the said order which reported in 2019 SCC online SC 1601.
Mr. Mitra relied upon the judgment reported in (2013) SCC Online 22871 (Kanak projects Limited -vs- Oil and Natural Gas Corporation Limited) and in the judgment reported in 2020 SCC Online Cal 528 (Utpal Ghosh -vs- Manas Kumar Mukherjee) and submits that the Court is entitled to put the defendant on terms for occupation of the property on a provisional estimation of mesne profits subject to the adjudication of final mesne profit at the time of final decree.
Mr. Shayamal Chakraborty, Learned Advocate representing the respondent submits that the suit filed by the plaintiff is not maintainable under law and barred under Section 11 of the Code of the Civil Procedure, 1908. Mr. Chakraborty submits that if the plaintiff is not entitled to get final decree, no interim order can be granted. He submits that it is not 6 commercial tenancy and there is no agreement between the plaintiff and the defendants.
Mr. Chakraborty submits that the application filed by the plaintiff is premature, as before deciding the suit, damage cannot be granted. He further submits that this Court has no pecuniary jurisdiction to entertain the suit filed by the plaintiff. Mr. Chakraborty submits that the plaintiff has shown the value of the suit much higher than the actual value. The monthly rent is Rs. 45 per month and the defendants are depositing the monthly rent in the office of the Rent Controller and as such the suit filed by the plaintiff is not maintainable before this Court.
Mr. Chakraborty submits that only to maintain the suit before this Court, the plaintiff has claimed the mesne profit at the rate of Rs. 980 per day and interest at the rate of 18% per annum. He submits that as a monthly rent of the suit property is Rs. 45/- and if the annual rent is calculated it would be Rs. 45x12=540/- and thus the suit is to be filed before the Presidency Small Causes Court at Calcutta and not before this Court.
Mr. Chakraborty submits that previously in connection with the Execution Case out of the Decree against the Credit Union Co-operative Enterprises Limited, the defendant had approach this Court by way of an interlocutory application and in the said proceedings this Court hold that the decree passed against the third party is not enforceable against the defendant. He submits that the stand taken by the plaintiff that the defendant is trespassers over the suit property is barred by res judicata. 7
Mr. Chakraborty submits that no documents and substantial evidence is on record to substantiate the claim of the plaintiff. He further submits that unless and until the suit is not decided no order can be passed for depositing the occupational charges.
Mr. Chakraborty relied upon the judgment reported in 2011 (2) CHN (CAL) 687 (Steelco Syndicate -vs- Sashi Prasad Goenka) and submits that the division bench of this Court held that question whether she is entitled to claim mesne profits or damages with respect to the period subsequent to 1st February, 1985 could not have been disposed of at a preliminary stage even before the trial had commenced. The question has to be decided at the conclusion of the trial alongwith other issues arising in the suit.
Mr. Chakraborty relied upon the judgment reported in 2016 SCC Online Cal 5489 (K.K. Saha & Co. -vs - Ashok Agarwal) and submits that a reference was made to the Hon'ble Division Bench of this Court with respect of two contradictory orders passed by the Hon'ble two different single Judges and the Hon'ble Division Bench had answered the reference holding that the Trial Court cannot pass any direction upon the defendant/tenant for payment of damages during the pendency of the suit.
Heard the Learned Counsel for the respective parties, perused the materials on record and the judgments referred by the parties.
The plaintiff has filed suit praying for recovery of vacant and peaceful possession of the suit property, damage/mesne profit of Rs. 34,69,200/- 8 and further damages/mesne profit of future mesne profit at the rate of Rs. 980/- per deim from 1st December, 2019 till the delivery of possession and allied prayers.
The plaintiff has acquired his right title and interest over the suit property by way of a registered deed of conveyance executed by the beneficiaries including the heiress and heirs of the deceased Mukul Ghosh. Admittedly, the husband of the defendant no. 1 and the father of the defendant no. 2, namely, Rahmatullah was the tenant with respect of the suit property.The original tenant died on 12th July, 2006 leaving behind the defendants as his legal heirs and after the death of the original tenant the defendants being the legal heirs continued with the occupation of the suit property.
Though the plaintiff has taken the plea that the defendants ceased their right to continue with the suit property in terms of the Provision of the West Bengal Premises Tenancy Act, 1997 with effect from 12 July, 2011 i.e. on completion of five years from the death of the original tenant as the suit property is admittedly non residential and it is a shop room, but this Court is not intending to enter into the said arena of the matter in the present application.
Now, the only question before this Court in the instant application whether this Court can pass any order directing the defendant for securing an amount of Rs. 34,69,200/- and Rs. 7,69,481/- as well as payment of occupational charges at the rate of Rs. 980/- per day of the suit property till the actual delivery of possession.
9
The defendant has raised the point of maintainability of the suit on the ground of pecuniary jurisdiction of the suit. The contention of the defendant is that the monthly rent is Rs. 45/- per month and annual rent would be Rs. 540/- and the suit is required to be filed before the Presidency Small Causes Court at Calcutta. The plaintiff is not identifying the defendant as tenant and is treating the defendants as trespassers and is claiming eviction of the defendants and damages/mesne profit. The question whether the defendants are the trespassers or the tenant and the plaintiff is entitle to get damages/ mesne profit is the matter of trial and thus this Court is of the view that the question of pecuniary jurisdiction of the suit is to be decided during the trial and the issue raised by the defendant cannot be decided in the instant application.
As regard the objection raised by the defendant that in the earlier execution proceeding the defendants have filed an application being G.A 1512 of 2016 and G.A. 1540 of 2016 against the decree holder of the earlier suit in which the Hon'ble Court held that the decree passed against the Credit Union Co-operative Enterprises Limited is not binding upon the defendants and the said decree is not enforceable against the defendants herein. The plaintiff herein has filed the separate suit against the defendant praying for their eviction, damage and mesne profit. The plaintiff has not prayed for the benefit of the decree passed previously or praying for eviction in terms of earlier decree. The plaintiff has filed the suit against the defendant on the ground that as per the provisions of the West Bengal Tenancy Premises Act, 1997, the defendants have no right to continue with 10 the possession of the suit and thus, this Court is of the view that the objection raised by the defendants is not sustainable.
The plaintiff is claiming damages/mesne profit @ Rs. 300/- per day from July 12, 2011 to November 30, 2019 total sum of Rs. 29,40,000/- with interest @ 18% per annum amounting to Rs. 5,29,200/- and further damages/ mesne profit @ Rs. 980/- per diem from 1st December, 2019 to 30th September, 2021 total amounting to Rs. 6,56,600/- with interest @ 18% per annum upto 30th September, 2021 amounting to Rs. 1,12,881/. The claim for damages/ mesne profit has been made by the plaintiff on the basis of the prevailing market rent of the of the said area. The plaintiff has relied upon a Registered Indenture dated 25th July, 2014 and as per the said Deed, the monthly rent is more than Rs. 300/- per sq.ft and the area occupied by the defendants is 98 sq.ft and it would come Rs. 980/- per day.
In the case of Nasima Naqi (supra), the Hon'ble Division Bench of this Court held that the spouse 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 Tenancy Premises Act, 1997. The Judgment passed by the Hon'ble Division Bench is affirmed by the Hon'ble Supreme Court. In the present case, admittedly the original tenant was the husband of the defendant no. 1 and the father of the defendant no. 2 and he died on 12th July, 2006 i.e after the Act of 1997 came into force. Admittedly, the suit property is a non- residential one and the defendants are the wife and daughter of the original 11 tenant and more than five years has been passed from the death of the original tenant but the defendant are still in occupation of the suit property.
In the case of Kanak Projects Limited (supra), Coordinate Bench of this Court held that the Court is entitled to put the defendant on terms for occupation of the property on a provisional estimation of mesne profit subject to the adjudication of the final mesne profit at the time of decree. Another Coordinate Bench of this Court in the case of K.K. Saha & Co. Pvt. Ltd. (supra) was of the view that it is not open to the Court to direct the tenant to pay the occupational charges till the Court passes a decree for eviction and accordingly had refered the matter to the Hon'ble Chief Justice for constituting a Larger Bench to answer the following :
"Whether the Civil Court can direct the tenant to pay the occupational charges, damages, mesne profit during the pendency of the eviction proceeding at the prevalent market rate in excess of the contractual rent"
After constitution of a Special Division Bench in the case of K.K. Saha & 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.
In view of the above, prayers (b) and (c) of GA 2 of 2021 are thus rejected.
(Krishna Rao, J.)