Calcutta High Court
Dalhousie Properties Limited vs Global Exports Limited on 29 April, 2015
Author: I.P. Mukerji
Bench: I.P. Mukerji
CIVIL SUIT NO. 223 OF 2007
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
Dalhousie Properties Limited
Vs.
Global Exports Limited
For the plaintiff: - Mr. David Mantosh, Advocate
Ms. Lopita Banerjee, Advocate
For the defendant: - Mr. Abhrajit Mitra, Sr. Advocate
Mr. Anirban Roy
Ms. M. Chaudhury
Judgement On: - 29th April, 2015
I.P. MUKERJI, J.
It happens rarely. Out of nowhere, a sudden storm develops, the clouds gather, there is thunder, lightning and rain. Thereafter the skies become clear again. This is what has happened in this case. Out of nowhere the defendant has put up a defence in a suit which appeared to be invulnerable. The Court is left with the task of deciding the issues and preparing a judgement and decree.
The plaintiff company has its registered office at 1 & 2, Humayan Place, Kolkata, and owns a very large property numbered as premises no. 4, BBD Bag, Kolkata and known as "Stephen House". Now, 4, BBD Bag is known as 56E, Hemanta Basu Sarani, Kolkata-1.
The agreement between the plaintiff and the defendant was a monthly lease or tenancy of room numbers 40,41,42,43 & 44 on the third floor of the said premises. The plaintiff last received a rent of Rs. 20,079/- per month, inclusive of the tenant's contribution of Rs. 7,079/- towards municipal rates and taxes.
By a notice dated 10th May, 2007 the plaintiff terminated the tenancy with the expiry of May, 2007.
There is no real defence the defendant disclosed. There is no real defence that the defendant could possibly have. But they defended the suit on the ground that the demised part was not properly identified. Room numbers 40,41,42,43 & 44 were neither numbered nor demarcated. Hence, the suit be dismissed.
The defendant did not tender any witness. The plaintiff put up its sole witness Mr. John Mantosh. Admittedly, the defendant occupied an area of 14,000 sq.ft. on the third floor (see para 2 of the written statement). Part of it was demised to them by the plaintiff, which considering the evidence of Mr. John Mantosh was 5800 -6000 sq.ft. 9500 sq.ft. was occupied by the defendant as a sub-tenant of one M/s. Narsing & Company. It is true that Mr. Mantosh admitted in his evidence (question No. 150 to 153) that the above numbers did not occur outwardly in any portion of the area occupied by the defendant. There is some contradiction in the evidence of Mr. Mantosh in the sense that in his answer to questions 64, 67, 68, 95 & 98 he said the area occupied by the defendant was 5800 sq. ft. whereas in his answer to question 108 he said that the area was 6000 sq. ft. In questions 175 & 176, he said that the defendant's occupied area had not been measured by him. But to two questions put to him by the Court (154 & 157) Mr. Mantosh said that the rooms were demarcated by walls and that at no point of time the defendant raised any dispute with regard to the area covered by the tenancy. Various provisions of the Code of Civil Procedure have been cited by learned Counsel for the defendant to show that in the absence of a clear description of the suit property in the body of the plaint and in the schedule attached to it the suit was liable to fail. Order VII rule 3 was cited. It states that when the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Very importantly it says that when the matter can be identified by numbers such numbers will be specified in the plaint. According to Mr. Mitra, learned Senior Counsel although room numbers were mentioned in the body of the plaint the property could not be identified. Identical was the requirement of chapter VII rule 1 of the Original Side Rules and Order 20 Rule 9 read with Form 23 Appendix D of the Code of Civil Procedure relating to execution. Mr. Mitra argued according to the written statement the defendant admitted that it was in occupation of rooms 40 to 44 measuring 4500 sq. ft. on the third floor.
The suit failed for lack of a detailed description of the property in the plaint, it was argued.
Examining closely the evidence given by Mr. John Mantosh for the plaintiff I find that he has consistently maintained that between 5800 Sq.ft. to 6000 Sq.ft were demised. One may read his answers to questions 64, 67, 68, 94 & 95 in examination-in-chief.
The defendant has maintained in paragraph 2 of the written statement that they were in occupation of rooms 40,41,42,43 and 44 through the plaintiff. The balance area of their occupation of 9500 sq.ft. was obtained by them from Narsing and Company.
The defendant has admitted that these rooms were taken by them on lease. During the long continuance of the lease there was no whisper on behalf of the defendant that the demised area was indeterminable. In fact the defendant paid rent on the basis of the area occupied by them and the rent receipt issued by the plaintiff mentioned those room numbers. I am firmly of the opinion that both the plaintiff and the defendant are clearly aware of the demised area. There is no difficulty on the part of either party to understand the area actually demised. They have proceed on that basis.
In all the decisions cited on behalf of the defendant, a Division Bench Judgement of the High Court in Orissa Rama Subudhi and others Vs. Bhagirathi and others reported in AIR 1982 Orissa 86, a Single Judge decision in the case of Chutahru Bhagat and others vs. Hialal Sah and others reported in AIR (37) 1950 Patna 306, Dwaraka alias Dwaraka Prasad Agarwalla and Anr. Vs. Mst. Sashiprabha Gountiani reported in 32 (1996) CLT 864, Laxman Singh Vs. Jagannath reported in 2000 (1) MPLJ 79 and Bandhu Das and Anr. Vs. Uttam Charan Pattanaik reported in AIR 2007 Orissa 24, the Courts said unanimously that in a suit for declaration or possession of property the locational details of the property must be specified with exactitude. The reference was made to order XX rule 9 of the Code where a decree in relation to immovable property must contain a proper description thereof. If the property was not properly described in the plaint then it could not be so described in the decree. The ultimate concern of the Court was that if the decree was without the details of the property then the decree would be inexecutable. However, it is noteworthy, that order VII rule 3 enjoins that a property may be described even by number if that is sufficient. In the above decision Laxman Singh Vs. Jagannath reported in 2000 (1) MPLJ 79 the Madhya Pradesh High Court inter alia remarked.
"If independently of the boundaries the property can be sufficiently identified, then any error or misdescription in the boundaries cannot affect the suit. Learned counsel for the respondent thus submitted that the plaintiff be permitted to furnish correct description of the property in dispute."
If the description of the property is absent the suit could be dismissed on the ground that it does not disclose a cause of action (order VII rule 11). The Court is not apprised of the property regarding which it has to pass a decree. Certainly, a suit with a deficient description of the property is not barred by law (order 7 rule 11). Neither cannot be said that it does not disclose a cause of action under Order VII rule 11.
To my mind the suit does not fail if a property is mentioned in the plaint but it is devoid of the necessary details. There is no provision in the Code of Civil Procedure by which the suit is dismissed for want of elaborate details regarding the property.
Yes, it could be a technical defect under order XXIII. In my opinion it is too late a stage in the suit to allow its withdrawal on the said technical ground and ordering filing of a fresh suit on the self-same cause of action. That would be unjust to the plaintiff. It is also too late to consider amendment of the plaint.
In my opinion, although the description of the property in the plaint appears to be less than sufficient, nevertheless the subject matter of the demise can be properly identified. According to the evidence of Mr. John Mantosh rooms 40,41,42,43 & 44 are clearly identifiable. If they are identifiable they can be easily identified at the execution stage. He has also said that the rooms are separated by wooden walls. If such be the case, then also the rooms can be identified. Even otherwise there is no contradiction of the evidence that Narsing and Company subleased 9500 sq.ft. area to the defendant on the third floor. There is no contradiction of the evidence of Mr. Mantosh that the area demised by the plaintiff was around 5800 Sq.ft-6000 sq.ft. If one juxtaposes all these data one would be able to sufficiently identify the property. Therefore, the only point of objection of the defendant is rejected.
For all those reasons, the suit succeeds.
The suit is decreed in terms of claim (a) of the plaint. This Court is minded to refer the determination of mesne profits to a Special Referee. Mr. Robi Prasad Mookerji advocate of Bar Library Club is appointed Special Referee, at a remuneration of 600 Gms per sitting to ascertain the mesne profits from 1st June, 2007 till the defendant hands over possession to the plaintiff or the date of determination, whichever is earlier. The referee will file his report in this Court by 31st December, 2015. The above suit is part decreed as to the above extent.
Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(I.P. MUKERJI, J.)