Calcutta High Court
The Calcutta Gujarati Education … vs Budge Budge Company Ltd on 12 June, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
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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,
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Kolkata – 700001. The Plaintiff no. 2 is the Secretary of the Plaintiffno. 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.
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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
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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/-
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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 Plaintiffs 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 Plaintiffs 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 Plaintiffs
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 Plaintiffs were 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
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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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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?
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5. Whether Plaintiffs 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 Plaintiffs is entitled to the decree prayed for?
8. Whether the Plaintiffs is entitled to any mesne profit? If so, to
what extent?
9. Whether the Plaintiffs 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 Plaintiffs 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 Plaintiffs, 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
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December 2003, the Defendant preferred Civil Revisional Application in this Courtdirected 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 Plaintiffs 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 Plaintiffs 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
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plaintiff once institutes a suit in a court and thereby avails of a remedy givento 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.‖
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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 Plaintiffs 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 Plaintiffs 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
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Plaintiffs 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 Plaintiffs
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 Plaintiffs.
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 Plaintiffs 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
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basis. In tune of this argument, it is further contended that the Plaintiffs treated theDefendant 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.
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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 Plaintiffs were directed to pay deficit court fees. It was observed
that the Plaintiffs paid court fees only in respect of mesne profit, and not in respect of
the annual rent. The Plaintiffs, 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 Plaintiffs 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.
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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 Plaintiffs 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 Plaintiffs are
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
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in dispute that the Defendants came into possession under agreement for lease and
was a lessee until it was determined. The Plaintiffs nowhere stated that the
Defendants possession was that of a rank trespasser from the very beginning. The
case set up by the Plaintiffs are 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 Plaintiffs 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 Plaintiffs were 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 Plaintiffs 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.‖
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Observation of the Three Judges Bench of the Apex Court in Shah Babulal KhimjiVs. 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 Plaintiffs would be a judgment but this order affects only the
Plaintiffs or the Government and not the defendant. Thus, only the Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs filed Ejectment Suit No. 419 of 1992 before the City Civil Court
at Calcutta. On 27/03/2003, the Plaintiffs 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 Plaintiffs called upon the
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Defendant to pay monthly rent at enhanced rate of Rs.73,500/- per month from themonth of June 2003. Thereafter, the Plaintiffs 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 Plaintiffs did not
challenge the order directing deposit of rent. On 27/03/2003, the Plaintiffs 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 Plaintiffs 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 Plaintiffs, 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 Plaintiffs 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 Plaintiffs from April 2006 to August
2010 at a rate of Rs.12,782/-per month. The Plaintiffs 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 Plaintiffs continued
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to retain security deposit. The Plaintiffs 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 Plaintiffs 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
Plaintiffs, 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 Plaintiffs argued first
that the Plaintiffs 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]
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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 Plaintiffs never waived its contention. It
was argued that rent had been deposited by the Plaintiffs 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 Plaintiffs 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
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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 Plaintiffs’ 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 Plaintiffs 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:-
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“111. Determination of lease.– A lease of immoveable propertydetermines–
******
(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 Plaintiffs asked
the Defendant to pay rent. It is admitted in the written statement that rent was paid
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by the Defendant accordingly till the month of August, 2003. Rent was paid at oldrate. 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
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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
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context, to consider the observations made by three Judges’ Bench of the SupremeCourt 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.
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Intent of waiver of notice to quit is a mixed question of law and fact. But the fact ofwaiver 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 Plaintiffs are 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
Plaintiffs had accepted rent from the Defendant for the period after 31st August, 2003
or that the Plaintiffs 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 Plaintiffs 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 Plaintiffs 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
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Senior Counsel is impressive but the same lacks any support of substantial evidenceto 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
292024:CHC-OS:270
of the premises comes to an end and for any period thereafter, for whichhe 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.
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Issue nos. 2 to 6 are, accordingly, decided in favour of the Plaintiffs.
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 Plaintiffs.
It is decided that the Plaintiffs are entitled to decree prayed for the Defendant
is liable to be evicted and is also liable for mesne profit.
The Plaintiffs 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 Plaintiffs 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 Plaintiffs are
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 Plaintiffs.
The instant suit is allowed.
It is ordered that the Plaintiffs 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 Plaintiffs within three months from the date of drawing up of the
decree, in default, the Plaintiffs shall be at liberty to put the decree in execution. The
Plaintiffs are 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.
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Fix 20/01/2025 for consideration of mesne profit.
Decree for recovery of possession may be drawn up.
(Sugato Majumdar, J.)
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