Calcutta High Court

Shivani Properties Private ... vs Legal Remembrancer on 18 November, 2022

                                   1


OD-10

                            CS/75/2018
                          IA No: GA/2/2019
                   IN THE HIGH COURT AT CALCUTTA
               [ORDINARY ORIGINAL CIVIL JURISDICTION]
                           ORIGINAL SIDE


                 SHIVANI PROPERTIES PRIVATE LIMITED
                                  Vs.
                        LEGAL REMEMBRANCER



BEFORE :
The Hon'ble JUSTICE KRISHNA RAO

Heard On : 09.11.2022

Order On : 18.11.2022

                                                              Appearance:

                                              Mr. Krishnaraj Thaker, Adv.
                                             Mr. Shuvasish Sengupta, Adv.
                                                Mr. Sarosij Dasgupta, Adv.
                                              Mrs. A. Laha Sengupta, Adv.
                                               Mr. Suman Majumder, Adv.
                                                        ...For the plaintiff.

                                             Mr. Dhruba Ghosh, Sr. Adv.
                                                   Mr. Anirban Ray, Adv.
                                                 Mr. Paritosh Sinha, Adv.
                                                  Mr. Prantik Garai, Adv.
                                                   Mr. Debraj Sahu, Adv.
                                                     Mr. A. Mondal, Adv.
                                           ...For the State of West Bengal.
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                                     ORDER

Plaintiff has filed the instant suit being CS No. 75 of 2018 against the

defendant for mesne profit @ 100/- per sq.ft. per month on and from May 5,

2016 along with an increment of 15 % every three years until delivery of vacant

possession of the suit premises to the plaintiff and other reliefs.

The defendant has filed an application under Section 10 of the Code of

Civil Procedure praying for stay of the stay of the Civil Suit No. 75 of 2018 till

the disposal of the Second Appeal No. 35 of 2017.

Before initiation of the present suit, the plaintiff had previously filed a

suit for eviction against the defendant before the Learned Small Causes Court

at Calcutta being Ejectment Suit No. 471 of 2011 and the said suit was

decreed on 4th May, 2016 in favour of the plaintiff and against the defendant.

Being aggrieved and dissatisfied with the judgment and decree the

defendant had preferred an appeal being Title Appeal No. 15 of 2016 and the

First Appellate Court had dismissed the said appeal on 21.12.2016.

After the dismissal of the First Appeal, the defendant had preferred a

Second Appeal before the Hon'ble Division Bench of this Court being SAT No.

35 of 2017 and on 10th July, 2017, the Hon'ble Division Bench had admitted

the appeal preferred by the defendant, now the said appeal is pending before

Hon'ble Court for adjudication.

Learned Counsel for the defendant submits that the Second Appeal is the

continuous of the present suit and the appeal is pending for adjudication and

the issue regarding wrongful possession of the suit premises by the defendant

is subject for determination of the issue in the appeal.

Learned Counsel for the defendant submits that the plaintiff has filed the

instant suit on the basis of the decree passed by the Learned Small Causes

Court at Calcutta wherein the Learned Trial Court held that the defendant is a

defaulter in payment of rent in respect of the suit premises and the said issue

is pending before the Hon'ble Court in Second Appeal.

Learned Counsel for the defendant submits that the issue regarding

wrongful possession of the suit premises by the defendant is subject-matter of

the appeal and thus the suit filed by the plaintiff is premature.

Learned Counsel for the defendant further submits that the question of

unauthorized occupation of the defendant is the subject-matter of the pending

appeal and thus the matter in issue is directly and substantially in issue in the

appeal pending before the Hon'ble Court.

Learned Counsel for the defendant submits that recovery of mesne profit

subsequent to the previous suit for eviction out of which an appeal is pending

is barred under law as the object of the Rule contained in Section 10 of the

Code of Civil Procedure is to prevent courts from simultaneously entertaining

and adjudicating upon two parallel litigations arising out of same cause of

action arising out of same subject-matter.

Learned Counsel for the defendant relied upon the unreported judgment

passed in APO No. 51 of 2019 (Shyam Sel and Power Limited -versus- Bahubali

Promoters Private Limited) dt. 28th March, 2019 and submits that this Court

has inherent power to stay initiation or continuation of any proceeding, if it

appears to be vexatious, oppressive and abuse of the process of the Court and

in such situation, the Court need not to be guided by the principal of Section

10 of the Code of Civil Procedure and can exercise the inherent powers of the

Court for the ends of justice.

Per Contra, Learned Counsel for the plaintiff submits that though an

appeal against the decree passed in the previous suit is pending but the

defendant has not obtained any stay of the judgment and decree from the

appellate Court. He further contended that the defendant had filed an

application before the Appellate Court for stay of the judgment and decree

passed being CAN No. 2083 of 2017, the defendant has not moved the said

application till date.

Learned counsel for the plaintiff submits that the Learned Trial Court as

well as the Learned First Appellate Court has held that the defendant is a

trespasser and there is no relationship of the landlord and tenant from the date

of Judgment and Decree passed by the Trial Court and accordingly the plaintiff

has filed the instant suit for mesne profit.

Learned Counsel for the plaintiff submits that mere pendency of appeal

without the order of stay the defendant cannot pray for stay of the instant suit

in the aid of Section 10 of the Code of Civil Procedure.

Learned Counsel for the plaintiff submits that the cause of action for

filing of the present suit arose only after the Decree passed by the Learned Trial

Court dt. 4th May, 2016 which cannot say that the cause of action for both the

suit are same and the matter in issue which directly and substantially be in

issue with the appeal filed by the defendant.

Learned Counsel for the plaintiff submits that the words "directly and

substantially in issue" are used in contradistinction to the words "incidentally

or collaterally in issue" and thus Section 10 of the Code of Civil Procedure shall

apply only if there is identity of the matter in issue in both suits.

Learned Counsel for the plaintiff has relied upon the judgment reported

in (2005)1 SCC 705 (Atma Ram Properties (P) Ltd. -versus- Federal Motors (P)

Ltd.) and submits that the tenant having suffered a decree or order for eviction

may continue his fight before the superior forum but on the termination of the

proceedings and the decree or order of eviction first passed having been

maintained, the tenancy would stand terminated with effect from the date of

decree passed by the lower forum.

Learned Counsel for the plaintiff has further relied upon the judgment

reported in (1961) SCC OnLine Cal 184 (Makhan Lal Modak -versus- Girish

Chandra Jana & Ors.) and submits that it is well established that a claim for

mesne profit can be separately maintain from a suit for possession and the

plaintiff is not obliged to join or unite the two claims. He further submits that

under the ordinary law, the plaintiff has a right of suit in respect of his claim

for damage and mesne profit and there being no obligation on him to unite it

with a suit for possession under Order XX, Rule 12 of the Code of Civil

Procedure it would not stand in the way of a separate suit for such claim for

damage and mesne profit.

Heard, the Learned Counsel for the respective parties perused the

pleadings, documents and the judgment relied by the parties.

The issue in the instant application whether the proceeding of the

instant suit filed by the plaintiff against the defendant is required to be stayed

till the disposal of the second appeal being SAT No. 35 of 22017 filed by the

defendant?

The plaintiff has filed the suit being Ejectment Suit No. 471 of 2011

against the defendant praying for following reliefs :

"a) Decree for eviction of the defendant no. 2 from room nos. 2, 4 and 5 of the second floor of premises no. 5, Kiran Shankar Roy Road, Kolkata - 700 001, morefully described in Schedule annexed hereto.

b) Decree for khas possession of room nos 2, 4 and 5 of the second floor of premises no. 5, Kiran Shankar Roy Road, Kolkata - 700 001.

c) Decree for mesne profit @ Rs 120/- per sq.ft per month on and from 1st December, 2010, until delivery of vacant possession of the suit premises to the plaintiff.

d) Alternatively an enquiry into mesne profit and a decree for such sum as may be found due and payable by the defendant to the plaintiff."

The Learned Court below has disposed of the said suit on 04.05.2016 by

passing the following order :

"That the suit be and the same is decreed on contest against the defendant without any order as to cost. The plaintiff does get a decree of recovery of khas possession of the suit property after evicting the defendant therefrom. The defendant is hereby directed to quit and vacate the suit property and to deliver the khas possession of the suit property within 90 days from the date of order, in favour of plaintiff failing which the plaintiff is at liberty to put the decree in execution through Court in accordance with the provisions of law."

The defendant had challenged the judgment and decree dt. 04.05.2016

before the 1st Appellate Court being Title Appeal No. 15 of 2016 and the said

appeal was dismissed on 21.12.2016 by the Learned Judge 2nd Bench, City

Civil Court, Calcutta by passing the following order :

"That the appeal be and the same id dismissed on contest without cost. LCR be sent back to the Learned Trial Court with the copy of the judgment."

The defendant being aggrieved and dissatisfied with both the judgment

and decree had preferred a Second Appeal being SAT No. 35 of 2017 and the

Hon'ble Division Bench of this Court had admitted the appeal on 10.07.2017

on the following substantial question of law :

"i) Whether the learned judges of both the Court's below substantially erred in law by not holding that this suit for eviction was bad for want of proper notice under Section 80 of Code of Civil Procedure, 1908?

ii) Whether the learned Judges of both the Court's below upon services of appeal substantially erred in law by not holding service of notice upon the learned legal remembrancer through the Principal

Secretary in Chare, Law Department, Government of West Bengal was not a valid notice under Section 80 of Code of Civil Procedure, 1908 taking into consideration the notice dated October 8, 2010 which had been served upon the learned legal remembrancer through the Principal Secretary in Charge, Law Department, Government of West Bengal.

iii) Whether the learned Judges of both the Court's below substantially erred in law by not holding that the eviction notice dated October 8, 2010 was filed even on failure on the part of the plaintiff/respondent to produce any board resolution in support of taking a resolution to file the suit against the defendants/appellants?"

As the Learned Court below vide judgment and decree dt. 04.05.2016

directed the defendant to quit and vacate the suit property and to deliver the

khas possession of the suit property within 90 days to the plaintiff but the

defendant had not vacated the suit property and accordingly the plaintiff has

filed the present suit being CS 75 of 2018 against the defendant praying for the

following reliefs :

"a) Decree for mesne profit @ Rs 100/- per sq.ft per month on and from May 5, 2016 along with an increment of 15 % every three years until delivery of vacant possession of the suit premises to the plaintiff;

b) Alternatively, an enquiry into mesne profit and a decree for such sum as may be found due and payable by the defendant to the plaintiff;

c) Interest including interim interest and interest upon judgment @ 18 percent per annum on the amount to be determined by this Hon'ble Court being the reasonable rate of interest or at such rate as this Hon'ble Court may seem fit and proper."

Section 10 of the Code of Civil Procedure reads as follows : -

"10. Stay of Suit. - No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation- The pendency of a suit in a foreign court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action."

The key words in Section 10 are "the matter in issue is directly and

substantially" in issue in the previous suit. The words "directly and

substantially in issue" are used in contradiction to the words "incidentally or

collaterally in issue". Section 10 relates to principle of res - sub judice i.e., a

matter which is pending judicial adjudication. The object of the Section is to

protect the parties from being vexed twice for the trial of the same cause. In

other words the purpose of Section 10 is to prevent competent courts of

concurrent jurisdiction from having to try parallel suits, in respect of the same

matter in issue and thereby to pave the way for the Court to really see if the

decision of the matter directly and substantially in issue in the former suit will

or will not lead to the decision directly and substantially in issue in the

subsequent suit and if it is satisfied that it will then it must stay the trial of the

subsequent suit and to await the decision of the former suit.

In the instant case, the plaintiff has based its cause of action on the

decree of eviction dt. 04.05.2016. The claim for mesne profit is based on the

decree passed on 04.05.2016 in the suit filed before the Learned Presidency

Small Causes Court, Calcutta. The said paragraph reads as follows :

"14. The plaintiff, by a notice under Section 80 of the Code of Civil Procedure, 1908 dated 23rd August, 2017 called upon the defendant to pay the mesne profit/occupation charge without prejudice to the rights and contention of the plaintiff. The said notice was served upon the defendant as its office at 2 & 3, Kiran Shankar Roy Road, Kolkata - 700 001, the receipt whereof is evident from the seal and signature of the office of the defendant on the office copy of the said notice. A copy of the said notice dated 23rd August, 2017 is annexed hereto and marked with the letter "E". However, in spite receiving the said notice the defendant failed to act in terms thereof. The plaintiff has authorized its Director namely Mr. Ghanshyam Das Kankani by a Board Resolution dated 23rd March, 2018 is annexed hereto and marked with the letter "F".