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

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

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

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

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.

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/-

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.

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

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

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"