[Cites 16, Cited by 0]
Calcutta High Court
Saha & Company vs Ram Nath Jhunjhunwala on 10 December, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
1
2025:CHC-OS:250-DB
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Original Side
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
APOT 158 of 2024
With
EC 330 of 2023
Saha & Company
Vs.
Ram Nath Jhunjhunwala
&
APD 17 of 2023
CS 156 of 2017
Saha & Company
Vs.
Ram Nath Jhunjhunwala
For Appellant : Mr. Rishad Medora, Adv.
Mr. Abhirup Chakraborty, Adv.
Ms. Priyanka Mitra, Adv.
For the Respondent : Mr. Debnath Ghosh, Sr. Adv.
Mr. Sarosij Dasgupta Adv.
Mr. Biswaroop Mukherjee, Adv.
Mr. Ashish Kr. Karmakar, Adv.
Hearing Concluded on : November 10, 2025
Judgment on : December 10, 2025
DEBANGSU BASAK, J.:-
1. The defendant in a suit for eviction has preferred the
instant appeal from the impugned judgement and decree dated
April 12, 2023 passed by the learned Single Judge, allowing the
application of the plaintiff under Chapter XIIIA of the Original 2025:CHC-OS:250-DB
Side
Rules.
2. Learned advocate appearing for the defendant has
contended that, the suit has been improperly valued by the
plaintiff. He has contended that, due to overvaluation, the plaintiff
has sought to attract the jurisdiction of this Hon'ble court when,
none exists.
3. Learned advocate appearing for the defendant has drawn
the attention of the Court to the averments made in the plaint. He
has referred to the reliefs prayed for in the plaint. He has
contended that, the suit proceeds on the basis of the defendant not
making over possession of the suit property on the expiry of the
term of the lease.
4. Referring to Section 7 of the West Bengal Court Fees Act,
1970 and in particular to Section 7(xiii)(d) thereof, learned
advocate appearing for the defendant has contended that, the suit
was required to be valued on the basis of the amount of the rent of
the immovable property to which the suit refers, payable for the
next year before the date of presenting the plaint. In such
circumstances, the plaintiff has deliberately overvalued the suit as
the rent of immovable property concerned in the suit, payable for
the next year before the date of the presentation of the plaint,2025:CHC-OS:250-DB
was
way less than Rs. 10 lakhs.
5. Learned advocate appearing for the defendant has
contended that, on the expiry of the term of lease the defendant
continues to remain as a tenant, albeit tenant at sufferance. He
has referred to section 7 (xiii) (d) of the Act of 1970 and contended
that, the definition of the tenant appearing therein is inclusive. At
least, a tenant at sufferance has not been expressly excluded from
the definition of tenant under such Section.
6. In support of the contention that, the present suit ought to
have been valued in terms of Section 7 (xiii) (d) of the Act of 1970,
learned advocate appearing for the defendant has relied upon
2000 Volume 2 Cal LJ 70 (Nellimarla Jute Mills Company Ltd.
Vs. Rampuria Industries & Investments Ltd.) and 2004
Volume 13 Supreme Court Cases 448 (Nellimarla Jute Mills
Co. Ltd. Vs. Rampuria Industries & Investments Ltd.).
7. Learned advocate appearing for the defendant has
contended that, since the Court does not have pecuniary
jurisdiction to try, entertain and determine the present suit, the
learned Single Judge had erred in passing a decree for eviction and
for calculation of the mesne profit.
8. Learned senior advocate appearing for the plaintiff 2025:CHC-OS:250-DB
has
contended that, the suit has been rightly valued under section 7
(v) of the Act of 1970.
9. Learned Senior Advocate appearing for the plaintiff has
contended that, there is a lease deed between the parties dated
January 21, 1997 by which, plaintiff granted 21 years lease
commencing from December 31, 1994 and expiring on January 1,
2016. By a notice dated October 5, 2015, plaintiff had called upon
the defendant to vacate the subject premises and make over
vacant and peaceful possession of the same after the expiry of the
subject lease.
10. Learned Senior Advocate appearing for the plaintiff has
contended that, after the expiry of the lease by efflux of time on
January 1, 2016, the plaintiff filed a suit on July 15, 2017. The
market value of the suit property in terms of the assessment was
Rs. 3,57,77,829/-. Plaintiff had paid the maximum court fees of
Rs. 50,000/- in instituting the suit.
11. Talbot and Company had submitted a report dated
December 26, 2018 quantifying the rental value of the suit
premises of Rs. 29,302/- per month.
12. Learned Senior Advocate appearing for the plaintiff has
contended that, the suit cannot be valued under Section 7(xiii)(d)
of the Act of 1970 as such provision is not applicable in the 2025:CHC-OS:250-DB
facts
and circumstances of the present case. According to him, Section
7 (vi)(a) of the Act of 1970 stands attracted. He has contended that,
the lease as framed is for recovery of possession from trespassers
which the defendant is. He has relied upon 1976 Volume 1
Supreme Court Cases 295 (M/s. Maulavi Abdur Rub Firoze
Ahmed & Co. Vs. Jai Krishna Arora), 1987 Volume 3 Supreme
Court Cases 705 (Smt. Nandita Bose vs. Ratanlal Nahata) for
the proposition that, a lessee after the expiry of the terms of the
lease is not a trespasser and consequently the suit is required to
be valued under Section 7 (v) of the Act of 1970 as it relates to
recovery of possession of land and building.
13. Learned Senior Advocate appearing for the plaintiff has
relied upon AIR 1967 Supreme Court 155 (Gopalkrishna Pillai
and Others vs. Meenakshi Ayal and Others) in support of the
proposition that, Order XX Rule 12 of the Code of Civil Procedure,
1908 enables a Court to pass a decree for both past and future
mesne profits.
14. Learned Senior Advocate appearing for the plaintiff has
relied upon 2007 Volume 1 Cal LJ 47 (Prakshwati Chopra vs.
Sibaji Mitra) for the proposition that, a suit for recovery of
possession of immovable property, with or without a claim for
mesne profits by a landlord against a tenant whose terms2025:CHC-OS:250-DB
has
expired comes within the purview of Chapter XIIIA of the Original
Side Rules.
15. Learned Senior Advocate appearing for the plaintiff has
relied upon 2023 Volume 16 Supreme Court Cases 704 (Indian
Oil Corporation Limited vs. Sudera Realty Private Limited) for
the proposition that, a tenant continuing in possession after expiry
of lease may be treated as tenant at sufferance which status is a
shade higher than that of a mere trespasser.
16. Learned Senior Advocate appearing for the plaintiff has
contended that, Nellimarla Jute Mills Company Ltd. (supra)
does not consider 1966 SCC OnLine SC 224 (Gopalkrishna
Pillai and Others vs. Meenakshi Ayal and Others), 1976
Volume 1 Supreme Court Cases 495 (M/s. Maulavi Abdur Ruv
Firoze Ahmed & Co. vs. Jay Krishna Arora) and 1987 Volume
3 Supreme Court Cases 705 (Smt. Nandita Bose vs. Ratanlal
Nahata). According to the learned Senior Advocate appearing for
the plaintiff the suit was correctly valued and therefore, no
interference is called for.
17. Parties to the suit had entered into a deed of lease dated
January 21, 1997 for 21 years commencing from December 31,
1994 in respect of the suit premises. By virtue of the terms and
conditions of the lease deed, the same had expired by efflux of 2025:CHC-OS:250-DB
time
on January 1, 2016.
18. Plaintiff had issued a notice dated October 5, 2015 calling
upon the defendant to vacate the suit premises and handover,
vacant and peaceful possession of the same on the expiry of the
lease. Defendant had failed to make over possession to the plaintiff
on the expiry of the lease.
19. Plaintiff had filed the suit on July 15, 2017 valuing the
same at over Rs. 3.57 crores being the market value of the suit
property and paying the maximum ad velorem Court fees of Rs.
50,000/- thereon. In such suit, plaintiff had applied under
Chapter XIIIA of the Original Side Rules in which, the impugned
judgment and order was passed directing eviction and appointing
an advocate as a special officer to enquire into the mesne profits
and to submit a report thereon.
20. The defendant as the plaintiff in this appeal has raised the
primary issue of valuation of the suit filed. According to the
defendant, the suit is over-valued and has been inappropriately
done so in order to attract the jurisdiction of this Hon'ble Court.
21. The plaintiff has attracted the jurisdiction of this Hon'ble
Court on the basis of the averments made in paragraphs 21, 22
and 23 of the plaint which are as follows:-
"21. For the purpose of jurisdiction and Court fee, the suit
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is valued at over Rs. 3.57 crores being the market value of
the suit property from where the plainitiff is seeking eviction
of the defendant. The plaintiff has therefore paid maximum
court fees of Rs. 50,000 and undertakes to pay such further
or other court fee, if any, as may be directed by this Hon'ble
Court to pay.
22. The said suit property is situated at 207, Maharshi
Debendra Road, Kolkata 700007, within the jurisdiction
aforesaid and the suit is for eviction having an interest in
property, this Hon'ble Court has the jurisdiction to try and
determine the suit.
23. Inasmuch as the suit is valued at over Rs. 3.57
crores, this Hon'ble Court has and the City Civil Court does
not have the jurisdiction to try and determine the suit."
22. Plaintiff has sought the following reliefs in the plaint:-
"a) Decree for eviction and/or recovery of vacant, peaceful,
khas and physical possession of the suit premises being part
of premises no. 207, Mharshi Debendra Road, Kolkata -
700007, as more fully described in the Second Schedule "B"
hereunder against the defendant;
b) Enquiry into mesne profit and/or damages for wrongful
and illegally use and occupation by the defendant in respect
of the suit premises as given in the Second Schedule "B"
hereunder and decree for such sums as may be found due
and payable upon such enquiry, as pleaded in paragraph 19
of the plaint;
c) Interest on Judgment
d) Receiver;
e) Injunction;
f) Costs;
g) Such further and/or other relief or reliefs."
23. Rival parties have relied upon Sections 7(v), (vi) and (xiii) of
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the Act of 1970 on the issue of valuation of the suit which are as
follows :-
" (v) for possession of land, buildings or gardens: - In suits
for the possession of land, buildings or gardens, not being
suits referred to in clause (vi)-
(a) according to the value of the subject-matter, and such
value shall be deemed to be fifteen times the net
profits which have arisen from the land, building or
garden during the year next before the date of
presenting the plaint, or if the court-fees reason to
think that such profits have been wrongly estimated,
fifteen times such amount as the Court may asses as
such profits or according to the market-value of the
land, building or garden, whichever is lower;
(b) if, in the opinion of the Court, such profits are not
readily ascertainable or assessable, or where there
are no such profits, according to the market-value of
the land, building or garden;
Explanation.- In this paragraph "building" includes a
house, outhouse, stable, privy, urinal, shed, hut, wall and
any other such structure, whether of masonry, bricks,
woods, mud, metal or any other material whatsoever;
(vi) In a suit for recovery of possession of immovable
property from-- (a) a trespasser, where no declaration of title
to property is either prayed for or necessary for disposal of
the suit--according to the amount al which the relief sought
is valued in the plaint subject to the provisions of section II;
(b) a licensee upon revocation or termination of his license,--
(i) where a license fee is payable by (he licensee in respect of
the immovable property to which the suit refers--according to
the amount of the license fee of the immovable property
payable for the year next before the date of presenting the
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plaint, or (ii) where no such license fee is payable by the
licensee-- according to the amount at which the relief sought
is valued on the plaint subject to the provisions of section 11;
(xiii) between landlord and tenant: - In the following suits
between landlord and tenant -
(a) for the delivery by a tenant of the counterpart of a
lease,
(b) to enhance the rent of a tenant having a right of
occupancy,
(c) for the delivery by a landlord of a lease,
(d) for the recovery of immovable property from a tenant
including a tenant holding over after the determination of a
tenancy,
(e) to contest a notice of ejectment,
(f) to recover the occupancy of immovable property from
which a tenant has been illegally ejected by the landlord,
and
(g) for abatement of rent-- according to the amount of the
rent or the immovable property to which the suit refers,
payable for the year next before the date of presenting the
plaint."
24. Section 7 of the Act of 1970 has prescribed the
computations of fees payable in respect of the nature of suits
prescribed therein. Section 7(v) has prescribed computations of
court fees for suits relating to possession of land, buildings or
gardens not being suits referred to in Section 7(vi) of the Act of
1970. Section 7(vi) of the Act of 1970 has dealt with suits for
recovery of possession of immoveable property from trespasser
under sub-clause (a) of Section 7(vi) and licence upon revocation
or termination licence under sub-clause (b) of Section 7(vi). Section
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7 (xiii) of the Act of 1970 has prescribed for a suit between a
landlord and a tenant.
25. In a suit for eviction, the plaintiff has to assert the nature
of rights, if any, that the plaintiff seeks to enforce. In other words,
the plaintiff has to assert and establish how the defendant entered
into possession of the immoveable property and the
extinguishment of such right, obliging the defendant to vacate and
entitling the plaintiff to receive possession thereof.
26. The Division Bench in Nellimarla Jute Mills Company
Ltd. (supra) has held that a plaintiff who claims itself to be a
former landlord has to value the suit for evicting under Section
7(xiii) of the Act of 1970. It has also held that the theory of dual
capacity in the context of the Act of 1970 has no manner of
application. Supreme Court has upheld such decision in 2004
Volume 13 Supreme Court Cases 448 (Nellimarla Jute Mills
Co. Ltd. Vs.Rampuria Industries & Investments Ltd.).
27. R.V. Bhupal Prasad (supra) has observed that, the
possession of a lessee continuing in possession of a lease
determined by efflux of time, in contravention of the terms of the
lease and despite absence of acquiescence of by lessor, is neither
legal nor lawful but only as a tenant at sufferance.
28. Sudera Realty Private Limited (supra) has held that, a
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tenant continuing in possession after expiry of lease may be
treated as a tenant at sufferance whose status is a shade higher
than that of a mere trespassers as in the case of a tenant
continuing after expiry of lease, his original entry was lawful. It
has also held that, the tenant at sufferance is not a tenant by
holding over. While a tenant at sufferance cannot be forcibly
dispossessed, the same does not detract from possession of
erstwhile tenant turning unlawful on expiry of lease. Such a tenant
while continuing in possession after expiry of lease is liable to pay
mesne profits.
29. A Single Judge in Salil Kumar Roy (supra) has held that,
a lessee whose lease has come to an end and by operation of law
whose interest of property acquired under the lease stands
reverted back to the lessor, is neither a tenant nor an ex-tenant
but a person in occupation without any authority to do so. If he is
not a trespasser, a suit for recovery of possession by him can only
be valued by taking recourse to Section 7 (v) of the Act of 1970.
Learned Single Judge has, with that respect, overlooked the
provisions of Section 7 (xiii) of the Act of 1970 and is contrary to
Nellimarla Jute Mills Company Ltd. (supra) as upheld by the
Supreme Court.
30. M/s. Maulavi Abdur Rub Firoze Ahmed & Co. (supra)
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considered the suit valuation and the court fees payable in respect
of a suit for eviction of a tenant governed by the provisions of the
West Bengal Premises Tenancy Act, 1956. After discussing the
interplay of the provisions of the Suit Valuation Act, 1887, the Act
of 1970 and the Act of 1956, particularly Section 20 of the Act of
1956 it has held that, Section 20 of the Act of 1956 not only
determined the place of suing but affects the jurisdiction of the
Court.
31. M/s. Maulavi Abdur Rub Firoze Ahmed & Co. (supra)
has noted that, Section 20 of the Act of 1956 prescribed two
methods of valuations of suits for eviction governed by the Act of
1956 namely, the value of the suit or the value of premises. Since
such Section 20 of the Act of 1956 allowed a suit for eviction
governed by the Act of 1956 was held to be maintainable before the
High Court in its Original Side as the value of the suit premises
was in excess of the pecuniary jurisdiction of the City Civil Court
at Calcutta.
32. Prakshwati Chopra (supra) has considered three issues
as stated in paragraph 22 thereof. The issue of valuation of a suit
in respect of lease expiring by efflux of time has not been
considered by it.
33. While considering an application under Order VII Rule 10
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of the Code of Civil Procedure, 1908 Nandita Bose (supra) has
noticed that the pecuniary claim of the suit was in excess of Rs.
1,00,000/- therefore attracting the jurisdiction of the High Court
and therefore, it would be improper for the Court to return the
plaint at the preliminary stage.
34. Gopalkrishna Pillai and Others (supra) has held that,
Order XX Rule 12 of the Code of Civil Procedure, 1908 enables a
Court to pass a decree for both past and future mesne profits. It
presupposes that the Court has the jurisdiction to decide the suit.
35. As has been noted above that, the sui.t is one of eviction of
a lessee, who continues to remain in occupation of the leased
premises on expiry of the terms of the lease. The status of the
defendant is therefore a shade higher than a trespasser. It is not
the case of the plaintiff that the tenancy is protected under the
provisions of the West Bengal Premises Tenancy Act, 1956 or the
subsequent enactment of 1997. The pecuniary claim in the suit is
not quantified to be in excess of Rs. 10 lakhs.
36. The present suit is required to be valued under Section
7(xiii)(d) of the Act of 1970. Lease deed dated January 21, 1997
specifies lease rental at the rate of Rs. 1,500/- per month and
service and maintenance charges of Rs. 500/- per month. Without
entering into the question as to whether or not the service 2025:CHC-OS:250-DB
and
maintenance charges would constitute rent, taking Rs. 2,000/- per
month as the amount payable then also the pecuniary value would
not exceed Rs. 10 lakhs for the High Court to assume jurisdiction.
37. This Court, therefore, has no jurisdiction to try, entertain
and determine the present suit. The Department shall return the
plaint to the plaintiff, under Order VII Rule 10 of the Code of Civil
Procedure, 1908 for presentation before the appropriate Court,
within 7 days from date. Department shall record CS No. 156 of
2017 along with all connected applications therein as disposed on
the eighth day from date in either of the situations of the plaintiff
taking return of the plaint or failing to do so. Consequently, the
impugned order of the executing Court dated April 12, 2024 in EC
330 of 2023 is also set aside.
38. ADP No. 17 of 2023 and APOT 158 of 2024 with EC 330 of
2023 stand disposed of accordingly without any order as to costs.
[DEBANGSU BASAK, J.]
39. I agree.
[MD. SHABBAR RASHIDI, J.]
