Nisith Kumar Banerjee vs S.L. Bhayana And Anr.
1995 Latest Caselaw 709 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner by this petition filed under Article 227 of the Constitution is assailing the order dated 6th October, 1994, passed by the Additional District Judge returning the plaint for being presented before the appropriate Court having Jurisdiction to entertain it. The petitioner also assails the order dated 3rd July, 1995, dismissing his application for review of the order dated 6.10.1994.

(2) The facts in brief relevant for the present petition may be stated :- (i) The petitioner in the capacity of sole executor and trustee to the trust estate of late Shri Surendra Nath Bose, filed a suit seeking a decree of declaration for award of damages as also the quantification of the amount of damages so declared, and payment thereof to the petitioner of the amount of damages so declared and quantified. Interest was also claimed. (ii) The allegation in the plaint is that late Shri Brojendra Chandra Chakravarty was a tenant of the estate of the trust of late Shri Surendra Nath Bose at 57/1, College Street, Calcutta. The said Brojendra Chandra Chakravarty was a bachelor and had died in the year 1991. The defendant No. 2 claiming to be nephew of Shri Brojendrra Chandra Chakravarty is alleged to have taken possession of the tenanted premises illegally and refused the petitioner's request for delivery of possession of the said premises. The petitioner imploded as defendant No. 1, Lalit Baran Choudhury as the executor of the Will of late Shri Brojendra Chandra Chakravarty. (iii) Defendant No. 1 filed an application under Section 21 of the West Bengal Premises Tenancy Act, notice of this was received by the petitioner. The plaint also contains allegations of conspiracy between the defendants. It is averred in the plaint that the petitioner was entitled to receive damages/compensation from the defendants. In para 13 of the plaintitisaverred that the petitioner seeks a declaration for award of damages together with consequential relief for quantification of the amount of damages. (iv) The petitioner affixed Rs. 20.00 towards Court fee for declaration as per Schedule Ii Article 17(6) read with Section 7(IV)(c) of the Court Fees Act. However, the suit was valued for the purpose of jurisdiction at Rs. 5 lacs. (2) The learned District Judge vide the impugned order returned the plaint holding that the suit was for declaration of damages against the defendants in respect of property in dispute that was situated at Calcutta. The defendants were residing incalcutta. Further that no part of the cause of action had arisen at Delhi. He held that the Court did not have the jurisdiction to try and entertain the suit and the plaint was returned.

(3) The petitioner, who appeared in person, urged before me that the impugned orders were vitiated by an erroneous legal approach. The petitioner's suit was not a suit relating to property, It was an actionable claim. It was covered under Sections 19 and 20 of the Code of Civil Procedure and the plaintiff had the choice of instituting the suit either in Calcutta or Delhi. The cause of action according to petitioner had arisen in Delhi when the petitioner received from the office of Rent Controller, a copy of the application by which rent was sought to be deposited.

(4) Without going into the question of maintainability of the suit as framed under Section 34 of the Specific Relief Act as well the Court fee required to be paid, it is evident that the Trial Court lacked the jurisdiction to try the suit.

(5) Reading of the plaint reveals the following :- The petitioner is claiming a declaration in respect of damages arising out of the acts of the defendants in the alleged illegal occupation of the trust premises and the refusal to vacate the same. The property is admittedly in Calcutta. The defendants are residents of Calcutta. The alleged illegal occupation or trespass has been committed in Calcutta. The application for deposit of rent mewed by the defendant No. 2, is before the Rent Controller in Calcutta. Simply because a copy of the said application is received by the petitioner in Delhi, it cannot be said that the cause of action of the suit or part of it has arisen in Delhi. The plaint has to be read as a whole. Besides in para 18, the averments with regard to the cause of action is as under : "THAT the cause of action in the present suit arises from the dates, mentioned above, namely 25th May, 1994 and as and when the plaintiff become aware of the various wrongs committed by the defendants."

It is thus clear that no part of the cause of action has arisen in Delhi. Accordingly Section 20 ofC.P.C., would not entitle the petitioner to institute a suit in Delhi, even if it is assumed that the suit is not under Section 16(d) of the Code of Civil Procedure. The plaint was correctly returned by the Additional District Judge for being presented before an appropriate Court. The petitioner's contention that in two similar suits notices have been issued does not preclude the Court from exercising its discretion in accordance with law. The petition has no merit and is liable to be dismissed and is dismissed.