NANDITA BOSE Vs. RATANLAL NAHATA

JUDGEMENT

(1.) THE question involved in this case is whether the High Court of Calcutta was right in returning the plaint presented by the appellant for presentation to the proper Court under O. 7 R. 10 of the C. P. C., 1908 (hereinafter referred to as 'the Code').

(2.) THE appellant is the owner of Flat No. 2 (now known as 'B'), 7th Floor, Gem Building at 5/B, Russel Street, Calcutta. THE said premises had been leased out in favour of the respondent on a monthly rent of Rs. 1,400.00. THE respondent committed default in the payment of rent from the month of June, 1984. THE appellant, therefore, served a notice on the respondent under S. 106 of the Transfer of Property Act, 1882 and S. 13(6) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act') determining the tenancy with the expiry of the month of January, 1985 and called upon him to deliver possession of the premises. Upon failure of the respondent to hand over the vacant possession of the premises on the expiry of January, 1985 the appellant filed a suit in Suit No. 755 of 1985 on the Original Side of the High Court of Calcutta for recovery of possession of the premises and for recovery of arrears of rent amounting to Rs. 11,200.00 and of Rs. 78,000.00 by way of mesne profits/ damages, claiming mesne prof its/damages at the rate of Rs. 7,800.00 per month from 1/02/1985 until 30/11/1985. THE appellant valued the suit for purposes of court-fee and jurisdiction at Rs. 1,06,000.00 which was arrived at as follows : <FRM>JUDGEMENT_705_3_1987Html1.htm</FRM>

(3.) WE are of the view that on the facts and in the circumstances of the case the High Court was in error in prejudging the issue relating to the right of the appellant to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper court. WE, therefore, set aside the order passed by the High Court and direct the High Court to proceed with the hearing of the suit. WE also direct that the observations made by the learned Judge in the course of the order against which this appeal is filed regarding the right of the appellant to claim the mesne profits/damages at the rate of Rs. 7,800.00 per month shall not be binding on the parties and that the said question shall be decided afresh by the High Court in the course of the trial. WE, however, express no opinion on the correctness or otherwise of the observations made by the learned Judge on the above question.