V.D. SWAMI Vs. SMT. REKHA MUKHERJEE

JUDGEMENT

(1.) This application is directed against the Order No, 38 dated 12.3.91 passed by the learned Assistant District Judge, 2nd Court, Alipore in Title Suit No. 58 of 1988 thereby dismissing the petition dated 26. 10. 90 submitted by the defendant on the point of jurisdiction.

(2.) The learned Counsel for the petitioner/defendant has submitted that the plaintiff/Opp. Parly has filed a Title Suit No. 58/88 in the court of the Assistant District Judge, 2nd Court, Alipore for recovery of possession of the suit premises and mesne profit. The Opp. Party has valued the suit at Rs. 6000.00 for recovery of possession and Rs. 12,000.00for mesne profits tentatively aggregating the sum of Rs. 18,000.00only. According to the learned Counsel, the plaintiff has excessively fixed Rs. 12,000.00 as mesne profits with mala fide intention of ousting the pecuniary jurisdiction of the Court of the first instance i.e. the court of the Munsif so as to give jurisdiction to the court of the Asst. District Judge, thereby depriving the defendant/petitioner from seeking relief in the first appellate court if and when such occasion arises. According to the learned Counsel the plaintiff was justified in valuing the suit at Rs. 6000.00 for recovery of possession on the basis of Rs. 500.00as monthly rent for 12 months. But the plaintiff whimsically and with ulterior motive fixed Rs. 12,000.00 for mesne profits which the plaintiff cannot do in view of the provisions of Court Fees Act. A similar question came up before this Court in J.L. Ojha Vs. Dalhousie Properties reported in 70 CWN 55. It was held that for the purpose of Court Fees the claim for mesne profits prior to the institution of the suit must be valued u/s. 7(1) of the Court Fees Act. Claims for mesne profits subsequent to the institution of the suit cannot be taken info consideration for the purpose. The value for the purpose of Court Fees and jurisdiction is the value on the date of institution of the suit. In the instant case the tenancy was determined on the expiry of the month of Feb., 1988 and the suit had been filed on 31.5.88. So the tentative mesne profit may be claimed by the plaintiff only for 3 months commencing from 1st March, 1988 till 31st May, 1988. Assuming that the mesne profit is fixed at Rs. 1000/'- per month, it would come to Rs. 3000.00. Accordingly the learned Counsel submit, the plaintiff ought to have valued the suit at Rs. 9000.00 only which would have given jurisdiction to the court of the learned Munsif. Under the circumstances the learned Counsel submits for a direction to return the plaint to the court of the first instance as per provision of Order 7 Rule 10 of the Code of Civil Procedure.

(3.) Although the learned Counsel for the petitioner has tried to make out the case with some justification as regards fixation of mesne profits, yet we find that only a feeble attempt was made in the written statement to raise that objection but the defendant did not raise effective protest till partial cross-examination of P. W. 1. This shows that the defendant wanted to gain time by his own lapse. This cannot be allowed on the grounds that much time and energy would be wasted and harassment would be caused if the plaint is now ordered to be returned for filing the same in the court of Munsif. If it is now filed in the court of the Munsif, it shall have to be treated as new filing of the suit to all intents and purposes and it will not be merely a continuation of the old one, This was the view taken by this Court in the case of Mahoni Mohan Das Vs. Kunja Behari Das, reported in AIR 1943 Calcutta 450.Moreover, the learned counsel for the opposite party has drawn our attention to a decision of the Supreme Court in Nandita Bose Vs. Ratan Lal Nahata reported in AIR 1987 SC 1947. In this reported case the Supreme Court held that the High Court was in error in prejudging the issue relating to the right of landlady to claim mesne profit/damages and in directing that the plaint should be returned for presentation to the proper court.