DINWARA ENGINEERS PRIVATE LIMITED Vs. AMITAVA BANERJEE

JUDGEMENT

(1.) The instant revisional application under Article 227 of the Constitution of India preferred by the petitioner is directed against Order No. 15 dated 16-1-2001 passed by the leaned Civil Judge (Senior Division) 9th Court, Alipore, South 24-Parganas in T.S. No. 1 of 2000. By the impugned order the learned trial Court rejected the application under Order 7 Rule 10 of the Code of Civil Procedure filed by the defendant/ petitioner.

(2.) The facts leading to the instant revisional application may briefly be stated thus, The defendant/petitioner filed an application under Order 7 Rule 10 of the Code of Civil Procedure which has arisen out of the suit for recovery of khas possession, mesne profits and damages valued at Rs. 30,200/- i.e., Rs. 7,200/- for recovery of khas possession, Rs. 10,000/- as mesne profits and Rs. 13,000/- as damages tentatively. It has been contended by the defendant/petitioner that in a suit like the present one a landlord cannot claim mesne profits for any period prior to a decree for possession and as such the claim for mesne profits as made by the plaintiff/opposite party prior to a decree for possession, is barred by law. It has been further alleged by the petitioner that the valuation of the said suit for the purpose of jurisdiction is malafide and wrongful and the said valuation of the suit as assessed by the plaintiff is thus deliberate and illegal attempt to invoke the jurisdiction of the learned Civil Judge (Senior Division), 9th Court, Alipore, 24-Parganas (South) although the said learned Judge does not have jurisdiction to entertain, try and determine the said suit. It has been further alleged by the petitioner that the suit should have been instituted in the Court of the Civil Judge (Junior Division) 3rd Court, Alipore, 24-Parganas (South). Accordingly the defendant/petitioner has filed an application under Order 7 Rule 10 of the Code of Civil Procedure praying for return of the plaint filed in the said suit to the plaintiff for presenting the same to the Court of the learned Civil Judge (Junior Division), 3rd Court, Alipore, 24-Parganas (South).

(3.) The said application has been contested by the Opposite Party/Plaintiff contending inter alia that the application is not maintainable and the same is barred by law and that the application has been filed by the defendant to cause delay and harass the plaintiff. It has been further contended by the O.P/Plaintiff that the suit is maintainable and the trial Court where the suit has been instituted is well within its jurisdiction to entertain and try the said suit and that there is no necessity for return of the plaint. As contended by the O.P/Plaintiff, the valuation of the suit has been correctly assessed. Under the above circumstances the O.P./Plaintiff has prayed for rejection of the application under Order 7 Rule 10 read with section 151 of the Code of Civil Procedure.