ASSAM COMPANY (INDIA) LTD. Vs. NUMAZAR DORAB MEHTA

JUDGEMENT

(1.) FACTS :

(2.) Calcutta Zoroastrian Community's Religious and Charity Fund and the Olpadwala Memorial Trust filed the suit through trustees being the plaintiffs. The plaintiffs claimed, they were the owners of premises No. 52, Chowringhee Road, Calcutta, a property comprised of one bigha, 12 cottah 14 chattak and 25 sq. feet of land on which a three-storied building was situated. The trustees would complain, they leased out a portion of the property vide Deed of Lease dated April 17, 1984 for 21 years that expired by efflux of time in 2001. Despite lease having expired the defendant continued to be in possession and was considered to be a monthly tenant. By notice dated December 4, 2006 plaintiffs terminated the tenancy under Section 106 of the Transfer of Property Act, 1882. The defendant failed and neglected to vacate that gave rise to the suit filed by the trustees. As per the agreement the monthly rent was fixed at Rs.43,725.00. The plaintiffs valued the suit at Rs.22,41,125.00 taking into account 12 months rent and the unpaid municipal taxes to the extent of Rs.17,17,424.00. The plaintiffs claimed recovery of possession, mesne profit as well as decree for Rs.17,17,424.00 on account of arrear municipal tax. The defendant immediately paid the said sum of Rs.17,17,424.00 that the plaintiffs declined to accept. The defendant applied for dismissal of the suit. Under Order VII Rule 11 of the Code of Civil Procedure the suit was not maintainable in view of mis-joinder of cause of action. Pertinent to note, in a suit for recovery of possession the valuation was to be done on the basis of the annual rent. Municipal tax could not be added unless express leave was obtained from the learned Single Judge under Order II Rule 4 of the Code of Civil Procedure at the time of filing of the suit. His Lordship accepted such contention and dismissed the suit. The plaintiffs approached the Court of Appeal.

(3.) The Court of Appeal affirmed the decision of His Lordship, however granted leave under Order II Rule 4 on the oral prayer of the plaintiffs.