KAUSICK AUDDY Vs. UDAY SHAH

JUDGEMENT

(1.) This application for rejection of the plaint under the provisions of Order VII Rule 11 read with Sec. 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) have been filed by the defendants on the ground that the suit being one for recovery of possession has been valued in an absurd manner to attract the jurisdiction of this Court.

(2.) The defendants say that the plaintiffs have filed the instant suit on the basis of a Deed of Lease executed on 28th day of September, 2006 for a period of ten years commencing from 1st day of September, 2006 and ending on 31/8/2016 to have expired by efflux of time and as such the defendants are occupying the same as trespassers. The Deed of Lease states Sreemanta Auddy as lessor inducted Sri Uday Shah, defendant no. 1 and Bhupendra Chimanlal Shah, since deceased as lessees for the first and second floor of the premises no. 2/1A, Sun Yet Sen Street, P.S. Amherst Street, Kolkata-700012 comprising of three rooms in the 1st floor and one room in the second floor of the said premises (hereinafter referred to as the suit premises).

(3.) The defendants further submit that for recovery of an immovable property from a tenant under the provisions of Sec. 7 (xii) (d) of the West Bengal Court Fees Act, 1970 which includes even a tenant by holding over after determination of a tenancy, the suit is to be valued according to the aggregate rent payable for 12 months immediately preceding to the filing of suit. The last paid of rent as mentioned in the plaint is Rs.2,310.00 hence the suit value should be assessed at the rate of Rs.2,310.00 per month for 12 months equivalent to Rs.27,720.00 but the suit is valued at Rs.19,20,000.00. The defendants submit that the plaintiffs cannot seek any relief for mesne profit against the defendants in this suit for recovery of peaceful possession as the suit is governed by the provisions of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the 1997 Act) in view of the fact that the rent amount is less than Rs.6500.00 in respect of a residential property within the jurisdiction of the Kolkata Municipal Corporation (KMC). Apart from this, the lease is for 10 years wherein the parties did not agree to opt out of the provisions of the 1997 Act. The tenancy, therefor, is a month to month tenancy under the provisions of the 1997 Act. The defendants also say that unless the tenant is held to be in unauthorized occupation, the tenant governed under the 1997 Act continues to be a statutory tenant against whom mesne profit cannot be claimed at the time of filing the suit. The defendants also say that assuming without admitting that the plaintiff is entitled to claim mesne profits and add up the arrears of rent and mesne profit under the provisions of Order II Rule 4 of CPC then also the plaintiffs at the highest can include only the mesne profit after expiry of the notice period till institution of the suit i.e. between 7/2/2021 and 21/12/2021 @ Rs.30,000.00 per month as per plaintiffs' version which comes to about Rs.3,30,000.00 for about 11 months. If the arrears of rent for 5 years i.e. between 2016 and 2021 is added up @ 2310/month without considering the limitation as to such claim it comes to Rs.1,38,600.00. Thus the 12 months rent @ 2310/month, mesne profit of Rs.3,30,000.00 and arrears of rent will not take the suit value beyond Rs.5,00,000.00. The instant suit, therefore, is overvalued and this Court does not have the jurisdiction to receive, try and determine the suit. That apart and in any event Rs.30,000.00 per month is an absurd sum as mesne profit taking into account the condition of the premises, its location and facilities available. Even going by the provisions of the 1997 Act a landlord is at the highest entitled 5 times increase in rest which will take the figure to Rs.11,550.00 per month and not to Rs.30,000.00 as claimed.