M/S. BHURA BROTHERS Vs. DINENDRA NARAYAN RAY

JUDGEMENT

(1.) THIS appeal which is being treated now as revision in view of the decision of this Court in LPA/11/76 relates to a suit for eviction filed in 1969. Counted court-wise the matter has come up for the eighth time before a judicial forum which includes a Special Leave Petition to the Supreme Court and so it is high time that the forensic fight sees its finality.

(2.) THE suit for eviction was on the ground that the premises described in the Schs. I and II of the plaint were needed bonafide by the plaintiffs for expansion of their business as well as for their residential purpose. The suit went through various vicissitudes as it was dismissed first and on appeal it was remanded to be dismissed again by the trial Court which order was upheld in appeal by the learned District Judge and on further appeal to this Court, the case was remanded for the second time. The suit has been decreed now by the learned District Judge, Cachar on his being satisfied about: (1) the maintainability of the suit; (2) validity of the notice and (3) bonafide requirement of the plaintiff which are the three points urged before him.

(3.) THE suit was not maintainable according to the defendant because proper court fee had not been paid. The averment relating the court-fee owes its origin to the case of the defendants that though they were lessees with respect to Sch. I property described in the plaint, they were licensees as regards the Sch. II properties. It was therefore stated that though the suit for eviction from Sch.I property could be filed by paying court-fee on 12 months rent, for Sch.II premises court-fee must have been paid on the valuation of the property. Relying however the position that a suit cannot fail merely because of insufficient court-fee, which would seem to follow from Section 12 of the Court-fees Act, 1870, also, Sri Das urged that the suit having combined the two properties, is hit by multifariousness of causes of action and was therefore not maintainable. In reply, Sri Bhattacharjee has rightly drawn my attention to Section 99 of the Civil P.C. wherein it is stated that no decree can be reversed in appeal on account of misjoinder of causes of action unless the same has affected the merits of the case or the jurisdiction of the Court. In this case, the trial Court being the Assistant District Judge, whose pecuniary jurisdiction is unlimited, apparently his jurisdiction would not have been affected even if the case of the defendants that they were licensees as regards second Schedule be accepted. I do not also find any dent to the merits of the case because of the two statuses of the defendants. In this view of the matter, it is not necessary to say whether the case of the defendants that they were merely licensees for the Second Schedule is correct not specially when the matter is being examined by this Court in its revisional jurisdiction. Even so, it may be stated that the learned District Judge has examined this aspect in detail and he has arrived at his conclusion after noting that Sch. II land was necessary for enjoyment of Sch. I premises; that the defendants could not have been evicted only from Sch. II, and that water tap, bathroom and urinal are located in Sch. II land. So finding in this regard is really such which could not be interfered with by this Court even if the matter were to be treated as second appeal, the learned District Judge has tried to find out the intention of the party which alone is the determining factor in this regard. Sri Das has submitted that Ext.3 itself has described the defendants as licensees as regards the courtyard which is situated in Sch. D of the plaint. It is however well settled that any nomenclature is not decisive in this regard, and what counts is the intention of the parties which aspect has been adequately borne in mind by the learned District Judge.